TIDMENK
RNS Number : 3856J
ENK PLC
06 August 2012
THIS DOCUMENT IS IMPORTANT AND REQUIRES YOUR IMMEDIATE
ATTENTION. It contains the resolutions to be voted on at the
Company's Annual General Meeting to be held on 30 August 2012. If
you are in any doubt as to the action you should take, you are
recommended to seek your own personal financial advice from your
stockbroker, solicitor, accountant or other independent financial
adviser.
If you have sold or otherwise transferred all of your registered
holding of ordinary shares in ENK plc ("Company"), please forward
this document and the accompanying form of proxy for use in
relation to the Annual General Meeting of the Company immediately
to the purchaser or transferee, or to the stockbroker, bank or
other agent through whom the sale or transfer was effected for
transmission to the purchaser or transferee. If you have sold or
transferred only part of your registered holding of ordinary shares
in the Company, you should retain this document and the
accompanying documents.
ENK PLC
(Incorporated under the Companies Act 1985 and registered in
England and Wales under number 4013168)
Notice of Annual General Meeting
Proposed approval of grant of options to directors
Proposed amendment of Articles of Association
Notice of the Annual General Meeting of the Company to be held
at the offices of Investec Bank PLC, 2 Gresham Street, London EC2V
7QP at 10.00 am on 30 August 2012 is set out at the end of this
document.
You will find enclosed a form of proxy for use at the Annual
General Meeting. Whether or not you propose to attend the Annual
General Meeting, you are requested to complete the form of proxy in
accordance with the instructions printed on it, and return it to
the Company's Registrars, Computershare Investor Services plc as
soon as possible and, in any event, so as to be received no later
than 10.00 am on 28 August 2012, being at least 48 hours before the
time appointed for the holding of the Annual General Meeting. The
completion and return of a form of proxy will not preclude
shareholders from attending the meeting and voting in person,
should they wish to do so.
Please note, holders of CDI's on the Australian CDI registry may
only vote by directing CHESS Depository Nominees Pty Ltd ("CHESS"
the Depository Nominee in respect of the CDIs) to cast proxy votes
in the manner directed in the CDI Voting Instruction Form enclosed.
The CDI Voting Instruction Form needs to be received by the Company
no later than 5.00pm Australian Western Standard Time (10:00am
London time) on 27 August 2011. Further details for CDI Holders are
set out in the Notes to the Notice of Annual General Meeting.
ENK PLC
(incorporated and registered in England and Wales under number
4013168)
Directors Registered Office
Peter Rowe, Chairman c/o 6th Floor
Robert Gregory, Managing Director Kildare House,
Mark Hanlon, Finance Director 3 Dorset Rise
Neil Herbert, Non-Executive Director London
Paul Lush, Non-Executive Director EC4Y 8EN
Guy Walker, Non-Executive Director
30 July 2012
Dear Shareholder,
Annual General Meeting
Proposed approval of grant of options to directors
Proposed amendment of Articles of Association
1 Introduction
This year's Annual General Meeting will be held at 10.00 am on
30 August 2012 at the offices of Investec Bank PLC, 2 Gresham
Street, London EC2V 7QP. Full details of the meeting and the
resolutions that will be put to shareholders are set out in the
notice of Annual General Meeting at the end of this document. In
addition to routine business, we are asking shareholders to approve
some items of special business at this year's Annual General
Meeting.
2 Change of directors
Since the last Annual General Meeting, the composition of the
Board of Directors has changed. John McManus has stepped down as a
Director in January 2012 and Guy Walker became a Director in April
2012. Guy Walker is required to submit to re-appointment by
shareholders at the Annual General Meeting.
3 Proposed grant of options to directors
The Company has agreed, subject to obtaining shareholder
approval, to allot and issue a total of 3,500,000 options to Robert
Gregory and Mark Hanlon, who are Executive Directors. The primary
purpose of the grant of the Director Options is to provide cash
flow effective consideration to them for their ongoing commitment
and contribution to the Company in their respective roles as
employees and Directors. These options will entitle the holder to
subscribe for ordinary shares on the following principal terms and
conditions:
(a) Each Director Option gives the Director (and/or his nominee)
the right to subscribe for one Ordinary Share.
(b) The Director Options will expire at 5.00pm (WST) on that
date which is five (5) years from the date that the Director
Options are granted (Expiry Date). Any Director Option not
exercised before the Expiry Date will automatically lapse on the
Expiry Date.
(c) The Director Options will vest and will therefore be exercisable as follows:
(i) 1/3 on the date on which the price of the Ordinary Shares as
quoted on AIM closes at 24 pence or higher for a minimum of 10
consecutive trading days, but in any event not less than 12 months
from date the Director Options are granted;
(ii) 1/3 on the date on which the price of the Ordinary Shares
as quoted on AIM closes at 32 pence or higher for a minimum of 10
consecutive trading days, but in any event not less than 24 months
from date the Director Options are granted; and
(iii) 1/3 on the date on which the price of the Ordinary Shares
as quoted on AIM closes at 48 pence or higher for a minimum of 10
consecutive trading days, but in any event not less than 36 months
from date the Director Options are granted.
(d) The amount payable upon exercise of each Director Option
will be GBP0.16 (Exercise Price).
(e) The Director Options held by each Director (and/or his
nominee) may be exercised in whole or in part, and if exercised in
part, must not be less than 25% of the Shares over which the Option
subsists or, if less, 1,000 Shares or, if the number of Shares in
respect of which the Option subsists is smaller than 1,000 Shares,
the whole of that number.
(f) A Director (and/or his nominee) may exercise their Director
Options by lodging with the Company, before the Expiry Date:
(i) a written notice of exercise of Director Options specifying
the number of Director Options being exercised; and
(ii) a cheque or electronic funds transfer for the Exercise
Price for the number of Director Options being exercised (Exercise
Notice).
(g) An Exercise Notice is only effective when the Company has
received the full amount of the Exercise Price in cleared
funds.
(h) Within 10 business days of receipt of the Exercise Notice
accompanied by the Exercise Price, the Company will allot the
number of Ordinary Shares required under these terms and conditions
in respect of the number of Director Options specified in the
Exercise Notice.
(i) The Director Options are not transferable.
(j) All Ordinary Shares allotted upon the exercise of Director
Options will upon allotment rank pari passu in all respects with
other Ordinary Shares.
(k) The Company will not apply for quotation of the Director
Options on ASX or AIM. However, the Company will apply for
quotation of all Ordinary Shares allotted pursuant to the exercise
of Director Options on ASX or AIM within 10 business days after the
date of allotment of such Ordinary Shares.
(l) If at any time the issued capital of the Company is
reconstructed, all rights of an Optionholder are to be changed in a
manner consistent with applicable law and regulation and the ASX
Listing Rules and AIM Rules at the time of the reconstruction.
(m) If the Company shall come under the control of another
person or persons other than a Group Company, any Option may,
notwithstanding that any performance-related condition or other
objective criterion subject to which such Option is then
exercisable is not then satisfied, be exercised within the period
of 6 months of the date when the person or persons making the offer
has obtained control of the Company and any condition subject to
which the offer is made has been satisfied or waived and to the
extent that the Option is not then exercised it shall upon the
expiration of that period lapse and cease to be exercisable.
(n) There are no participating rights or entitlements inherent
in the Director Options and the Directors (or their respective
nominees) will not be entitled to participate in new issues of
capital offered to Shareholders during the currency of the Director
Options. However, the Company will ensure that for the purposes of
determining entitlements to any such issue, the record date will be
at least six Business Days after the issue is announced. This will
give Director (or his nominee) the opportunity to exercise their
Director Options prior to the date for determining entitlements to
participate in any such issue.
(o) A Director Option does not confer the right to a change in
exercise price or a change in the number of underlying securities
over which the Director Option can be exercised.
The Director Options shall be granted to the Directors and/or
any person nominated by such Director. No person may be nominated
by a Director unless it is a body corporate controlled by such
Director and/or the trustee or trustees of a trust of which the
Director is a principal beneficiary.
Shareholder Approval (Listing Rule 10.11)
Pursuant to and in accordance with the requirements of ASX
Listing Rule 10.13, the following information is provided in
relation to the proposed grant of Director Options:
(i) the related parties are Messrs Gregory and Hanlon and they
are related parties by virtue of being Directors;
(ii) the maximum number of Director Options (being the nature of
the financial benefit being provided) to be granted to the Related
Parties and/or their nominees is:
a. 2,000,000 Director Options to Mr Gregory; and
b. 1,500,000 Director Options to Mr Hanlon;
(iii) the Director Options will be granted to the Related
Parties no later than one month after the date of the Meeting (or
such later date as permitted by any ASX waiver or modification of
the ASX Listing Rules);
(iv) the Director Options will be granted for nil cash
consideration, accordingly no funds will be raised. The primary
purpose of the grant of Director Options to the Related Parties is
to provide cost effective consideration to them for their ongoing
commitment and contribution to the Company in their respective
roles as employees and Directors; and
(v) Approval pursuant to ASX Listing Rule 7.1 is not required in
order to issue the Director Options to the Related Parties as
approval is being obtained under ASX Listing Rule 10.11.
Accordingly, the issue of Director Options to the Related Parties
will not be included in the 15% calculation of the Company's annual
placement capacity pursuant to ASX Listing Rule 7.1.
4 Annual General Meeting
If you are unable to attend the meeting in person, your vote is
still important and I would urge you to complete, sign and return
the enclosed form of proxy so as to be received by 10.00 am on 28
August 2012. The results of the voting on the resolutions will be
posted on the Company's website after the meeting.
Holders of CDI's on the Australian CDI registry may only vote by
directing CHESS Depository Nominees Pty Ltd ("CHESS" the Depository
Nominee in respect of the CDIs) to cast proxy votes in the manner
directed in the CDI Voting Instruction Form enclosed. The CDI
Voting Instruction Form needs to be received by the Company no
later than 5.00pm Australian Western Standard Time (10:00am London
time) on 27 August 2012.
The Annual General Meeting of the Company is to be held on 30
August 2012 at 10.00 am at the offices of Investec Bank PLC, 2
Gresham Street, London EC2V 7QP, for the purpose of considering
and, if thought fit, passing the following resolutions:
Resolution 1
Resolution 1 is proposed as an ordinary resolution. The
Directors are required to lay before the Annual General Meeting the
accounts of the Company for the 12 months ended 31 March 2012, the
Directors report, the Remuneration report and the Auditors' report
on the accounts and auditable part of the Remuneration report.
Resolutions 2 and 3
Resolutions 2 and 3 are proposed as ordinary resolutions. The
Company is required to appoint auditors at each general meeting at
which accounts are laid before the Company, to hold office until
the next such meeting. Following the recommendations of the Audit
Committee, the Directors propose that PKF (UK) LLP be appointed as
Auditors of the Company and seek authority to fix their
remuneration.
Resolutions 4 and 5
Resolutions 4 and 5 are proposed as ordinary resolutions. The
Company's Articles of Association require every Director to be
subject to re-appointment by shareholders at the first Annual
General Meeting held following their appointment. Accordingly, Guy
Walker is standing for re-election.
The Articles of Association require one-third of the Directors
(excluding the Managing Director) to retire by rotation and be
subject to re-election by shareholders every year. Paul Lush has
been chosen to retire by rotation in accordance with the Articles
of Association. Paul Lush submits himself for re-election.
The Board considers that each of the Directors proposed for
re-election continue to make an effective and valuable contribution
and demonstrate commitment to the role, and recommends their
re-election.
Resolutions 6 and 7
Resolutions 6 and 7 will be proposed as special resolutions, to
approve the grant of options to Robert Gregory and Mark Hanlon. In
order to grant these options, the Directors require prior
authorisation of shareholders in general meeting under sections 551
and 571 of the Companies Act 2006, and under ASX Listing Rule
10.11. These resolutions will disapply the statutory pre-emption
rights for issues of ordinary shares for cash to enable the Company
to grant rights to subscribe for shares in the Company for cash.
The Directors will have authority to allot such shares up to a
maximum aggregate nominal amount of GBP140,000.00, which represents
1.25 per cent. of the issued share capital. These options will be
granted no later than one month after the date of the Annual
General Meeting, or such later date as may be permitted by any ASX
waiver or modification of ASX Listing Rules.
ASX Listing Rule 10.11 also requires shareholder approval to be
obtained where an entity issues, or agrees to issue, securities to
a related party, or a person whose relationship with the entity or
a related party is, in ASX's opinion, such that approval should be
obtained unless an exception in ASX Listing Rule 10.12 applies .The
grant of options to each of Robert Gregory and Mark Hanlon requires
the Company to obtain shareholder approval because each are related
parties of the Company. It is the view of the Directors that the
exceptions set out in ASX Listing Rule 10.12 do not apply in the
current circumstances. Accordingly, shareholder approval is sought
for the grant of the Director options to the related parties.
The Company will disregard any votes cast on resolutions 6 and 7
by respectively Robert Gregory or Mark Hanlon or their respective
nominees or associates.
Resolution 8
Resolution 8 will be proposed as an ordinary resolution. This
resolution proposes that the Directors be authorised in relation to
section 551 of the Companies Act 2006, to allot up to a maximum
nominal amount of 39,315,500 ordinary shares in the period ending
on the date of the Company's annual general meeting in 2013. Each
share will have a nominal value of GBP0.04 each. This authority,
which represents approximately 15 per cent. of the Company's issued
share capital, will expire immediately following the Annual General
Meeting to be held in 2013, unless previously revoked, varied or
renewed by the Company in general meeting. This authority matches
the amount of shares that a company listed on the ASX is allowed to
issue without seeking approval from shareholders in general
meeting.
This resolution represents the general authority that the
Company requests annually.
Resolution 9
Resolution 9 will be proposed as a special resolution.
Conditional on the passing of resolution 8 above, the Directors are
also seeking further authority from shareholders, in relation to
section 571 of the Companies Act 2006 pursuant to this special
resolution, to disapply the statutory pre-emption rights for issues
of ordinary shares for cash up to a nominal aggregate amount of
GBP1,572,620.00 (representing 15 per cent. of the issued share
capital). This authority will expire immediately following the
Annual General Meeting to be held in 2013, unless previously
revoked, varied or renewed by the Company in general meeting.
This resolution represents the general authority that the
Company requests annually.
Resolution 10
Resolution 10 will be proposed as a special resolution. The
Company has been subject to the provisions of the City Code on
Takeovers and Mergers ("City Code"), which provide certain
protections for the benefit of shareholders, ensuring inter alia
equal treatment of shareholders during any takeover offer and
restricting the number of shares that can be held by persons
without making a takeover offer to all other shareholders. The
Board considers that it is in the best interests of the Company and
its shareholders that the Company either be subject to the City
Code or (should it be determined that the Company is not subject to
the City Code) to provisions equivalent to the City Code. In the
light of the changes to the Board over the last year, the Board is
proposing to change the Articles of Association to adopt a new
Article providing provisions equivalent to the City Code.
The Board also proposes to amend the Articles to reduce the
quorum requirement for general meetings from five persons to two
persons, to align with modern practice.
5 Action to be taken
Shareholders will find enclosed with this document a form of
proxy for use in connection with the Annual General Meeting.
Shareholders, whether or not they propose to attend the Annual
General Meeting in person, are requested to complete, sign and
return their form of proxy, in accordance with the instructions
printed thereon, so as to be received by the Company's registrars,
Computershare Investor Services plc, The Pavilions, Bridgwater
Road, Bristol BS99 6ZY as soon as possible and, in any event, by
not later than 10.00 am on 28 August 2012. Completion and return of
the form of proxy will not preclude shareholders from attending and
voting at the Annual General Meeting in person if they wish to do
so.
Holders of CDI's on the Australian CDI registry may only vote by
directing CHESS Depository Nominees Pty Ltd ("CHESS" the Depository
Nominee in respect of the CDIs) to cast proxy votes in the manner
directed in the CDI Voting Instruction Form enclosed. The CDI
Voting Instruction Form needs to be received by the Company no
later than 5.00pm Australian Western Standard Time (10:00am London
time) on 27 August 2012.
Yours faithfully,
Peter Rowe
Chairman
ENK PLC
(Incorporated and registered in England and Wales with
registered number 4013168)
NOTICE OF ANNUAL GENERAL MEETING
NOTICE IS HEREBY GIVEN that the Annual General Meeting of ENK
plc ("Company") will be held at the offices of Investec Bank PLC, 2
Gresham Street, London EC2V 7QP at 10.00 am on 30 August 2012 for
the transaction of the following business:
ORDINARY BUSINESS
To consider and, if thought fit, to pass resolutions 1 to 5
(inclusive) as ordinary resolutions:
1 To receive and adopt the directors' report, the auditor's
report and the audited accounts of the Company for the year ended
31 March 2012.
2 To re-appoint PKF (UK) LLP as auditor in accordance with
section 489 of the Companies Act 2006 to hold office until the
conclusion of the Annual General Meeting of the Company in
2013.
3 To authorise the Directors to determine the remuneration of the auditor.
4 To re-appoint Guy Walker as a director of the Company.
5 To re-appoint Paul Lush as a director of the Company.
SPECIAL BUSINESS
As special business to consider and, if thought fit, pass the
following resolutions, as to resolution 8 as an ordinary resolution
and as to resolutions 6, 7, 9 and 10 as special resolutions:
6 THAT, in relation to the granting of options over 2,000,000
ordinary shares in the Company in favour of Mr Gregory (and/or such
person as he may nominate pursuant to the terms of grant) on the
terms and conditions set out in the circular to the Company's
shareholders dated 30 July 2012 (and in addition to all previous
and existing authorities to allot securities conferred upon the
Directors pursuant either to sections 551 or 571 of the 2006 Act),
the Directors be generally and unconditionally authorised pursuant
to sections 551 and 571 of the Companies Act 2006 as amended ("2006
Act") and pursuant to Listing Rule 10.11 of the Listing Rules of
the Australian Securities Exchange to exercise all the powers of
the Company to allot equity securities (as defined in section 560
of the 2006 Act) or to grant rights to subscribe for or to convert
securities into shares in the Company, up to an aggregate nominal
amount of GBP80,000.00. The options will be issued to Mr Gregory no
later than one month after the date of the Meeting (or such later
date as permitted by any ASX waiver or modification of the ASX
Listing Rules).
Voting Exclusion: The Company will disregard any votes cast on
this Resolution by Mr Gregory (or his nominee) or any of his
associates. However, the Company need not disregard a vote if it is
cast by a person as a proxy for a person who is entitled to vote,
in accordance with the directions on the Proxy Form or it is cast
by the person chairing the meeting as proxy for a person who is
entitled to vote, in accordance with a direction on the Proxy Form
to vote as the proxy decides.
7 THAT, in relation to the granting of options over 1,500,000
ordinary shares in the Company in favour of Mr Hanlon (and/or such
person as he may nominate pursuant to the terms of grant) on the
terms and conditions set out in the circular to the Company's
shareholders dated 30 July 2012 (and in addition to all previous
and existing authorities to allot securities conferred upon the
Directors pursuant either to sections 551 or 571 of the 2006 Act),
the Directors be generally and unconditionally authorised pursuant
to sections 551 and 571 of the Companies Act 2006 as amended ("2006
Act") and pursuant to Listing Rule 10.11 of the Listing Rules of
the Australian Securities Exchange to exercise all the powers of
the Company to allot equity securities (as defined in section 560
of the 2006 Act) or to grant rights to subscribe for or to convert
securities into shares in the Company, up to an aggregate nominal
amount of GBP60,000.00. The options will be issued to Mr Hanlon no
later than one month after the date of the Meeting (or such later
date as permitted by any ASX waiver or modification of the ASX
Listing Rules).
Voting Exclusion: The Company will disregard any votes cast on
this Resolution by Mr Hanlon (or his nominee) or any of his
associates. However, the Company need not disregard a vote if it is
cast by a person as a proxy for a person who is entitled to vote,
in accordance with the directions on the Proxy Form or it is cast
by the person chairing the meeting as proxy for a person who is
entitled to vote, in accordance with a direction on the Proxy Form
to vote as the proxy decides.
8 THAT, the Directors be authorised generally and
unconditionally pursuant to Section 551 of the Companies Act 2006
as amended ("2006 Act") to exercise all the powers of the Company
to allot shares and/or rights to subscribe for or to convert any
security into shares, provided that the authority conferred by this
resolution shall be limited to the allotment of shares and/or
rights to subscribe or convert any security into shares of the
Company up to an aggregate nominal amount of GBP1,572,620
(representing 39,315,500 shares) such authority (unless previously
revoked, varied or renewed) to expire on the conclusion of the
Annual General Meeting of the Company to be held in 2013 or, if
earlier, 15 months after the date on which this resolution has been
passed, provided that the Company may, before such expiry, make an
offer, agreement or other arrangement which would or might require
shares and/or rights to subscribe for or to convert any security
into shares to be allotted after such expiry and the Directors may
allot such shares and/or rights to subscribe for or to convert any
security into shares in pursuance of such offer, agreement or other
arrangement as if the authority conferred hereby had not
expired.
9 THAT, subject to resolution 8 above being duly passed, the
Directors be and are hereby generally empowered to allot equity
securities (within the meaning of Section 560) for cash pursuant to
the authority conferred by resolution 8 above or by way of sale of
treasury shares as if Section 561 of the Companies Act 2006 ("2006
Act") or any pre-emption provisions contained in the Company's
articles of association did not apply to any such allotment,
provided that the power conferred by this resolution shall be
limited to
(i) any allotment of equity securities where such securities
have been offered (whether by way of rights issue, open offer or
otherwise) to holders of equity securities in proportion (as nearly
as may be practicable) to their then holdings of such securities,
but subject to the directors having the right to make such
exclusions or other arrangements in connection with such offer as
they deem necessary or expedient to deal with fractional
entitlements or legal or practical problems arising in, or pursuant
to, the laws of any territory or the requirements of any regulatory
body or stock exchange in any territory or otherwise howsoever;
(ii) the allotment (otherwise than pursuant to sub-paragraph (i)
above) of equity securities up to an aggregate nominal value of
GBP1,572,620,
such authority and power (unless previously revoked, varied or
renewed) to expire on the earlier to occur of 15 months after the
passing of this resolution or the conclusion of the Annual General
Meeting of the Company to be held in 2013, provided that the
Company may prior to such expiry make any offer, agreement or other
arrangement which would or might require equity securities to be
allotted after such expiry and the directors may allot equity
securities pursuant to any such offer, agreement or other
arrangement as if the power hereby conferred had not expired.
10 THAT the Articles of Association of the Company be amended as follows:
(i) by the deletion from line 4 of Article 53.1 of "5" and the
insertion in its place of "2", and by the deletion from line 5 of
Article 53.1 of the words "two or more of them" and the insertion
in their place of the word "they"; and
(ii) by the insertion of the following Article as new Article 175:
"175 TAKEOVER OFFERS
175.1 This Article shall have effect if and for so long as the
Company shall not be subject to the provisions of the City Code on
Takeovers and Mergers ("City Code") as amended from time to
time.
175.2 A person must not:
175.2.1 effect or purport to effect a Prohibited Acquisition; or
175.2.2 except as a result of a Permitted Acquisition:
(a) whether by himself, or with persons determined by the Board
to be acting in concert with him, acquire after the time when this
Article shall come into effect ("Effective Time") an interest in
Ordinary Shares which, taken together with any interest in Ordinary
Shares held or acquired after the Effective Time by persons
determined by the Board to be acting in concert with him, carry 30
per cent. or more of the voting rights attributable to Ordinary
Shares; or
(b) whilst he, together with persons determined by the Board to
be acting in concert with him, is interested in Ordinary Shares
which in aggregate carry not less than 30 per cent. but not more
than 50 per cent. of the voting rights attributable to Ordinary
Shares, acquire after the Effective time, whether by himself or
with persons determined by the Board to be acting in concert with
him, an interest in Ordinary Shares which, taken together with any
interests in Ordinary Shares held by persons determined by the
Board to be acting in concert with him, increases the percentage of
voting rights attributable to the Ordinary Shares in which he is
interested (each of (a) and (b) being a "Limit").
175.3 Where any person breaches any Limit, except as a result of
a Permitted Acquisition, or becomes interested in any Ordinary
Shares as a result of a Prohibited Acquisition, that person is in
breach of these Articles.
175.4 The Board may do all or any of the following where it has
reason to believe that any Limit is or may be breached or any
Prohibited Acquisition has been or may be effected:
175.4.1 require any member or person appearing or purporting to
be interested in any Ordinary Shares to provide such information as
the Board considers appropriate to determine any of the matters
under this Article;
175.4.2 have regard to such public filings and statements as it
considers appropriate to determine any of the matters under this
Article;
175.4.3 make such determinations under this Article as it thinks
fit, either after calling for submissions from affected members or
other persons or without calling for such submissions;
175.4.4 determine that the voting rights attached to such number
of Ordinary Shares held by such persons as the Board may determine
are held, or in which such persons are or may be interested, in
breach of these Articles ("Excess Shares") are from a particular
time incapable of being exercised for a certain period;
175.4.5 determine that some or all of the Excess Shares must be
sold, and procure that such Excess Shares are sold, provided that
such sale is only to the extent necessary to ensure (as far as the
Board can judge) that the person in breach would not thereafter
exceed a Limit;
175.4.6 determine that some or all of the Excess Shares will not
carry any right to any dividends or other distributions from a
particular time for a certain period;
175.4.7 take such other action as it thinks fit for the purposes of this Article including:
(a) prescribing rules (not inconsistent with this Article);
(b) setting deadlines for the provision of information;
(c) drawing adverse inferences where information requested is not provided;
(d) making determinations or interim determinations;
(e) executing documents on behalf of a shareholder (including,
without limitation, any deed of transfer of Ordinary Shares);
(f) converting any Excess Shares held in uncertificated form
into certificated form, or vice versa or correcting any Excess
Shares represented by depositary interests issued in uncertified
form into shares in certificated form;
(g) paying costs and expenses out of proceeds of sale of the Excess Shares;
(h) paying the net proceeds of sale of the Excess Shares to the
member who held the Excess Shares; and
(i) changing any decision or determination or rule previously made.
175.5 an acquisition is a "Permitted Acquisition" if:
175.5.1 (Recommended takeover) the Board consents to the
acquisition (even if, in the absence of such consent, the
acquisition would be a Prohibited Acquisition);
175.5.2 (Rule 9 takeover) the acquisition is made in
circumstances in which the City Code, if it applied to the Company,
would require an offer to be made as a consequence and such offer
is made in accordance with Rule 9 of the City Code, as if it so
applied;
175.5.3 (Acceptance of takeover offer) the acquisition results
from acceptance of an offer under a takeover bid that is made in
accordance with the general principles set forth in paragraphs (a),
(b), (e) and (f) of article 3 of Directive 2004/25/EC of the
European Parliament and the Council of 21 April 2004 on Takeover
Bids;
175.5.4 (Approval by resolution of the Company) the acquisition
was approved previously by an Ordinary Resolution passed by a
general meeting of Members if no votes are cast in favour of the
resolution by:
(a) the person proposing to make the acquisition and any persons
acting in concert with him; or
(b) the persons (if any) from whom the acquisition is to be made
any persons acting in concert with them.
Any votes cast in favour of the resolution by the persons
referred to under (i) and (ii) shall be disregarded;
175.5.5 (Rights issues) the acquisition results from an issue of
Ordinary Shares that satisfies all of the following conditions:
(a) the Company offers to issue Ordinary Shares;
(b) offers are made to every person who holds Ordinary Shares to
issue them with the percentage of Ordinary Shares to be issued that
is the same as the percentage of Ordinary Shares that they hold
before the issue;
(c) all of those persons have a reasonable opportunity to accept the offers made to them;
(d) agreements to issue are not entered into until a specified
time for acceptances of offers has closed;
(e) the terms of all the offers are the same.
This exemption extends to an acquisition by a person as
underwriter to the issue or sub underwriter;
175.5.6 (Underwriting of fundraising) the acquisition results
from an issue of Ordinary Shares if the issue is to a person as
underwriter to the issue or sub underwriter;
175.5.7 (Wills) the acquisition results through a will or by law of succession;
175.5.8 (Buy back) the acquisition is an acquisition of Ordinary
Shares by the Company which results from a buy back in accordance
with the Statutes and these Articles.
175.5.9 (Custodians, nominees and other trustees) the
acquisition is by a custodian, nominee or bare trustee, solely in
its capacity as custodian, nominee or bare trustee (as the case may
be) and in circumstances where the custodian, nominee or bare
trustee does not have the right (whether contingent or absolute) to
exercise or direct the exercise of the voting rights attaching to
the relevant Ordinary Shares and has no general control of
them.
175.6 An acquisition is a "Prohibited Acquisition" if rules 4
(Restrictions on dealings), 5 (Timing restrictions on
acquisitions), 6 (Acquisitions resulting in an obligation to offer
a minimum level of consideration), 8 (Consequences of certain
dealings) of the City Code or any part of rule 9 (The Mandatory
Offer and its Terms) not directly addressed in articles 175.2.2 (a)
or 175.2.2 (b), would in whole or part apply to the acquisition if
the Company were subject to the City Code and the acquisition were
made (or, if not yet made, would, if and when made, be) in breach
of or otherwise would not comply with Rules 4, 5, 6, 8 or any part
of rule 9 (not directly addressed in articles 175.2.2 (a) or
175.2.2 (b)) of the City Code.
175.7 The Board has full authority to determine the application
of this Article, including as to the deemed application of the
whole or any part of the City Code. Such authority shall include
all discretion vested in the Panel as if the whole or any part of
the City Code applied including, without limitation, the
determination of conditions and consents, the consideration to be
offered and any restrictions on the exercise of control. Any
resolution or determination of, or decision or exercise of any
discretion or power by, the Board or any Director or by the
chairman of any meeting acting in good faith under or pursuant to
the provisions of this Article shall be conclusive and binding on
all persons concerned and shall not be open to challenge, whether
as to its validity or otherwise on any ground whatsoever. The Board
shall not be required to give any reasons for any decision,
determination or declaration taken or made in accordance with this
Article.
175.8 Any one or more of the Directors may act as the
attorney(s) of any shareholder in relation to the execution of
documents and other actions to be taken for the sale of excess
Ordinary Shares determined by the Board under this Article.
175.9 If as a consequence of the Company redeeming or purchasing
its own Ordinary Shares, there is a resulting increase in the
percentage of the voting rights attributable to the Ordinary Shares
held by a person or persons determined by the Board to be acting in
concert and such an increase would constitute a breach of any
Limit, such an increase shall be deemed a Permitted
Acquisition.
175.10 In managing and conducting the business of the Company
and in exercising and refraining from exercising any and all
powers, rights and privileges from time to time vested in the
Board, the Board shall use its reasonable endeavours:
175.10.1 to apply and have the Company abide by the General
Principles of the City Code as though the Company were subject to
the City Code;
175.10.2 in the event that any circumstances shall arise wherein
(if the Company were subject to the City Code) the Company would be
an offeree or otherwise the subject of an approach or the subject
of a third party's statement of a firm intention to make an offer,
to comply with and procure that the Company complies with the
provisions of the City Code applicable to an offeree company and to
the board of an offeree company mutatis mutandis as if the Company
were subject to the City Code;
175.10.3 in the event (and in any case for so long as) that
Board recommends to members of the Company or any class thereof any
takeover offer made for any shares of the Company from time to
time, to obtain the undertaking of the offeror(s) to comply with
the provisions of the City Code in the conduct and execution of the
relevant offer(s) mutatis mutandis as though the Company were
subject to the City Code,
but recognising that the Panel on Takeovers and Mergers will not
have jurisdiction (if and for so long as such may be the case).
This Article 175.10 shall in all circumstances be subject to
applicable law and to the Board being satisfied that the
application of this Article 175.10 would, in any particular case,
be likely to promote the success of the Company for the benefit of
its members as a whole."
Dated: 30 July 2012
Registered office: By Order of the Board
6(th) floor Mark Hanlon
Kildare House Secretary
3 Dorset Rise
London
EC4Y 8EN
Notes:
1. Pursuant to Regulation 41 of the Uncertificated Securities
Regulations 2001, the Company specifies that only those members
registered in the register of members of the Company at:
-- 10.00 am on 28 August 2012; or
-- if this Meeting is adjourned, at 10.00 am on the day two days
prior to the adjourned meeting,
shall be entitled to attend and vote at the Meeting.
2. As a member of the Company, you are entitled to appoint a
proxy to exercise all or any of his/her rights to attend, speak and
vote at the meeting, and you should have received a form of proxy.
You can only appoint a proxy using the procedures set out in these
notes and the notes to the form of proxy.
3. A proxy does not need be a member of the Company but must
attend the Meeting to represent you. Details of how to appoint the
Chairman of the Meeting or another person as your proxy using the
form of proxy are set out in the notes to the form of proxy. If you
wish your proxy to speak on your behalf at the Meeting, you will
need to appoint your own choice of proxy (not the Chairman) and
give your instructions directly to them.
4. You may appoint more than one proxy, provided that each proxy
is appointed to exercise rights attached to a different shares. You
may not appoint more than one proxy to exercise rights attached to
any one share.
5. If you do not give your proxy an indication of how to vote on
any resolution, your proxy will vote or abstain from voting at his
or her discretion. Your proxy will vote (or abstain from voting) as
he or she thinks fit in relation to any other matter which is put
before the Meeting. A vote withheld is not a vote in law, which
means that the vote will not be counted in the calculation of votes
for or against the resolution.
6. In the case of joint holders, where more than one of the
joint holders purports to appoint a proxy, only the appointment
submitted by the most senior holder will be accepted. Seniority is
determined by the order in which the names of the joint holders
appear in the Company's register of members in respect of the joint
holding (the first-named being the most senior).
7. Where there are joint holders of a share, any one of them may
vote at any meeting either personally or by proxy in respect of the
shares as if he were solely entitled to it, but if more than one
joint holder is present at a meeting either personally or by proxy,
that one of them whose name stands first in the register of members
in respect of the share shall alone be entitled to vote in respect
of it.
8. The notes to the form of proxy explain how to direct your
proxy to vote on each resolution or withhold their vote. To appoint
a proxy using the form of proxy, the form must be:
-- completed and signed;
-- sent or delivered to Computershare Investor Services plc, The
Pavilions, Bridgwater Road, Bristol BS99 6ZY; and
-- received by Computershare within the relevant cut-off period provided.
In the case of a member which is a company, the form of proxy
must be executed under its common seal or signed on its behalf by
an officer of the company or an attorney for the company.
Any power of attorney or any other authority under which the
form of proxy is signed (or a duly certified copy of such power or
authority) must be included with the form of proxy.
9. To change your proxy instructions, simply submit a new proxy
appointment using the methods set out above. Note that that cut-off
time for receipt of proxy appointments (see above) also apply in
relation to amended instructions; any amended proxy appointment
received after the relevant cut-off time will be disregarded.
If you submit more than one valid proxy appointment, the
appointment received last before the latest time for the receipt of
proxies will take precedence.
10. In order to revoke a proxy instruction, you will need to
inform the Company be sending a signed hard copy notice clearly
stating your intention to revoke your proxy appointment to
Computershare Investor Services plc, PO Box 82, The Pavilions,
Bridgwater Road, Bristol BS99 6ZY. In the case of a member which is
a company, the revocation notice must be executed under its common
seal or signed on its behalf by an officer of the company or an
attorney for the company. Any power of attorney or any other
authority under which the form of proxy is signed (or a duly
certified copy of such power or authority) must be included with
the revocation notice.
The revocation notice must be received by Computershare no later
than 12 hours before the meeting.
If you attempt to revoke your proxy appointment but the
revocation is received after the time specified then, subject to
the paragraph directly below, your proxy appointment will remain
valid.
Appointment of a proxy does not preclude you from attending the
Meeting and voting in person. If you have appointed a proxy and
attend the Meeting in person, your proxy appointment will
automatically be terminated.
11. As at 6.00 pm on 30 July 2011, the Company's issued share
capital comprised 262,104,003 ordinary shares of GBP0.04 each. Each
ordinary share carries the right to one vote at a general meeting
of the Company and, therefore, the total number of voting rights in
the Company as at 6.00 pm on 30 July 2011 is 262,104,003.
12. The Company need not disregard a vote if it is cast by a
person as a proxy for a person who is entitled to vote in
accordance with the directions on the form of proxy or if it is
cast by the person chairing the meeting as proxy for a person who
is entitled to vote in accordance with a direction on the form of
proxy to vote as the proxy decides.
13. Holders of CDIs in the Australian register:
Holders of CDIs will be permitted to attend the Meeting but may
only vote by directing CHESS Depositary Nominees Pty Ltd ("CHESS"
the Depositary Nominee in respect of the CDIs) to cast proxy votes
in the manner directed in the CDI voting instruction form
enclosed.
The CDI voting instruction, together with any power of attorney
or other authority (if any) under which it is signed, or a
notarially certified copy thereof, should be sent to:
Postal address:
Computershare Investor Services Pty Ltd
GPO Box 242
Melbourne, Victoria 3001 Australia
Fax number (within Australia): 1800 783 447
Fax number (from overseas): +61 3 9473 2555
so as to arrive by not later than 5.00pm Australian Western
Standard Time (10:00am London time) on 27 August 2012 i.e. to allow
CHESS sufficient time to lodge the combined proxies in the UK at
least 48 hours before the time of the meeting.
Instructions for completing and lodging the CDI voting
instruction form are appended to it.
You must be registered as the holder of CDIs as at 5.00pm
Australian Western Standard Time (10:00am London time) on 27 August
2012 for your CDI voting instruction to be valid.
Should the meeting be adjourned then the deadline for revised
voting instructions and the record date for determining registered
holders of CDIs will be 72 hours before the time that the adjourned
meeting recommences.
To obtain a copy of the CHESS Depositary Nominee's Financial
Services Guide, go to www.asx.com.au/CDIs or phone 1300 300 279 if
you would like one sent to you by mail.
This information is provided by RNS
The company news service from the London Stock Exchange
END
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