REG - ACG Acquisition Co. - EGM Circular
30/06/2023 15:45
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RNS Number : 6104E ACG Acquisition Company Limited 30 June 2023
THIS DOCUMENT IS IMPORTANT AND REQUIRES YOUR IMMEDIATE ATTENTION. If
you are in any doubt about the contents of this document, or the action you should take, you are recommended immediately to seek your own personal financial advice from your stockbroker, bank manager, solicitor, accountant, fund manager or other independent financial adviser authorised under the Financial Services and Markets Act 2000 who specialises in advising on the acquisition of shares and other securities or, if you are in a territory outside the United Kingdom, from an appropriately authorised independent financial adviser.
Copies of this document are being sent to shareholders of ACG. If you have
sold or otherwise transferred all of your shares in ACG Acquisition Company
Limited please forward this document and the accompanying Form of Proxy at
once to the purchaser or transferee or to the stockbroker or other agent
through whom the sale or transfer was effected for delivery to the purchaser
or transferee. If you have sold or transferred part only of your holding of
shares in ACG Acquisition Company Limited you should retain this document and
consult the stockbroker, bank or other agent through whom the sale or transfer
was effected.
The distribution of this document in jurisdictions other than the UK may be
restricted by law and therefore persons into whose possession this document
comes should inform themselves about and observe such restrictions. Any
failure to comply with these restrictions may constitute a violation of the
securities laws of any such jurisdiction. This document does not constitute
any offer to issue or sell or a solicitation of any offer to subscribe for or
buy shares in ACG Acquisition Company Limited.
ACG ACQUISITION COMPANY LIMITED
(Incorporated and registered in the British Virgin Islands with registered
number 2067083)
Shareholders Circular and
Notice of Extraordinary General Meeting of Shareholders
Notice of the Acquisition EGM to be held at 10 a.m. (London time) at the
offices of Cleary Gottlieb Steen & Hamilton LLP at 2 London Wall,
Barbican, London, EC2Y 5AU, England on 20 July 2023 is set out at the end of
this document.
A Form of Proxy for use at the Acquisition EGM by holders of Class B Shares
accompanies this document and, to be valid, must be completed and returned to
Link Group at PXS1, Central Square, 29 Wellington Street, Leeds, LS1 4DL,
England. The Form of Proxy must be returned as soon as possible but in any
event to be received not later than 10 a.m. London time on 18 July 2023 or 48
hours before any adjourned meeting. A Form of Direction for use at the
Acquisition EGM by holders of depositary interests accompanies this document
and, to be valid, must be completed and returned to Link Group at PXS1,
Central Square, 29 Wellington Street, Leeds, LS1 4DL, England as soon as
possible but in any event to be received not later than 10 a.m. London time on
17 July 2023 or 72 hours before any adjourned meeting. The return of one or
more completed Forms of Proxy or Forms of Direction will not prevent you from
attending the Acquisition EGM and voting in person if you wish to do so (and
are so entitled).
A summary of the action to be taken by the shareholders of ACG is included in
"Action to be taken by shareholders" in the Letter from the Chairman on page 8
of this document and in the notes to the Notice of the Acquisition EGM on
pages 10 to 11 of this document. This circular and all its accompanying
materials are available on the Company's website (https://www.acgcorp.co/).
(http://www.acgcorp.co/))
1
TABLE OF CONTENTS
EXPECTED TIMETABLE OF PRINCIPAL (#_TOC_250005) EVENTS (#_TOC_250005)
..................................................................
(#_TOC_250005) 3 (#_TOC_250005)
DEFINITIONS (#_TOC_250004)
............................................................................................................................
(#_TOC_250004) 4 (#_TOC_250004)
LETTER FROM THE (#_TOC_250003) CHAIRMAN (#_TOC_250003)
.............................................................................................
(#_TOC_250003) 5 (#_TOC_250003)
NOTICE OF EXTRAORDINARY GENERAL MEETING OF (#_TOC_250002) SHAREHOLDERS
(#_TOC_250002) ..................... (#_TOC_250002) 10 (#_TOC_250002)
FORM OF (#_TOC_250001) PROXY (#_TOC_250001)
....................................................................................................................
(#_TOC_250001) 12 (#_TOC_250001)
FORM OF (#_TOC_250000) DIRECTION (#_TOC_250000)
............................................................................................................
(#_TOC_250000) 14 (#_TOC_250000)
EXHIBIT A: PROSPECTUS PREPARED BY THE COMPANY IN CONNECTION WITH THE
ACQUISITION AND RE-ADMISSION, AS APPROVED BY THE FCA ON 30 JUNE 2023... 16
EXHIBIT B: PROPOSED AMENDED AND RESTATED MEMORANDUM AND ARTICLES OF
ASSOCIATION.........................................................................................................................
17
EXPECTED TIMETABLE OF PRINCIPAL EVENTS
Event
Expected time/date (London time)
Commencement of redemption
period
19 June 2023
Publication of this
document
30 June 2023
Record date for the Acquisition
EGM
5 p.m. on 13 July 2023
Deadline for submitting form of
directions
10 a.m. on 17 July 2023
Deadline for submitting form of
proxies
10 a.m. on 18 July 2023
Redemption deadline for existing ACG
shareholders
1 p.m. on 18 July 2023
Acquisition
EGM
10 a.m. on 20 July 2023
Acquisition
Closing
4 August 2023
Redemption payment
date
As soon as practicable and in any event no later than the second U.K. trading
day after the completion ofthe Acquisition
Re-Admission
8.00 a.m. on 4 August 2023
Longstop
Date
18 August 2023
The dates and times above (all of which are London time) are based on the
Company's current expectations and may be subject to change. Any revised dates
and/or times will be notified to the shareholders, by way of a press release
published on the Company's website (https://www.acgcorp.co/).
(http://www.acgcorp.co/))
DEFINITIONS
Defined terms used in this document shall have the meaning ascribed to them in
the Prospectus or as follows, unless the context otherwise requires:
"Act"
the BVI Business Companies Act 2004, as amended from time to time, and
includes the BVI Business Companies Regulations 2012 and any other regulations
made under the Act
"Acquisition" has
the meaning ascribed to it in the Prospectus
"Acquisition EGM" the
extraordinary general meeting of Shareholders of ACG at the
offices of Cleary Gottlieb Steen & Hamilton LLP at 2 London Wall,
Barbican, London, EC2Y 5AU, England, to be convened on the date hereof, notice
of which is set out at page 10 of this document, and any adjournment of that
meeting
"Company" or "ACG" ACG Acquisition Company
Limited
"Directors" or the "Board" the directors of ACG at the
date of this document
"Form of Proxy" the form
of proxy for use by holders of Class B Shares in
connection with the Acquisition EGM
"Form of Direction" the form of
direction for use by holders of depositary interests in
Class A Ordinary Shares in connection with the Acquisition EGM
"IPO Prospectus" the
initial public offering prospectus published by the Company
on 7 October 2022.
"Notice"
the notice of the Acquisition EGM set out at page 10 of this document
"Prospectus"
the prospectus prepared by the Company in connection with the Acquisition and
Re-Admission, as approved by the FCA on 30 June 2023 and appended to this
document as Exhibit A
"Public Shareholders" means Class A
Ordinary Shareholders who are not the Co-
Sponsors, the Directors or the Advisor and the Founding Shareholders (each as
defined in the Chapter 5.6.18 of the Listing Rules of the U.K. Financial
Conduct Authority)
"Resolutions"
the resolutions set out in the Notice to be proposed at the Acquisition EGM
"Shares"
means the Class A Ordinary Shares and the Class B Shares together
LETTER FROM THE CHAIRMAN
ACG ACQUISITION COMPANY LIMITED
(Incorporated and registered in the British Virgin Islands with registered
number 2067083)
Directors:
Registered Office:
Peter Whelan
(Chairman)
Craigmuir Chambers
Artem Volynets (CEO and Executive
Director)
P.O. Box 71
Warren Gilman (Independent Non-Executive
Director)
Road Town Hendrik Johannes Faul (Independent Non-Executive
Director) Tortola, VG 1110
Mark Cutis (Independent Non-Executive
Director)
British Virgin Islands
30 June 2023
Dear Shareholders,
1. Introduction
On behalf of the Company, we are pleased to invite you to the Acquisition EGM
which is to be held on 20 July 2023 at 10 a.m. (London time) at the offices of
Cleary Gottlieb Steen & Hamilton LLP at 2 London Wall, Barbican, London,
EC2Y 5AU, England and to provide you with this circular.
Set out on pages 10 to 11 of this document you will find a Notice convening
the Acquisition EGM and all the Resolutions to be submitted for shareholder
consideration therein. This letter sets out the background to and the reasons
for these Resolutions. These should be considered together with the Prospectus
and the other documents circulated with the Notice. Shareholders are advised
to read all documents carefully. Shareholders should note in particular that
the Prospectus contains information which is relevant to the resolutions being
considered at the Acquisition EGM and that this circular has not attempted to
restate such information.
After careful consideration, the Board considers the Acquisition and the
transactions contemplated thereby to be in the best interests of the Company
and its stakeholders, including its shareholders, for the reasons set out
below.
2. The Acquisition
Background
Concurrent with its initial public offering, the Company adopted an
acquisition strategy to evaluate opportunities in the metals and mining sector
globally (excluding Russia), with a particular focus on emerging markets. The
Acquisition, as proposed here, is the result of an extensive search for
potential transactions utilising the global network of the Company's
management team. The terms of the Acquisition are equally the result of
significant negotiations among the respective representatives of the Company
and Appian Capital.
On 12 June 2023, the Company, the Seller and the Guarantor entered into the
Acquisition Agreement and related documents with certain funding providers.
The press release announcing the Acquisition dated 12 June and the market
update published by the Company on 16 June 2023 are available at the Company's
website (https://w (http://www.acgcorp.co/)) ww.acgcorp.co/).
(http://www.acgcorp.co/))
Reasons for the Acquisition
In evaluating the Acquisition, the Board consulted with its legal counsel,
financial and accounting advisors and other advisors. The Board considered a
number of factors pertaining to the Acquisition as generally supporting its
decision to enter into the Acquisition Agreement and the transactions
contemplated thereby, including but not limited to, the following factors:
· Highly attractive market fundamentals. Strong demand for nickel and
copper is expected over the next 30 years as the clean energy transition
continues, with the backdrop of declining supply due to years of mine
under-investment and recent geopolitical tensions.
· Long-life, low-cost assets. Both Mines are newly built, operating
nickel and copper businesses with high cash flow generation capability,
defensive cost position, a mine life of over 30 years and expansion potential.
· Attractive mining jurisdiction and location. Brazil's rich geological
endowment and clearly defined regulatory framework makes it an attractive
mining jurisdiction. Additionally, the Mines benefit from existing
infrastructure, access to renewable power and multiple nearby ports.
· Strong fit with the Company's leadership and strategy. The Mining
Entities' operating team is committed to the ongoing management of the Mining
Entities and is fully aligned with the Company's strategy, including with
regard to strong focus on safety and sustainability.
· Platform for Company's growth strategy. The proposed LSE-listed
combined business would provide a platform for further value-enhancing
acquisitions to create a new global premium mining group focused on critical
metals.
For more information about the business of the Enlarged Group, please see
"Part III-Information on the Enlarged Group's Business" in the Prospectus.
Terms of the Acquisition
The Company has agreed to acquire (i) a 100% interest in Mirabela
Participações S.A., which holds a 100% interest in Atlantic Nickel
Mineração Ltda., the company operating the Santa Rita mine, (ii) a 100%
interest in Serrote Participações S.A, which holds a 100% interest in
Mineração Vale Verde do Brasil Ltda., the company operating the Serrote
mine, (iii) 100% interests in AMH (Jersey) Limited and AMH 2 (Jersey) Limited,
which are parties to certain intragroup loans and royalties (collectively, the
"Targets") and (iv) certain shareholder loans granted to the Targets by Appian
entities. The purchase price for the Acquisition will be paid in cash and will
reflect certain adjustments from the effective locked box date of 31 December
2022, until closing. Following completion of the Acquisition, the Company and
the Targets will constitute the Enlarged Group. In addition to the Acquisition
Agreement itself, ACG has entered into various other agreements in connection
with the Acquisition.
For a full description of the terms of the Acquisition and the various other
agreements executed by the Company as part of it, please see "Part II-Terms of
the Acquisition Agreement and Part XV-Additional Information-17. Material
contracts" in the Prospectus. For a full description of the effects that the
Acquisition and such other agreements (including certain agreements with fund
providers that shall subscribe for Class A Ordinary Shares, like the Anchor
Investors) shall have on the existing Shareholders and the Existing Class A
Shares, please see "Part XI-The Placing, Retail Offer, Re- Admission and
Dilution" in the Prospectus.
Redemption of Class A Ordinary Shares
In its market update of 16 June 2023, the Company announced key procedures,
timeline and conditions associated with the redemption of its Existing Class A
Shares by virtue of the Acquisition. The redemption period commenced shortly
thereafter, on 19 June 2023, and shall end on 18 July 2023, as set out in
"Expected Timetable of Principal Events" in this document. Additional
information regardithe redemption arrangements can be found in the Prospectus
under the heading "Part XIII-Share Capital, Liquidity and Capital Resources
and Accounting Policies-Redemption".
3. The Resolutions
In order to effect the Acquisition, the Company is tabling Resolutions
relating to the following matters for consideration by its Shareholders:
(i) the Acquisition, as discussed above and presented in details in
the Prospectus, to be approved. To pass such resolution requires the
affirmative vote of a majority of the votes of the Class A Ordinary Shares of
Public Shareholders which are present at the Acquisition EGM and vote;
(ii) a revised Memorandum and Articles of Association of the Company,
in the form appended to this document as Exhibit B, to be approved. To pass
such resolution requires the affirmative vote of two-thirds of the votes of
the Shares entitled to vote thereon which are present at the Acquisition EGM
and vote. For more information about the restated Memorandum and Articles of
Association and a summary of the main changes proposed to the version
currently in effect, please see "Part XV-Additional Information-5. Restated
Articles" in the Prospectus;
(iii) the election of Mr. Vincent Benoit to the board of directors of
the Company, to be approved. To pass such resolution requires the affirmative
vote of a majority of the votes of the Shares of the Shareholders entitled to
vote thereon which are present at the Acquisition EGM and vote. For more
information about the candidate, who is proposed for election pursuant to the
Anchor Investment Agreement entered into by the Company with LMH Explorers
S.à r.l., please see "Part X-The Company, its Board and Corporate
Governance-The Board-Director Biographies" and "Part XV-Additional
Information-8. Directorships and Partnerships" in the Prospectus;
(iv) the election of Ms. Fiona Jane Mary Paulus to the board of
directors of the Company, to be approved. To pass such resolution requires the
affirmative vote of a majority of the votes of the Shares of the Shareholders
entitled to vote thereon which are present at the Acquisition EGM and vote.
For more information about the candidate, please see "Part X-The Company, its
Board and Corporate Governance-The Board-Director Biographies" and "Part
XV-Additional Information-8. Directorships and Partnerships" in the
Prospectus;
(v) the election of Ms. Carole Whitta ll to the board of directors of
the Company, to be approved. To pass such resolution requires the affirmative
vote of a majority of the votes of the Shares of the Shareholders entitled to
vote thereon which are present at the Acquisition EGM and vote. For more
information about the candidate, please see "Part X-The Company, its Board and
Corporate Governance-The Board-Director Biographies" and "Part XV-Additional
Information-8. Directorships and Partnerships" in the Prospectus;
(vi) the approval of the ACG Value Creation Plan, a plan designed to
incentivise eligible participants in the Enlarged Group to deliver exceptional
returns for shareholders over a five-year period, as described in "Part XV
-Additional Information -18.1 The VCP" and "Part XV -Additional
Information-18.3 Provisions applying to each of the VCP and EIP" in the
Prospectus. The rules of the plan will be published in full on the Company's
website no later than five days prior to the Acquisition EGM. The plan has
been considered and developed by the Company with the support of its advisors
to attract, retain and motivate eligible participants and align them with the
creation of shareholder value. To pass such resolution requires the
affirmative vote of two-thirds of the votes of the Shares of the Shareholders
entitled to vote thereon which are present at the Acquisition EGM and vote;
(vii) the approval of the ACG Equity Incentive Plan, a discretionary share
plan permitting the grant of a variety of awards over Class A Ordinary Shares
to eligible participants in the Enlarged Group, the principal terms of which
are described in "Part XV-Additional Information-18.2 The EIP and Part
XV-Additional Information-18.3 Provisions applying to each of the VCP and EIP"
in the Prospectus. The rules of the plan will be published in full on the
Company's website no later than five days prior to the Acquisition EGM. The
plan has been considered and developed by the Company with the support of its
advisors to attract, retain and motivate eligible participants and align them
with the creation of shareholder value. To pass such resolution requires the
affirmative vote of two-thirds of the votes of the Shares of the Shareholders
entitled to vote thereon which are present at the Acquisition EGM and vote
(viii) the retention of Ernst and Young LLP as the new independent auditor
of the Company. To pass such resolution requires the affirmative vote of a
majority of the votes of the Shares of the Shareholders entitled to vote
thereon which are present at the Acquisition EGM and vote; and
(ix) a change in the Company's financial year, such that it shall end on
December 31 of each calendar year. To pass such resolution requires the
affirmative vote of a majority of the votes of the Shares of the Shareholders
entitled to vote thereon which are present at the Acquisition EGM and vote.
4. Action to be taken by Shareholders
Form of Proxy
A Form of Proxy for use at the Acquisition EGM by holders of Class B Shares is
enclosed with this document for use. The Form of Proxy must be returned to
Link Group at 10th Floor, Central Square, 29 Wellington Street, Leeds, LS1
4DL, England as soon as possible but, in any event, so as to arrive no later
than 10 a.m. (London time) on 18 July 2023 or 48 hours before any adjourned
meeting.
The completion and return of a Form of Proxy will not preclude you from
attending the Acquisition EGM and voting in person should you wish to do so,
and should be done in accordance with the instructions contained in the notes
to the Notice of the Acquisition EGM, as set out on pages 10 to 11 of this
document, and in the notes to the Form of Proxy.
Unless otherwise indicated on the Form of Proxy, CREST or any other electronic
voting instruction, the proxy will vote as they think fit or, at their
discretion withhold from voting.
CREST voting and Form of Direction
In the case of holders of depository interests representing Class A Ordinary
Shares in dematerialised form, an electronic instruction may be submitted
through the CREST system in order to instruct Link Market Services Trustees
Limited, the Depository, to vote on the holder's behalf at the Acquisition EGM
by proxy or, if the meeting is adjourned, at the adjourned meeting. If you are
a CREST Personal Member, or other CREST Sponsored Member, you should consult
your CREST sponsor, who will be able to take appropriate action on your
behalf. Instructions can be submitted via the CREST system to be received by
the issuer's agent, Link Group (ID:RA10) by 10 a.m. (London time) on 17 July
2023.
Alternatively, holders of depositary interests should complete the enclosed
Form of Direction in accordance with the instructions printed thereon to
direct Link Market Services Trustees Limited as the custodian of their shares
how to exercise their votes. Any holder of depository interest who wishes to
attend the Acquisition EGM must contact the Depositary at Link Market Services
Trustees Limited, Link Group, Central Square, 29 Wellington Street, Leeds, LS1
4DL, United Kingdom or by email by using nominee.enquiries@linkgroup.co.uk
(mailto:nominee.enquiries@linkgroup.co.uk) in order to request a Letter of
Representation no later than 10 a.m. on 17 July 2023. If any holder of
depositary interests attends the Acquisition EGM without a letter of
representation they will only be allowed to enter the Acquisition EGM as a
guest and will not be allowed to vote. To be valid, the Form of Direction must
be completed in accordance with the instructions set out in the form and
returned as soon as possible to the offices of the Custodian at PXS1, Central
Square, 29 Wellington Street, Leeds, LS1 4DL, England so as to be received no
later than 10 a.m. (London time) on 17 July 2023 or 72 hours before any
adjourned meeting.
In signing and returning the Form of Direction or otherwise submitting an
electronic voting instruction through the CREST system, you will be
representing that you are either: (a) outside the United States, or (b) a
qualified institutional buyer (within the meaning given by Rule 144A under the
US Securities Act of 1933). By continuing to hold their depositary interests
following the date of the Notice, holders of depositary interests acknowledge
and agree to be bound by the transfer restrictions set forth in the section
headed "Part XVI-Notices to Investors" in the Prospectus (mutatis mutandiswith
respect to such depositary interests).
5. Board Recommendation
The Board unanimously considers the approval of all Resolutions to be in the
best interests of the Company. Accordingly, the Board recommends that
Shareholders vote in favour of all the Resolutions set out the Notice of the
Acquisition EGM.
Your sincerely, Peter Whelan,
Chairman of the Board
ACG ACQUISITION COMPANY LIMITED
(Incorporated and registered in the British Virgin Islands with registered
number 2067083)
NOTICE OF EXTRAORDINARY GENERAL MEETING OF SHAREHOLDERS
NOTICE IS HEREBY GIVEN THAT a meeting of the shareholders of the Company will
be held at the offices of Cleary Gottlieb Steen & Hamilton LLP at 2 London
Wall, Barbican, London, EC2Y 5AU, England on 20 July 2023 at 10 a .m. (London
time) for the purposes of considering and, if thought fit, approving the
following resolutions:
Resolution 1
THAT the Acquisition be and is hereby approved by the Class A Ordinary Shares
of Public Shareholders, that any transactions required to effect the
Acquisition be and are hereby approved by the Class A Ordinary Shares of
Public Shareholders, and that the Directors of the Company be authorised to
take all such steps as any of them may consider necessary or desirable to
implement and give full effect to the Acquisition.
Resolution 2
THAT, subject to the closing of the Acquisition, the Memorandum and Articles
of Association of the Company be amended in the form recommended by the Board
of Directors of the Company and appended to the shareholders circular in
Exhibit B, with effect upon the Acquisition Closing.
Resolution 3
THAT, subject to the closing of the Acquisition, Mr. Vincent Benoit (as
nominated by LMH Explorers S.à r.l. pursuant to its Anchor Investment
Agreement with the Company) be elected to the board of directors of the
Company, with effect immediately following the Acquisition Closing, and to
hold office until the next general meeting of shareholders at which directors
are to be elected for the board of directors of the Company.
Resolution 4
THAT, subject to the closing of the Acquisition, Ms. Fiona Jane Mary Paulus be
elected to the boa rd of directors of the Company, with effect immediately
following the Acquisition Closing, and to hold office until the next general
meeting of shareholders at which directors are to be elected for the board of
directors of the Company.
Resolution 5
THAT, subject to the closing of the Acquisition, Ms. Carole Whittall be
elected to the board of directors of the Company, with effect immediately
following the Acquisition Closing, and to hold office until the next general
meeting of shareholders at which directors are to be elected for the board of
directors of the Company.
Resolution 6
THAT, subject to the closing of the Acquisition: (i) the rules of the ACG
Value Creation Plan ("VCP") be and a re hereby approved; (ii) the Directors be
and are hereby authorised to adopt the VCP and do all such acts and things as
they may consider necessary or desirable to implement and give effect to it;
and (iii) the Directors be and are hereby authorised to adopt such further
plans or sub-plans based on the VCP but modified to take account of local tax,
social security, exchange control or securities laws in overseas territories,
provided that any shares made available under such further plans or sub-plans
shall be treated as counting against the limit on overall participation in the
VCP.
Resolution 7
THAT, subject to the closing of the Acquisition: (i) the rules of the ACG
Equity Incentive Plan ("EIP") be and are hereby approved; (ii) the Directors
be and are hereby authorised to adopt the EIP and do all such acts and things
as they may consider necessary or desirable to implement and give effect to
it; and (iii) the Directors be and are hereby authorised to adopt such
further plans or sub-plans based on the EIP but modified to take account of
local tax, social security, exchange control or securities laws in overseas
territories, provided that any shares made available under such further plans
or sub-plans shall be treated as counting against the limit on overall
participation in the EIP.
Resolution 8
THAT, subject to the closing of the Acquisition, Ernst and Young LLP be and is
hereby appointed as the Company's new independent auditors, to replace RSM UK
Corporate Finance LLP, and that the Directors be and are hereby authorised to
take all such steps as any of them may consider necessary or desirable to
implement and give full effect to such appointment.
Resolution 9
THAT the Company's financial year be and is hereby altered to end on December
31 of each calendar year, with immediate effect, and that the Directors be and
are hereby authorised to take all such steps as any of them may consider
necessary or desirable to implement and give full effect to such change.
Da ted 30 June 2023
Registered Office
Craigmuir Chambers
P.O. Box 71
Road Town, Tortola British Virgin Islands
Peter Whelan, by order of the Board
30 June 2023
(1) To be entitled to attend and vote at the meeting (and for the purpose
of the determination by the Company of the number of votes they may cast),
shareholders must be registered in the register of members of the Company at 5
p.m. (London time) on 13 July 2023. Changes to the register of members after
the relevant deadline shall be disregarded in determining the rights of any
person to attend and vote at the meeting.
(2) Shareholders, or their proxies, intending to attend the meeting in
person are requested, if possible, to arrive at the meeting venue at least 20
minutes prior to the commencement of the meeting at 10 a.m. (London time) on
20 July 2023 so that their shareholding may be checked against the Company's
register of members and attendances recorded.
(3) Depositary interest holders who are CREST members may appoint a proxy
or proxies through the CREST electronic proxy appointment service may do so
for the Meeting (and any adjournment of the Meeting) by using the procedures
described in the CREST Manual (available from www.euroclear.com). CREST
Personal Members or other CREST sponsored members, and those CREST members who
have appointed a service provider(s), should refer to their CREST sponsor or
voting service provider(s), who will be able to take the appropriate action on
their behalf.
(4) In order for a proxy appointment or instruction made by means of CREST
to be valid, the appropriate CREST message (a "CREST Proxy Instruction") must
be properly authenticated in accordance with Euroclear UK & International
Limited's specifications and must contain the information required for such
instructions, as described in the CREST Manual. The message must be
transmitted so as to be received by the issuer's agent (ID RA10) by 10 a.m. on
17 July 2023. For this purpose, the time of receipt will be taken to mean the
time (as determined by the timestamp applied to the message by the CREST
application host) from which the issuer's agent is able to retrieve the
message by enquiry to CREST in the manner prescribed by CREST. After this
time, any change of instructions to proxies appointed through CREST should be
communicated to the appointee through other means.
(5) CREST members and, where applicable, their CREST sponsors or voting
service providers should note that Euroclear UK & International Limited
does not make available special procedures in CREST for any particular
message. Normal system timings and limitations will, therefore, apply in
relation to the input of CREST Proxy Instructions. It is the responsibility of
the CREST member concerned to take (or, if the CREST member is a CREST
personal member, or sponsored member, or has appointed a voting service
provider(s), to procure that his CREST sponsor or voting service provider(s)
take(s)) such action as shall be necessary to ensure that a message is
transmitted by means of the CREST system by any particular time. In this
connection, CREST members and, where applicable, their CREST sponsors or
voting system providers are referred, in particular, to those sections of the
CREST Manual concerning practical limitations of the CREST system and timings.
FORM OF PROXY
ACG ACQUISITION COMPANY LIMITED
Registered number 2067083
Form of Proxy - Extraordinary General Meeting of Shareholders to be held on 20
July 2023
Kindly note: This form is issued only to the addressee(s). The Company accepts
no liability for any instruction that does not comply with this form.
Explanatory Notes:
1. Please indicate, by placing "X" in the appropriate space
overleaf, how you wish your votes to be cast in respect of each of the
resolutions. If this form is duly signed and returned, but without specific
direction as to how you wish your votes to be cast the form will be rejected.
2. The "Withheld" option overleaf is provided to enable you to
abstain on any particular resolution. However, it should be noted that that a
'Vote Withheld is not a vote in law and will not be counted in the calculation
of the proportion of the votes 'For' or 'Against' a resolution.
3. Any alterations made to this form should be initialled.
4.
The completion and return of this form will not preclude a member from
attending the meeting and voting in person.
5. Every holder has the right to appoint some other person of
their choice, who need not be a Shareholder, to attend and act on their behalf
at the meeting. If you wish to appoint a person other than the Chairman,
please insert the name of your chosen proxy holder in the space provided (see
reverse).
6. Please ensure the completed voting instrument is returned to
Link Group at PXS1, Central Square, 29 Wellington Street, Leeds, LS1 4DL,
England.
To be effective, this form must be lodged at Link Group at PXS1, Central
Square, 29 Wellington Street, Leeds, LS1 4DL, England no later than 48 hours
before the commencement of the Meeting.
Form of Proxy
Please use a black pen. Mark an "X" inside the box to indicate your directions, as shown in this example: I/We hereby direct the Chairman of the Meeting OR the following person:
Please leave this box blank if you have selected the Chairman. Do not insert
your own name(s).
As my/our proxy to attend and vote on my/our behalf at the meeting of
shareholders of ACG Acquisition Company Limited to be held at the offices of
Cleary Gottlieb Steen & Hamilton LLP at 2 London Wall, Barbican, London,
EC2Y 5AU, England on 20 July 2023 at 10 a.m. (London time) and any adjournment
of that meeting.
Resolutions
2. THAT, subject to the closing of the Acquisition, the Memorandum and For Against Withheld
Articles of Association of the Company be amended in the form recommended by
the Board of Directors of the Company and appended to the shareholders
circular in Exhibit B, with effect upon the Acquisition Closing.
3. THAT, subject to the closing of the Acquisition, Mr. Vincent Benoit (as For Against Withheld
nominated by LMH Explorers S.à r.l. pursuant to its Anchor Investment
Agreement with the Company) be elected to the board of directors of the
Company, with effect immediately following the Acquisition Closing, and to
hold office until the next general
meeting of shareholders at which directors are to be elected for the board of
directors of the Company.
4. THAT, subject to the closing of the Acquisition, Ms. Fiona Jane Mary Paulus For Against Withheld
be elected to the board of directors of the Company, with effect immediately
following the Acquisition Closing, and to hold office until the next general
meeting of shareholders at which directors are to be elected for the board of
directors of the Company.
5. THAT, subject to the closing of the Acquisition, Ms. Carole Whittall be For Against Withheld
elected to the board of directors of the Company, with effect immediately
following the Acquisition Closing, and to hold office until the next general
meeting of shareholders at which directors are to be elected for the board of
directors of the Company.
6. THAT, subject to the closing of the Acquisition: (i) the rules of the ACG
Value Creation Plan ("VCP") be and are hereby approved; (ii) the Directors be
and are hereby authorised to adopt the VCP and do all such acts and things as For Against Withheld
they may consider necessary or desirable to implement and give effect to it;
and (iii) the Directors be and are hereby authorised to adopt such further
plans or sub-plans based on the VCP but modified to take account of local tax,
social security, exchange control or securities laws in overseas territories,
provided that any shares made available under such further plans or sub-plans
shall be treated as counting against the limit on overall participation in the
VCP.
7. THAT, subject to the closing of the Acquisition: (i) the rules of the ACG For Against Withheld
Equity Incentive Plan ("EIP") be and are hereby approved; (ii) the Directors
be and are hereby authorised to adopt the EIP and do all such acts and things
as they may consider necessary or desirable to implement and give effect to
it; and (iii) the Directors be and are hereby authorised to adopt such further
plans or sub-plans based on the EIP but modified to take account of local tax,
social security, exchange control or securities laws in overseas territories,
provided that any shares made available under such further plans or sub-plans
shall be treated as counting against the limit on overall participation
in the EIP.
8. THAT, subject to the closing of the Acquisition, Ernst and Young LLP be and For Against Withheld
is hereby appointed as the Company's new independent auditors, to replace RSM
UK Corporate Finance LLP, and that the Directors be and are hereby authorised
to take all such steps as any of them may consider necessary or desirable to
implement and give full effect to such appointment.
9. THAT the Company's financial year be and is hereby altered to end on For Against Withheld
December 31 of each calendar year, with immediate effect, and that the
Directors be and are hereby authorised to take all such steps as any of them
may consider necessary or desirable to implement and give full effect to such
change.
I/We would like my/our proxy to vote on the resolutions proposed at the
meeting as indicated on this form. Unless otherwise instructed the proxy may
vote as he or she sees fit or abstain in relation to any business of the
meeting.
Signature Date
DD / MM/ YY In the case of joint holders,
only one holder need sign. In the case of acorporation, the Form of Proxy
should be signed by a duly authorised official whose capacity should be
stated, or by an attorney.
FORM OF DIRECTION
14
ACG ACQUISITION COMPANY LIMITED
Registered number 2067083
Form of Direction - Extraordinary General Meeting of Shareholders to be held
on 20 July 2023
Kindly note: This form is issued only to the addressee(s). The Custodian
accepts no liability for any instruction that does not comply with this form.
Explanatory Notes:
1. Please indicate, by placing "X" in the appropriate space overleaf, how you wish your votes to be cast in respect of each of the resolutions. If this form is duly signed and returned, but without specific direction as to how you wish your votes to be cast the form will be rejected.
2. The 'Withheld' option overleaf is provided to enable you to
abstain on any particular resolution. However, it should be noted that that a
'Vote Withheld' is not a vote in law and will not be counted in the
calculation of the proportion of the votes 'For' or 'Against' a resolution.
3. Any alterations to this form should be initialled.
4. The completion and return of this form will not preclude a
member from attending the meeting and voting in person.
5. A member of CREST may use the CREST electronic voting appointment
service via the CREST system, CREST messages must be received by the issuer's
agent (ID number (ID: RA10) not later than 72 hours before the time appointed
for the holding of the meeting.
6. Should the holder, or a representative of that holder, wish to
attend the meeting and/o r vote at the meeting please ensure the relevant box
is completed on the reverse. Upon receipt of this instruction, the registered
holder, shown above, will receive a Letter of Representation from Link Group
authorising the person detailed overleaf to attend on behalf of the holder.
7. Please ensure the completed voting instrument is returned to:
Link Group at PXS1, Central Square, 29 Wellington Street, Leeds, LS1 4DL,
England.
To be effective, all votes must be lodged at the office of the Custodian no
later than 72 hours before the commencement of the meeting.
Form of Direction
Please use a black pen. Mark an "X" inside the box to indicate your
directions; as shown in this example.
I/We hereby:
1) represent that I/we am/are either (a) outside the United States, or (b) a
qualified institutional buyer (within the meaning given by Rule 144A under the
US Securities Act of 1933); 2) represent that I/we am/are the holder of the
depositary interests in Class A Ordinary Shares that are the subject of this
Direction; 3) direct the Custodian "Link Market Services Trustees Limited" to
vote on my/our behalf at the meeting of shareholders to be held at the offices
of Cleary Gottlieb Steen & Hamilton LLP at 2 London Wall, Barbican,
London, EC2Y 5AU, England on 20 July 2023 at 10 a.m.(London time) and any
adjournment of that meeting; and 4) by continuing to hold depositary interests
following the date of execution of this form, acknowledge and agree to be
bound by the transfer restrictions set forth in the section headed "Part
XVI-Notices to Investors" in the Prospectus (mutatis mutandis with respect to
such depositary interests).
==Resolutions
1. THAT the Acquisition be and is hereby approved by the Class A Ordinary For Against Withheld
Shares of Public Shareholders, that any transactions required to effect the
Acquisition be and are hereby approved by the Class A Ordinary Shares of
Public Shareholders, and that the Directors of the Company be authorised to
take all such steps as any of them
may consider necessary or desirable to implement and give full effect to the
Acquisition.
2. THAT, subject to the closing of the Acquisition, the Memorandum and For Against Withheld
Articles of Association of the Company be amended in the form recommended by
the Board of Directors of the Company and appended to the shareholders
circular in Exhibit B, with effect upon the Acquisition Closing.
3. THAT, subject to the closing of the Acquisition, Mr. Vincent Benoit (as For Against Withheld
nominated by LMH Explorers S.à r.l. pursuant to its Anchor Investment
Agreement with the Company) be elected to the board of directors of the
Company, with effect immediately following the Acquisition Closing, and to
hold office until the next general meeting of shareholders at which directors
are to be elected for the board of directors of the Company.
4. THAT, subject to the closing of the Acquisition, Ms. Fiona Jane Mary Paulus For Against Withheld
be elected to the board of directors of the Company, with effect immediately
following the Acquisition Closing, and to hold office until the next general
meeting of shareholders at which directors are to be elected for the board of
directors of the Company.
5. THAT, subject to the closing of the Acquisition, Ms. Carole Whittall be For Against Withheld
elected to the board of directors of the Company, with effect immediately
following the Acquisition Closing, and to hold office until the next general
meeting of shareholders at which directors are to be elected for the board of
directors of the Company.
6. THAT, subject to the closing of the Acquisition: (i) the rules of the ACG For Against Withheld
Value Creation Plan ("VCP") be and are hereby approved; (ii) the Directors be
and are hereby authorised to adopt the VCP and do all such acts and things as
they may consider necessary or desirable to implement and give effect to it;
and (iii) the Directors be and are hereby authorised to adopt such further
plans or sub-plans based on the VCP but modified to take account of local tax,
social security, exchange control or securities laws in overseas territories,
provided that any shares made available under such further plans or sub-plans
shall be treated as counting against the limit on overall participation
in the VCP.
7. THAT, subject to the closing of the Acquisition: (i) the rules of the ACG For Against Withheld
Equity Incentive Plan ("EIP") be and are hereby approved; (ii) the Directors
be and are hereby authorised to adopt the EIP and do all such acts and things
as they may consider necessary or desirable to implement and give effect to
it; and (iii) the Directors be and are hereby authorised to adopt such further
plans or sub-plans based on the EIP but modified to take account of local tax,
social security, exchange control or securities laws in overseas territories,
provided that any shares made available under such further plans or sub-plans
shall be treated as counting against the limit on overall participation in the
EIP.
8. THAT, subject to the closing of the Acquisition, Ernst and Young LLP be and For Against Withheld
is hereby appointed as the Company's new independent auditors, to replace RSM
UK Corporate Finance LLP, and that the Directors be and are hereby authorised
to take all such steps as any of them may consider necessary or desirable to
implement and give full
effect to such appointment.
9. THAT the Company's financial year be and is hereby altered to end on For Against Withheld
December 31 of each calendar year, with immediate effect, and that the
Directors be and are hereby authorised to take all such steps as any of them
may consider necessary or desirable to implement and give full effect to such
change.
Intention to attend
I wish to attend the meeting of shareholders. Any Depository Interest Holder
who wishes to attend the Meeting must contact the Depositary at Link Market
Services Trustees Limited, Link Group, Central Square, 29 Wellington Street,
Leeds, LS1 4DL, United Kingdom or by email by using
nominee.enquiries@linkgroup.co.uk (mailto:nominee.enquiries@linkgroup.co.uk)
in order to request a Letter of Representation no later than 10 a.m. on 17
July 2023.
Signature Date
DD / MM/ YY In the case of joint holders, only one holder need
sign. In the case of a
corporation, the Form of Direction should be signed by a duly authorised
official whose capacity should be stated, or by an attorney.
EXHIBIT A
Prospectus prepared by the Company in connection with the Acquisition and Re-Admission, as approved by the FCA on 30 June 2023
A copy of the Prospectus will be submitted to the National Storage Mechanism and will shortly be available for inspection at https://data.fca.org.uk/#/nsm/nationalstoragemechanism.
EXHIBIT B
Proposed Amended and Restated Memorandum and Articles of Association
TERRITORY OF THE BRITISH VIRGIN ISLANDS BVI BUSINESS COMPANIES ACT 2004
ACG ELECTRIC METALS LIMITED
A Company Limited by Shares
AMENDED AND RESTATED MEMORANDUM AND ARTICLES OF ASSOCIATION
TERRITORY OF THE BRITISH VIRGIN ISLANDS BVI BUSINESS COMPANIES ACT 2004
MEMORANDUM OF ASSOCIATION OF
ACG ELECTRIC METALS LIMITED
(the Company)
A Company Limited By Shares
1 NAME
1.1. The name of the Company is ACG Electric Metals Limited.
2 STATUS
2.1. The Company is a company limited by shares.
3 REGISTERED OFFICE AND REGISTERED AGENT
3.1. The first registered office of the Company is at Craigmuir
Chambers, Road Town, Tortola, VG 1110, British Virgin Islands.
3.2. The first registered agent of the Company is Harneys Corporate
Services Limited of Craigmuir Chambers, P.O. Box 71, Road Town, Tortola, VG
1110, British Virgin Islands.
3.3. The Company may, by Resolution of Shareholders or by Resolution
of Directors, change the location of its registered office or change its
registered agent.
3.4. If at any time the Company does not have a registered agent it
may, by Resolution of Shareholders or Resolution of Directors, appoint a
registered agent.
3.5. Any change of registered office or registered agent will take
effect on the registration by the Registrar of a notice of the change filed by
the existing registered agent or a legal practitioner in the British Virgin
Islands acting on behalf of the Company.
3.6. The registered agent shall:
(a) act on the instructions of the Directors if those
instructions are contained in a Resolution of Directors and a copy of the
Resolution of Directors is made available to the registered agent; and
(b) recognise and accept the appointment or removal of a
Director by the Shareholders.
4 CAPACITY AND POWERS
4.1. Subject to the Act and any other British Virgin Islands
legislation, the Company has, irrespective of corporate benefit:
(a) full capacity to carry on or undertake any business or
activity, do any act, or enter into any transaction; and
(b) for the purposes of paragraph (a) (#_bookmark0) , full
rights, powers, and privileges.
4.2. For the purposes of section 9(4) of the Act, there are no
limitations on the business that the Company may carry on.
4.3. Each Reserved Matter is subject to the restrictions set out in
Clause 7 (#_bookmark1) .
5 NUMBER AND CLASSES OF SHARES
5.1. Shares in the Company shall be issued in the currency of the
United States of America.
5.2. The Company is authorised to issue an unlimited number of Class
A Ordinary Shares with no par value.
5.3. The Company shall not issue fractional Shares and fractional
Shares generated by any corporate action may, at the discretion of the
Directors, be rounded down to the nearest whole Share.
5.4. Shares may be issued in one or more series of Shares as the
Directors may by Resolution of Directors determine from time to time.
6 RIGHTS OF SHARES
6.1. Each Class A Ordinary Share confers upon the Shareholder:
(a) the right to attend any Shareholder Meeting;
(b) the right to one vote on any Resolution of
Shareholders;
(c) the right to an equal share in any dividend paid by
the Company with each other Class A Ordinary Share;
(d) the right to an equal share in the distribution of the
surplus assets of the Company with each other Class A Ordinary Share; and
(e) such other rights and entitlements as may be specified
in the Articles.
7 RESERVED MATTER
7.1. The following constitute Reserved Matters:
(a) amending this Clause 7.1 (#_bookmark2) ; and
(b) amending Regulation 3 (#_bookmark4) .
7.2. Notwithstanding anything else in this Memorandum or the Articles, a Reserved Matter must be approved by a Reserved Matter Shareholder Resolution.
8 VARIATION OF RIGHTS
8.1. The rights conferred upon the holders of the Shares of any
class may only be varied, whether or not the Company is in liquidation, with
the consent in writing of the holders of more than 66.6% of the issued Shares
of that class or by a resolution approved at a duly convened and constituted
meeting of the Shares of that class by the affirmative vote of more than 66.6%
of the votes of the Shares of that class which were present at the meeting and
were voted.
8.2. The rights conferred upon the holders of the Shares of any
class shall not, unless otherwise expressly provided by the terms of issue of
the Shares of that class, be deemed to be varied by the creation or issue of
further Shares ranking equally with such existing Shares.
9 REGISTERED SHARES
9.1. The Company shall issue registered Shares only. The Company is
not authorised to issue bearer Shares, convert registered Shares to bearer
Shares or exchange registered Shares for bearer Shares.
10 AMENDMENT OF THE MEMORANDUM AND THE ARTICLES
10.1. Subject to Clause 7 (#_bookmark1) and 8 (#_bookmark3) , the
Company may only amend this Memorandum or the Articles by a written resolution
approved by a resolution consented to in writing by the affirmative vote of at
least two-thirds of the votes of the Shares entitled to vote on such
resolution or a resolution approved at a duly convened and constituted
Shareholder Meeting by the affirmative vote of at least two-thirds of the
votes of the Shares entitled to vote thereon which were present at the meeting
and were voted.
10.2. Any amendment of this Memorandum or the Articles will take effect
from the date that the notice of amendment, or restated Memorandum and
Articles incorporating the amendment, is registered by the Registrar or from
such other date as determined pursuant to the Act.
11 DEFINITIONS AND INTERPRETATION
11.1. In this Memorandum and the attached Articles, if not inconsistent
with the subject or context:
Act means the BVI Business Companies Act 2004 and includes the BVI Business
Companies Regulations 2012 and any other regulations made under the Act.
Annual General Meeting has the meaning given to it at Regulation 8.2
(#_bookmark16) .
Appointing Director has the meaning given to it at Regulation 15.
(#_bookmark28) 5 (#_bookmark28) .
Articles means the attached articles of association of the Company.
Audit Committee has the meaning given to it at Regulation 25. (#_bookmark32)
13 (#_bookmark32) .
Board means the board of Directors.
Business Day means any day which is not a Saturday, Sunday or recognised
public holiday in the British Virgin Islands, England and Wales, or in the
United States of America.
Class A Ordinary Shareholders means holders of Class A Ordinary Shares.
Class A Ordinary Shares means the Class A Ordinary shares issued from time to
time.
Directors means directors of the Company.
Disapplication has the meaning given to it at Regulation 3.1 (#_bookmark5) .
Effective Date means [ ] 2023.
Equity Securities has the meaning given to it at Regulation 3.1(c)
(#_bookmark6) . Excess Equity Securities has the meaning given to it at
Regulation 3.1(c) (#_bookmark6) .
FCA means the UK Financial Conduct Authority.
Going Private Transaction means any transaction (including any acquisition,
merger, arrangement, amalgamation, or other business combination) involving or
that would involve:
(a) any person beneficially or legally owning, directly or
indirectly, all outstanding securities of the Company; or
(b) the consummation of the sale or disposition by the
Company of all, or substantially all of, the Company's assets.
Incentive Securities means any options or other awards granted, or any Equity
Securities issued upon exercise of options or awards granted (whether before
or after the date of this Memorandum), pursuant to any Incentive Scheme, which
is in existence on the date of this Memorandum or subsequently approved by a
Resolution of Shareholders pursuant to Regulation 13.3 (#_bookmark26) .
Incentive Scheme means any bona fide:
(a) share incentive, share option, share trust, profit
sharing, bonus or other incentive scheme or arrangement; or
(b) scheme providing any bonus, commission or remuneration
of any sort calculated by reference to turnover, profits, sales or
performance,
for or affecting:
(i) any bona fidecurrent or former employees, non-executive
directors or consultants of the Company or any subsidiary of the Company; or
(ii) the spouses, civil partners, surviving spouses, surviving
civil partners, or minor children, or stepchildren of such individuals.
La Mancha means LMH Explorers s.à r.l., a private limited liability company
(société à responsabilité limitée) incorporated under the laws of
Luxembourg.
La Mancha Nomination Notice has the meaning given to it at Regulation 11.2
(#_bookmark20) .
La Mancha Nomination Right means La Mancha's right to require the appointment
of a Director to the Board in accordance with Regulation 11 (#_bookmark19) .
La Mancha Nominee means any person nominated by La Mancha to serve as a
Director in accordance with Regulation 11 (#_bookmark19) .
La Mancha Removal Notice has the meaning given to it at Regulation 11.6
(#_bookmark21) . Listing Rules means the listing rules of the FCA as amended
from time to time. London Stock Exchange means London Stock Exchange plc.
Main Market means the main market operated by the London Stock Exchange.
Memorandum means this memorandum of association of the Company.
Minimum Holding means a holding of at least a 10% equity interest in the
Company.
New Director has the meaning given to it at Regulation 11.14 (#_bookmark22) .
Official List means the official list maintained by the FCA.
person includes individuals, corporations, trusts, the estates of deceased
individuals, partnerships, and unincorporated associations of persons.
Prohibited Transaction has the meaning given to it at Regulation 7
(#_bookmark12) .8 (#_bookmark12) .
Proscribed Powers means the powers to:
(a) amend this Memorandum or the Articles;
(b) designate committees of Directors;
(c) delegate powers to a committee of Directors;
(d) appoint or remove Directors;
(e) appoint or remove an agent;
(f) approve a plan of merger, consolidation, or
arrangement;
(g) make a declaration of solvency or to approve a
liquidation plan; or
(h) make a determination that immediately after a proposed
distribution the value of the Company's assets will exceed its liabilities and
the Company will be able to pay its debts as they fall due.
Register of Directors means the register of directors of the Company. Register
of Members means the register of members of the Company. Registrar means the
BVI Registrar of Corporate Affairs.
Reserved Matter has the meaning given to it at Clause 7.1 (#_bookmark2) .
Reserved Matter Shareholder Resolution means:
(a) a resolution approved at a duly convened and
constituted Shareholder Meeting by the affirmative vote of at least 90% of the
votes of the Shares of the Shareholders entitled to vote thereon which were
present at the meeting and voted; or
(b) a resolution consented to in writing by at least 90%
of the votes of the Shares entitled to vote on such resolution.
Resolution of Directors means either:
(a) a resolution approved at a duly convened and
constituted meeting of Directors or of a committee of Directors by the
affirmative vote of a majority of the Directors present at the meeting who
voted except that where a Director is given more than one vote, they shall be
counted by the number of votes they cast for the purpose of establishing a
majority; or
(b) a resolution consented to in writing by an absolute
majority of the total number of Directors or by an absolute majority of all
the members of a committee of Directors, as the case may be.
Resolution of Shareholders means either:
(a) a resolution approved at a duly convened and
constituted Shareholder Meeting by the affirmative vote of a majority of the
votes of the Shares of the Shareholders entitled to vote thereon which were
present at the meeting and voted; or
(b) a resolution consented to in writing by a majority of
the votes of the Shares entitled to vote on such resolution.
Sanctioned Shares has the meaning given to it at Regulation 7 (#_bookmark12)
.8 (#_bookmark12) .
Seal means any seal which has been duly adopted as the common seal of the
Company.
Securities Act means the U.S. Securities Act of 1933.
Share means a share issued or to be issued by the Company.
Shareholder means a person whose name is entered in the Register of Members as
the holder of one or more Shares.
Shareholder Meeting means a meeting of Shareholders held in accordance with
the provisions of the Articles.
Stellantis means Stellantis N.V., a company organized under the laws of the
Netherlands.
Stellantis Nomination Notice has the meaning given to it at Regulation 12.1
(#_bookmark24) .
Stellantis Nomination Right means Stellantis' right to require the appointment
of a Director to the Board in accordance with Regulation 12 (#_bookmark23) .
Stellantis Nominee means any person nominated by Stellantis to serve as a
Director in accordance with Regulation 12 (#_bookmark23) .
Stellantis Removal Notice has the meaning given to it at Regulation 12.9
(#_bookmark25) .
U.S. Investment Company Act means the U.S. Investment Company Act of 1940, as
amended and the rules adopted thereunder.
Warrant Instrument means an instrument constituting the Warrants executed by
the Company.
Warrants means any warrants to subscribe for Shares issued or to be issued
pursuant to a Warrant Instrument.
written or any term of like import includes information generated, sent,
received, or stored by electronic, electrical, digital, magnetic, optical,
electromagnetic, biometric, or photonic means, including electronic data
interchange, electronic mail, telegram, telex, or telecopy, and in writing
shall be construed accordingly.
11.2. In this Memorandum and the Articles, unless the context otherwise
requires, a reference to:
(a) a Regulation is a reference to a regulation of the
Articles;
(b) a Clause is a reference to a clause of this
Memorandum;
(c) voting by Shareholders is a reference to the casting
of the votes attached to the Shares held by the Shareholder voting;
(d) a provision of law (including the Act) is a reference
to that provision as amended or re-enacted;
(e) this Memorandum or the Articles is a reference to
those documents as amended; and
(f) the singular includes the plural and vice versa.
11.3. Where a period of time is expressed as a number of days, the days
on which the period begins and ends are not included in the computation of the
number of days.
11.4. Any reference to a month shall be construed as a reference to a
period starting on one day in a calendar month and ending on the numerically
corresponding day in the next calendar month and a reference to a period of
several months shall be construed accordingly.
11.5. Any words or expressions defined in the Act bear the same meaning
in this Memorandum and the Articles unless the context otherwise requires or
they are otherwise defined in this Memorandum or the Articles.
11.6. Headings are inserted for convenience only and shall be disregarded
in interpreting this Memorandum and the Articles.
Signed for HARNEYS CORPORATE SERVICES LIMITED of Craigmuir Chambers, Road
Town, Tortola, VG 1110, British Virgin Islands incorporating a BVI Business
Company under the laws of the British Virgin Islands on 22nd of June 2021:
Incorporator
Sgd: Indira Ward-Lewis
…………………………..
Indira Ward-Lewis Authorised Signatory
HARNEYS CORPORATE SERVICES LIMITED
TERRITORY OF THE BRITISH VIRGIN ISLANDS BVI BUSINESS COMPANIES ACT 2004
ARTICLES OF ASSOCIATION OF
ACG ELECTRIC METALS LIMITED
A Company Limited by Shares
1. DISAPPLICATION OF THE ACT
The following sections of the Act shall not apply to the Company:
(a) section 46 (Pre-emptive rights);
(b) section 60 (Process for acquisition of own shares);
(c) section 61 (Offer to one or more shareholders);
(d) section 62 (Shares redeemed otherwise than at the
option of company); and
(e) section 175 (Disposition of assets).
2 SHARES
2.1. Any issue of Shares shall be subject to Regulation 3
(#_bookmark4) and Regulation 7.8 (#_bookmark12) .
2.2. Subject to the provisions, if any, in the Memorandum or these
Articles (and to any direction that may be given by the Company at a
Shareholder Meeting), the Act and, where applicable, the rules of the London
Stock Exchange and/or any competent regulatory authority, and without
prejudice to any rights attached to any existing Shares, the Directors may
allot, issue, grant options over, or otherwise dispose of Shares with or
without preferred, deferred, or other rights or restrictions, whether in
regard to a dividend or other distribution, voting, return of capital, or
otherwise and to such persons, at such times, and on such other terms as they
think proper, and may also (subject to the Act) vary such rights.
2.3. The Company may issue securities in the Company, which may be
comprised of whole or fractional Shares, rights, options, Warrants, or
convertible securities or securities of similar nature conferring the right
upon the holders thereof to subscribe for, purchase, or receive any class of
Shares or other securities in the Company, upon such terms as the Directors
may from time to time determine.
2.4. Upon request, a Shareholder is entitled to a certificate signed
by a Director or officer of the Company, or any other person authorised by
Resolution of Directors, or under the Seal specifying the number of Shares
held by them and the signature of the Director, officer, or authorised person
and the Seal may be facsimiles.
2.5. Every certificate shall bear such legend, if any, as required
by the Company.
2.6. Any Shareholder receiving a certificate shall indemnify and hold
the Company and its Directors and officers harmless from any loss or liability
which it or they may incur by reason of any wrongful or fraudulent use or
representation made by any person by virtue of the possession thereof. If a
certificate for Shares is worn out or lost it may be renewed on production of
the worn out certificate or on satisfactory proof of its loss together with
such indemnity as may be required by Resolution of Directors.
2.7. If several persons are registered as joint holders of any Shares,
any one of such persons may give an effectual receipt for any distribution.
2.8. No Shares may be issued for a consideration other than money,
unless a Resolution of Directors has been passed stating:
(a) the amount to be credited for the issue of the Shares;
and
b) that, in their opinion, the present cash value of the
non-money consideration for the issue is not less than the amount to be
credited for the issue of the Shares.
2.9. The consideration for a Share with par value shall be not less
than the par value of the Share. If a Share with par value is issued for
consideration less than the par value, the person to whom the Share is issued
is liable to pay to the Company an amount equal to the difference between the
issue price and the par value.
2.10. The Company shall keep a Register of Members containing:
(a) the names and addresses of the persons who hold Shares
(b) the number of each class and series of Shares held by
each Shareholder;
(c) the date on which the name of each Shareholder was
entered in the Register of Members; and
(d) the date on which any person ceased to be a
Shareholder.
2.11. The Register of Members may be in any such form as the Directors
may approve, but if it is in magnetic, electronic, or other data storage form,
the Company must be able to produce legible evidence of its contents. Until
the Directors otherwise determine, the magnetic, electronic, or other data
storage form shall be the original Register of Members.
2.12. A Share is deemed to be issued when the name of the Shareholder is
entered in the Register of Members.
3 FURTHER ISSUE OF SHARES: PRE-EMPTION RIGHTS
3.1. Unless and until disapplied by a Reserved Matter Shareholder
Resolution (the Disapplication), and then only within the terms of the
Disapplication, the following pre- emptive provisions will apply to any issue
of Shares or any other equity securities that can be issued by the Company
(including, but not limited to, Warrants and other rights to subscribe for, or
to convert securities into, ordinary shares of the Company) (Equity
Securities):
(a) if the Company proposes to allot and issue any Equity
Securities, including, without limitation:
(i) make any transfers out of treasury of;
(ii) convert any security into;
(iii) grant any rights to subscribe for; or
(iv) grant any rights to subscribe for any securities convertible
into,
Equity Securities in the Company, whether conditional or unconditional, and
whether such Equity Securities participate in dividends and/or distributions
up to a specified amount or not, those Equity Securities shall not be allotted
or issued to any person unless the Company has first offered them to all
Shareholders on the date of the offer on the same or more favourable terms, as
those Equity Securities are being offered to other persons on a pari passu and
pro rata basis to the number of Equity Securities held by those holders (as
nearly as possible without involving fractions);
(b) an offer shall be in writing, shall be open for
acceptance for a period of 10 Business Days from the date of the offer and
shall give details of the number and subscription price of the relevant Equity
Securities, with a further 5 Business Days from the date on which acceptance
of the offer is received by the Company provided to each Shareholder to fund
the respective proportion of the Equity Securities that are subject of this
acceptance;
(c) the offer may stipulate that any Shareholder who
wishes to subscribe for a number of Equity Securities in excess of the
proportion to which they are entitled shall, in their acceptance, state the
number of excess Equity Securities (Excess Equity Securities) for which they
wish to subscribe; and
(d) this Regulation 3.1 (#_bookmark5) shall not apply to
the allotment and issue of the following Equity Securities:
(i) to any Incentive Securities;
(ii) to any Equity Securities allotted, as part of a bonus
issue, proportionately to all Shareholders;
(iii) to any Equity Securities allotted as part of a restructuring
plan or equivalent measures approved by the relevant court in accordance with
applicable provisions under the laws of the British Virgin Islands;
(iv) to any allotment as all or part of the consideration for any
bona fidebusiness combination transaction; or
(v) to any rights to subscribe for Equity Securities (including,
pursuant to any Warrants) existing at the Effective Date.
3.2. Any Equity Securities not accepted by Shareholders pursuant to
the offer made to them in accordance with Regulation 3.1 (#_bookmark5) shall
be used for satisfying any requests for Excess EquiSecurities made pursuant to
Regulation 3.1 (#_bookmark5) . If there are insufficient Excess Equity
Securities to satisfy such requests, the Excess Equity Securities shall be
allotted to the applicants pro rata to the number of Shares held by the
applicants immediately before the offer was made to Shareholders in accordance
with Regulation 3.1 (#_bookmark5) (as nearly as possible without involving
fractions or increasing the number of Excess Equity Securities allotted to any
Shareholder beyond that applied for by that Shareholder). After that
allotment, any Excess Equity Securities remaining shall be offered to any
other person as the Directors may determine, at the same price and on the same
terms as the offer to the Shareholders.
4 REDEMPTION OF SHARES AND TREASURY SHARES
4.1. The Company may purchase, redeem, or otherwise acquire and hold
its own Shares save that the Company may not purchase, redeem, or otherwise
acquire its own Shares without the consent of Shareholders whose Shares are to
be purchased, redeemed, or otherwise acquired unless the Company is permitted
by the Act or any other provision in the Memorandum or Articles to purchase,
redeem, or otherwise acquire the Shares without their consent.
4.2. The Company may acquire its own fully paid Shares for no
consideration by way of surrender of the Shares to the Company by the person
holding the Shares. Any such surrender shall be evidenced in writing and
signed by the person holding the Shares.
4.3. The Company may only offer to purchase, redeem, or otherwise
acquire Shares if the Resolution of Directors authorising the purchase,
redemption, or other acquisition contains a statement that the Directors are
satisfied, on reasonable grounds, that immediately after the purchase,
redemption, or other acquisition the value of the Company's assets will exceed
its liabilities and the Company will be able to pay its debts as they fall
due.
4.4. Shares that the Company purchases, redeems, or otherwise
acquires may be cancelled or held as treasury shares provided that the number
of Shares purchased, redeemed, or otherwise acquired and held as treasury
shares, when aggregated with Shares of the same class already held by the
Company as treasury shares, may not exceed 50% of the Shares of that class
previously issued by the Company excluding Shares that have been cancelled.
Shares which have been cancelled shall be available for reissue.
4.5. All rights and obligations attaching to a treasury share are
suspended and shall not be exercised by the Company while it holds the Share
as a treasury share.
4.6. Treasury shares may be transferred by the Company on such terms
and conditions (not otherwise inconsistent with the Memorandum and the
Articles) as the Company may by Resolution of Directors determine.
5 MORTGAGES AND CHARGES OF SHARES
5.1. Shareholders may mortgage or charge their Shares.
5.2. There shall be entered in the Register of Members at the
written request of the Shareholder:
(a) a statement that the Shares held by them are mortgaged
or charged;
(b) the name of the mortgagee or chargee; and
(c) the date on which the particulars specified in
subparagraphs (a) (#_bookmark7) and (b) (#_bookmark8) are entered in the
Register of Members.
5.3. Where particulars of a mortgage or charge are entered in the
Register of Members, such particulars may be cancelled:
(a) with the written consent of the named mortgagee or
chargee or anyone authorised to act on their behalf; or
(b) upon evidence satisfactory to the Directors of the
discharge of the liability secured by the mortgage or charge and the issue of
such indemnities as the Directors shall consider necessary or desirable.
5.4. Whilst particulars of a mortgage or charge over Shares are
entered in the Register of Members pursuant to this Regulation:
(a) no transfer of any Share the subject of those
particulars shall be effected;
(b) the Company may not purchase, redeem, or otherwise
acquire any such Share; and
(c) no replacement certificate shall be issued in respect
of such Shares, without the written consent of the named mortgagee or chargee.
5.5. The Directors may not resolve to refuse or delay the transfer
of a Share pursuant to the
enforcement of a valid security interest created over the Share.
6 FORFEITURE
6.1. Shares that are not fully paid on issue are subject to the
forfeiture provisions set forth in this Regulation and for this purpose Shares
or securities issued for a promissory note, other written obligation to
contribute money or property, or a contract for future services are deemed to
be not fully paid.
6.2. A written notice of call specifying the date for payment to be
made shall be served on the Shareholder who defaults in making payment in
respect of the Shares.
6.3. The written notice of call referred to in Regulation 6
(#_bookmark9) .2 (#_bookmark9) shall name a further date not earlier than the
expiration of 14 days from the date of service of the notice on or before
which the payment required by the notice is to be made and shall contain a
statement that in the event of non-payment at or before the time named in the
notice the Shares, or any of them, in respect of which payment is not made
will be liable to be forfeited.
6.4. Where a written notice of call has been issued pursuant to
Regulation 6.2 (#_bookmark9) and the requirements of the notice have not been
complied with, the Directors may, at any time before tender of payment,
forfeit and cancel the Shares to which the notice relates.
6.5. If a Shareholder intends to offer, sell, transfer, assign,
novate, or otherwise dispose of any Shares or Warrants they shall do so only
in compliance with an exemption from the registration requirements of the
Securities Act and under circumstances which will not require the Company to
register under the U.S. Investment Company Act.
6.6. The Company is under no obligation to refund any moneys to the
Shareholder whose Shares have been cancelled pursuant to Regulation 6
(#_bookmark10) .4 (#_bookmark10) and 6.5 (#_bookmark11) and that Shareholder
shall be discharged from any further obligation to the Company.
7 TRANSFER OF SHARES AND WARRANTS
7.1. A Share may, subject to the provisions of the Articles, be
transferred subject to the prior or subsequent approval of the Company
contained in a Resolution of Shareholders or a Resolution of Directors.
7.2. Shares may be transferred by a written instrument of transfer
signed by the transferor and containing the name and address of the
transferee, which shall be sent to the Company for registration, provided that
such transfer also complies with applicable laws of England and Wales. If the
Shares in question were issued in conjunction with rights, options, or
warrants issued on terms that one cannot be transferred without the other, the
Directors shall refuse to register the transfer of any such Share without
evidence satisfactory to them of the like transfer of such option or warrant.
7.3. In accordance with Section 54(A) of the Act, in addition to the
above, the instrument of transfer of any Share shall be in writing in the
usual or common form or in a form prescribed by the London Stock Exchange or
in any other form approved by the officers of the Company and shall be
executed by or on behalf of the transferor (and if the Directors so require,
signed by or on behalf of the transferee) and may be under hand or, if the
transferor or transferee is a clearing house or its nominee(s), by hand or by
machine imprinted signature or by such other manner of execution as the
Directors may approve from time to time.
7.4. The transfer of a Share is effective when the name of the
transferee is entered on the Register of Members.
7.5. If the Directors are satisfied that an instrument of transfer
relating to Shares has been signed but that the instrument has been lost or
destroyed, they may resolve by Resolution of Directors:
(a) to accept such evidence of the transfer of Shares as
they consider appropriate; and
(b) that the transferee's name should be entered in the
Register of Members notwithstanding the absence of the instrument of transfer.
7.6. The personal representative of a deceased Shareholder may
transfer a Share even though the personal representative is not a Shareholder
at the time of the transfer.
7.7. The Directors may not resolve to refuse or delay the transfer
of a Share unless:
(a) the Shareholder has failed to pay an amount due in
respect of the Share; or
(b) such transfer would breach or cause a breach of:
(i) the rules of the London Stock Exchange or any stock
exchange on which the Shares may be listed;
(ii) applicable law or regulation at such times and for such
periods as the Directors may from time to time determine.
7.8. Regulations 7.9 (#_bookmark13) and 7.10 (#_bookmark14) shall
apply to any issue, transfer, or disposal of any interest in a Share (the
Sanctioned Shares) which would result in the Company becoming a sanctioned
entity (a Prohibited Transaction).
7.9. Where a Prohibited Transaction occurs, none of the rights
vested in a Shareholder relating to the Sanctioned Shares may be exercised,
and all such rights are suspended until Regulation 7.10 (#_bookmark14) has
been complied with and such shares have been transferred to a third party.
This includes but is not limited to any right to:
(a) attend or be counted in the quorum or vote either
personally or by proxy at any Shareholder Meeting or at any separate meeting
of the holders of any class of Shares or upon any poll or to exercise any
other right or privilege in relation to any Shareholder Meeting or any meeting
of the holders of any class of Shares;
(b) vote on any Resolution of Shareholders or consent to
any other corporate action;
(c) receive dividends or other distributions in relation
to such Shares (whether or not declared before or after the suspension);
(d) redeem or convert such Shares; or
(e) receive any surplus assets in the liquidation of the
Company.
7.10. The Company will, no later than five (5) Business Days after
becoming aware a Prohibited Transaction has taken place, cause the Sanctioned
Shares to be sold on the open market in a transaction which is not a
Prohibited Transaction (including, where such Sanctioned Shares are held in
dematerialised form, by procuring the transfer of the depository interest
representing the Sanctioned Shares), the cash proceeds of which will be
delivered to the relevant Shareholder(s), subject to:
(a) deduction from any such cash proceeds of any
applicable withholding taxes and of an amount equal to any stamp duty, stamp
duty reserve tax, or any other capital gain, net income, issue, transfer,
registration, financial transaction, or documentary tax that may arise or be
paid as a consequence of such sale; and
(b) the delivery by the relevant Shareholder of any other
information required by law or reasonably required by the Company.
8 MEETINGS AND CONSENTS OF SHAREHOLDERS
8.1. The Board may convene a Shareholder Meeting at such times and
in such manner and places within or outside the British Virgin Islands as the
Director considers necessary or desirable.
8.2. Notwithstanding 8.1 (#_bookmark15) , the Company shall hold at
least one Shareholder Meeting in every calendar year which shall be designated
as an Annual General Meeting.There shall be no more than one year between each
Annual General Meeting. Unless the context otherwise requires, reference in
these Articles to a Shareholder Meeting shall include an Annual General
Meeting.
8.3. Upon the written request of Shareholders entitled to exercise
30% or more of the voting rights in respect of the matter for which the
Shareholder Meeting is requested the Directors shall convene a Shareholder
Meeting.
8.4. A Director convening a Shareholder Meeting shall give not less
than 7 days' notice of a Shareholder Meeting to:
(a) those Shareholders whose names on the date the notice
is given appear as Shareholders in the Register of Members and are entitled to
vote at the Shareholder Meeting; and
(b) the other Directors.
8.5. The notice must specify if the Shareholder Meeting is an Annual
General Meeting. Any other meeting shall be considered an extraordinary
general meeting.
8.6. Notice of a Shareholder Meeting may be given in writing or by
electronic means. If notice is sent by electronic means, it shall be deemed to
have been given when the communication is electronically transmitted. Notice
shall be deemed to have been validly given if notice is published on the
Company's website and via a Regulatory News Service (RNS) announcement,
regardless of whether any communication is sent to individual Shareholders by
any means, and in such case shall be deemed to have been given on the latter
of the two to occur.
8.7. The Director convening a Shareholder Meeting may fix as the
record date for determining those Shareholders that are entitled to vote at
the Shareholder Meeting the date notice is given of the Shareholder Meeting,
or such other date as may be specified in the notice, being a date not earlier
than the date of the notice.
8.8. A Shareholder Meeting held in contravention of the requirement
to give notice is valid if it is so agreed:
(a) in the case of an Annual General Meeting, by all the
Shareholders entitled to attend and vote at the Annual General Meeting; and
(b) in the case of any other Shareholder Meeting, if a
majority in number of the Shareholders holding at least 90% of the total
voting rights on all the matters to be considered at the Shareholder Meeting
have waived notice of the Shareholder Meeting and, for this purpose, the
presence of a Shareholder at the Shareholder Meeting shall constitute waiver
in relation to all the Shares which that Shareholder holds.
8.9. The inadvertent failure of a Director who convenes a
Shareholder Meeting to give notice of a Shareholder Meeting to a Shareholder
or another Director, or the fact that a Shareholder or another Director has
not received notice, does not invalidate the Shareholder Meeting.
8.10. A Shareholder may be represented at a Shareholder Meeting by a
proxy who may speak and vote on behalf of the Shareholder.
8.11. The instrument appointing a proxy shall be produced at the place
designated for the Shareholder Meeting before the time for holding the
Shareholder Meeting at which the
person named in such instrument proposes to vote. The notice of the
Shareholder Meeting may specify an alternative or additional place or time at
which the proxy shall be presented.
8.12. The instrument appointing a proxy shall be in substantially the
following form or such other form as approved by the Directors or as the chair
of the Shareholder Meeting shall accept as properly evidencing the wishes of
the Shareholder appointing the proxy.
8.13.
The following applies where Shares are jointly owned:
(a) if two or more persons hold Shares jointly each of
them may be present in person or by proxy at a Shareholder Meeting and may
speak as a Shareholder;
(b) if only one of the joint owners is present in person
or by proxy they may vote on behalf of all joint owners; and
(c) if two or more of the joint owners are present in
person or by proxy they must vote as one.
8.14. A Shareholder shall be deemed to be present at a Shareholder
Meeting if they participate by telephone or other electronic means and all
Shareholders or their authorised representatives participating in the
Shareholder Meeting are able to hear each other.
8.15. A Shareholder Meeting is duly constituted if, at the commencement
of the Shareholder Meeting, there are present in person or by proxy not less
than thirty percent (30%) of the votes of the Shares entitled to vote on
Resolutions of Shareholders to be considered at the Shareholder Meeting. A
quorum may comprise a single Shareholder or proxy and then such person may
pass a Resolution of Shareholders and a certificate signed by such person
accompanied where such person be a proxy by a copy of the proxy instrument
shall constitute a valid Resolution of Shareholders.
8.16. If within two hours from the time appointed for the Shareholder
Meeting a quorum is not present, the Shareholder Meeting, if convened upon the
requisition of Shareholders, shall be dissolved; in any other case it shall
stand adjourned to the next Business Day in the jurisdiction in which the
Shareholder Meeting was to have been held at the same time and place or to
such other time and place as the Directors may determine, and if at
the adjourned Shareholder Meeting there are present within one hour from the
time appointed for the Shareholder Meeting in person or by proxy not less than
one third of the votes of the Shares or each class or series of Shares
entitled to vote on the matters to be considered by the Shareholder Meeting,
those present shall constitute a quorum but otherwise the Shareholder Meeting
shall be dissolved.
8.17. At every Shareholder Meeting, the chair of the Board shall preside
as chair of the Shareholder Meeting. If there is no chair of the Board or if
that chair is not present at the Shareholder Meeting, the Shareholders present
shall choose one of their number to be the chair. If the Shareholders are
unable to choose a chair for any reason, then the person representing the
greatest number of voting Shares present in person or by proxy at the
Shareholder Meeting shall preside as chair failing which the oldest individual
Shareholder or representative of a Shareholder present shall take the chair.
8.18. The chair may, with the consent of the Shareholder Meeting,
adjourn any Shareholder Meeting from time to time, and from place to place,
but no business shall be transacted at any adjourned meeting other than the
business left unfinished at the Shareholder Meeting from which the adjournment
took place.
8.19. At any Shareholder Meeting the chair is responsible for deciding in
such manner as they consider appropriate whether any resolution proposed has
been carried or not and the result of their decision shall be announced to the
Shareholder Meeting and recorded in the minutes of the Shareholder Meeting. If
the chair has any doubt as to the outcome of the vote on a proposed
resolution, they shall cause a poll to be taken of all votes cast upon such
resolution. If the chair fails to take a poll then any Shareholder present in
person or by proxy who disputes the announcement by the chair of the result of
any vote may immediately following such announcement demand that a poll be
taken and the chair shall cause a poll to be taken. If a poll is taken at any
Shareholder Meeting, the result shall be announced to the Shareholder Meeting
and recorded in the minutes of the Shareholder Meeting.
8.20. Subject to the specific provisions contained in this Regulation
for the appointment of representatives of persons other than individuals the
right of any individual to speak for or represent a Shareholder shall be
determined by the law of the jurisdiction where, and by the documents by
which, the person is constituted or derives its existence. In case of doubt,
the Directors may in good faith seek legal advice from any qualified person
and unless and until a court of competent jurisdiction shall otherwise rule,
the Directors may rely and act upon such advice without incurring any
liability to any Shareholder or the Company.
8.21. Any person other than an individual which is a Shareholder may by
resolution of its Directors or other governing body authorise such individual
as it thinks fit to act as its representative at any Shareholder Meeting or of
any class of Shareholders, and the individual so authorised shall be entitled
to exercise the same rights on behalf of the Shareholder which they represent
as that Shareholder could exercise if it were an individual.
8.22. The chair of any Shareholder Meeting at which a vote is cast by
proxy or on behalf of any person other than an individual may call for a
notarially certified copy of such proxy or authority which shall be produced
within 7 days of being so requested or the votes cast by such proxy or on
behalf of such person shall be disregarded.
8.23. Directors may attend and speak at any Shareholder Meeting and at
any separate meeting of the holders of any class or series of Shares.
8.24. An action that may be taken by the Shareholders at a Shareholder
Meeting may also be taken by a resolution consented to in writing, without the
need for any notice, but if any Resolution of Shareholders is adopted
otherwise than by the unanimous written consent of all Shareholders, a copy of
such resolution shall forthwith be sent to all Shareholders not consenting to
such resolution. The consent may be in the form of counterparts; each
counterpart being signed by one or more Shareholders. If the consent is in one
or more counterparts, and the counterparts bear different dates, then the
resolution shall take effect on the earliest date upon which Shareholders
holding a sufficient number of votes of Shares to constitute a Resolution of
Shareholders have consented to the resolution by signed counterparts.
9 UNTRACEABLE MEMBERS
9.1. Where any Shareholder is untraceable, the Company may sell any
of their Shares provided that:
(a) no less than 3 checks for any sums payable in cash to
such Shareholder have remained uncashed for a period of 12 years from the date
of issue of the check;
(b) the Company not having during that time or before the
expiry of the three-month period referred to in Regulation 9.1(c)
(#_bookmark17) received any indication of the existence of the Shareholder or
person entitled to such shares by death, bankruptcy, or operation of law; and
(c) upon expiration of the 12-year period, an
advertisement has been published in newspapers, giving notice of the Company's
intention to sell those Shares, and a period of three months or such shorter
period has elapsed since the date of such advertisement.
9.2. Where the Company sells the Shares of any untraceable
Shareholder, the net proceeds of any such sale shall be held in the Company,
and the net proceeds shall be accounted as a debt due to that untraceable
Shareholder for an amount equal to such net proceeds.
10 DIRECTORS
10.1. The Directors shall be elected by Resolution of Shareholders or in
the circumstances provided at Regulation 10.8 (#_bookmark18) by Resolution of
Directors.
10.2. No person shall be appointed as a Director or alternate Director,
or nominated as a reserve Director, unless they have consented in writing to
be a Director or alternate Director, or to be nominated as a reserve Director.
10.3. The minimum number of Directors shall be one and there shall be no
maximum number of directors. Any change in the number of Directors shall be
approved by a Resolution of Shareholders.
10.4. Each Director holds office for the term, if any, fixed by the
Resolution of Shareholders appointing them, or until their earlier death,
resignation, or removal. If no term is fixed on the appointment of a
Director, the Director serves indefinitely until their earlier death,
resignation, or removal.
10.5. No Director will be required to submit for re-election until the
first Annual General Meeting following the Effective Date.
10.6. A Director may be removed from office:
(a) with or without cause, by Resolution of Shareholders
passed at a Shareholder Meeting called for the purpose of removing the
Director or for purposes including the removal of the Director or by a written
resolution passed by at least 75% of the votes of the Shares of the Company
entitled to vote; or
(b) with cause, by Resolution of Directors passed at a
meeting of Directors called for the purpose of removing the Director or for
purposes including the removal of the Director.
10.7. A Director may resign their office by giving written notice of
their resignation to the Company and the resignation has effect from the date
the notice is received by the Company or from such later date as may be
specified in the notice. A Director shall resign forthwith as a Director if
they are, or become, disqualified from acting as a Director under the Act.
10.8. The Directors may at any time appoint any person to be a Director
to fill a vacancy. Where the Directors appoint a person as Director to fill a
vacancy, the term shall expire on the earlier of:
(a) the end of the term of the Director being replaced; or
(b) the next Annual General Meeting.
10.9. A vacancy in relation to Directors occurs if a Director dies or
otherwise ceases to hold office prior to the expiration of their term of
office.
10.10. The Company shall keep a Register of Directors containing:
(a) the names and addresses of the persons who are
Directors or who have been nominated as reserve Directors;
(b) the date on which each person whose name is entered in
the register was appointed as a Director, or nominated as a reserve Director;
(c) the date on which each person named as a Director
ceased to be a Director;
(d) the date on which the nomination of any person
nominated as a reserve Director ceased to have effect; and
(e) such other information as may be prescribed by the
Act.
10.11. The Register of Directors may be kept in any such form as the
Directors may approve, but if it is in magnetic, electronic, or other data
storage form, the Company must be able to produce legible evidence of its
contents. Until a Resolution of Directors determinotherwise is passed, the
magnetic, electronic, or other data storage shall be the original Register of
Directors.
10.12. A Director is not required to hold a Share as a qualification to
office.
11 LA MANCHA NOMINATION RIGHTS
11.1. La Mancha shall be entitled to designate one (1) La Mancha Nominee
to be nominated to serve as a Director at each Shareholder Meeting at which
Directors are to be elected. For the avoidance of doubt, although La Mancha
may have the right to nominate one La Mancha Nominee, it shall not be required
to nominate a La Mancha Nominee.
11.2. Any nomination of a La Mancha Director shall be made by giving
notice in writing to the Company (a La Mancha Nomination Notice) at least
sixty (60) calendar days prior to the relevant Shareholder Meeting.
11.3. Notwithstanding anything else in the Memorandum and these
Articles, the La Mancha Nomination Right shall remain in effect for so long as
La Mancha holds the Minimum Holding and shall terminate should La Mancha hold,
at any time, less than the Minimum Holding. Notwithstanding the foregoing, if
prior to the next Shareholder Meeting, at which Directors are to be elected,
which takes place after La Mancha's holds less than the Minimum Holding, La
Mancha has increased its ownership interest to the Minimum Holding, the number
of La Mancha Nominees on the Board shall be reinstated to one (1) in
accordance with this Regulation 11 (#_bookmark19) .
11.4. If a La Mancha Nominee ceases to hold office as a Director for any
reason (including death, disability, or resignation), La Mancha shall have the
right, but not the obligation, to nominate an individual to replace them and
the Company shall promptly take all steps as may be necessary to procure to
appoint, within ten (10) Business Days of such nomination and pursuant to
Regulation 10.8, such individual to the Board to replace the La Mancha Nominee
who has ceased to hold office. Any such succeeding individual shall thereafter
be a La Mancha Nominee.
11.5. Where a La Mancha Nominee who has previously failed to be elected
or re-elected (as the case may be) as a Director at a Shareholder Meeting, the
Company and La Mancha will consult with each other in good faith concerning
any proposal to nominate such La Mancha Nominee in future as a Director.
11.6. La Mancha may require the removal of the La Mancha Nominee as
Director and the appointment of another person in such La Mancha Nominee's
place pursuant to Regulation
10.8 by giving notice in writing to the Company and the La Mancha Nominee
being
removed (a La Mancha Removal Notice).
11.7. In the case of removal of the La Mancha Nominee as Director by La
Mancha, La Mancha shall procure written resignation by the outgoing La Mancha
Nominee of their appointment to the Board forthwith or, if a date for such
person's removal is specified in the notification to the Company, on that
date.
11.8. The Company shall use its commercially reasonable efforts to
obtain directors and officers liability insurance on terms customary for a
company whose shares are listed on the Main Market and traded on the London
Stock Exchange (which shall, for the avoidance of doubcover the La Mancha
Nominee on terms substantially similar to those applicable to the Company's
other non-executive Directors), and for so long as a La Mancha Nominee is a
member of the Board, maintain in place such insurance.
11.9. Where a La Mancha Nominee is required to retire and seek
re-election pursuant to these Articles or any corporate governance regime to
which the Company adheres and provided that the relevant La Mancha Nominee is
eligible to seek re-election under the Articles or any corporate governance
regime to which the Company adheres, the Company shall include the La Mancha
Nominee in its slate of nominees proposed for re-election to the Board, unless
La Mancha gives written notice to the Company prior to the publication of a
Shareholder circular for its Annual General Meeting that it does not wish to
nominate such La Mancha Nominee for re-election.
11.10. The Company shall use reasonable endeavours to ensure that the La
Mancha Nominee is able to participate in any meeting of the Board (in person
or by telephone or video conference) where such meeting is required to be
called or is otherwise called on short notice.
11.11. For so long as La Mancha has the La Mancha Nomination Right, La
Mancha shall be entitled, but shall not be obligated, to have a La Mancha
Nominee on the Board Sustainability and Technical Committee.
11.12. The Company shall notify La Mancha in writing immediately upon
determining the date of any Shareholder Meeting at which Directors are to be
elected. The Company shall include the La Mancha Nominee in its slate of
nominees, proposed for appointment to the Board, to the Shareholders for
approval as Director at each relevant Shareholder Meeting. The Company shall
solicit proxies from its Shareholders (provided that the Company shall be
under no obligation to retain or engage any proxy solicitation firm or service
for this purpose).
11.13. The La Mancha Nominee shall be an individual who consents in writing
to act as a Director and is not disqualified from acting as a Director under
applicable law or under the rules of any stock exchange on which ordinary
shares are listed. The La Mancha Nominee will be compensated as a member of
the Board on a basis no less favourable than the basis upon which the Company
compensates the other members of the Board, other than the executive members.
11.14. For so long as La Mancha has the La Mancha Nomination Right, in the
event that three (3) or more Board members are replaced by new Directors
during any given twenty-four (24) month period otherwise than in the context
of a Going Private Transaction, La Mancha shall have, in respect of one of the
new Directors (the New Director), the right to be consulted on, and to
approve, the nomination of such New Director. At least thirty (30) days before
the nomination of the New Director or the distribution of the Company's
management information circular for the Shareholder Meeting at which the New
Director is to be elected, the Company shall provide La Mancha information
regarding the backgrounds and profiles of the New Director candidates,
including information relating to expertise, experience, and diversity. Within
ten (10) days of receipt of such information, La Mancha shall provide its
approval of at least one New Director candidate or propose an alternate
candidate(s) which shall be reasonably considered by the Board, who shall be
under no obligation to accept such alternate candidate for nomination. The
Board shall notnominate the New Director for election until the parties have
agreed on a candidate in accordance with this Regulation 11.14 (#_bookmark22)
.
12 STELLANTIS NOMINATION RIGHTS
12.1. Stellantis shall have the right, but not the obligation, to
nominate one designee for election to the Board, at each Shareholder Meeting
at which Directors are to be elected. Any such nomination of a Stellantis
Nominee shall be made by giving notice in writing to the Company (a Stellantis
Nomination Notice) at least sixty (60) calendar days prior to the relevant
Shareholder Meeting.
12.2. The Company shall notify Stellantis in writing immediately upon
determining the date of any Shareholder Meeting at which Directors are to be
elected. The Company shall include the Stellantis Nominee in its slate of
nominees, proposed for appointment to the Board, to the Shareholders for
approval as a Director at each relevant Shareholder Meeting and solicit
proxies from its Shareholders (provided that the Company shall be under no
obligation to retain or engage any proxy solicitation firm or service for this
purpose).
12.3. The Stellantis Nominee shall be an individual who consents in
writing to act as a Director and is not disqualified from acting as a Director
under applicable law or under the rules of any stock exchange on which
ordinary shares are listed.
12.4. Where a Stellantis Nominee is required to retire and seek
re-election pursuant to these Articles or any corporate governance regime to
which the Company adheres and provided that the relevant Stellantis Nominee is
eligible to seek re-election under these Articles or any corporate governance
regime to which the Company adheres, the Company shall include the Stellantis
Nominee in its slate of nominees proposed for re-election to the Board, unless
Stellantis gives written notice to the Company prior to the publication of a
Shareholder circular for its Annual General Meeting that it does not wish to
nominate such Stellantis Nominee for re-election.
12.5. If, prior to the Annual General Meeting, any Stellantis designee
vacates their seat on the Board, Stellantis shall have the right, but not the
obligation, to nominate one designee to fill such vacancy. The Company shall
promptly take all steps as may be necessary to procure to appoint, within ten
(10) Business Days of such nomination, such individual to the Board to replace
the Stellantis Nominee who has ceased to hold office pursuant to Regulation
10.8. Any such succeeding individual shall thereafter be a Stellantis Nominee.
12.6. Notwithstanding anything else in the Memorandum and these
Articles, the Stellantis Nomination Right shall terminate should Stellantis
hold, at any time less than the Minimum Holding. Notwithstanding the
foregoing, if prior to the next Shareholder Meeting, at which Directors are to
be elected, which takes place after Stellantis holds less than the Minimum
Holding, Stellantis has increased its ownership interest to hold the Minimum
Holding, the number of Stellantis Nominees on the Board shall be reinstated to
one (1) in accordance with this Regulation 12 (#_bookmark23) .
12.7. If a Stellantis Nominee ceases to hold office as a Director for
any reason (including death, disability, or resignation), Stellantis shall
have the right, but not the obligation, to nominate an individual to replace
them and the Company shall promptly take all steps as may be necessary to
procure to appoint, within ten (10) Business Days of such nomination and
pursuant to Regulation 10.8, such individual to the Board to replace the
Stellantis Nomineewho has ceased to hold office. Any such succeeding
individual shall thereafter be a Stellantis Nominee.
12.8. Where a Stellantis Nominee has previously failed to be elected or
re-elected (as the case may be) as a Director at a Shareholder Meeting, the
Company and Stellantis will consult with each other in good faith concerning
any proposal to nominate such Stellantis Nominee in future as a Director.
12.9. Stellantis may require the removal of a Stellantis Nominee as
Director and appoint another person in such Stellantis Nominee's place by
giving notice in writing to the Company (a Stellantis Removal Notice). In the
case of removal of the Stellantis Nominee as Director by Stellantis,
Stellantis shall procure written resignation by the outgoing Stellantis
Nominee of their appointment to the Board forthwith or, if a date for such
person's removal is specified in the notification to the Company, on that
date.
12.10. The Company shall use reasonable endeavours to ensure that the
Stellantis Nominee is able to participate in any meeting of the Board (in
person or by telephone or video conference) where such meeting is required to
be called or is otherwise called on short notice.
12.11. For so long as Stellantis has the Stellantis Nomination Right,
Stellantis, shall be entitled, but not obligated, to require the Stellantis
Nominee be a member on any committees of the Board from time to time.
12.12. The Company shall use its commercially reasonable efforts to obtain
directors and officers liability insurance on terms customary for a company
whose shares are listed on the Main Market and traded on the London Stock
Exchange (which shall, for the avoidance of doubt, cover the Stellantis
Nominee on terms substantially similar to those applicable to the other
Directors), and for so long as a Stellantis Nominee is a member of the Board,
maintain in place such insurance, and the Company agrees to provide the
Stellantis Nominee equivalent indemnification as is provided to the other
Directors.
12.13. Stellantis will receive remuneration at market rates if:
(a) such Stellantis Nominee is independent within the
meaning of the UK Corporate Governance Code; and
(b) such remuneration is requested by, and permitted under
applicable policies of, Stellantis.
13 REMUNERATION OF DIRECTORS AND ADOPTION OF INCENTIVE SCHEMES
13.1. The remuneration of Directors shall be set by Resolution of
Directors.
13.2. All the Directors are entitled to be reimbursed by the Company for
travel, hotel and other expenses incurred by them in the course of their
Directors' duties relating to the Company.
13.3. Any Incentive Scheme adopted by the Company after the Effective
Date must be approved by a Resolution of Shareholders.
14 POWERS OF DIRECTORS
14.1. The business and affairs of the Company shall be managed by, or
under the direction or supervision of, the Directors. The Directors have all
the powers necessary for managing, and for directing and supervising, the
business and affairs of the Company. The Directors may exercise all such
powers of the Company as are not by the Act or by the Memorandum or the
Articles required to be exercised by the Shareholders.
14.2. Each Director shall exercise their powers for a proper purpose and
shall not act or agree to the Company acting in a manner that contravenes the
Memorandum, the Articles, or the Act. Each Director, in exercising their
powers or performing their duties, shall act honestly and in good faith in
what the Director believes to be the best interests of the Company.
14.3. If the Company is the wholly owned subsidiary of a parent, a
Director may, when exercising powers or performing duties as a Director, act
in a manner which they believe is in the best interests of the parent even
though it may not be in the best interests of the Company.
14.4. Any Director which is a body corporate may appoint any individual
as its duly authorised representative for the purpose of representing it at
meetings of the Directors, with respect to the signing of consents or
otherwise.
14.5. The continuing Directors may act notwithstanding any vacancy in
their body.
14.6. The Directors may by Resolution of Directors exercise all the
powers of the Company to incur indebtedness, liabilities, or obligations and
to secure indebtedness, liabilities, or obligations whether of the Company or
of any third party.
14.7. All cheques, promissory notes, drafts, bills of exchange, and
other negotiable instruments and all receipts for moneys paid to the Company
shall be signed, drawn, accepted, endorsed, or otherwise executed, as the case
may be, in such manner as shall from time to time be determined by Resolution
of Directors.
15 PROCEEDINGS OF DIRECTORS
15.1. Any one Director may call a meeting of the Directors by sending a
written notice to each other Director.
15.2. The Directors or any committee thereof may meet at such times and
in such manner and places within or outside the British Virgin Islands as the
Directors may determine to be necessary or desirable.
15.3. A Director is deemed to be present at a meeting of Directors if
they participate by telephone or other electronic means and all Directors
participating in the meeting are able to hear each other.
15.4. A Director shall be given not less than 3 days' notice of meetings
of Directors, but a meeting of Directors held without 3 days' notice having
been given to all Directors shall be valid if all the Directors entitled to
vote at the meeting who do not attend waive notice of the meeting, and for
this purpose the presence of a Director at a meeting shall constitute waiver
by that Director. The inadvertent failure to give notice of a meeting to a
Director, or the fact that a Director has not received the notice, does not
invalidate the meeting.
15.5. A Director (the Appointing Director) may appoint any other Director
or any other eligible person as their alternate to exercise the Appointing
Director's powers and carry out the Appointing Director's responsibilities in
relation to the taking of decisions by the Directors in the absence of the
Appointing Director.
15.6. The appointment and termination of an alternate Director must be in
writing, and written notice of the appointment and termination must be given
by the Appointing Director to the Company as soon as reasonably practicable.
15.7. An alternate Director has the same rights as the Appointing
Director in relation to any Directors' meeting and any written resolution
circulated for written consent. An alternate Director has no power to appoint
a further alternate, whether of the Appointing Director or of the alternate
Director, and the alternate does not act as an agent of or for the Appointing
Director.
15.8. The Appointing Director may, at any time, voluntarily terminate the
alternate Director's appointment. The voluntary termination of the appointment
of an alternate shall take effect from the time when written notice of the
termination is given to the Company. The rights of an alternate shall
automatically terminate if the Appointing Director dies or otherwise ceases to
hold office.
15.9. A meeting of Directors is duly constituted for all purposes if at
the commencement of the meeting there are present in person or by alternate
not less than one-half of the total number of Directors.
15.10. If the Company has only one Director the provisions herein contained
for meetings of Directors do not apply and such sole Director has full power
to represent and act for the Company in all matters as are not by the Act, the
Memorandum or the Articles required to be exercised by the Shareholders. In
lieu of minutes of a meeting the sole Director shall record in writing and
sign a note or memorandum of all matters requiring a Resolution of Directors.
Such a note or memorandum constitutes sufficient evidence of such resolution
for all purposes.
15.11. The Directors may appoint a Director as chair of the Board. At
meetings of Directors at which the chair of the Board is present, they shall
preside as chair of the meeting. If there is no chair of the Board or if the
chair of the Board is not present, the Directors present shall choose one of
their number to be chair of the meeting.
15.12. An action that may be taken by the Directors or a committee of
Directors at a meeting may also be taken by a Resolution of Directors or a
resolution of a committee of Directors, without the need for any notice. The
consent may be in the form of counterparts each counterpart being signed by
one or more Directors. If the consent is in one or more counterparts, and the
counterparts bear different dates, then the resolution shall take effect on
the date upon which the last Director has consented to the resolution by
signed counterparts.
16 COMMITTEES
16.1. The Directors may, by Resolution of Directors, designate one or
more committees, each consisting of one or more Directors, and delegate one or
more of their powers, including the power to affix the Seal, to the committee
16.2. The Directors have no power to delegate to a committee of Directors
any of the Proscribed Powers.
16.3. A committee of Directors, where authorised by the Resolution of
Directors appointing such committee or by a subsequent Resolution of
Directors, may appoint a sub-committee and delegate powers exercisable by the
committee to the sub-committee.
16.4. The meetings and proceedings of each committee of Directors
consisting of two (2) or more Directors shall be governed by the provisions of
these Articles regulating the proceedings of Directors with any necessary
changes so far as the same are not superseded by any provisions in the
Resolution of Directors establishing the committee.
16.5. Where the Directors delegate their powers to a committee of
Directors they remain responsible for the exercise of that power by the
committee, unless they believed on reasonable grounds at all times before the
exercise of the power that the committee would exercise the power in
conformity with the duties imposed on Directors under the Act.
17 OFFICERS AND AGENTS
17.1. The Company may by Resolution of Directors appoint officers of the
Company at such times as may be considered necessary or expedient. The
officers shall perform such duties as are prescribed at the time of their
appointment subject to any modification in such duties as may be prescribed
thereafter by Resolution of Directors.
17.2. The emoluments of all officers shall be fixed by Resolution of
Directors.
17.3. The officers of the Company shall hold office until their
successors are duly appointed, but any officer elected or appointed by the
Directors may be removed at any time, with or without cause, by Resolution of
Directors. Any vacancy occurring in any office of the Company may be filled by
Resolution of Directors.
17.4. The Directors may, by Resolution of Directors, appoint any person,
including a person who is a Director, to be an agent of the Company.
17.5. An agent of the Company shall have such powers and authority of
the Directors, including the power and authority to affix the Seal, as are set
forth in the Articles or in the Resolution of Directors appointing the agent,
except that no agent has any power or authority with respect to the following:
(a) the Proscribed Powers;
(b) to change the registered office or agent;
(c) to fix emoluments of Directors; or
(d) to authorise the Company to continue as a company
incorporated under the laws of a jurisdiction outside the British Virgin
Islands.
17.6. The Resolution of Directors appointing an agent may authorise the
agent to appoint one or more substitutes or delegates to exercise some or all
of the powers conferred on the agent by the Company.
17.7. The Directors may remove an agent appointed by the Company and may
revoke or vary a power conferred on them.
18 FINANCIAL YEAR
18.1. Unless the Directors otherwise prescribe, the financial year of
the Company shall end on 31 December in each year.
19 MERGERS AND CONSOLIDATIONS
19.1. The Company shall have the power to merge or consolidate with one
or more other constituent companies upon such terms as the Directors may
determine by a Resolution of the Directors subject as may be permitted by the
Act.
20 CONFLICT OF INTERESTS
20.1. A Director shall, forthwith after becoming aware of the fact that
they are interested in a transaction entered into or to be entered into by the
Company, disclose the interest to all other Directors.
20.2. For the purposes of Regulation 20. (#_bookmark29) 1 (#_bookmark29)
, a disclosure to all other Directors to the effect that a Director is a
member, Director, or officer of another named entity or has a fiduciary
relationship with respect to the entity or a named individual and is to be
regarded as interested in any transaction which may, after the date of the
entry into the transaction or disclosure of the interest, be entered into with
that entity or individual, is a sufficient disclosure of interest in relation
to that transaction.
20.3. Subject to any rules or regulations of the London Stock Exchange
or any laws or regulations governing companies listed on the London Stock
Exchange, a Director who is interested in a transaction entered into or to be
entered into by the Company may:
(a) vote on a matter relating to the transaction;
(b) attend a meeting of Directors, or meeting of a
committee of Directors, at which a matter relating to the transaction arises
and be included among the Directors present at the relevant meeting for the
purposes of a quorum; and
(c) sign a document on behalf of the Company, or do any
other thing in their capacity as a Director, that relates to the transaction,
and, subject to compliance with the Act shall not, by reason of their office
be accountable to the Company for any benefit which they derive from such
transaction and no such transaction shall be liable to be avoided on the
grounds of any such interest or benefit.
21 INDEMNIFICATION
21.1. Subject to the limitations hereinafter provided the Company shall
indemnify against all expenses, including legal fees, and against all
judgments, fines, and amounts paid in settlement and reasonably incurred in
connection with legal, administrative, or investigative proceedings any person
who:
(a) is or was a party or is threatened to be made a party
to any threatened, pending, or completed proceedings, whether civil, criminal,
administrative, or investigative, by reason of the fact that the person is or
was a Director; or
(b) is or was, at the request of the Company, serving as a
Director of, or in any other capacity is or was acting for, another body
corporate or a partnership, joint venture, trust, or other enterprise.
21.2. The indemnity in Regulation 21. (#_bookmark30) 1 (#_bookmark30)
only applies if the person acted honestly and in good faith with a view to the
best interests of the Company and, in the case of criminal proceedings, the
person had no reasonable cause to believe that their conduct was unlawful.
21.3. For the purposes of Regulation 21. (#_bookmark31) 2 (#_bookmark31)
and without limitation, a Director acts in the best interests of the Company
if they act in the best interests of the Company's parent in the circumstances
specified in Regulation 14. (#_bookmark27) 3 (#_bookmark27) .
21.4. The decision of the Directors as to whether the person acted
honestly and in good faith and with a view to the best interests of the
Company and as to whether the person had no reasonable cause to believe that
their conduct was unlawful is, in the absence of fraud, sufficient for the
purposes of the Articles, unless a question of law is involved.
21.5. The termination of any proceedings by any judgment, order,
settlement, conviction, or the entering of a nolle prosequidoes not, by
itself, create a presumption that the person did not act honestly and in good
faith and with a view to the best interests of the Company or that the person
had reasonable cause to believe that their conduct was unlawful.
21.6. Expenses, including legal fees, incurred by a Director in
defending any legal, administrative or investigative proceedings may be paid
by the Company in advance of the final disposition of such proceedings upon
receipt of an undertaking by or on behalf of the Director to repay the amount
if it shall ultimately be determined that the Director is not entitled to be
indemnified by the Company in accordance with Regulation 21. (#_bookmark30) 1
(#_bookmark30) .
21.7. Expenses, including legal fees, incurred by a former Director in
defending any legal, administrative or investigative proceedings may be paid
by the Company in advance of the final disposition of such proceedings upon
receipt of an undertaking by or on behalf of the former Director to repay the
amount if it shall ultimately be determined that the former Director is not
entitled to be indemnified by the Company in accordance with Regulation
21. (#_bookmark30) 1 (#_bookmark30) and upon such terms and conditions, if
any, as the Company deems appropriate.
21.8. The indemnification and advancement of expenses provided by, or
granted pursuant to, this section is not exclusive of any other rights to
which the person seeking indemnification or advancement of expenses may be
entitled under any agreement, Resolution of Shareholders, resolution of
disinterested Directors or otherwise, both as to acting in the person's
official capacity and as to acting in another capacity while serving as a
Director.
21.9. If a person referred to in Regulation 21. (#_bookmark30) 1
(#_bookmark30) has been successful in defence of any proceedings referred to
in Regulation 21. (#_bookmark30) 1 (#_bookmark30) , the person is entitled to
be indemnified against all expenses, including legal fees, and against all
judgments, fines and amounts paid in settlement and reasonably incurred by the
person in connection with the proceedings.
21.10. The Company may purchase and maintain insurance in relation to any
person who is or was a Director, officer or liquidator of the Company, or who
at the request of the Company is or was serving as a Director, officer or
liquidator of, or in any other capacity is or was acting for, another body
corporate or a partnership, joint venture, trust or other enterprise, against
any liability asserted against the person and incurred by the person in that
capacity, whether or not the Company has or would have had the power to
indemnify the person against the liability as provided in the Articles.
22 CORPORATE RECORDS
22.1. The Company shall keep the following documents at the office of
its registered agent:
(a) the Memorandum and the Articles;
(b) the Register of Members, or a copy of the Register of
Members;
(c) the Register of Directors, or a copy of the Register
of Directors; and
(d) copies of all notices and other documents filed by the
Company with the Registrar in the previous 10 years.
22.2. Until the Directors determine otherwise by Resolution of Directors
the Company shall keep the original Register of Members and original Register
of Directors at the office of its registered agent.
22.3. If the Company maintains only a copy of the Register of Members or
a copy of the Register of Directors at the office of its registered agent, it
shall:
(a) within 15 days of any change in either register,
notify the registered agent in writing of the change; and
(b) provide the registered agent with a written record of
the physical address of the place or places at which the original Register of
Members or the original Register of Directors is kept.
22.4. The Company shall keep the following records at the office of its
registered agent or at such other place or places, within or outside the
British Virgin Islands, as the Directors may determine:
(a) minutes of meetings and Resolutions of Directors and
committees of Directors; and
(b) minutes of meetings and Resolutions of Shareholders
and classes of Shareholders.
22.5. Where any original records referred to in this Regulation are
maintained other than at the office of the registered agent of the Company,
and the place at which the original records is changed, the Company shall
provide the registered agent with the physical address of the new location of
the records of the Company within 14 days of the change of location.
22.6. The records kept by the Company under this Regulation shall be in
written form or either wholly or partly as electronic records complying with
the requirements of the Electronic Transactions Act 2001 as from time to time
amended or re-enacted.
23 SEAL
23.1. The Company shall have a Seal an impression of which shall be kept
at the office of the registered agent of the Company. The Company may have
more than one Seal and references herein to the Seal shall be references to
every Seal which shall have been duly adopted by Resolution of Directors. The
Directors shall provide for the safe custody of the Seal and for an imprint
thereof to be kept at the registered office. Except as otherwise expressly
provided herein the Seal when affixed to any written instrument shall be
witnessed and attested to by the signature of any one Director or other person
so authorised from time to time by Resolution of Directors. Such authorisation
may be before or after the Seal is affixed, may be general or specific and may
refer to any number of sealings. The Directors may provide for a facsimile of
the Seal and of the signature of any Director or authorised person which may
be reproduced by printing or other means on any instrument and it shall have
the same force and validity as if the Seal had been affixed to such instrument
and the same had been attested to as hereinbefore described.
24 DISTRIBUTIONS BY WAY OF DIVIDEND
24.1. The Directors may, by Resolution of Directors, authorise a
distribution by way of dividend at a time and of an amount they think fit if
they are satisfied, on reasonable grounds, that, immediately after the
distribution, the value of the Company's assets will exceed its liabilities
and the Company will be able to pay its debts as they fall due.
24.2. Dividends may be paid in money, shares, or other property.
24.3. The Company may, by Resolution of Directors, from time to time pay
to the Members such interim dividends as appear to the Directors to be
justified by the profits of the Company, provided always that they are
satisfied, on reasonable grounds, that, immediately after the distribution,
the value of the Company's assets will exceed its liabilities and the Company
will be able to pay its debts as and when they fall due.
24.4. Notice of any dividend that may have been declared shall be given
to each Shareholder as specified in Regulation 25 and all dividends unclaimed
for 3 years after having been declared may be forfeited by Resolution of
Directors for the benefit of the Company.
24.5. No dividend shall bear interest as against the Company and no
dividend shall be paid on treasury shares.
25 ACCOUNTS AND AUDIT
25.1. The Company shall keep records and underlying documentation that
are sufficient to show and explain the Company's transactions and that will,
at any time, enable the financial position of the Company to be determined
with reasonable accuracy.
25.2. The records and underlying documentation of the Company shall be
kept at the office of its registered agent or at such other place or places,
within or outside the British Virgin Islands, as the Directors may determine
and if the records and underlying documentation are kept in a location other
than the office of the registered agent, the Company shall provide the
registered agent with a written record of:
(a) the physical address of the place at which the records
and underlying documentation are kept; and
(b) the name of the person who maintains and controls the
Company's records and underlying documentation.
25.3. If the location at which the records and underlying documentation
are kept or the name of the person who maintains and controls the records and
underlying documentation changes, the Company shall, within 14 days of the
change provide its registered agent with:
(a) the physical address of the new location at which the
records and underlying documentation are kept; and
(b) the name of the new person who maintains and controls
the Company's records and underlying documentation.
25.4. The Company may by Resolution of Shareholders call for the
Directors to prepare periodically and make available a profit and loss account
and a balance sheet. The profit and loss account and balance sheet shall be
drawn up so as to give respectively a true and fair view of the profit and
loss of the Company for a financial period and a true and fair view of the
assets and liabilities of the Company as at the end of a financial period.
25.5. The Company may by Resolution of Shareholders call for the
accounts to be examined by auditors.
25.6. The first auditors shall be appointed by Resolution of Directors;
subsequent auditors shall be appointed by Resolution of Shareholders or by
Resolution of Directors.
25.7. The auditors may be Shareholders, but no Director or other officer
shall be eligible to be an auditor of the Company during their continuance in
office.
25.8. The remuneration of the auditors of the Company may be fixed by
Resolution of Directors.
25.9. The auditors shall examine each profit and loss account and
balance sheet required to be laid before a meeting of the Shareholders or
otherwise given to Shareholders and shall state in a written report whether or
not:
(a) in their opinion the profit and loss account and
balance sheet give a true and fair view respectively of the profit and loss
for the period covered by the accounts, and of the assets and liabilities of
the Company at the end of that period; and
(b) all the information and explanations required by the
auditors have been obtained.
25.10. The report of the auditors shall be annexed to the accounts and shall
be read at the meeting of Shareholders at which the accounts are laid before
the Company or shall be otherwise given to the Shareholders.
25.11. Every auditor of the Company shall have a right of access at all
times to the books of account and vouchers of the Company, and shall be
entitled to require from the Directors and officers of the Company such
information and explanations as they think necessary for the performance of
the duties of the auditors.
25.12. The auditors of the Company shall be entitled to receive notice of,
and to attend any meetings of Shareholders at which the Company's profit and
loss account and balance sheet are to be presented.
25.13. The Directors shall establish and maintain an audit committee (the
Audit Committee) as a committee of the Directors and shall adopt a formal
written Audit Committee charter and review and assess the adequacy of the
formal written charter on an annual basis. The composition and
responsibilities of the Audit Committee shall comply with the rules and
regulations of the FCA and the London Stock Exchange. Once formed, the Audit
Committee shall meet at least once every financial quarter, or more frequently
as the circumstances dictate.
26 NOTICES
26.1. Any notice, information, or written statement to be given by the
Company to Shareholders shall be in writing and may be given by personal
service, mail, courier, or email to such Shareholder's address as shown in the
Register of Members or to such Shareholder's email address as notified by the
Shareholder to the Company in writing from time to time.
26.2. Any summons, notice, order, document, process, information or
written statement to be served on the Company may be served by leaving it, or
by sending it by registered mail addressed to the Company, at its registered
office, or by leaving it with, or by sending it by registered mail addressed
to the Company at the offices of the registered agent of the Company.
26.3. Where a notice is sent by post, service of the notice shall be
deemed to be effected by properly addressing, prepaying and posting aletter
containing notice, and shall be deemed to be received on the fifth Business
Day following the day on which the notice was posted. Where a notice is sent
by email, notice shall be deemed to be effected by transmitting the email to
the address or number provided by the intended recipient and service of the
notice shall be deemed to have been received on the same day that it was
transmitted.
27 VOLUNTARY LIQUIDATION
27.1. Subject to the Act, the Company may by Resolution of Shareholders
or by Resolution of Directors appoint an eligible individual as voluntary
liquidator alone or jointly with one or more other voluntary liquidators.
28. CONTINUATION
28.1. Subject to the Act, the Company may by Resolution of Directors
continue as a company incorporated under the laws of a jurisdiction outside
the British Virgin Islands in the manner provided under those laws.
Signed for HARNEYS CORPORATE SERVICES LIMITED of Craigmuir Chambers, Road
Town, Tortola, VG 1110, British Virgin Islands for the purpose of
incorporating a BVI Business Company under the laws of the British Virgin
Islands on 22nd of June 2021:
Incorporator
Sgd: Indira Ward-Lewis
…………………………..
Indira Ward-Lewis Authorised Signatory
HARNEYS CORPORATE SERVICES LIMITED
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