UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 


 

FORM 8-K

 


 

CURRENT REPORT

Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934

 

Date of Report (date of earliest event reported): August 1, 2017

 


 

Venator Materials PLC

(Exact name of registrant as specified in its charter)

 


 

England and Wales

 

001-38176

 

98-1373159

(State or Other Jurisdiction
of Incorporation)

 

(Commission File Number)

 

(IRS Employer
Identification No.)

 

Titanium House, Hanzard Drive, Wynyard Park,

Stockton-On-Tees, TS22 5FD, United Kingdom

(Address of Principal Executive Offices)

(Zip Code)

 

Registrant’s telephone number, including area code: +44 (0) 1740 608 001

 


 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

o             Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

o             Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

o             Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

o             Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

 

Emerging growth company o

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. o

 

 

 



 

Item 1.01.                 Entry Into a Material Definitive Agreement.

 

Underwriting Agreement

 

On August 2, 2017, Venator Materials PLC (“ Venator ”), entered into an Underwriting Agreement (the “ Underwriting Agreement ”), by and among Venator, Huntsman International LLC, a Delaware limited liability company (“ Huntsman International ”), Huntsman (Holdings) Netherlands B.V., a private limited liability company ( besloten vennootschap met beperkte aansprakelijkheid ) incorporated under the laws of the Netherlands (“ Huntsman Netherlands ,” and together with Huntsman International, the “ Selling Shareholders ”), and Citigroup Global Markets Inc., Goldman Sachs & Co. LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated and J.P. Morgan Securities LLC, as representatives of the several underwriters named therein (the “ Underwriters ”), relating to the offer and sale of ordinary shares of Venator (the “ Ordinary Shares ”). The Underwriting Agreement provides for the offer and sale by the Selling Shareholders, and purchase by the Underwriters, of 26,105,000 Ordinary Shares, including the 3,405,0000 Ordinary Shares pursuant to the Underwriters’ exercise in full of their option to purchase additional Ordinary Shares, at a price to the public of $20 per Ordinary Share (the “ Offering ”). The material terms of the Offering are described in the prospectus, dated August 2, 2017 (the “ Prospectus ”), filed by Venator with the U.S. Securities and Exchange Commission (the “ Commission ”) on August 4, 2017, pursuant to Rule 424(b) under the Securities Act of 1933, as amended (the “ Securities Act ”). The Offering is registered with the Commission pursuant to a Registration Statement (the “ Registration Statement ”) on Form S-1, as amended (File No. 333-217753), initially filed on May 5, 2017.

 

The Underwriting Agreement contains customary representations and warranties, agreements and obligations, closing conditions and termination provisions. Venator and the Selling Shareholders have agreed to indemnify the Underwriters against certain liabilities, including liabilities under the Securities Act, and to contribute to payments the Underwriters may be required to make because of any of those liabilities.

 

The Offering is expected to close on August 8, 2017. Venator will not receive any net proceeds from the Offering. As described in the Prospectus, the Selling Shareholders will receive gross proceeds of approximately $522 million.

 

As more fully described under the caption “Underwriting” in the Prospectus, certain of the Underwriters and their respective affiliates have engaged in, and may in the future engage in, various investment banking and other commercial dealings in the ordinary course of business, for which they have received or may in the future receive customary fees and commissions.

 

The foregoing description is qualified in its entirety by reference to the full text of the Underwriting Agreement, which is attached as Exhibit 1.1 to this Current Report on Form 8-K and incorporated in this Item 1.01 by reference.

 

2017 Long Term Incentive Plan

 

The description of the Venator Materials 2017 Stock Incentive Plan (the “ LTIP ”) provided below under Item 5.02 is incorporated in this Item 1.01 by reference. A copy of the LTIP is attached as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated in this Item 1.01 by reference.

 

Item 5.02       Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

 

On August 2, 2017, effective simultaneously with the effectiveness of the Registration Statement, the Board of Directors of Venator (the “ Board ”) increased the size of the Board by two and appointed Douglas D. Anderson and Daniele Ferrari as members of the Board. Messrs. Anderson and Ferrari will serve as members of Venator’s audit committee, nominating and governance committee and compensation committee.

 

As compensation for services provided as a member of the Board, Messrs. Anderson and Ferrari will receive (i) an annual retainer of $60,000, and (ii) an annual equity grant equal to the value of $120,000 that will be fully vested on the date of the grant. As the chairman of the compensation committee and a member of the audit committee and nominating and governance committee, Mr. Ferrari will receive an additional $35,000 annual retainer fee. As the chairman of the audit committee and a member of the nominating and governance committee and compensation committee, Mr. Anderson will receive an additional $35,000 annual retainer fee.

 

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Further information regarding the compensation that Messrs. Anderson and Ferrari will receive following the closing of the Offering is also contained in the section of the Prospectus entitled “Director Compensation” and is incorporated herein by reference.

 

In connection with the Offering, Messrs. Anderson and Ferrari will each enter into an Indemnification Agreement with Venator in substantially the form previously filed as Exhibit 10.5 to Amendment No. 3 to the Registration Statement, filed by Venator on July 14, 2017.

 

Except as disclosed in the Registration Statement and the Prospectus, there are no arrangements or understandings between Messrs.  Anderson and Ferrari and any other person pursuant to which each was selected as a director. Messrs.  Anderson and Ferrari have no family relationships with any director or executive officer of Venator or any person nominated or chosen by Venator to become a director or executive officer.

 

2017 Long Term Incentive Plan

 

On August 1, 2017, the Board adopted the LTIP for the benefit of employees, directors and consultants of Venator and its affiliates. The LTIP provides for the grant of all or any of the following types of equity-based awards: (1) stock options, (2) stock appreciation rights, (3) restricted stock, (4) phantom shares, (5) bonus stock, (6) dividend equivalents, (7) substitute awards, (8) other stock-based awards and (9) performance awards. Subject to adjustment in accordance with the terms of the LTIP, 12,750,000 Ordinary Shares have been reserved for issuance pursuant to awards under the LTIP. Subject to certain limitations set forth within the LTIP, Ordinary Shares that are forfeited, repurchased by Venator at the same price paid by the participant, or withheld to satisfy exercise prices or tax withholding obligations will be available for delivery pursuant to other awards. The LTIP will be administered by the Board or an alternative committee appointed by the Board.  Notwithstanding anything within the LTIP to the contrary, to comply with applicable laws in countries other than the United States in which Venator or its affiliates operates or has employees, directors or other service providers, or to ensure that Venator complies with any applicable requirements of foreign securities exchanges, the LTIP administrator, in its sole discretion, shall have the power and authority to determine who is eligible to participate in the LTIP, modify the terms and conditions of awards, establish sub-plans with applicable foreign jurisdiction provisions, or take other actions deemed advisable to comply with foreign laws or securities exchange rules.

 

The foregoing description of the LTIP is not complete and is qualified in its entirety by reference to the full text of the LTIP, which is attached as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated in this Item 5.02 by reference.

 

Executive Change in Control and Severance Benefit Plan

 

On July 13, 2017, the Board adopted the Venator Materials PLC Executive Severance Plan (the “ Executive Severance Plan ”) to pr ovide severance and change of control benefits to certain executive officers in connection with a termination of an executive’s employment by us without “Reasonable Cause,” or by the executive for “Good Reason” (each quoted term as defined in the Executive Severance Plan). The potential severance and benefit amounts vary depending on the eligible individual’s role and title within Venator.

 

The terms of the Executive Severance Plan are substantially the same as the terms set forth in the form of such plan previously filed as Exhibit 10.12 to the Registration Statement, filed by Venator on July 14, 2017. The foregoing description of the Executive Severance Plan is not complete and is qualified in its entirety by reference to the full text of the Executive Severance Plan, a form of which is attached as Exhibit  10.12 to the Registration Statement filed by Venator on July 14, 2017, and is incorporated in this Item 5.02 by reference.

 

Item 5.03.                 Amendments to Articles of Incorporation or Bylaws; Changes in Fiscal Year.

 

On August 1, 2017, in connection with the Offering, Venator amended and restated its Articles of Association (as amended and restated, the “ Articles of Association ”). A description of the Articles of Association is contained in the section of the Prospectus entitled “Description of Share Capital” and is incorporated herein by reference.

 

The foregoing description and the description contained in the Prospectus are qualified in their entirety by reference to the full text of the Articles of Association, which is filed as Exhibit 3.1 to this Current Report on Form 8-K and is incorporated in this Item 5.03 by reference.

 

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Item 9.01.                 Financial Statements and Exhibits.

 

Exhibits

 

Exhibit
Number

 

Description

1.1

 

Underwriting Agreement, dated as of August 2, 2017, by and among Venator Materials PLC, Huntsman International LLC, Huntsman (Holdings) Netherlands B.V. and Citigroup Global Markets Inc., Goldman Sachs & Co. LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated and J.P. Morgan Securities LLC, as representatives of the several underwriters named therein.

 

 

 

3.1

 

Amended and Restated Articles of Association dated as of August 1, 2017.

 

 

 

10.1

 

Venator Materials 2017 Stock Incentive Plan. 

 

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SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

 

Venator Materials PLC

 

 

 

 

 

 

 

By:

/s/ Russ Stolle

 

Name:

Russ Stolle

 

Title:

Senior Vice President, General Counsel and Chief Compliance Officer

 

 

 

Date: August 7, 2017

 

 

 

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INDEX TO EXHIBITS

 

Exhibit
Number

 

Description

1.1

 

Underwriting Agreement, dated as of August 2, 2017, by and among Venator Materials PLC, Huntsman International LLC, Huntsman (Holdings) Netherlands B.V. and Citigroup Global Markets Inc., Goldman Sachs & Co. LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated and J.P. Morgan Securities LLC, as representatives of the several underwriters named therein.

 

 

 

3.1

 

Amended and Restated Articles of Association dated as of August 1, 2017.

 

 

 

10.1

 

Venator Materials 2017 Stock Incentive Plan. 

 

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Exhibit 1.1

 

EXECUTION VERSION

 

 

 

 

VENATOR MATERIALS PLC

 

(a public limited company incorporated under the laws of England and Wales)

 

22,700,000 Ordinary Shares

 

UNDERWRITING AGREEMENT

 

Dated:  August 2, 2017

 

 

 

 



 

VENATOR MATERIALS PLC

 

(a public limited company incorporated under the laws of England and Wales)

 

22,700,000 Ordinary Shares

 

UNDERWRITING AGREEMENT

 

August 2, 2017

 

Citigroup Global Markets Inc.

Goldman Sachs & Co. LLC

Merrill Lynch, Pierce, Fenner & Smith

                     Incorporated

J.P. Morgan Securities LLC

 

c/o Citigroup Global Markets Inc.

388 Greenwich Street

New York, New York 10013

 

as Representatives of the several Underwriters

 

Ladies and Gentlemen:

 

Venator Materials PLC, a public limited company incorporated under the laws of England and Wales (the “Company”), Huntsman International LLC, a Delaware limited liability company (“Huntsman International”), and Huntsman (Holdings) Netherlands B.V., a private limited liability company ( besloten vennootschap met beperkte aansprakelijkheid ) incorporated under the laws of the Netherlands (“Huntsman Holdings” and, together with Huntsman International, the “Selling Shareholders”), confirm their respective agreements with each of the other Underwriters named in Schedule A hereto (collectively, the “Underwriters,” which term shall also include any underwriter substituted as hereinafter provided in Section 11 hereof), for whom you are acting as representatives (in such capacity, the “Representatives”), with respect to (i) the sale by the Selling Shareholders and the purchase by the Underwriters, acting severally and not jointly, of the respective numbers of Ordinary Shares, par value $0.001 per share, of the Company (“Ordinary Shares”) set forth in Schedules A and B hereto and (ii) the grant by the Selling Shareholders to the Underwriters, acting severally and not jointly, of the option described in Section 2(b) hereof to purchase all or any part of 3,405,000 additional Ordinary Shares.  The aforesaid 22,700,000 Ordinary Shares (the “Initial Securities”) to be purchased by the Underwriters and all or any part of the 3,405,000 Ordinary Shares subject to the option described in Section 2(b) hereof (the “Option Securities”) are herein called, collectively, the “Securities.”

 

The Company and the Selling Shareholders understand that the Underwriters propose to make a public offering of the Securities as soon as the Representatives deem advisable after this Agreement has been executed and delivered.

 

The Company has filed with the Securities and Exchange Commission (the “Commission”) a registration statement on Form S-1 (No. 333-217753), including the related preliminary prospectus or prospectuses, covering the registration of the sale of the Securities under the Securities Act of 1933, as

 

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amended (the “1933 Act”).  Promptly after execution and delivery of this Agreement, the Company will prepare and file a prospectus in accordance with the provisions of Rule 430A (“Rule 430A”) of the rules and regulations of the Commission under the 1933 Act (the “1933 Act Regulations”) and Rule 424(b) (“Rule 424(b)”) of the 1933 Act Regulations.  The information included in such prospectus that was omitted from such registration statement at the time it became effective but that is deemed to be part of such registration statement at the time it became effective pursuant to Rule 430A(b) is herein called the “Rule 430A Information.”  Such registration statement, including the amendments thereto, the exhibits thereto and any schedules thereto, at the time it became effective, and including the Rule 430A Information, is herein called the “Registration Statement.”  Any registration statement filed pursuant to Rule 462(b) of the 1933 Act Regulations is herein called the “Rule 462(b) Registration Statement” and, after such filing, the term “Registration Statement” shall include the Rule 462(b) Registration Statement.  Each prospectus used prior to the effectiveness of the Registration Statement, and each prospectus that omitted the Rule 430A Information that was used after such effectiveness and prior to the execution and delivery of this Agreement, is herein called a “preliminary prospectus.”  The final prospectus, in the form first furnished to the Underwriters for use in connection with the offering of the Securities, is herein called the “Prospectus.”  For purposes of this Agreement, all references to the Registration Statement, any preliminary prospectus, the Prospectus or any amendment or supplement to any of the foregoing shall be deemed to include the copy filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system or any successor system (“EDGAR”).

 

As used in this Agreement:

 

“Applicable Time” means 7:30 P.M., New York City time, on August 2, 2017, or such other time as agreed by the Company and the Representatives.

 

“General Disclosure Package” means any Issuer General Use Free Writing Prospectuses issued at or prior to the Applicable Time, the most recent preliminary prospectus that is distributed to investors prior to the Applicable Time and the information included on Schedule C-1 hereto, all considered together.

 

“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433 of the 1933 Act Regulations (“Rule 433”), including without limitation any “free writing prospectus” (as defined in Rule 405 of the 1933 Act Regulations (“Rule 405”)) relating to the Securities that is (i) required to be filed with the Commission by the Company, (ii) a “road show that is a written communication” within the meaning of Rule 433(d)(8)(i), whether or not required to be filed with the Commission, or (iii) exempt from filing with the Commission pursuant to Rule 433(d)(5)(i) because it contains a description of the Securities or of the offering that does not reflect the final terms, in each case in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g).

 

“Issuer General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is intended for general distribution to prospective investors (other than a “ bona fide electronic road show,” as defined in Rule 433 (the “Bona Fide Electronic Road Show”)), as evidenced by its being specified in Schedule C-2 hereto.

 

“Issuer Limited Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is not an Issuer General Use Free Writing Prospectus.

 

On the date hereof, the business of the Company is conducted through various wholly-owned subsidiaries of Huntsman Corporation, a Delaware corporation (“Huntsman”).

 

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As used in this Agreement, the “separation” refers to the (i) the separation of the Pigments & Additives business from Huntsman’s other businesses, including the transfer by Huntsman and its subsidiaries to the Company of substantially all of the assets and liabilities related to the Pigments & Additives business and (ii) the execution on or prior to the Closing Time (as defined below) of the separation agreement and other agreements by the Company and Huntsman set forth in Schedule E hereto (collectively, the “Separation Agreements”). The Separation Agreements and this Agreement are referred to in this Agreement collectively as the “Transaction Agreements.” As used herein, unless the context otherwise requires, (1) prior to the consummation of the separation, references to the “Company” shall be deemed to be references to Venator Materials PLC and its subsidiaries, and the Pigments & Additives business segment of Huntsman, and (2) after the consummation of the separation, references to the “Company” shall be deemed to be references to Venator Materials PLC and its subsidiaries, only.

 

SECTION 1.         Representations and Warranties .

 

(a)           Representations and Warranties by the Company .  The Company represents and warrants to each Underwriter as of the date hereof, the Applicable Time, the Closing Time (as defined below) and any Date of Delivery (as defined below), after giving effect to the separation, as applicable, and agrees with each Underwriter, as follows:

 

(i)            Registration Statement and Prospectuses .  Each of the Registration Statement and any amendment thereto has become effective under the 1933 Act.  No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued under the 1933 Act, no order preventing or suspending the use of any preliminary prospectus or the Prospectus has been issued and no proceedings for any of those purposes have been instituted or are pending or, to the Company’s knowledge, contemplated.  The Company has complied with each request (if any) from the Commission for additional information.

 

Each of the Registration Statement and any post-effective amendment thereto, at the time it became effective, complied in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.  Each preliminary prospectus, the Prospectus and any amendment or supplement thereto, at the time each was filed with the Commission, complied in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations.  Each preliminary prospectus delivered to the Underwriters for use in connection with this offering and the Prospectus was or will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.

 

(ii)           Accurate Disclosure .  Neither the Registration Statement nor any post-effective amendment thereto, at its effective time, at the Closing Time or at any Date of Delivery, contained, contains or will contain an untrue statement of a material fact or omitted, omits or will omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.  As of the Applicable Time, neither (A) the General Disclosure Package nor (B) any individual Issuer Limited Use Free Writing Prospectus, when considered together with the General Disclosure Package, included, includes or will include an untrue statement of a material fact or omitted, omits or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.  Neither the Prospectus nor any amendment or supplement thereto, as of its issue date, at the time of any filing with the Commission pursuant to Rule 424(b), at the Closing Time or at any Date of Delivery, included, includes or will include an untrue statement of a material fact or omitted, omits or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.

 

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The representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement (or any post-effective amendment thereto), the General Disclosure Package or the Prospectus (or any amendment or supplement thereto) made in reliance upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives expressly for use therein.  For purposes of this Agreement, the only information so furnished shall be the information in the first paragraph under the heading “Underwriting—Commissions and Discounts,” the information in the second, third and fourth paragraphs under the heading “Underwriting—Price Stabilization, Short Positions and Penalty Bids” and the information under the heading “Underwriting—Electronic Distribution” in each case contained in the Prospectus (collectively, the “Underwriter Information”).

 

(iii)          Issuer Free Writing Prospectuses .  No Issuer Free Writing Prospectus conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, and any preliminary or other prospectus deemed to be a part thereof that has not been superseded or modified.  The Company has made available a Bona Fide Electronic Road Show in compliance with Rule 433(d)(8)(ii) such that no filing of any “road show” (as defined in Rule 433(h)) is required in connection with the offering of the Securities.

 

(iv)          Company Not Ineligible Issuer .  At the time of filing the Registration Statement and any post-effective amendment thereto, at the earliest time thereafter that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the 1933 Act Regulations) of the Securities and at the date hereof, the Company was not and is not an “ineligible issuer,” as defined in Rule 405, without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Company be considered an ineligible issuer.

 

(v)           Independent Accountants .  Deloitte & Touche LLP, which has certified the financial statements and supporting schedules included in the Registration Statement, the General Disclosure Package and the Prospectus, is an independent registered public accounting firm with respect to the Company as required by the 1933 Act, the 1933 Act Regulations and the Public Company Accounting Oversight Board.

 

(vi)          Financial Statements; Non-GAAP Financial Measures .  The historical consolidated financial statements of the Predecessor (comprised of the combined operations and legal entities of the Pigments & Additives division of Huntsman Corporation) (the “Predecessor”), the Company and the Titanium Dioxide Pigments and Other Businesses of Rockwood Holdings, Inc. included in the Registration Statement, the General Disclosure Package and the Prospectus, together with the related schedules and notes, present fairly in all material respects the financial position, results of operations and cash flows of the Predecessor, the Company and the Titanium Dioxide Pigments and Other Businesses of Rockwood Holdings, Inc. (as defined therein), as applicable, at the dates and for the periods to which they relate and have been prepared in accordance with U.S. generally accepted accounting principles (“GAAP”), applied on a consistent basis, except as otherwise stated therein.  The supporting schedules, if any, present fairly in all material respects in accordance with GAAP the information required to be stated therein.  The selected financial data and the summary financial information included in the Registration Statement, the General Disclosure Package and the Prospectus present fairly in all material respects the information shown therein and have been compiled on a basis consistent with that of the audited financial statements included therein, except in the case of any “non-GAAP financial measures” (as such term is defined by the rules and regulations of the Commission). The pro forma financial statements and the related notes thereto included in the Registration Statement, the General Disclosure Package and the Prospectus present fairly in all

 

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material respects the information shown therein, have been prepared in accordance with the Commission’s rules and guidelines with respect to pro forma financial statements and have been properly compiled on the bases described therein, and the assumptions used in the preparation thereof are reasonable and the adjustments used therein are appropriate to give effect to the transactions and circumstances referred to therein.  The assumptions used in the as adjusted financial information included in the Registration Statement, the General Disclosure Package or the Prospectus are reasonable, and the adjustments used therein are appropriate to give effect to the transactions or circumstances referred to therein.  Except as included therein, no historical or pro forma financial statements or supporting schedules are required to be included in the Registration Statement, the General Disclosure Package or the Prospectus under the 1933 Act or the 1933 Act Regulations.  All disclosures contained in the Registration Statement, the General Disclosure Package or the Prospectus regarding “non-GAAP financial measures” (as such term is defined by the rules and regulations of the Commission) comply in all material respects with Regulation G of the Securities Exchange Act of 1934, as amended (the “1934 Act”), and Item 10 of Regulation S-K of the 1933 Act, to the extent applicable.

 

(vii)         No Material Adverse Change in Business .  Except as otherwise stated therein, since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus, (A) there has been no material adverse change in the general affairs, management, business, condition (financial or otherwise), prospects or results of operations of the Company and its subsidiaries, taken as a whole (any such event, a “Material Adverse Effect”), (B) there have been no transactions entered into by the Company or any of its subsidiaries, other than those in the ordinary course of business, which are material with respect to the Company and its subsidiaries considered as one enterprise, and (C) there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its share capital.

 

(viii)        Good Standing of the Company .  The Company has been duly formed and is validly existing as a public limited company in good standing organized under the laws of England and Wales and has requisite corporate power and authority to own its properties and conduct its business as now conducted and as described in the Registration Statement, the General Disclosure Package and the Prospectus and to enter into and perform its obligations under the Transaction Agreements; and the Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing or other equivalent local law status in each jurisdiction where the ownership or leasing of its properties or the conduct of business requires such qualification, except where the failure to be so qualified or in good standing or other equivalent local law status would not, individually or in the aggregate, have a Material Adverse Effect.

 

(ix)          Good Standing of Subsidiaries .  Each subsidiary listed on Schedule G hereto (each, a “Subsidiary” and, collectively, the “Subsidiaries”) has been duly organized and is validly existing in good standing under the laws of the jurisdiction of its incorporation or organization, has requisite corporate or similar power and authority to own its properties and conduct its business as now conducted and as described in the Registration Statement, the General Disclosure Package and the Prospectus and has been duly qualified to transact business and is in good standing in each jurisdiction where the ownership or leasing of its properties or the conduct of business requires such qualification, except where the failure to be so qualified or in good standing or other equivalent local law status would not, individually or in the aggregate, have a Material Adverse Effect.  Except as otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, all of the outstanding membership interests, shares of capital stock or other ownership interests, as the case may be, of the Subsidiaries have

 

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been duly authorized and validly issued, are fully paid and non-assessable (except, with respect to any Subsidiary that is a limited liability company, (i) that a member may be obligated to make contributions to such Subsidiary that such member has agreed to make, (ii) that a member may be obligated to repay funds wrongfully distributed to it or (iii) as otherwise provided by the limited liability company agreement for such limited liability company) and were not issued in violation of any preemptive or similar rights; and, except as set forth in the Registration Statement, the General Disclosure Package and the Prospectus, all of the outstanding membership interests, shares of capital stock or other ownership interests, as the case may be, of the Subsidiaries which are owned by the Company are owned free and clear of all liens, encumbrances, equities and claims other than (x) the security interests granted in connection with the “senior credit facilities” (as defined in the Registration Statement, the General Disclosure Package and the Prospectus and as amended, modified, waived or supplemented from time to time) and (y) the security interests granted under the Huntsman International credit facility.  The only subsidiaries of the Company as of the completion of the offering are the subsidiaries listed on Exhibit 21 to the Registration Statement.

 

(x)           Capitalization .  The Company has an authorized capitalization as set forth in the Registration Statement, the General Disclosure Package and the Prospectus in the column entitled “Actual” under the caption “Capitalization” (except for subsequent issuances, if any, pursuant to this Agreement, pursuant to reservations, agreements or employee benefit plans referred to in the Registration Statement, the General Disclosure Package and the Prospectus or pursuant to the exercise of convertible securities or options referred to in the Registration Statement, the General Disclosure Package and the Prospectus).  The outstanding share capital of the Company, including the Securities to be purchased by the Underwriters from the Selling Shareholders, have been duly authorized and validly issued in accordance with the articles of association of the Company (the “Company Articles”) and are fully paid (to the extent required under the Company Articles).  None of the outstanding share capital of the Company, including the Securities to be purchased by the Underwriters from the Selling Shareholders, were issued in violation of the preemptive or other similar rights of any shareholder of the Company.

 

(xi)          Authorization of Agreement .  This Agreement has been duly and validly authorized, executed and delivered by the Company.

 

(xii)         Authorization of Separation Agreements .  Each of the Separation Agreements to which the Company is a party has been duly authorized, executed and delivered by the Company and constitutes a valid and legally binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.

 

(xiii)        Descriptions of the Separation Agreements .  Each Separation Agreement conforms in all material respects to the description thereof contained in the Registration Statement, the General Disclosure Package and the Prospectus.

 

(xiv)        Authorization and Description of Securities .  The Ordinary Shares conform to all statements relating thereto contained in the Registration Statement, the General Disclosure Package and the Prospectus and such description conforms in all material respects to the rights set forth in the instruments defining the same.  No holder of Securities will be subject to personal liability by reason of being such a holder.

 

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(xv)         Registration Rights .  There are no persons with registration rights or other similar rights to have any securities registered for sale pursuant to the Registration Statement or otherwise registered for sale or sold by the Company under the 1933 Act pursuant to this Agreement, other than those rights that have been disclosed in the Registration Statement, the General Disclosure Package and the Prospectus and have been waived.

 

(xvi)        Absence of Violations, Defaults and Conflicts .  Neither the Company nor any of its Subsidiaries is (A) in violation of its certificate of incorporation or bylaws (or similar organizational document), (B) in breach or violation of any statute, judgment, decree, order, rule or regulation applicable to it or any of its properties or assets or (C) in breach or default under (nor has any event occurred which, with notice or passage of time or both, would constitute a default under) or in violation of any of the terms of provisions of any indenture, mortgage, deed of trust, loan agreement, note, lease, license, franchise agreement, permit, certificate, contract or other agreement or instrument to which it is a party or to which any of their respective properties or assets are subject (collectively, “Contracts”), except, in the case of (B) and (C), for any such breach, default, violation or event (i) which would not, individually or in the aggregate, have a Material Adverse Effect or (ii) which has been waived by the other party.  The execution, delivery and performance by the Company and the Subsidiaries, to the extent each is a party thereto, of each of the Transaction Agreements and the consummation by the Company and the Subsidiaries of the transactions contemplated hereby and thereby, and the fulfillment of the terms hereof and thereof, will not conflict with or constitute or result in a breach of or a default under (or an event which with notice or passage of time or both would constitute a default under) or violation of any of (A) the terms or provisions of any Contract, except for any such conflict, breach, violation, default or event which has been waived by the other party, (B) the certificate of incorporation or bylaws (or similar organizational document) of the Company or its Subsidiaries or (C) (assuming compliance with all applicable federal and state securities or “Blue Sky” laws) any statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to the Company or the Subsidiaries or any of their respective properties or assets (each, a “Governmental Entity”), except, in the case of clause (A) or (C), for any such conflict, breach or violation which would not, individually or in the aggregate, have a Material Adverse Effect.

 

(xvii)       Absence of Labor Dispute .  To the knowledge of the Company and its subsidiaries, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, there is no strike, labor dispute, slowdown or work stoppage with the employees of the Company and its subsidiaries which is pending or threatened, except any such strike, labor dispute, slowdown or work stoppage that would not, individually or in the aggregate, have a Material Adverse Effect.

 

(xviii)      Absence of Proceedings .  Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, there is not pending or, to the best of the Company’s knowledge, threatened, any action, suit, proceeding, inquiry or investigation to which the Company or any of its subsidiaries is a party, or to which any of their respective properties or assets are subject before or brought by any court, arbitrator or Governmental Entity, which, if determined adversely to the Company or any such subsidiary, would have a Material Adverse Effect, or which seeks to restrain, enjoin, prevent the consummation of or otherwise challenge the (A) issuance or sale of the Securities to be sold hereunder or (B) consummation of the transactions contemplated by the Transaction Agreements.

 

(xix)        Accuracy of Exhibits .  There are no contracts or documents which are required to be described in the Registration Statement, the General Disclosure Package or the Prospectus or

 

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to be filed as exhibits to the Registration Statement which have not been so described and filed as required.

 

(xx)         Absence of Further Requirements .  No consent, approval, authorization or order of any court or Governmental Entity, or third party is required for the performance of this Agreement by the Company and the Subsidiaries or the consummation of the transactions contemplated by the Transaction Agreements to which they are a party, except (A) such as shall have been obtained or as may be required under the 1933 Act, the 1933 Act Regulations, the 1934 Act, the rules of the New York Stock Exchange, state securities or “Blue Sky” laws or the rules of the Financial Industry Regulatory Authority, Inc. (“FINRA”), (B) such as may be required under state securities or “Blue Sky” laws in connection with the purchase and resale of the Securities or (C) such consents, which if not obtained would not reasonably be expected to, individually or in the aggregate, materially and adversely affect the offering of the Securities.

 

(xxi)        Possession of Licenses and Permits .  Except with respect to Environmental Laws, each of the Company and its subsidiaries possesses all licenses, permits, certifications, consents, orders, approvals and other authorizations from, and has made or will have made all declarations and filings with, all federal, state, local and other governmental authorities, all self-regulating organizations and all courts and other tribunals, presently required to necessary to own or lease, as the case may be, and to operate its properties and to carry on its business as now or proposed to be conducted as set forth in the Registration Statement, the General Disclosure Package and the Prospectus (“Permits”), except where the lack thereof would not, individually or in the aggregate, have a Material Adverse Effect. Each of the Company and its subsidiaries has fulfilled and performed all its obligations with respect to such Permits, and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or result in any other impairment of the rights of the holder of any such Permit except as would not, individually or in the aggregate, have a Material Adverse Effect.  Neither the Company nor any of its subsidiaries has received any notice of any proceeding relating to the revocation or modification of any such Permit, except as described in the Registration Statement, the General Disclosure Package and the Prospectus or except where such revocation or modification would not, individually or in the aggregate, have a Material Adverse Effect.

 

(xxii)       Title to Property .  Each of the Company and its subsidiaries has good title to all real property and personal property described in the Registration Statement, the General Disclosure Package and the Prospectus as being owned by it and good and marketable title to a leasehold estate in the real and personal property described in the Registration Statement, the General Disclosure Package and the Prospectus as being leased by it free and clear of all liens, charges, encumbrances or restrictions, except as described in the Registration Statement, the General Disclosure Package and the Prospectus and other than the security interests granted in connection with the senior credit facilities and the security interest granted under the Huntsman International LLC credit facility, or to the extent the failure to have such title or the existence of such liens, charges, encumbrances or restrictions would not, individually or in the aggregate, have a Material Adverse Effect.  Except as described in the Registration Statement, the General Disclosure Package and the Prospectus, all leases, contracts and agreements to which the Company or any subsidiary is a party or by which it is bound are valid and enforceable against the Company or such subsidiary, and to the knowledge of the Company are valid and enforceable against the other party or parties thereto (except that the enforcement thereof may be subject to the Enforceability Exceptions) and are in full force and effect with only such exceptions as would not, individually or in the aggregate, have a Material Adverse Effect.

 

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(xxiii)      Possession of Intellectual Property .  Each of the Company and  its subsidiaries owns or possesses adequate licenses or other rights to use all patents, trademarks, service marks, trade names, copyrights, trade secrets, and know-how (collectively, the “Intellectual Property”) necessary to conduct the businesses as now or proposed to be operated by it as described in the Registration Statement, the General Disclosure Package and the Prospectus, except where the failure to own or possess such Intellectual Property would not, individually or in the aggregate, have a Material Adverse Effect, and neither the Company nor any of its subsidiaries has received any notice of infringement of or conflict with (and knows of no such infringement of or conflict with) asserted rights of others with respect to any Intellectual Property which, if such assertion of infringement or conflict were sustained, would, individually or in the aggregate, have a Material Adverse Effect.

 

(xxiv)     Environmental Laws .  Except as described in the Registration Statement, the General Disclosure Package and the Prospectus or as would not, individually or in the aggregate, have a Material Adverse Effect, (A) each of the Company and the Subsidiaries is in compliance with, and is not subject to liability under, applicable Environmental Laws, (B) each of the Company and the Subsidiaries has made all filings and provided all notices required under any applicable Environmental Law, and is in compliance with all Permits required under any applicable Environmental Laws, (C) there is no civil, criminal or administrative action, suit, demand, claim, hearing, notice of violation, investigation, proceeding, notice or demand letter or request for information pending or, to the knowledge of the Company, threatened against the Company or any of the Subsidiaries under any Environmental Law, (D) no lien, charge, encumbrance or restriction has been recorded under any Environmental Law with respect to any assets, facility or property owned, operated, leased or controlled by the Company or any of the Subsidiaries, (E) neither the Company nor any of the Subsidiaries has received notice that it has been identified as a potentially responsible party under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (“CERCLA”), or any comparable non-U.S. or state law, (F) no property or facility of the Company or any of the Subsidiaries is listed or proposed for listing on the National Priorities List under CERCLA or on any comparable list maintained by any non-U.S., state or local governmental authority. For purposes of this Agreement, “Environmental Laws” means all applicable federal, state and local laws or regulations, codes, orders, decrees, judgments or injunctions issued, promulgated, approved or entered thereunder, relating to pollution or protection of worker health and safety or the environment, including, without limitation, laws relating to (i) emissions, discharges, releases or threatened releases of hazardous materials into the environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata), (ii) the manufacture, processing, distribution, use, generation, treatment, storage, disposal, transport, import, export, registration, evaluation, authorization, restriction, or handling of, or exposure to, hazardous or toxic materials, substances or chemicals and (iii) underground and aboveground storage tanks, and related piping, and emissions, discharges, releases or threatened releases therefrom.

 

(xxv)      Accounting Controls .  Each of the Company and its subsidiaries (A) makes and keeps accurate books and records, (B) maintains internal accounting controls which provide reasonable assurance that transactions are executed in accordance with management’s authorization, transactions are recorded as necessary to permit preparation of its financial statements and to maintain accountability for its assets, (C) permits access to its assets only in accordance with management’s authorization and (D) compares the reported accountability for its assets with existing assets at reasonable intervals and takes appropriate action with respect to any differences. Except as described in the Registration Statement, the General Disclosure Package and the Prospectus, as of the date of the most recent balance sheet of the Company reviewed or

 

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audited by Deloitte & Touche LLP, there were no material weaknesses or significant deficiencies in the internal controls of the Company.

 

(xxvi)     Compliance with the Sarbanes-Oxley Act.   The Company has taken all necessary actions to ensure that, upon the effectiveness of the Registration Statement, it will be in compliance in all material respects with all provisions of the Sarbanes-Oxley Act of 2002 and all rules and regulations promulgated thereunder or implementing the provisions thereof (the “Sarbanes-Oxley Act”) that are then in effect and with which the Company is required to comply as of the effectiveness of the Registration Statement, and is actively taking steps to ensure that it will be in material compliance with other provisions of the Sarbanes-Oxley Act not currently in effect, upon the effectiveness of such provisions, or which will become applicable to the Company at all times after the effectiveness of the Registration Statement.

 

(xxvii)    Payment of Taxes .  Each of the Company and its subsidiaries has filed all necessary United States federal, state and local income and franchise tax returns and income and sales tax returns outside the United States, except where the failure to so file such returns would not, individually or in the aggregate, have a Material Adverse Effect, and has paid all material taxes due and payable (whether or not shown as due thereon) other than taxes which the Company or a subsidiary is contesting in good faith and for which the Company or such subsidiary has provided adequate reserves, except where the failure to pay such taxes would not, individually or in the aggregate, have a Material Adverse Effect.  Other than tax deficiencies which the Company or a subsidiary is contesting in good faith and for which the Company or such subsidiary has provided adequate reserves, there is no tax deficiency that has been asserted against the Company or any subsidiary that would have, individually or in the aggregate, a Material Adverse Effect.

 

(xxviii)   ERISA.   To the knowledge of the Company, neither the Company nor any of the Subsidiaries has incurred any liability for any prohibited transaction (as defined in Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)) or any complete or partial withdrawal liability under Title IV of ERISA with respect to any pension, profit sharing or other plan which is subject to ERISA, to which the Company or any Subsidiary makes or within the preceding six years from the date hereof has made a contribution and in which any employee of the Company or any Subsidiary is or has been a participant which liability would, individually or in the aggregate, have a Material Adverse Effect. With respect to such plans, the Company and the Subsidiaries are in compliance in all material respects with all applicable provisions of ERISA, except such noncompliance which would not, individually or in the aggregate, have a Material Adverse Effect.

 

(xxix)     Insurance .  Each of the Company and its subsidiaries carries or is entitled to the benefits of insurance, with financially sound and reputable insurers, in such amounts and covering such risks as is generally maintained by companies of established repute engaged in the same or similar business, and all such insurance is in full force and effect.  The Company has no reason to believe that it or any of its subsidiaries will not be able (A) to renew its existing insurance coverage as and when such policies expire or (B) to obtain comparable coverage from similar institutions as may be necessary or appropriate to conduct its business as now conducted and at a cost that would not reasonably be expected to result in a Material Adverse Effect.

 

(xxx)      Investment Company Act .  The Company is not required, and after giving effect to the offer and sale of the Securities as herein contemplated and the application of the net proceeds therefrom as described in the Registration Statement, the General Disclosure Package

 

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and the Prospectus will not be required, to register as an “investment company” under the Investment Company Act of 1940, as amended (the “1940 Act”).

 

(xxxi)     Absence of Manipulation .  Neither the Company nor, to the knowledge of the Company, any of its Affiliates (as defined in Rule 501(b) of Regulation D under the 1933 Act) (x) prior to the date hereof, has taken any action which has constituted or (y) will take any action which is designed to or which has constituted or which might have been expected to cause or result in stabilization or manipulation of the price of any security of the Company in connection with the offering of the Securities in violation of Regulation M under the 1934 Act.

 

(xxxii)    Anti-Corruption Laws .  None of the Company or its subsidiaries or, to the knowledge of the Company, any director, officer, agent, employee, affiliate or other person associated with or acting on behalf of the Company or its subsidiaries has (A) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity, (B) made or taken an act in furtherance of an offer, promise or authorization of any direct or indirect unlawful payment or benefit to any foreign or domestic government official or employee, including of any government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office, (C) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977, as amended, or any applicable law or regulation implementing the OECD Convention on Combatting Bribery of Foreign Public Officials in International Business Transactions, or committed an offence under the Bribery Act 2010 of the United Kingdom, or any other applicable anti-bribery or anti-corruption law, or (D) made, offered, agreed, requested or taken an act in furtherance of any unlawful bribe or other unlawful benefit, including, without limitation, any rebate, payoff, influence payment, kickback or other unlawful payment.  The Company and its subsidiaries have instituted, maintain and enforce, and will continue to maintain and enforce, policies and procedures designed to promote and ensure compliance with all applicable anti-bribery and anti-corruption laws.

 

(xxxiii)   Money Laundering Laws .  The operations of the Company and its subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements, including the Currency and Foreign Transactions Reporting Act of 1970, as amended, the applicable money laundering statutes of all jurisdictions where the Company or any of its subsidiaries conducts business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Anti-Money Laundering Laws”), and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Company, threatened.

 

(xxxiv)   OFAC .  None of the Company or any of its subsidiaries or, to the knowledge of the Company, any director, officer, agent, employee or affiliate of the Company or its subsidiaries is currently subject to any sanctions administered or enforced by the U.S. government (including, without limitation, the Office of Foreign Asset Control of the U.S. Department of the Treasury (“OFAC”) or the U.S. Department of State and including, without limitation, the designation as a “specially designated national” or “blocked person”), the United Nations Security Council (“UNSC”), the European Union, Her Majesty’s Treasury (“HMT”) or other relevant sanctions authority (collectively, “Sanctions”), nor is the Company or any of its subsidiaries located, organized or resident in a country or territory that is the subject or target of Sanctions, including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan or Syria (each, a Sanctioned

 

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Country”).  For the past three years, the Company and its subsidiaries have not knowingly engaged in, are not now knowingly engaged in and will not engage in any dealings or transactions with any person that at the time of the dealing or transaction is or was the subject or the target of applicable Sanctions or with any Sanctioned Country.  The representations and warranties made under this (xxxiv) will not apply if and to the extent that the expression of, or compliance with, or receipt and acceptance of, the representations would breach the German Foreign Trade Ordinance ( Verordnung zur Durchführung des Außenwirtschaftsgesetzes ), EU Regulation (EC) 2271/96 or any similar applicable German anti-boycott law or regulation.

 

(xxxv)    Lending Relationship Except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, the Company (i) does not have any material lending or other relationship with any bank or lending affiliate of any Underwriter and (ii) will not receive any of the proceeds from the sale of the Securities.

 

(xxxvi)   Statistical and Market-Related Data .  The statistical and market-related data included in the Registration Statement, the General Disclosure Package or the Prospectus are based on or derived from sources which the Company believes to be reliable and, to the extent required, the Company has obtained the written consent to the use of such data from such sources.

 

(xxxvii)  Passive Foreign Investment Company .  Subject to the qualifications, limitations and assumptions set forth in the Registration Statement, the General Disclosure Package and the Prospectus, the Company does not expect to be treated as a passive foreign investment company (“PFIC”) within the meaning of Section 1297 of the United States Internal Revenue Code of 1986, as amended (the “Code”), for its current taxable year or for future taxable years.

 

(xxxviii)     Federal Tax Treatment .  Subject to the qualifications, limitations and assumptions set forth in the Registration Statement, the General Disclosure Package and the Prospectus, the Company expects to be treated as a foreign corporation for U.S. federal income tax purposes, taking into account Section 7874 of the Code.

 

(xxxix)   Distributions by Subsidiaries .  Except as described in the Registration Statement, the General Disclosure Package and the Prospectus, (A) no subsidiary of the Company is currently prohibited, directly or indirectly, from paying any dividends to the Company, from making any other distributions on such subsidiary’s ordinary shares or share capital, from repaying the Company any loans or advances to such subsidiary from the Company or from transferring any of such subsidiary’s property or assets to the Company or any other subsidiary of the Company and (B) no governmental or regulatory approvals, consents, authorizations, orders, licenses, registrations, clearances or qualifications are currently required in England and Wales or any political subdivisions of the government of England and Wales in order for the Company to pay dividends or other distributions declared by the Company to the holders of Ordinary Shares.

 

(xl)          No Transfer Taxes .  Except as described in the Registration Statement, the General Disclosure Package and the Prospectus, there are no transfer taxes, stamp duties, capital duties, stamp duty reserve tax or other similar fees or charges under the laws of the United Kingdom, or any political subdivision of the government of the United Kingdom, required to be paid by or on behalf of the Underwriters, the Company or its subsidiaries in connection with the execution and delivery of this Agreement, the grant and/or exercise of the option to purchase Option Securities, the sale by the Selling Shareholders of the Securities to the Underwriters, the offer, sale and delivery by the Underwriters of the Securities, and the deposit of the Securities into DTC, in each case as contemplated by this Agreement.

 

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(xli)         No Withholding.   All dividends and other distributions declared and payable on the Ordinary Shares by the Company are not subject to withholding under the current laws and regulations of the United Kingdom, in each case except as described in the Registration Statement, the General Disclosure Package and the Prospectus.

 

(xlii)        Proper Legal Form .  Upon execution and delivery, this Agreement will be in proper legal form under the laws of England and Wales for the enforcement hereof against the Company, except to the extent enforcement may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and general equity principles and, with respect to any indemnification or contribution provision, limited by the federal and state securities laws;, and to ensure the legality, validity, enforceability, priority or admissibility in evidence of this Agreement it is not necessary that this Agreement or any other document related hereto be filed, registered or recorded with or executed or notarized before, any governmental or regulatory authority or agency of England and Wales.

 

(xliii)       Compliance with Foreign Securities Laws .  The Company and its subsidiaries are in material compliance with all applicable securities rules and regulations under the laws of England and Wales.

 

(xliv)       No Immunity .  None of the Company or its subsidiaries or any of their properties or assets has any immunity from the jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution or otherwise) under the laws of England and Wales.

 

(xlv)        Validity of Choice of Law .  The choice of the law of the State of New York as the governing law of this Agreement is a valid choice of law under the laws of England and Wales and, except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, will be honored by courts in England and Wales.  The Company has the power to submit, and pursuant to Section 18 of this Agreement, has legally, validly, effectively and irrevocably submitted, to the personal jurisdiction of (i) the federal courts of the United States of America located in the City and County of New York, Borough of Manhattan or (ii) the courts of the State of New York located in the City and County of New York, Borough of Manhattan (collectively, the “Specified Courts”), and the Company has legally, validly, effectively and irrevocably designated, appointed and authorized an agent for service of process in any action arising out of or relating to this Agreement or the Securities in any New York federal or state court.

 

(xlvi)       Submission to Jurisdiction .  The submission by the Company in Section 18 of this Agreement to the exclusive jurisdiction of the Specified Courts constitutes a valid and legally binding submission of the Company and service of process made in the manner set forth in this Agreement will be effective to confer valid personal jurisdiction over the Company for purposes of proceedings in such courts under the laws of England and Wales.

 

(xlvii)      Final Judgment .  Any final judgment for a fixed or determined sum of money rendered by a Specified Court having jurisdiction under its own laws in respect of any suit, action or proceeding against the Company or its subsidiaries based upon any of the Transaction Agreements would be declared enforceable against the Company or such subsidiary by the courts of the United Kingdom, without reconsideration or reexamination of the merits; provided that (i) adequate service of process has been effected and the defendant has had a reasonable opportunity to be heard, (ii) such judgments or the enforcement thereof are not contrary to the

 

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law, public policy, security or sovereignty of England and Wales, (iii) such judgments were not obtained by fraudulent means and do not conflict with any other valid judgment in the same matter between the same parties; (iv) an action between the same parties in the same matter is not pending in any Irish court at the time the lawsuit is instituted in the foreign court; and (v) the procedural rules of the court giving the judgment have been observed.

 

(xlviii)     Taxation .  The statements set forth in the Registration Statement, the General Disclosure Package and the Prospectus under the caption “Material Tax Considerations” insofar as they purport to summarize the provisions of the laws and documents referred to therein, are accurate, complete and fair in all material respects.

 

(xlix)       Tax Residence .  The Company is and has been at all times resident for all tax purposes (including any double tax treaty) only in the United Kingdom and is not, and has not been treated, as resident in any other jurisdiction for any tax purpose (including any double tax treaty), other than through the ownership of “qualified business units” that are treated as non-United Kingdom residents pursuant to Section 988(a)(3)(B)(ii) of the Code for purposes of determining the source of foreign currency gain or loss for U.S. federal income tax purposes.

 

(b)           Representations and Warranties by the Selling Shareholders .  The Selling Shareholders represent and warrant to each Underwriter as of the date hereof, as of the Applicable Time, as of the Closing Time and, if the Selling Shareholders are selling Option Securities on a Date of Delivery, as of each such Date of Delivery, after giving effect to the separation, as applicable, and agrees with each Underwriter, as follows:

 

(i)            Accurate Disclosure .  Neither the General Disclosure Package nor the Prospectus or any amendments or supplements thereto includes any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided that such representations and warranties set forth in this subsection (b)(i) apply only to statements or omissions made in reliance upon and in conformity with information relating to the Selling Shareholders furnished in writing by or on behalf of the Selling Shareholders to the Company expressly for use in the Registration Statement, the General Disclosure Package, the Prospectus or any other Issuer Free Writing Prospectus or any amendment or supplement thereto; provided that it is agreed that such information furnished by the Selling Shareholders to the Company consists only of (A) the legal name, address and the number of shares of Ordinary Shares owned by the Selling Shareholders before and after the offering and (B) the other information with respect to the Selling Shareholders (excluding percentages) which appear in the table (and corresponding footnotes) under the caption “Security Ownership of Management and Selling Shareholders,” (collectively, the “Selling Shareholder Information”); no Selling Shareholder is prompted to sell the Securities to be sold by such Selling Shareholder hereunder by any information concerning the Company or any subsidiary of the Company which is not set forth in the General Disclosure Package or the Prospectus.

 

(ii)           Authorization of this Agreement .  This Agreement has been duly and validly authorized, executed and delivered by or on behalf of each Selling Shareholder.

 

(iii)          Noncontravention .  The execution, delivery and performance by the Selling Shareholders, to the extent each is a party thereto, of each of the Transaction Agreements and the consummation by the Selling Shareholders of the transactions contemplated hereby and thereby, and the fulfillment of the terms hereof and thereof, will not conflict with or constitute or result in a breach of or a default under (or an event which with notice of passage of time or both would

 

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constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon the Securities to be sold by the Selling Shareholder) or violation of any of (A) the terms or provisions of any Contract, except for any such conflict, breach, violation, default or event which has been waived by the other party, (B) the certificate of incorporation or bylaws (or similar organizational document) of the Selling Shareholders or (C) (assuming compliance with all applicable federal and state securities of “Blue Sky” laws) and statute, judgment, decree, order, rule or regulation of any court or governmental agency or body applicable to a Selling Shareholder or any of their respective properties or assets, except, in the case of clause (A) and (C), for any such conflict, breach or violation which would not reasonably be expected to materially and adversely affect the consummation of the offering of the Securities.

 

(v)           Valid Title .  Each Selling Shareholder has, and at the Closing Time and at each Date of Delivery, will have, valid title to the Securities to be sold by such Selling Shareholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer and deliver the Securities to be sold by such Selling Shareholder or a valid security entitlement in respect of such Securities.

 

(vi)          Delivery of Securities .  Upon payment of the purchase price for the Securities to be sold by the Selling Shareholders pursuant to this Agreement, delivery (within the meaning of Section 8-301 of the UCC) of such Securities, as directed by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company (“DTC”), registration of such Securities in the name of Cede or such other nominee, and the crediting of such Securities on the books of DTC to securities accounts (within the meaning of Section 8-501(a) of the UCC) of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any “adverse claim,” within the meaning of Section 8-105 of the Uniform Commercial Code then in effect in the State of New York (“UCC”), to such Securities), (A) under Section 8-501 of the UCC, the Underwriters will acquire a valid “security entitlement” in respect of such Securities and (B) no action (whether framed in conversion, replevin, constructive trust, equitable lien, or other theory) based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Securities may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Shareholders may assume that when such payment, delivery and crediting occur, (I) such Securities will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with the Company Articles and applicable law, (II) DTC will be registered as a “clearing corporation,” within the meaning of Section 8-102 of the UCC, (III) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC, (IV) to the extent DTC, or any other securities intermediary which acts as “clearing corporation” with respect to the Securities, maintains any “financial asset” (as defined in Section 8-102(a)(9) of the UCC in a clearing corporation pursuant to Section 8-111 of the UCC, the rules of such clearing corporation may affect the rights of DTC or such securities intermediaries and the ownership interest of the Underwriters, (V) claims of creditors of DTC or any other securities intermediary or clearing corporation may be given priority to the extent set forth in Section 8-511(b) and 8-511(c) of the UCC, (VI) if at any time DTC or another securities intermediary does not have sufficient Securities to satisfy claims of all of its entitlement holders with respect thereto then all holders will share pro rata in the Securities then held by DTC or such securities intermediary and (VII) each account agreement between each underwriter and DTC governing such underwriter’s securities account expressly provides that such account agreement is governed by the laws of the State of New York.

 

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(vii)         Absence of Manipulation .  None of the Selling Shareholders (x) has taken any action which has constituted or (y) prior to the date hereof, will take any action which is designed to or which has constituted or which might have been expected to cause or result in stabilization or manipulation of the price of any security of the Company in connection with the offering of the Securities in violation of Regulation M under the 1934 Act.

 

(viii)        Absence of Further Requirements .  No consent, approval, authorization or order of any court or governmental agency or body applicable to a Selling Shareholder or any of their respective properties or assets, or third party is required for the performance of this Agreement by the Selling Shareholders or the consummation of the transactions contemplated by the Transaction Agreements to which a Selling Shareholders is a party, except (A) such as shall have been obtained or as may be required under the 1933 Act, the 1933 Act Regulations, the 1934 Act, the rules of the New York Stock Exchange, state securities or “Blue Sky” laws or the rules of the Financial Industry Regulatory Authority, Inc. (“FINRA”), (B) such as may be required under state securities or “Blue Sky” laws in connection with the purchase and resale of the Securities or (C) such consents which, if not obtained, would not reasonably be expected to, individually or in the aggregate, materially and adversely affect the offering of the Securities.

 

(ix)          No Registration or Other Similar Rights . Except as described in the Registration Statement, the General Disclosure Package and the Prospectus, no Selling Shareholder has any registration or other similar rights to have any equity or debt securities registered for sale by the Company under the Registration Statement or included in the offering contemplated by this Agreement.

 

(x)           No Free Writing Prospectuses .  No Selling Shareholder has prepared or had prepared on its behalf or used or referred to, any “free writing prospectus” (as defined in Rule 405), and has not distributed any written materials in connection with the offer or sale of the Securities.

 

(xi)          No Association with FINRA .  No Selling Shareholder nor any of their respective affiliates directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with any member firm of FINRA or is a person associated with a member (within the meaning of the FINRA By-Laws) of FINRA.

 

(xii)         Independent Fiduciary .  No Selling Shareholder is (A) an employee benefit plan subject to Title I of ERISA (B) a plan or account subject to Section 4975 of the Code or (C) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.

 

(c)           Officer’s Certificates .  Any certificate signed by any officer of the Company or any of its subsidiaries delivered to the Representatives or to counsel for the Underwriters shall be deemed a representation and warranty by the Company and not by such officer in his or her personal capacity to each Underwriter as to the matters covered thereby; and any certificate signed by or on behalf of a Selling Shareholder as such and delivered to the Representatives or to counsel for the Underwriters pursuant to the terms of this Agreement shall be deemed a representation and warranty by such Selling Shareholder and not by such officer in his or her personal capacity to the Underwriters as to the matters covered thereby.

 

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SECTION 2.         Sale and Delivery to Underwriters; Closing .

 

(a)           Initial Securities .  On the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, each Selling Shareholder agrees to sell to each Underwriter, severally and not jointly, and each Underwriter, severally and not jointly, agrees to purchase from such Selling Shareholder, at the price per share set forth in Schedule A, that proportion of the number of Initial Securities set forth in Schedule B opposite the name of such Selling Shareholder which the number of Initial Securities set forth in Schedule A opposite the name of such Underwriter, plus any additional number of Initial Securities which such Underwriter may become obligated to purchase pursuant to the provisions of Section 11 hereof, bears to the total number of Initial Securities, subject, in each case, to such adjustments among the Underwriters as the Representatives in their sole discretion shall make to eliminate any sales or purchases of fractional shares. Delivery of the Initial Securities by the Selling Shareholders shall be made by way of the following steps: (i) the transfer of legal title to the Initial Securities from the CS Depositary Nominee to Cede (as nominee for DTC), (ii) the registration of the Initial Securities in the name of Cede, (iii) the crediting of such Initial Securities on the books of DTC to respective accounts of the Underwriters, and (iv) the cancellation of the depositary receipts representing the Initial Securities issued by GTU Ops Inc.

 

(b)           Option Securities .  In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, Huntsman Holdings hereby grants an option to the Underwriters, severally and not jointly, to purchase an aggregate of up to an additional 3,405,000 Ordinary Shares, as set forth in Schedule B, at the price per share set forth in Schedule A, less an amount per share equal to any dividends or distributions declared by the Company and payable on the Initial Securities but not payable on the Option Securities.  The option hereby granted may be exercised for 30 days after the date hereof and may be exercised in whole or in part at any time from time to time upon notice by the Representatives to Huntsman Holdings setting forth the number of Option Securities as to which the several Underwriters are then exercising the option and the time and date of payment and delivery for such Option Securities.  Any such time and date of delivery (a “Date of Delivery”) shall be determined by the Representatives, but shall not be later than seven full business days after the exercise of said option, nor in any event prior to the Closing Time.  If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total number of Option Securities then being purchased which the number of Initial Securities set forth in Schedule A opposite the name of such Underwriter bears to the total number of Initial Securities, subject, in each case, to such adjustments as the Representatives in their sole discretion shall make to eliminate any sales or purchases of fractional shares. Delivery of the Option Securities by Huntsman Holdings shall be made by way of the following steps: (i) the transfer of legal title to the Initial Securities from the CS Depositary Nominee to Cede (as nominee for DTC), (ii) the registration of the Option Securities in the name of Cede, (iii) the crediting of such Option Securities on the books of DTC to respective accounts of the Underwriters, and (iv) the cancellation of the depositary receipts representing the Option Securities issued by GTU Ops Inc.

 

(c)           Payment .  Payment of the purchase price for, and delivery of certificates or security entitlements for, the Initial Securities shall be made at the offices of Shearman & Sterling LLP, 599 Lexington Avenue, New York, New York, or at such other place as shall be agreed upon by the Representatives and the Company and the Selling Shareholders, at 9:00 A.M. (New York City time) on the third (fourth, if the pricing occurs after 4:30 P.M. (New York City time) on any given day) business day after the date hereof (unless postponed in accordance with the provisions of Section 11), or such other time not later than ten business days after such date as shall be agreed upon by the Representatives and the Company and the Selling Shareholders (such time and date of payment and delivery being herein called “Closing Time”).

 

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In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates or security entitlements for, such Option Securities shall be made at the above-mentioned offices, or at such other place as shall be agreed upon by the Representatives and the Company and the Selling Shareholders, on each Date of Delivery as specified in the notice from the Representatives to the Company and the Selling Shareholders.

 

Payment shall be made to each Selling Shareholder by wire transfer of immediately available funds to a bank account designated by such Selling Shareholder, against delivery to the Representatives for the respective accounts of the Underwriters of certificates or security entitlements for the Securities to be purchased by them.  It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Initial Securities and the Option Securities, if any, which it has agreed to purchase.  The Representatives, individually and not as representatives of the Underwriters, may (but shall not be obligated to) make payment of the purchase price for the Initial Securities or the Option Securities, if any, to be purchased by any Underwriter whose funds have not been received by the Closing Time or the relevant Date of Delivery, as the case may be, but such payment shall not relieve such Underwriter from its obligations hereunder.

 

SECTION 3.         Covenants of the Company and the Selling Shareholders .  The Company and each Selling Shareholder covenant with each Underwriter as follows:

 

(a)           Compliance with Securities Regulations and Commission Requests .  The Company, subject to Section 3(b), will comply with the requirements of Rule 430A, and will notify the Representatives immediately, and confirm the notice in writing, (i) when any post-effective amendment to the Registration Statement shall become effective or any amendment or supplement to the Prospectus shall have been filed, (ii) of the receipt of any comments from the Commission with respect to the Registration Statement, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment or of any order preventing or suspending the use of any preliminary prospectus or the Prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(d) or 8(e) of the 1933 Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the 1933 Act in connection with the offering of the Securities.  The Company will effect all filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus.  The Company will make every reasonable effort to prevent the issuance of any stop order, prevention or suspension and, if any such order is issued, to obtain the lifting thereof as promptly as practicable.

 

(b)           Continued Compliance with Securities Laws .  The Company will comply with the 1933 Act and the 1933 Act Regulations so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Registration Statement, the General Disclosure Package and the Prospectus.  If at any time when a prospectus relating to the Securities is (or, but for the exception afforded by Rule 172 of the 1933 Act Regulations (“Rule 172”), would be) required by the 1933 Act to be delivered in connection with sales of the Securities, any event shall occur or condition shall exist as a result of which it is necessary, in the opinion of counsel for the Underwriters or for the Company, to (i) amend the Registration Statement in order that the Registration Statement will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to

 

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make the statements therein not misleading, (ii) amend or supplement the General Disclosure Package or the Prospectus in order that the General Disclosure Package or the Prospectus, as the case may be, will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser or (iii) amend the Registration Statement or amend or supplement the General Disclosure Package or the Prospectus, as the case may be, in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly (A) give the Representatives notice of such event, (B) prepare any amendment or supplement as may be necessary to correct such statement or omission or to make the Registration Statement, the General Disclosure Package or the Prospectus comply with such requirements and, a reasonable amount of time prior to any proposed filing or use, furnish the Representatives with copies of any such amendment or supplement and (C) file with the Commission any such amendment or supplement; provided that the Company shall not file or use any such amendment or supplement to which the Representatives or counsel for the Underwriters shall object.  The Company will furnish to the Underwriters such number of copies of such amendment or supplement as the Underwriters may reasonably request. The Company has given the Representatives notice of any filings made pursuant to the 1934 Act or 1934 Act Regulations within 48 hours prior to the Applicable Time; the Company will give the Representatives notice of its intention to make any such filing from the Applicable Time to the Closing Time and will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing, as the case may be, and will not file or use any such document to which the Representatives or counsel for the Underwriters shall reasonably object.

 

(c)           Delivery of Registration Statements .  The Company has furnished or will deliver to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement as originally filed and each amendment thereto (including exhibits filed therewith and signed copies of all consents and certificates of experts, and will also deliver to the Representatives, without charge, a conformed copy of the Registration Statement as originally filed and each amendment thereto (without exhibits) for each of the Underwriters.  The copies of the Registration Statement and each amendment thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.

 

(d)           Delivery of Prospectuses .  The Company has delivered to each Underwriter, without charge, as many copies of each preliminary prospectus as such Underwriter reasonably requested, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act.  The Company will furnish to each Underwriter, without charge, during the period when a prospectus relating to the Securities is (or, but for the exception afforded by Rule 172, would be) required to be delivered under the 1933 Act, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request.  The Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.

 

(e)           Blue Sky Qualifications .  The Company will use its reasonable best efforts, in cooperation with the Underwriters, to qualify the Securities for offering and sale under the applicable securities laws of such states and other jurisdictions (domestic or foreign) as the Representatives may reasonably designate and to maintain such qualifications in effect so long as required to complete the distribution of the Securities; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject.

 

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(f)            Rule 158 .  The Company will timely file such reports pursuant to the 1934 Act as are necessary in order to make generally available to its shareholders as soon as practicable an earnings statement for the purposes of, and to provide to the Underwriters the benefits contemplated by, the last paragraph of Section 11(a) of the 1933 Act.

 

(g)           Use of Proceeds .  The Company will not receive any proceeds from the sale of the Securities.

 

(h)           Listing .  The Company will use its reasonable best efforts to effect and maintain the listing of the Ordinary Shares (including the Securities) on the New York Stock Exchange.

 

(i)            Restriction on Sale of Securities .  During a period of 180 days from the date of the Prospectus, the Company will not, without the prior written consent of at least three of the Representatives, (i) directly or indirectly, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of any Ordinary Shares or any securities convertible into or exercisable or exchangeable for Ordinary Shares or file or confidentially submit any registration statement under the 1933 Act with respect to any of the foregoing or (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Ordinary Shares, whether any such swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Ordinary Shares or other securities, in cash or otherwise.  The foregoing sentence shall not apply to (A) the Securities to be sold hereunder, (B) any Ordinary Shares issued by the Company upon the exercise of an option or warrant or the conversion of a security outstanding on the date hereof and referred to in the Registration Statement, the General Disclosure Package and the Prospectus, (C) any Ordinary Shares or other equity awards issued or options to purchase Ordinary Shares granted pursuant to employee benefit plans of the Company referred to in the Registration Statement, the General Disclosure Package and the Prospectus, (D) any Ordinary Shares or other equity awards issued pursuant to any non-employee director stock plan or dividend reinvestment plan referred to in the Registration Statement, the General Disclosure Package and the Prospectus, (E) the filing by the Company of a registration statement with the Commission on Form S-8 in respect of any shares or other equity instruments issued pursuant to any plans or programs described in (C) or (D) above, (F) any share capital of the Company or securities convertible into or exercisable or exchangeable for such share capital as payment of any part of the purchase price for the acquisition by the Company or any of its subsidiaries of the securities, business, property or other assets of another person or entity, including pursuant to an employee benefit plan assumed by the Company in connection with such acquisition (“Acquisition Securities”); provided, that, (i) in the aggregate, such Acquisition Securities shall not exceed 10% of the outstanding share capital of the Company immediately following the sale of the Securities contemplated by this Agreement and (ii) the recipient of any such Acquisition Securities shall execute and deliver to the Representatives an agreement substantially in the form of Exhibit D hereto, or (G) the filing of any registration statement with the Commission on Form S-4 (or any successor form) solely with respect to Acquisition Securities, provided that no sales of Securities occur during the lock-up period, except pursuant to this Section 3(i).

 

(j)            If at least three of the Representatives, in their sole discretion, agree to release or waive the restrictions set forth in a lock-up agreement described in Section 5(m) hereof for an officer or director of the Company and provides the Company with notice of the impending release or waiver at least three business days before the effective date of the release or waiver, the Company agrees to announce the impending release or waiver by a press release substantially in the form of Exhibit E hereto through a major news service at least two business days before the effective date of the release or waiver.

 

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(k)           Reporting Requirements .  The Company, during the period when a Prospectus relating to the Securities is (or, but for the exception afforded by Rule 172, would be) required to be delivered under the 1933 Act, will file all documents required to be filed with the Commission pursuant to the 1934 Act within the time periods required by the 1934 Act and 1934 Act Regulations.

 

(l)            Issuer Free Writing Prospectuses .  Each of the Company and the Selling Shareholders agrees that, unless it obtains the prior written consent of the Representatives, it will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus,” or a portion thereof, required to be filed by the Company with the Commission or retained by the Company under Rule 433; provided that the Representatives will be deemed to have consented to the Issuer Free Writing Prospectuses listed on Schedule C-2 hereto and any “road show that is a written communication” within the meaning of Rule 433(d)(8)(i) that has been reviewed by the Representatives.  Each of the Company and the Selling Shareholders represents that it has treated or agrees that it will treat each such free writing prospectus consented to, or deemed consented to, by the Representatives as an “issuer free writing prospectus,” as defined in Rule 433, and that it has complied and will comply with the applicable requirements of Rule 433 with respect thereto, including timely filing with the Commission where required, legending and record keeping.  If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement, any preliminary prospectus or the Prospectus or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Representatives and will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.

 

SECTION 4.         Payment of Expenses .

 

(a)           Expenses .  The Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including (i) the preparation, printing and filing of the Registration Statement (including financial statements and exhibits) as originally filed and each amendment thereto, (ii) the preparation, printing and delivery to the Underwriters of copies of each preliminary prospectus, each Issuer Free Writing Prospectus and the Prospectus and any amendments or supplements thereto and any costs associated with electronic delivery of any of the foregoing by the Underwriters to investors, (iii) the preparation, issuance and delivery of the certificates or security entitlements for the Securities to the Underwriters, including any share or other transfer taxes and any stamp or other duties payable upon the sale, issuance, transfer or delivery of the Securities to the Underwriters, (iv) the fees and disbursements of the Company’s counsel, accountants and other advisors, (v) the qualification of the Securities under securities laws in accordance with the provisions of Section 3(e) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Underwriters in connection therewith and in connection with the preparation of the Blue Sky Survey and any supplement thereto, provided that the fees and disbursements of counsel to the Underwrites pursuant to this clause (v) do not exceed $15,000, (vi) the fees and expenses of any transfer agent, registrar or depository for the Securities, (vii) any stamp and other duties and stock and other transfer taxes, if any, payable upon the sale of the Securities to the Underwriters as contemplated by this agreement, (viii) the fees and disbursements of the Selling Shareholders’ counsel (ix) the costs and expenses of the Company relating to investor presentations on any “road show” undertaken in connection with the marketing of the Securities, including without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations, travel and lodging expenses of the representatives and officers of the Company and any such consultants, and 50% of the cost of aircraft and other transportation chartered in connection with the road show (it

 

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being understood that the other 50% of such aircraft and other transportation chartered in connection with the roadshow shall be the responsibility of the Underwriters, except that the lodging, commercial airfare and individual expenses of the Underwriters shall be the responsibility of the Underwriters, (x) the filing fees incident to, and the reasonable fees and disbursements of counsel to the Underwriters in connection with, the review by FINRA of the terms of the sale of the Securities, provided that the fees and disbursements of counsel to the Underwriters pursuant to this clause (x) do not exceed $25,000,  (xi) the fees and expenses incurred in connection with the listing of the Securities on the New York Stock Exchange and (xii) the costs and expenses (including, without limitation, any damages or other amounts payable in connection with legal or contractual liability) associated with the reforming of any contracts for sale of the Securities made by the Underwriters caused by a breach of the representation contained in the third sentence of Section 1(a)(ii). It is understood and agreed that except as provided in this Section 4, Section 6 and Section 7, the Underwriters will pay all of their own costs and expenses, including fees and disbursements of their counsel and transfer taxes, if any, payable on resale of any of the Securities by them.

 

(b)           Termination of Agreement .  If this Agreement is terminated by the Representatives in accordance with the provisions of Section 5, Section 10(a)(i) or (iii), Section 11 (but only with respect to non-defaulting Underwriters) or Section 12 hereof, the Company shall reimburse the Underwriters for all of their reasonable out-of-pocket expenses incurred in connection with the transactions contemplated by this Agreement, including the reasonable fees and disbursements of counsel for the Underwriters.

 

(c)           Allocation of Expenses .  The provisions of this Section shall not affect any agreement that the Company and the Selling Shareholders may make for the sharing of such costs and expenses.

 

SECTION 5.         Conditions of Underwriters’ Obligations .  The obligations of the several Underwriters hereunder are subject to the accuracy of the representations and warranties of the Company and the Selling Shareholders contained herein or in certificates of any officer of the Company or any of its subsidiaries or on behalf of the Selling Shareholders delivered pursuant to the provisions hereof, to the performance by the Company and the Selling Shareholders of their respective covenants and other obligations hereunder, and to the following further conditions:

 

(a)           Effectiveness of Registration Statement; Rule 430A Information .  The Registration Statement, including any Rule 462(b) Registration Statement, has become effective and, at the Closing Time, no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued under the 1933 Act, no order preventing or suspending the use of any preliminary prospectus or the Prospectus has been issued and no proceedings for any of those purposes have been instituted or are pending or, to the Company’s knowledge, contemplated; and the Company has complied with each request (if any) from the Commission for additional information.  A prospectus containing the Rule 430A Information shall have been filed with the Commission in the manner and within the time frame required by Rule 424(b) without reliance on Rule 424(b)(8) or a post-effective amendment providing such information shall have been filed with, and declared effective by, the Commission in accordance with the requirements of Rule 430A.

 

(b)           Opinion of Counsel for Company .  At the Closing Time, the Representatives shall have received (i) the favorable opinion (including negative assurance), dated the Closing Time, of Vinson & Elkins L.L.P., U.S. counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters and (ii) the opinion, dated the Closing Time, of Vinson & Elkins R.L.L.P., United Kingdom counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters, in each case to

 

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the effect set forth hereto in Exhibit A and Exhibit B, respectively, and to such further effect as counsel to the Underwriters may reasonably request.

 

(c)           Additional Opinions of Counsels for the Company .  At the Closing Time, the Representatives shall have received the opinions, dated the Closing Time, of local counsel for each of the Company’s Subsidiaries set forth in Schedule F, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters.

 

(d)           Opinion of Counsel for the Selling Shareholders .  At the Closing Time, the Representatives shall have received the favorable opinion and negative assurance letter, dated the Closing Time, of Houthoff Buruma Coöperatief U.A., counsel for Huntsman Holdings, and of Vinson & Elkins L.L.P., counsel for Huntsman International, in each case in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of each such letter for each of the other Underwriters to the effect set forth in Exhibit C-1 and Exhibit C-2 hereto and to such further effect as counsel to the Underwriters may reasonably request.

 

(e)           Opinion of Counsel for Underwriters .  At the Closing Time, the Representatives shall have received the favorable opinion and negative assurance letter, each dated the Closing Time, of Shearman & Sterling LLP, United States counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters with respect to the matters as the Representatives may require.

 

(f)            Officers’ Certificate .  At the Closing Time, there shall not have been, since the date hereof or since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus, any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, and the Representatives shall have received a certificate of the Chief Executive Officer or the President of the Company and of the chief financial or chief accounting officer of the Company, dated the Closing Time, to the effect that (i) there has been no such material adverse change, (ii) the representations and warranties of the Company in this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Time, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Time, and (iv) no stop order suspending the effectiveness of the Registration Statement under the 1933 Act has been issued, no order preventing or suspending the use of any preliminary prospectus or the Prospectus has been issued and no proceedings for any of those purposes have been instituted or are pending or, to their knowledge, contemplated.

 

(g)           Certificate of Selling Shareholders .  At the Closing Time, the Representatives shall have received a certificate of an Attorney-in-Fact on behalf of each Selling Shareholder, dated the Closing Time, to the effect that (i) the representations and warranties of such Selling Shareholder in this Agreement are true and correct in all material respects with the same force and effect as though expressly made at and as of the Closing Time and (ii) each Selling Shareholder has complied with all agreements and all conditions on its part to be performed under this Agreement at or prior to the Closing Time.

 

(h)           Accountant’s Comfort Letter .  At the time of the execution of this Agreement, the Representatives shall have received from Deloitte & Touche LLP a letter, dated such date, in form and substance satisfactory to the Representatives, together with signed or reproduced copies of such letter for each of the other Underwriters containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain

 

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financial information contained in the Registration Statement, the General Disclosure Package and the Prospectus.

 

(i)            Bring-down Comfort Letter .  At the Closing Time, the Representatives shall have received from Deloitte & Touche LLP a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (h) of this Section, except that the specified date referred to shall be a date not more than three business days prior to the Closing Time.

 

(j)          CFO Certificate .  On the date of this Agreement and at the Closing Time, as the case may be, the Company shall have furnished to the Representatives a certificate, dated the respective dates of delivery thereof and addressed to the Underwriters, of its Chief Financial Officer with respect to certain financial data contained in the General Disclosure Package and the Prospectus, providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representatives.

 

(k)         Approval of Listing .  At the Closing Time, the Securities shall have been approved for listing on the New York Stock Exchange, subject only to official notice of issuance.

 

(l)          No Objection .  FINRA has confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements relating to the offering of the Securities.

 

(m)        Lock-up Agreements .  At the date of this Agreement, the Representatives shall have received an agreement substantially in the form of Exhibit D hereto signed by the persons listed on Schedule D hereto.

 

(n)           Rated Securities.   At the date of this Agreement and at the Closing Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities by any “nationally recognized statistical rating organization” registered under Section 15E of the 1934 Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any debt securities of the Company or its subsidiaries.

 

(o)           Conditions to Purchase of Option Securities .  In the event that the Underwriters exercise their option provided in Section 2(b) hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company and the Selling Shareholders contained herein and the statements in any certificates furnished by the Company, any of its subsidiaries and the Selling Shareholders hereunder shall be true and correct as of each Date of Delivery and, at the relevant Date of Delivery, the Representatives shall have received:

 

(i)            Officers’ Certificate .  A certificate, dated such Date of Delivery, of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the Company confirming that the certificate delivered at the Closing Time pursuant to Section 5(f) hereof remains true and correct as of such Date of Delivery.

 

(ii)           CFO Certificate .  A certificate, dated such Date of Delivery, addressed to the Underwriters, of the Chief Financial Officer of the Company, confirming that the certificate delivered at the Closing Time pursuant to Section 5(j) hereof remains true and correct as of such Date of Delivery.

 

(iii)          Certificate of Selling Shareholders .  A certificate, dated such Date of Delivery, of an authorized officer on behalf of the Selling Shareholders confirming that the certificate

 

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delivered at the Closing Time pursuant to Section 5(g) remains true and correct as of such Date of Delivery.

 

(iv)          Opinion of Counsel for Company .  If requested by the Representatives, the favorable opinion of Vinson & Elkins L.L.P., U.S. counsel for the Company, together with the opinion of Vinson & Elkins R.L.L.P., United Kingdom counsel for the Company, each in form and substance reasonably satisfactory to counsel for the Underwriters, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinion required by Section 5(b) hereof.

 

(v)           Additional Opinions of Counsels for the Company .  If requested by the Representatives, the opinions of local counsel for each of the Company’s Subsidiaries set forth in Schedule F, in form and substance reasonably satisfactory to counsel for the Underwriters, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinions required by Section 5(c) hereof.

 

(vi)          Opinion of Counsel for the Selling Shareholders .  If requested by the Representatives, the favorable opinion and negative assurance letter of Houthoff Buruma Coöperatief U.A., counsel for Huntsman Holdings, and Vinson & Elkins L.L.P., counsel for Huntsman International, in each case in form and substance reasonably satisfactory to counsel for the Underwriters, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinion required by Section 5(d) hereof.

 

(vi)          Opinion of Counsel for Underwriters .  If requested by the Representatives, the favorable opinion and negative assurance letter of Shearman & Sterling LLP, counsel for the Underwriters, dated such Date of Delivery, relating to the Option Securities to be purchased on such Date of Delivery and otherwise to the same effect as the opinion required by Section 5(e) hereof.

 

(vii)         Bring-down Comfort Letter If requested by the Representatives, letters from Deloitte & Touche LLP, in form and substance satisfactory to the Representatives and dated such Date of Delivery, substantially in the same form and substance as the letters furnished to the Representatives pursuant to Section 5(i) hereof, except that the “specified date” in the letters furnished pursuant to this paragraph shall be a date not more than three business days prior to such Date of Delivery.

 

(p)           Additional Documents .  At the Closing Time and at each Date of Delivery (if any) counsel for the Underwriters shall have been furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company and the Selling Shareholders in connection with the issuance and sale of the Securities as herein contemplated shall be satisfactory in form and substance to the Representatives and counsel for the Underwriters.

 

(q)           Completion of Separation .  The Separation shall have been consummated in all material respects as described in the Registration Statement, General Disclosure Package and the Prospectus.

 

(r)            Termination of Agreement .  If any condition specified in this Section shall not have been fulfilled when and as required to be fulfilled, this Agreement, or, in the case of any condition to the purchase of Option Securities on a Date of Delivery which is after the Closing Time, the obligations of

 

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the several Underwriters to purchase the relevant Option Securities, may be terminated by the Representatives by notice to the Company and the Selling Shareholders at any time at or prior to Closing Time or such Date of Delivery, as the case may be, and such  termination shall be without liability of any party to any other party except as provided in Section 4(b) and except that Sections 1, 6, 7, 9, 16, 17 and 18 shall survive any such termination and remain in full force and effect.

 

SECTION 6.         Indemnification .

 

(a)           Indemnification of Underwriters .  The Company agrees to indemnify and hold harmless each Underwriter, its affiliates (as such term is defined in Rule 501(b) under the 1933 Act (each, an “Affiliate”)), its selling agents and each person, if any, who controls any Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:

 

(i)            against any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any post-effective amendment thereto), including the Rule 430A Information, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact included (A) in any preliminary prospectus, any Issuer Free Writing Prospectus, the General Disclosure Package or the Prospectus (or any post-effective amendment or supplement thereto), or (B) in any materials or information provided to investors by, or with the prior approval of, the Company in connection with the marketing of the offering of the Securities (“Marketing Materials”), including any roadshow or investor presentations made to investors by the Company (whether in person or electronically), or the omission or alleged omission in any preliminary prospectus, Issuer Free Writing Prospectus, Prospectus or in any Marketing Materials of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;

 

(ii)           against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided that (subject to Section 6(e) below) any such settlement is effected with the written consent of the Company and the Selling Shareholders;

 

(iii)          against any and all expense whatsoever, as incurred (including the reasonably incurred fees and disbursements of counsel chosen by the Representatives), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above;

 

provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in the Registration Statement (or any post-effective amendment thereto), including the Rule 430A Information, the General Disclosure Package or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with the Underwriter Information.

 

(b)          Indemnification of Underwriters by Selling Shareholders . Each Selling Shareholder severally agrees to indemnify and hold harmless each Underwriter, its Affiliates and selling agents and

 

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each person, if any, who controls any Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act to the extent and in the manner set forth in clauses (a)(i), (ii) and (iii) above; provided, that each Selling Shareholder shall be liable only to the extent that such untrue statement or alleged untrue statement or omission or alleged omission has been made in the Registration Statement, any preliminary prospectus, the General Disclosure Package, the Prospectus (or any post-effective amendment or supplement thereto) or any Issuer Free Writing Prospectus in reliance upon and in conformity with the Selling Shareholder Information provided by such Selling Shareholder; provided, further, that the liability under this subsection of each Selling Shareholder shall be limited to an amount equal to the net proceeds to such Selling Shareholder from the sale of Securities sold by such Selling Shareholder hereunder.

 

(c)           Indemnification of Company, Directors and Officers and Selling Shareholders .  Each Underwriter severally agrees to indemnify and hold harmless the Company, its directors, each of its officers who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, and the Selling Shareholders and each person, if any, who controls a Selling Shareholder within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, against any and all loss, liability, claim, damage and expense  (including the reasonable fees and disbursements of counsel) described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any post-effective amendment thereto), including the Rule 430A Information, the General Disclosure Package or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with the Underwriter Information.

 

(d)           Actions against Parties; Notification .  Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced (through the forfeiture of substantive rights and defenses or otherwise) as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement.  In the case of parties indemnified pursuant to Section 6(a) and 6(b) above, counsel to the indemnified parties shall be selected by the Representatives, and, in the case of parties indemnified pursuant to Section 6(c) above, counsel to the indemnified parties shall be selected by the Company or the Selling Shareholders (as applicable).  An indemnifying party may participate at its own expense in the defense of any such action; provided, however, that counsel to the indemnifying party shall not (except with the consent of the indemnified party) also be counsel to the indemnified party.  In no event shall the indemnifying parties be liable for fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. No indemnifying party shall, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section 6 or Section 7 hereof (whether or not the indemnified parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.

 

(e)           Settlement without Consent if Failure to Reimburse .  If at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for reasonably incurred

 

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fees and expenses of counsel in accordance with this Section 6, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is entered into more than 60 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 45 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.

 

(f)           Other Agreements with Respect to Indemnification .  The provisions of this Section shall not affect any agreement among the Company and the Selling Shareholders with respect to indemnification.

 

SECTION 7.         Contribution .  If the indemnification provided for in Section 6 hereof is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Selling Shareholders, on the one hand, and the Underwriters, on the other hand, from the offering of the Securities pursuant to this Agreement or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company and the Selling Shareholders, on the one hand, and of the Underwriters, on the other hand, in connection with the statements or omissions, which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.

 

The relative benefits received by the Company and the Selling Shareholders, on the one hand, and the Underwriters, on the other hand, in connection with the offering of the Securities pursuant to this Agreement shall be deemed to be in the same respective proportions as the total net proceeds from the offering of the Securities pursuant to this Agreement (before deducting expenses) received by the Selling Shareholders, on the one hand, and the total underwriting discount received by the Underwriters, on the other hand, in each case as set forth on the cover of the Prospectus, bear to the aggregate initial public offering price of the Securities as set forth on the cover of the Prospectus.

 

The relative fault of the Company and the Selling Shareholders, on the one hand, and the Underwriters, on the other hand, shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company or the Selling Shareholders or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.

 

The Company, the Selling Shareholders and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section 7.  The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.

 

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Notwithstanding the provisions of this Section 7, (i) no Underwriter shall be required to contribute any amount in excess of the underwriting commissions received by such Underwriter in connection with the Shares underwritten by it and distributed to the public and (ii) the Selling Shareholders shall not be required to contribute any amount in excess of the aggregate net proceeds to the Selling Shareholders from the sale of Securities sold by the Selling Shareholders hereunder.

 

No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.

 

For purposes of this Section 7, each person, if any, who controls an Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act and each Underwriter’s Affiliates and selling agents shall have the same rights to contribution as such Underwriter, and each director of the Company, each officer of the Company who signed the Registration Statement, and each person, if any, who controls the Company or a Selling Shareholder within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as the Company or the Selling Shareholders, as the case may be.  The Underwriters’ respective obligations to contribute pursuant to this Section 7 are several in proportion to the number of Initial Securities set forth opposite their respective names in Schedule A hereto and not joint.

 

The provisions of this Section shall not affect any agreement among the Company and the Selling Shareholders with respect to contribution.

 

SECTION 8.         Tax Indemnity .  The Company will indemnify and hold harmless the Underwriters against any documentary, stamp, registration or similar issuance tax, including any interest and penalties (except to the extent attributable to the unreasonable default or delay of the Underwriters in discharging such taxes which have been repaid to the Underwriters or for which the Underwriters have been indemnified), on the execution and delivery of this Agreement, the grant and/or exercise of the option to purchase Option Securities, the sale by the Selling Shareholders of the Securities to the Underwriters, the offer, sale and delivery by the Underwriters of the Securities, and the deposit of the Securities into DTC, as contemplated herein and in the Prospectus.

 

Any and all amounts payable by the Company or the Selling Shareholders under this Agreement, including any indemnity payments made pursuant to this Section 8, shall be made without withholding or deduction for or on account of any present or future taxes, duties or governmental charges whatsoever imposed in any and all relevant taxing jurisdictions unless the Company or any Selling Shareholder is required by law to deduct or withhold such taxes, duties or charges.  In that event, and except for any taxes imposed on the Underwriters by any jurisdiction as a result of any present, or former, or future connection (other than any connection resulting from the transactions contemplated by this Agreement) between the Underwriters and the jurisdiction imposing such taxes, the Company or the relevant Selling Shareholder, as applicable, shall pay such additional amounts as may be necessary in order to ensure that the net amounts received after such withholding or deductions shall equal the amounts that would have been received if no withholding or deduction had been made.  All sums payable by the Company or the Selling Shareholders under this Agreement to the Underwriters shall be exclusive of value added tax (“VAT”). Where a sum is payable under this Agreement to the Underwriters, the Company or the Selling Shareholders will, in addition to such sum, pay such amount as is equal to any VAT properly chargeable thereon on receipt of a valid VAT invoice.  The foregoing provisions shall not apply in respect of any VAT for which the Company is liable to account to the relevant taxing authority directly. All amounts for which the Underwriters are to be reimbursed under this Agreement shall include any applicable VAT included in the relevant cost or expense, except to the extent that the VAT is recoverable.

 

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SECTION 9.         Representations, Warranties and Agreements to Survive .  All representations, warranties and agreements contained in this Agreement or in certificates of officers of the Company or any of its subsidiaries or the Selling Shareholders submitted pursuant hereto, shall remain operative and in full force and effect regardless of (i) any investigation made by or on behalf of any Underwriter or its Affiliates or selling agents, any person controlling any Underwriter, its officers or directors, any person controlling the Company or any person controlling a Selling Shareholder and (ii) delivery of and payment for the Securities.

 

SECTION 10.       Termination of Agreement .

 

(a)           Termination .  The Representative may terminate this Agreement, by notice to the Company and the Selling Shareholders, at any time at or prior to the Closing Time (i) if there has been, in the judgment of the Representatives, since the time of execution of this Agreement or since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus, any material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, or (ii) if there has occurred any material adverse change in the financial markets in the United States or the international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving a prospective change in national or international political, financial or economic conditions, in each case the effect of which is such as to make it, in the judgment of the Representatives, impracticable or inadvisable to proceed with the completion of the offering or to enforce contracts for the sale of the Securities, or (iii) if trading in any securities of the Company has been suspended or materially limited by the Commission or the New York Stock Exchange, or (iv) if trading generally on the New York Stock Exchange has been suspended or materially limited, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices have been required, by any of said exchanges or by order of the Commission, FINRA or any other governmental authority, or (v) a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States or with respect to Clearstream or Euroclear systems in Europe, or (vi) if a banking moratorium has been declared by either Federal, New York or U.K. authorities.

 

(b)           Liabilities .  If this Agreement is terminated pursuant to this Section, such termination shall be without liability of any party to any other party except as provided in Section 4 hereof, and provided further that Sections 1, 6, 7, 9, 16, 17 and 18 shall survive such termination and remain in full force and effect.

 

SECTION 11.       Default by One or More of the Underwriters .  If one or more of the Underwriters shall fail at the Closing Time or a Date of Delivery to purchase the Securities which it or they are obligated to purchase under this Agreement (the “Defaulted Securities”), the Representatives shall have the right, within 24 hours thereafter, to make arrangements for one or more of the non-defaulting Underwriters, or any other underwriters, to purchase all, but not less than all, of the Defaulted Securities in such amounts as may be agreed upon and upon the terms herein set forth; if, however, the Representatives shall not have completed such arrangements within such 24-hour period, then:

 

(i)            if the number of Defaulted Securities does not exceed 10% of the number of Securities to be purchased on such date, each of the non-defaulting Underwriters shall be obligated, severally and not jointly, to purchase the full amount thereof in the proportions that their respective underwriting obligations hereunder bear to the underwriting obligations of all non-defaulting Underwriters, or

 

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(ii)           if the number of Defaulted Securities exceeds 10% of the number of Securities to be purchased on such date, this Agreement or, with respect to any Date of Delivery which occurs after the Closing Time, the obligation of the Underwriters to purchase, and the Company to sell, the Option Securities to be purchased and sold on such Date of Delivery shall terminate without liability on the part of any non-defaulting Underwriter.

 

No action taken pursuant to this Section shall relieve any defaulting Underwriter from liability in respect of its default.

 

In the event of any such default which does not result in a termination of this Agreement or, in the case of a Date of Delivery which is after the Closing Time, which does not result in a termination of the obligation of the Underwriters to purchase and Huntsman Holdings to sell the relevant Option Securities, as the case may be, either the (i) Representatives or (ii) the Company and the Selling Shareholders shall have the right to postpone Closing Time or the relevant Date of Delivery, as the case may be, for a period not exceeding seven days in order to effect any required changes in the Registration Statement, the General Disclosure Package or the Prospectus or in any other documents or arrangements.  As used herein, the term “Underwriter” includes any person substituted for an Underwriter under this Section 11.

 

SECTION 12.       Default by the Selling Shareholders .  If a Selling Shareholder shall fail at the Closing Time or a Date of Delivery, as the case may be, to sell and deliver the number of Securities which such Selling Shareholder is obligated to sell hereunder, then the Underwriters may, at the option of the Representatives, by notice from the Representatives to the Company, terminate this Agreement without any liability on the fault of any non-defaulting party except that the provisions of Sections 1, 4, 6, 7, 9, 16, 17 and 18 shall remain in full force and effect. No action taken pursuant to this Section 12 shall relieve a Selling Shareholder so defaulting from liability, if any, in respect of such default.

 

In the event of a default by a Selling Shareholder as referred to in this Section 12, each of the Representatives and the Company shall have the right to postpone the Closing Time or any Date of Delivery, as the case may be, for a period not exceeding seven days in order to effect any required change in the Registration Statement, the General Disclosure Package or the Prospectus or in any other documents or arrangements.

 

SECTION 13.       Notices .  All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted by any standard form of telecommunication.  Notices to the Underwriters shall be directed to the Representatives as set forth in Schedule A-1; notices to the Company shall be directed to it to 10001 Woodloch Forest Drive, The Woodlands, Texas 77380, attention of Russ R. Stolle (facsimile: (281) 465-6711), with a copy to 1001 Fannin Street, Suite 2500, Houston, Texas 77002, attention of Jeffery B. Floyd (facsimile: (713) 615 5660); and notices to the Selling Shareholders shall be directed to 10003 Woodloch Forest Drive, The Woodlands, Texas 77380, attention of David M. Stryker (facsimile: (281) 719-4620), with a copy to 1001 Fannin Street, Suite 2500, Houston, Texas 77002, attention of Jeffery B. Floyd (facsimile: (713) 615 5660).

 

SECTION 14.       No Advisory or Fiduciary Relationship .  Each of the Company and each Selling Shareholder acknowledges and agrees that (a) the purchase and sale of the Securities pursuant to this Agreement, including the determination of the initial public offering price of the Securities and any related discounts and commissions, is an arm’s-length commercial transaction between the Company and the Selling Shareholders, on the one hand, and the several Underwriters, on the other hand, (b) in connection with the offering of the Securities and the process leading thereto, each Underwriter is and has been acting solely as a principal and is not the agent or fiduciary of the Company, any of its subsidiaries or the Selling Shareholders, or their respective shareholders, stockholders, creditors, employees or any

 

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other party, (c) no Underwriter has assumed or will assume an advisory or fiduciary responsibility in favor of the Company or the Selling Shareholders with respect to the offering of the Securities or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company, any of its subsidiaries or the Selling Shareholders on other matters) and no Underwriter has any obligation to the Company or the Selling Shareholders with respect to the offering of the Securities except the obligations expressly set forth in this Agreement, (d) the Underwriters and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from those of each of the Company and the Selling Shareholders, and (e) the Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to the offering of the Securities and each of the Company and the Selling Shareholders has consulted its own respective legal, accounting, regulatory and tax advisors to the extent it deemed appropriate.

 

SECTION 15.       Parties .  This Agreement shall inure to the benefit of and be binding upon each of the Underwriters, the Company and the Selling Shareholders and their respective successors.  Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm or corporation, other than the Underwriters, the Company and the Selling Shareholders their respective successors and the controlling persons and officers and directors referred to in Sections 6 and 7 and their heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision herein contained.  This Agreement and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of the Underwriters, the Company and the Selling Shareholders and their respective successors, and said controlling persons and officers and directors and their heirs and legal representatives, and for the benefit of no other person, firm or corporation.  No purchaser of Securities from any Underwriter shall be deemed to be a successor by reason merely of such purchase.

 

SECTION 16.       Trial by Jury .  The Company (on its behalf and, to the extent permitted by applicable law, on behalf of its shareholders and affiliates), the Selling Shareholders and each of the Underwriters hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.

 

SECTION 17.       GOVERNING LAW .  THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF, THE STATE OF NEW YORK WITHOUT REGARD TO ITS CHOICE OF LAW PROVISIONS.

 

SECTION 18.       Consent to Jurisdiction; Waiver of Immunity . Any legal suit, action or proceeding arising out of or based upon this Agreement or the transactions contemplated hereby (“Related Proceedings”) shall be instituted in (i) the federal courts of the United States of America located in the City and County of New York, Borough of Manhattan or (ii) the courts of the State of New York located in the City and County of New York, Borough of Manhattan (collectively, the “Specified Courts”), and each party irrevocably submits to the exclusive jurisdiction (except for proceedings instituted in regard to the enforcement of a judgment of any such court (a “Related Judgment”), as to which such jurisdiction is non-exclusive) of such courts in any such suit, action or proceeding.  Service of any process, summons, notice or document by mail to such party’s address set forth above shall be effective service of process for any suit, action or other proceeding brought in any such court.  The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or other proceeding in the Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such suit, action or other proceeding brought in any such court has been brought in an inconvenient forum.  The Company hereby agrees to receive service of process or other legal summons for purposes of any such suit, action or proceeding that may be instituted in any state or federal court in

 

32



 

the City and County of New York at its 10001 Woodloch Forest Drive, The Woodlands, Texas 77380 address.  Huntsman Holdings irrevocably appoints Huntsman International at its 10003 Woodloch Forest Drive, The Woodlands, Texas 77380 address as its agent to receive service of process or other legal summons for purposes of any such suit, action or proceeding that may be instituted in any state or federal court in the City and County of New York. With respect to any Related Proceeding, each party irrevocably waives, to the fullest extent permitted by applicable law, all immunity (whether on the basis of sovereignty or otherwise) from jurisdiction, service of process, attachment (both before and after judgment) and execution to which it might otherwise be entitled in the Specified Courts, and with respect to any Related Judgment, each party waives any such immunity in the Specified Courts or any other court of competent jurisdiction, and will not raise or claim or cause to be pleaded any such immunity at or in respect of any such Related Proceeding or Related Judgment, including, without limitation, any immunity pursuant to the United States Foreign Sovereign Immunities Act of 1976, as amended.

 

SECTION 19.       Judgment Currency .  In respect of any judgment or order given or made for any amount due hereunder that is expressed and paid in a currency other than United States dollars, the parties hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Underwriters could purchase United States dollars with such other currency on the business day preceding that on which final judgment is given. If the U.S. dollars so purchased are less than the sum originally due to such Underwriter hereunder, the Company and the Selling Shareholders agree, as a separate obligation and notwithstanding any such judgment, to indemnify such Underwriter against such loss. If the U.S. dollars so purchased are greater than the sum originally due to such Underwriter hereunder, such Underwriter agrees to pay to the Company and the Selling Shareholders (but without duplication) an amount equal to the excess of the United States dollars so purchased over the sum originally due to such Underwriter hereunder. The foregoing indemnities shall constitute a separate and independent obligation of the Underwriters, on the one hand, and the Company and the Selling Shareholders, on the other hand, and shall continue in full force and effect notwithstanding any such judgment or order as aforesaid.

 

SECTION 20.       TIME . TIME SHALL BE OF THE ESSENCE OF THIS AGREEMENT. EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.

 

SECTION 21.       Counterparts .  This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same Agreement.

 

SECTION 22.       Effect of Headings .  The Section headings herein are for convenience only and shall not affect the construction hereof.

 

33



 

If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company and the Selling Shareholders a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Underwriters, the Company and the Selling Shareholders in accordance with its terms.

 

 

 

Very truly yours,

 

 

 

 

VENATOR MATERIALS PLC

 

 

 

 

 

 

 

By

/s/ Russ R. Stolle

 

 

Title: Senior Vice President, General Counsel and

 

 

Chief Compliance Officer

 

 

 

 

 

 

 

HUNTSMAN INTERNATIONAL LLC

 

 

 

 

 

 

 

By

/s/ Sean Douglas

 

 

Title: Executive Vice President and Chief Financial Officer

 

 

 

 

 

 

 

HUNTSMAN (HOLDINGS) NETHERLANDS B.V.

 

 

 

 

 

 

 

By

/s/ Brandon Gray

 

 

Title: Authorized Officer

 

 

CONFIRMED AND ACCEPTED,

            as of the date first above written:

 

34



 

CITIGROUP GLOBAL MARKETS INC.

GOLDMAN SACHS & CO. LLC

MERRILL LYNCH, PIERCE, FENNER & SMITH

                              INCORPORATED

J.P. MORGAN SECURITIES LLC

 

By: CITIGROUP GLOBAL MARKETS INC.

 

By

/s/ Paul Smith

 

Authorized Signatory

 

 

 

 

By: GOLDMAN SACHS & CO. LLC

 

 

 

 

By

/s/ Adam Greene

 

Authorized Signatory

 

 

By: MERRILL LYNCH, PIERCE, FENNER & SMITH

                                     INCORPORATED

 

By

/s/ Alex Desjardins

 

Authorized Signatory

 

 

 

 

By: J.P. MORGAN SECURITIES LLC

 

 

 

 

By

/s/ Eugene Sohn

 

Authorized Signatory

 

 

For themselves and as Representatives of the other Underwriters named in Schedule A hereto.

 

35



 

SCHEDULE A

 

The initial public offering price per share for the Securities shall be $20.00.

 

The purchase price per share for the Securities to be paid by the several Underwriters shall be $18.85, being an amount equal to the initial public offering price set forth above less $1.15 per share, subject to adjustment in accordance with Section 2(b) for dividends or distributions declared by the Company and payable on the Initial Securities but not payable on the Option Securities.

 

Name of Underwriter

 

Number of
Initial Securities

 

 

 

 

 

Citigroup Global Markets Inc.

 

5,522,910

 

Goldman Sachs & Co. LLC

 

5,522,910

 

Merrill Lynch, Pierce, Fenner & Smith

                     Incorporated

 

3,075,850

 

J.P. Morgan Securities LLC

 

3,075,850

 

Barclays Capital Inc.

 

917,080

 

Deutsche Bank Securities Inc.

 

917,080

 

UBS Securities LLC

 

917,080

 

RBC Capital Markets, LLC

 

549,340

 

Moelis & Company LLC

 

917,080

 

HSBC Securities (USA) Inc.

 

367,740

 

Nomura Securities International, Inc.

 

367,740

 

SunTrust Robinson Humphrey, Inc.

 

367,740

 

Academy Securities, Inc.

 

90,800

 

Commerz Markets LLC

 

90,800

 

Total

 

22,700,000

 

 

Sch A - 1



 

SCHEDULE A-1

 

Notices

 

Citigroup Global Markets Inc.

388 Greenwich Street

New York, New York 10013

Attention: General Counsel

Facsimile: (646) 291-1469

 

Goldman Sachs & Co. LLC

200 West Street

New York, New York 10282

Attention: Registration Department

Facsimile:

 

Merrill Lynch, Pierce, Fenner & Smith

                      Incorporated

One Bryant Park

New York, New York 10036

Attention: Syndicate Department

Facsimile: (646) 855-3073, with a copy to ECM Legal (facsimile: (212) 230-8730)

 

J.P. Morgan Securities LLC

383 Madison Avenue

New York, New York 10179

Attention: Equity Syndicate Desk

Facsimile: (212) 622-8358

 

Sch A-1 - 1



 

SCHEDULE B

 

 

 

Number of Initial
Securities to be Sold

 

Maximum Number of Option
Securities to Be Sold

 

 

 

 

 

 

 

Huntsman International LLC

 

10,497,111

 

 

 

 

 

 

 

 

Huntsman (Holdings) Netherlands B.V.

 

12,202,889

 

3,405,000

 

 

 

 

 

 

 

Total

 

22,700,000

 

3,405,000

 

 

Sch B - 1



 

SCHEDULE C-1

 

Pricing Terms

 

1.             The Selling Shareholders are selling 22,700,000 Ordinary Shares.

 

2.             The Selling Shareholders have granted an option to the Underwriters, severally and not jointly, to purchase up to an additional 3,405,000 Ordinary Shares.

 

3.             The initial public offering price per share for the Securities shall be $20.00.

 

Sch C - 1



 

SCHEDULE C-2

 

Free Writing Prospectuses

 

None.

 

Sch C - 2



 

SCHEDULE D

 

List of Persons and Entities Subject to Lock-up

 

1.               Huntsman International LLC

2.               Huntsman (Holdings) Netherlands B.V.

3.               Peter R. Huntsman

4.               Sir Robert J. Margetts

5.               Douglas D. Anderson

6.               Daniele Ferrari

7.               Simon Turner

8.               Kurt D. Ogden

9.               Russ R. Stolle

10.        Phil Wrigley

11.        Antje Gerber

12.        Jan Buberl

13.        Mahomed Maiter

 

Sch D - 1



 

SCHEDULE E

 

List of Separation Agreements

 

1.               Separation Agreement

2.               Transition Services Agreement

3.               Tax Matters Agreement

4.               Employee Matters Agreement

5.               Registration Rights Agreement

 

Sch E - 1



 

SCHEDULE F

 

Significant Subsidiaries Opinions Pursuant to Section 5(c)

 

1.               Huntsman P&A Americas LLC

2.               Huntsman P&A UK Limited

3.               Huntsman P&A Finland Oy

4.               Huntsman P&A Italy S.r.l.

 

Sch F - 1



 

SCHEDULE G

 

Significant Subsidiaries

 

1.               Huntsman P&A Americas LLC

2.               Huntsman P&A UK Limited

3.               Huntsman P&A Germany GMBH

4.               Huntsman P&A Finland Oy

5.               Huntsman P&A Italy S.r.l.

6.               Huntsman P&A Asia Sdn Bhd

 

Sch G - 1



 

Exhibit A

 

FORM OF OPINION OF COMPANY’S U.S. COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 5(b)

 

A- 1



 

Exhibit B

 

FORM OF OPINION OF COMPANY’S U.K. COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 5(b)

 

B- 1



 

Exhibit C-1

 

FORM OF OPINION OF COUNSEL FOR HUNTSMAN HOLDINGS
TO BE DELIVERED PURSUANT TO SECTION 5(d)

 

C-1- 1



 

Exhibit C-2

 

FORM OF OPINION OF COUNSEL FOR HUNTSMAN INTERNATIONAL
TO BE DELIVERED PURSUANT TO SECTION 5(d)

 

C-2- 1



 

Exhibit D

 

FORM OF LOCK-UP FROM DIRECTORS, OFFICERS OR OTHER SHAREHOLDERS PURSUANT TO SECTION 5(m)

 

[ · ], 2017

 

Citigroup Global Markets Inc.
Goldman Sachs & Co. LLC
Merrill Lynch, Pierce, Fenner & Smith

                     Incorporated

J.P. Morgan Securities LLC

 

c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York  10013

 

Re:          Proposed Public Offering by Venator Materials PLC

 

Dear Sirs:

 

The undersigned, a shareholder, officer and/or director of Venator Materials PLC, a public limited company incorporated under the laws of England and Wales (the “Company”), understands that Citigroup Global Markets Inc., Goldman Sachs & Co. LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated and J.P. Morgan Securities LLC  (together, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”) with the Company, Huntsman International LLC (“HI”), a Delaware limited liability company, and Huntsman (Holdings) Netherlands B.V., a private limited liability company ( besloten vennootschap met beperkte aansprakelijkheid ) incorporated under the laws of the Netherlands (together with HI, the “Selling Shareholders”), providing for the offer and sale by the Selling Shareholders (the “Offering”) of the Company’s ordinary shares, par value $0.32 per share (“Ordinary Shares”).  For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned agrees with each underwriter to be named in the Underwriting Agreement that, during the period beginning on the date hereof and ending on the date that is 180 days from the date of the Underwriting Agreement (the “Lock-Up Period”), the undersigned will not, without the prior written consent of at least three of the Representatives, (i) directly or indirectly, offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of Ordinary Shares or any securities convertible into or exercisable or exchangeable for Ordinary Shares, whether now owned or hereafter acquired by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition (collectively, the “Lock-Up Securities”), or exercise any right with respect to the registration of any of the Lock-up Securities, or file, cause to be filed or cause to be confidentially submitted any registration statement in connection therewith, under the Securities Act of 1933, as amended, or (ii) enter into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Lock-Up Securities, whether any such swap or transaction is to be settled by delivery of Ordinary Shares or other securities, in cash or otherwise.

 

D- 1



 

If the undersigned is an officer or director of the Company, (1) the Representatives agree that, at least three business days before the effective date of any release or waiver of the foregoing restrictions in connection with a transfer of the Lock-Up Securities, the Representatives involved in granting such release pursuant to the terms of this lock-up agreement will notify the Company of the impending release or waiver, and (2) the Company has agreed in the Underwriting Agreement to announce the impending release or waiver by press release through a major news service at least two business days before the effective date of the release or waiver.  Any release or waiver granted by the Representatives hereunder to any such officer or director shall only be effective two business days after the publication date of such press release.  The provisions of this paragraph will not apply if (i) the release or waiver is effected solely to permit a transfer not for consideration and (ii) the transferee has agreed in writing to be bound by the same terms described in this letter to the extent and for the duration that such terms remain in effect at the time of the transfer.

 

Notwithstanding the foregoing, and subject to the conditions below, the undersigned may transfer the Lock-Up Securities without the prior written consent of the Representatives, provided that (1) the Representatives receive a signed lock-up agreement for the balance of the Lock-Up Period from each donee, trustee, distributee, or transferee, as the case may be, (2) any such transfer shall not involve a disposition for value, (3) such transfers are not required to be reported with the Securities and Exchange Commission (the “Commission”) on Form 4 in accordance with Section 16 of the Securities Exchange Act of 1934, as amended (the “1934 Act”), and (4) the undersigned does not otherwise voluntarily effect any public filing or report regarding such transfers during the Lock-Up Period:

 

(i)            as a bona fide gift or gifts; or

 

(ii)           to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned (for purposes of this lock-up agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin); or

 

(iii)          as a distribution to limited partners or securityholders of the undersigned (as applicable); or

 

(iv)          to the undersigned’s affiliates or to any investment fund or other entity controlled or managed by the undersigned.

 

Furthermore, the undersigned may:

 

(1) sell Ordinary Shares purchased by the undersigned on the open market following the Offering if and only if (i) such sales are not required to be reported in any public report or filing with the Commission, or otherwise and (ii) the undersigned does not otherwise voluntarily effect any public filing or report regarding such sales;

 

(2) establish a trading plan pursuant to Rule 10b5-1 under the 1934 Act for the transfer of Ordinary Shares, provided that (i) such plan does not provide for the transfer of Ordinary Shares during the Lock-Up Period and (ii) no public report or filing is required or voluntarily made in connection therewith; and

 

(3) exercise an option to purchase Ordinary Shares granted under any employee benefit plan, or non-employee director share plan or dividend reinvestment plan, of the Company described in the Registration Statement, provided, however, that (x) the underlying Ordinary Shares received by the undersigned shall continue to be subject to the restrictions on transfer set forth in this lock-up agreement and (y) (i) any filing under Section 16 of the 1934 Act required to be made during the Lock-Up Period

 

D- 2



 

shall clearly indicate in the footnotes thereto that (A) the filing relates to the circumstances described above and (B) no Lock-Up Securities were sold by the undersigned and (ii) the undersigned does not otherwise voluntarily effect any other public filing or report regarding such transfers during the Lock-Up Period[; and

 

(4) sell or otherwise transfer Ordinary Shares to one or more direct or indirect wholly-owned subsidiary of Huntsman Corporation (each, a “Permitted Transferee”), with consideration, provided that (x) the underlying Ordinary Shares received by the Permitted Transferee shall continue to be subject to the restrictions on transfer set forth in this lock-up agreement and (y) (i) any filing required to be made during the Lock-Up Period shall clearly indicate in the footnotes thereto that the filing relates to the circumstances described above and (ii) the undersigned does not otherwise voluntarily effect any other public filing or report regarding such transfers during the Lock-Up Period].(1)

 

The undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of the Lock-Up Securities except in compliance with the foregoing restrictions.

 

This lock-up agreement shall automatically terminate, and the undersigned shall be released from its obligations hereunder, upon the earliest to occur, if any, of (i) either the Representatives, on the one hand, or the Company or the Selling Shareholders, on the other hand, has advised the other(s) in writing prior to the execution of the Underwriting Agreement that they or it have determined not to proceed with the Offering, (ii) the Company files an application to withdraw the registration statement related to the Offering, (iii) the Underwriting Agreement is executed but is terminated prior to the closing of the Offering (other than the provisions thereof which survive termination) and prior to payment for and delivery of the Ordinary Shares to be sold thereunder, or (iv) January 24, 2018, in the event that the Underwriting Agreement has not been executed by such date.

 


(1)  Applicable to Selling Shareholders only.

 

D- 3



 

 

Very truly yours,

 

 

 

 

 

 

 

Signature:

 

 

 

 

 

Print Name:

 

 

D- 4



 

Exhibit E

 

FORM OF PRESS RELEASE

TO BE ISSUED PURSUANT TO SECTION 3(j)

 

[ · ], 20  (1)

 

Venator Materials PLC (the “Venator”) announced today that [Citigroup, Goldman Sachs & Co. LLC, BofA Merrill Lynch and J.P. Morgan], the lead book-running managers in Venator’s recent public sale of ordinary shares, are [waiving] [releasing] a lock-up restriction with respect to   ordinary shares of Venator held by [certain officers or directors] [an officer or director] of the Company.  The [waiver] [release] will take effect on      ,          20    , and the ordinary shares may be sold on or after such date.

 

This press release is not an offer for sale of the securities in the United States or in any other jurisdiction where such offer is prohibited, and such securities may not be offered or sold in the United States absent registration or an exemption from registration under the United States Securities Act of 1933, as amended.

 


(1)  To be dated at least two (2) business days prior to the date of effectiveness of such release or waiver, as applicable.

 

E- 1


Exhibit 3.1

 

COMPANY NUMBER:  10747130

 

THE COMPANIES ACT 2006

 


 

A PUBLIC COMPANY LIMITED BY SHARES

 


 

AMENDED AND RESTATED

 

ARTICLES OF ASSOCIATION

 

OF

 

VENATOR MATERIALS PLC

 

 

(Adopted by special resolution on August 1, 2017)

 



 

TABLE OF CONTENTS

 

 

 

Page

 

 

 

PRELIMINARY

 

 

1.

ARTICLES OF ASSOCIATION

1

2.

INTERPRETATION

1

3.

LIABILITY OF SHAREHOLDERS

6

4.

CHANGE OF NAME

6

 

 

 

SHARES

 

 

5.

SHARE CAPITAL

6

6.

ALLOTMENT

6

7.

POWER TO ATTACH RIGHTS

6

8.

VARIATION OF CLASS RIGHTS

7

9.

REDEEMABLE SHARES

7

10.

COMMISSION AND BROKERAGE

7

11.

TRUSTS NOT RECOGNISED

7

12.

ALTERATION OF SHARE CAPITAL

8

13.

PURCHASE OF OWN SHARES

8

14.

EVIDENCE OF OWNERSHIP OF SHARES

8

15.

UNCERTIFICATED SHARES

8

 

 

 

SHARE CERTIFICATES

 

16.

RIGHT TO CERTIFICATE

10

17.

REPLACEMENT CERTIFICATES

11

 

 

 

LIEN

 

 

18.

COMPANY’S LIEN ON SHARES NOT FULLY PAID

11

19.

ENFORCEMENT OF LIEN BY SALE

11

20.

APPLICATION OF PROCEEDS OF SALE

12

 

 

 

CALLS ON SHARES

 

21.

CALLS

12

22.

POWER TO DIFFERENTIATE

12

23.

INTEREST ON CALLS

12

24.

PAYMENT IN ADVANCE

12

25.

AMOUNTS DUE ON ALLOTMENT OR ISSUE TREATED AS CALLS

13

 

 

 

FORFEITURE

 

 

26.

NOTICE IF CALL NOT PAID

13

27.

FORFEITURE FOR NON—COMPLIANCE

13

28.

NOTICE AFTER FORFEITURE

13

29.

DISPOSAL OF FORFEITED SHARES

13

30.

ARREARS TO BE PAID NOTWITHSTANDING FORFEITURE

14

31.

SURRENDER

14

 

 

 

TRANSFER OF SHARES

 

32.

METHOD OF TRANSFER

14

33.

RIGHT TO REFUSE REGISTRATION

14

34.

NO FEES ON REGISTRATION

15

 

 

 

TRANSMISSION OF SHARES

 

35.

ON DEATH

15

36.

ELECTION OF PERSON ENTITLED BY TRANSMISSION

16

37.

RIGHTS ON TRANSMISSION

16

 

 

 

UNTRACED SHAREHOLDERS

 

38.

POWER OF SALE

16

39.

APPLICATION OF PROCEEDS OF SALE

17

 



 

TABLE OF CONTENTS

 

 

 

Page

 

 

 

FRACTIONS

 

 

40.

FRACTIONS

17

 

 

 

GENERAL MEETINGS

 

41.

ANNUAL GENERAL MEETINGS

18

42.

CONVENING OF GENERAL MEETINGS

18

43.

LENGTH AND FORM OF NOTICE

18

44.

OMISSION TO SEND NOTICE

19

45.

POSTPONEMENT OF GENERAL MEETINGS

19

46.

SHAREHOLDER PROPOSALS AND NOMINATIONS

20

47.

LIST OF SHAREHOLDERS

24

 

 

 

PROCEEDINGS AT GENERAL MEETINGS

 

48.

QUORUM

25

49.

PROCEDURE IF QUORUM NOT PRESENT

25

50.

CHAIRMAN

25

51.

RIGHT TO ATTEND AND SPEAK

26

52.

POWER TO ADJOURN

26

53.

NOTICE OF ADJOURNED MEETING

26

54.

BUSINESS AT ADJOURNED MEETING

27

55.

SATELLITE MEETINGS

27

56.

ACCOMMODATION OF SHAREHOLDERS AT MEETING

27

57.

SECURITY

28

 

 

 

VOTING

 

 

58.

METHOD OF VOTING

28

59.

PROCEDURE

28

60.

VOTES OF SHAREHOLDERS

29

61.

RESTRICTION ON VOTING RIGHTS FOR UNPAID CALLS, ETC.

29

62.

VOTING BY PROXY

29

63.

APPOINTMENT OF PROXY

30

64.

WHEN VOTES BY PROXY ARE VALID ALTHOUGH AUTHORITY TERMINATED

31

 

 

 

ADDITIONAL VOTING PROVISIONS

 

65.

CORPORATE REPRESENTATIVES

31

66.

OBJECTIONS TO AND ERROR IN VOTING

32

67.

AMENDMENTS TO RESOLUTIONS

32

68.

FAILURE TO DISCLOSE INTERESTS IN SHARES

32

 

 

 

APPOINTMENT AND RETIREMENT OF DIRECTORS

 

69.

NUMBER OF DIRECTORS

34

70.

POWER OF THE COMPANY TO APPOINT DIRECTORS

34

71.

POWER OF THE BOARD TO APPOINT DIRECTORS

35

72.

NO SHARE QUALIFICATION

35

73.

VOTING ON RESOLUTION FOR APPOINTMENT

35

74.

ANNUAL APPOINTMENT OF DIRECTORS

35

75.

RESIGNATION, DISQUALIFICATION AND REMOVAL OF DIRECTOR

35

 

 

 

REMUNERATION, EXPENSES AND PENSIONS

 

76.

REMUNERATION AND EXPENSES OF DIRECTORS

36

77.

ADDITIONAL REMUNERATION

36

78.

DIRECTORS’ PENSIONS AND OTHER BENEFITS

37

79.

INSURANCE

37

 

 

 

POWERS AND DUTIES OF THE BOARD

 

80.

POWERS OF THE BOARD

37

81.

POWERS OF DIRECTORS BEING LESS THAN MINIMUM REQUIRED NUMBER

37

 

ii



 

TABLE OF CONTENTS

 

 

 

Page

 

 

 

82.

OFFICERS

38

83.

CHAIRMAN OF THE BOARD, CHIEF EXECUTIVE OFFICER AND PRESIDENTS

38

84.

VICE PRESIDENTS

39

85.

DELEGATION TO COMMITTEES

39

86.

AGENTS

40

87.

EXERCISE OF VOTING POWERS

40

88.

PROVISION FOR EMPLOYEES

40

89.

REGISTERS

40

90.

REGISTER OF CHARGES

40

91.

DIRECTORS’ CONFLICTS OF INTEREST OTHER THAN IN RELATION TO TRANSACTIONS OR ARRANGEMENTS WITH THE COMPANY

40

92.

DECLARATIONS OF INTEREST BY DIRECTORS

42

93.

DIRECTORS’ INTERESTS IN RELATION TO TRANSACTIONS OR ARRANGEMENTS WITH THE COMPANY

43

 

 

 

PROCEEDINGS OF DIRECTORS AND COMMITTEES

 

94.

BOARD MEETINGS

45

95.

NOTICE OF BOARD MEETINGS

45

96.

QUORUM

45

97.

CHAIRMAN OF BOARD

46

98.

VOTING

46

99.

PARTICIPATION BY TELEPHONE

46

100.

RESOLUTION IN WRITING

46

101.

PROCEEDINGS OF COMMITTEES

46

102.

MINUTES OF PROCEEDINGS

47

103.

VALIDITY OF PROCEEDINGS OF BOARD OR COMMITTEE

47

 

 

 

SECRETARY AND AUTHENTICATION OF DOCUMENTS

 

104.

SECRETARY

47

105.

AUTHENTICATION OF DOCUMENTS

48

 

 

 

SEALS

 

 

106.

SAFE CUSTODY

48

107.

APPLICATION OF SEALS

48

 

 

 

DIVIDENDS AND OTHER PAYMENTS

 

108.

RESERVES

48

109.

PAYMENT OF DIVIDENDS

49

110.

ENTITLEMENT TO DIVIDENDS

49

111.

METHOD OF PAYMENT

50

112.

DIVIDENDS NOT TO BEAR INTEREST

51

113.

UNCLAIMED DIVIDENDS, ETC.

51

114.

UNCASHED DIVIDENDS

51

115.

PAYMENT OF DIVIDENDS IN SPECIE

52

116.

PAYMENT OF SCRIP DIVIDENDS

52

117.

CAPITALISATION OF RESERVES

53

118.

CAPITALISATION OF RESERVES — EMPLOYEES’ SHARE SCHEMES

54

119.

RECORD DATES

55

 

 

 

ACCOUNTS

 

 

120.

TREASURER

55

121.

KEEPING AND INSPECTION OF ACCOUNTING RECORDS

55

122.

ACCOUNTS TO BE SENT TO SHAREHOLDERS, ETC.

56

123.

EXTERNAL AUDITOR

56

 

 

 

NOTICES

 

 

124.

NOTICES TO BE IN WRITING

56

 

iii



 

TABLE OF CONTENTS

 

 

 

Page

 

 

 

125.

SERVICE OF NOTICES, DOCUMENTS AND INFORMATION ON SHAREHOLDERS

56

126.

EVIDENCE OF SERVICE

58

127.

NOTICE BINDING ON TRANSFEREES, ETC.

58

128.

NOTICE IN CASE OF ENTITLEMENT BY TRANSMISSION

58

129.

VALIDATION OF DOCUMENTS IN ELECTRONIC FORM

59

 

 

 

MISCELLANEOUS

 

130.

DISPUTE RESOLUTION

59

131.

DESTRUCTION OF DOCUMENTS

59

132.

WINDING UP

60

133.

INDEMNITY

61

 

 

 

TRANSACTIONS WITH INTERESTED SHAREHOLDERS

 

134.

TRANSACTIONS WITH INTERESTED SHAREHOLDERS

62

 

iv



 

COMPANY NO. 10747130

 

THE COMPANIES ACT 2006

 


 

PUBLIC COMPANY LIMITED BY SHARES

 


 

AMENDED AND RESTATED
ARTICLES OF ASSOCIATION

 

OF

 

VENATOR MATERIALS PLC
(Adopted by special resolution on August 1, 2017)

 

PRELIMINARY

 

1.                                       ARTICLES OF ASSOCIATION

 

This document comprises the articles of association of the Company. No regulations contained in any statute or subordinate legislation, including the regulations contained in Schedule 3 to The Companies (Model Articles) Regulations 2008, apply to the Company.

 

2.                                       INTERPRETATION

 

2.1                                In these Articles, unless the context otherwise requires, the following words and expressions not otherwise defined herein have the following meanings:

 

acting in concert ” has the meaning given to it in the Takeover Code, provided that no person shall be deemed to be acting in concert with any other person solely as a result of that other person having an interest in shares held by the same Depositary (acting solely in the Depositary’s capacity as such);

 

Act ” means the Companies Act of 2006 and every other enactment from time to time in force concerning companies (including any orders, regulations or other subordinate legislation made under the Companies Act of 2006 or any such other enactment), so far as they apply to or affect the Company;

 

Articles ” means the articles of association of the Company as altered from time to time;

 

auditors ” or “ external auditors ” means the auditors from time to time of the Company or, in the case of joint auditors, any one of them;

 

beneficial ownership ” or “ beneficially owned ” or any correlative terms have the same meaning as in Regulation 13D under the Exchange Act;

 

board ” means the directors or any of them acting as the board of directors from time to time;

 

business day ” means a day (excluding Saturday or Sunday) on which banks generally are open in London, England and New York, New York, United States for the transaction of normal banking business;

 

certificated ” in relation to a share means a share that is represented by a paper certificate, i.e. , not in electronic form;

 



 

clear days ” means in relation to a period of notice that period excluding the day when the notice is given or deemed to be given and the day for which it is given or on which it is to take effect;

 

committee ” means a committee of the board unless the context suggests otherwise;

 

Company ” means Venator Materials plc (register no. 10747130);

 

company ” includes any body corporate (not being a corporation sole) or association of persons, whether or not a company within the meaning of the Act;

 

Depositary ” means any depositary, clearing agency, custodian, nominee or similar entity authorised under arrangements entered into by the Company or otherwise approved by the board that holds legal title to shares for the purposes of facilitating beneficial ownership of such shares (or the transfer thereof) by other persons, and may include a person that holds, or is interested directly or indirectly, including through a nominee, in, shares, or rights or interests in respect thereof, and that issues certificates, instruments, securities or other documents of title, or maintains accounts, evidencing or recording the entitlement of the holders thereof, or account holders, to or to receive such shares, rights or interests and shall include, where so approved by the board, the trustees (acting in their capacity as such) of any employees’ share scheme established by the Company;

 

director ” means a director of the Company;

 

electronic address ” means any number or address used for the purposes of sending or receiving notices, documents or information by electronic means;

 

electronic form ” has the same meaning as in section 1168 of the Act and, for the avoidance of doubt, shall include a data file or a telephonically communicated datagram or other paperless record that may be retained, retrieved and reviewed and that may be reproduced in paper form through an electronic process;

 

electronic means ” has the same meaning as in section 1168 of the Act and, for the avoidance of doubt, shall include via the Internet or by means of a telephonically communicated datagram;

 

entitled by transmission ” means, in relation to a share, entitled as a consequence of the death or bankruptcy of a shareholder, or as a result of another event giving rise to a transmission of entitlement by operation of law;

 

Exchange Act ” means the United States Securities Exchange Act of 1934, as amended from time to time, including the rules and regulations promulgated thereunder;

 

financial year ” in relation to the Company is determined as provided in section 390 of the Act;

 

hard copy form ” and “ hard copy ” have the same meanings as in section 1168 of the Act;

 

holder ” or “ shareholder ” in relation to shares means the member whose name is entered in the register as the holder of the shares;

 

independent ” or “ independence ” in relation to a director or proposed director means that such director or proposed director is independent within the meaning of applicable rules promulgated by the SEC under the Exchange Act (including, to the extent applicable to the individual’s position or proposed position on the board, Rule Section 10A—3 promulgated by the SEC) and/or the NYSE or, if applicable, as defined from time to time by resolution of the board;

 

interest in shares ” includes, where the context permits, “ interests in securities ” as defined in the Takeover Code and, for the avoidance of doubt, includes, without duplication, beneficial ownership, and “ interested in shares ” and “ share interest ” will be construed accordingly;

 

2



 

NYSE ” means the New York Stock Exchange;

 

office ” means the registered office of the Company;

 

Ordinary Shareholders ” means the holders for the time being of the allotted and issued Ordinary Shares;

 

Ordinary Shares ” means the ordinary shares with a nominal value of $0.001 each in the share capital of the Company;

 

organisation ” means any firm, body corporate, company, corporation, limited liability company, partnership, unincorporated association, government, state or agency of state, association, joint venture, trust or employee benefit plan, in each case whether or not having a separate legal personality;

 

paid ” “ paid up ” and “ paid—up ” mean paid or credited as paid;

 

paid—up amount ” means, in respect of any share, the amount paid or credited as paid up on that share, including sums paid, or credited as paid, by way of premium;

 

Parent ” means Huntsman Corp., a Delaware corporation, any member of the Huntsman Group (as defined in the Separation Agreement) and any person to whom Huntsman Corp.’s rights under the Separation Agreement are transferred;

 

person ” shall include any individual or organisation, in each case whether or not having a separate legal personality;

 

public announcement ” means disclosure in a press release reported by a United Kingdom or United States news service or in a document filed or furnished by the Company with or to the SEC pursuant to Section 13, 14 or 15(d) of the Exchange Act;

 

qualifying person ” means (a) a shareholder of the Company (other than a shareholder who, under these Articles or any restrictions imposed on any shares, is not entitled to attend, speak or vote, whether in person or by proxy, at any general meeting of the Company) or his validly appointed attorney or proxy or a corporate representative of such attorney or proxy in relation to any general meeting of the Company or (b) a person authorised under section 323 of the Act to act as the representative of a corporation in relation to any general meeting of the Company. The board is entitled, acting in good faith and without further enquiry, to assume the validity of any votes cast in person or by proxy;

 

recognised financial institution ” means a recognised clearing house acting in relation to a recognised investment exchange or a nominee of a recognised clearing house acting in that way or of a recognised investment exchange that is designated for the purposes of section 778(2) of the Act;

 

recognised investment exchange ” has the meaning given to it in the Financial Services and Markets Act 2000;

 

register ” means the register of members of the Company kept pursuant to section 113 of the Act or the issuer register of members and Operator register of members maintained pursuant to Regulation 20 of the Uncertificated Securities Regulations and, where the context requires, any register maintained by the Company or the Operator of persons holding any renounceable right of allotment of a share and cognate expressions shall be construed accordingly;

 

seal ” means the common seal of the Company and includes any official seal maintained by the Company by virtue of sections 49 or 50 of the Act;

 

SEC ” means the U.S. Securities and Exchange Commission;

 

3



 

secretary ” means the secretary of the Company or any other person appointed by the board to perform the duties of the secretary of the Company, including a joint, assistant or deputy secretary;

 

Separation Agreement ” means that certain agreement between the Company and Huntsman Corp. dated to be entered into on or about August 7, 2017;

 

share ” means any share (of whatever class or denomination) in the share capital of the Company, and “ shares ” shall be construed accordingly;

 

Shareholder Associated Person ” of any shareholder means (a) any beneficial owner of shares on whose behalf any proposal or nomination is made by such shareholder; (b) any affiliates or associates of such shareholder or any beneficial owner described in paragraph (a); or (c) any other person with whom any of the persons described in paragraphs (a) and (b) is acting in concert, or, has any agreement, arrangement or understanding (whether written or oral or formal or informal) to cooperate for the purpose of acquiring, holding, voting (except pursuant to a revocable proxy given to such person in response to a public proxy solicitation made generally by such person in accordance with the Exchange Act to all shareholders entitled to vote at any meeting) or disposing of any shares or to cooperate in obtaining, changing or influencing the control or to frustrate the successful outcome of an offer (except independent financial, legal and other advisors acting in the ordinary course of their respective businesses and any Depositaries);

 

Takeover Code ” means the City Code on Takeovers and Mergers as promulgated by the Takeover Panel, as amended and/or supplemented from time to time;

 

Takeover Panel ” means the Panel on Takeovers and Mergers or such other authority designated as the supervisory authority in the United Kingdom to carry out certain regulatory functions in relation to takeovers under the EC Directive on Takeover Bids (2004/25/EC);

 

Trigger Date ” means the first date on which Parent ceases to beneficially own at least 15% of the outstanding Voting Shares;

 

uncertificated proxy instruction ” means a properly authenticated dematerialised instruction and/or other instruction or notification sent by means of a relevant system and received by such participant in that system acting on behalf of the Company, in such form and subject to such terms and conditions as may from time to time be prescribed by the board (subject always to the facilities and requirements of the relevant system concerned);

 

Uncertificated Securities Regulations ” means the Uncertificated Securities Regulations 2001;

 

“uncertificated share”  means, in relation to a share, a share title recorded in the register as being held in uncertificated form and title to which, by virtue of the Uncertificated Securities Regulations, may be transferred by means of a relevant system and references in these Articles to a share being “ uncertificated” or held in “ uncertificated form ” shall be construed accordingly;

 

United Kingdom ” means Great Britain and Northern Ireland;

 

United States ” means the United States of America; and

 

Voting Shares ” means with respect to any company or corporation, shares of any class entitled to vote generally in the election of directors and, with respect to any entity that is not a company or corporation, any equity interest entitled to vote generally in the election of the governing body of such entity.

 

2.2                                The expressions “issuer register,” “Operator,” “Operator—instruction,” “Operator register of members,” “participating issuer,” “participating security” and “relevant system” have the same meanings as in the Uncertificated Securities Regulations.

 

4



 

2.3                                All references in these Articles to the giving of instructions by means of a relevant system shall be deemed to relate to a properly authenticated dematerialised instruction given in accordance with the Uncertificated Securities Regulations. The giving of such instructions shall be subject to:

 

(a)                                  the facilities and requirements of the relevant system;

 

(b)                                  the Uncertificated Securities Regulations; and

 

(c)                                   the extent to which such instructions are permitted by, or practicable under, the rules and practices from time to time of the Operator of the relevant system.

 

2.4                                Where an ordinary resolution of the Company is expressed to be required for any purpose, a special resolution is also effective for that purpose.

 

2.5                                References to a “ meeting ” shall not be taken as requiring more than one person to be present if any quorum requirement can be satisfied by one person.

 

2.6                                References to a “ debenture ” include debenture stock, bonds and any other debt securities of an organisation, whether or not constituting a charge on the assets of the organisation.

 

2.7                                The word “ directors ” in the context of the exercise of any power contained in these Articles includes any committee consisting of one or more directors, any director holding executive office and any officer, manager or agent of the Company to which or, as the case may be, to whom the power in question has been delegated.

 

2.8                                Powers of delegation shall not be restrictively construed, but the widest interpretation shall be given to them.

 

2.9                                No power of delegation shall be limited by the existence or, except where expressly provided by the terms of delegation, the exercise of that or any other power of delegation.

 

2.10                         Except where expressly provided by the terms of delegation, the delegation of a power shall not exclude the concurrent exercise of that power by any other body or person who is for the time being authorised to exercise it under these Articles or under another delegation of the power.

 

2.11                         Except for words and expressions defined in these Articles, unless the context otherwise requires, words or expressions contained in these Articles have the same meanings as in the Act, but excluding any statutory modification thereof not in force when these Articles become binding on the Company.

 

2.12                         Subject to the Act, references to a document or writing being executed include references to its being signed or executed under hand or under seal or by any other method, including electronically, via the Internet or by means of a telephonically communicated datagram, provided that such method includes means to confirm the identity of the person or persons purporting to execute such document or writing, such as by use of a confidential identification or control number or other equivalent means determined by the board.

 

2.13                         Unless the context otherwise requires, any reference to “ writing ” or “ written ” shall include any method of reproducing words or text in a legible and non—transitory form, and documents or information sent, stored or supplied in electronic form or made available on a website are in “writing” for the purposes of these Articles.

 

2.14                         Save where specifically required or indicated otherwise, words referencing one gender shall be treated as including any gender, words referencing individuals shall be treated as including organisations and vice versa, words referencing the singular shall be treated as including the plural and vice versa.

 

5



 

2.15                         Any reference to “ include ” or “ including ” (or any similar term) is not to be construed as implying any limitation and general words introduced by the word “ other ” (or any similar term) shall not be given a restrictive meaning by reason of the fact that they are preceded by words indicating a particular class of acts, matters or things.

 

2.16                         Article headings are inserted for ease of reference only and shall not affect the construction of these Articles.

 

2.17                         References to any statutory provision or statute include any modification or re—enactment thereof for the time being in force and all orders, regulations or other subordinate legislation made thereunder. This Article does not affect the interpretation of Article 2.11.

 

3.                                       LIABILITY OF SHAREHOLDERS

 

The liability of the shareholders is limited to the amount, if any, unpaid on the shares in the Company held by them.

 

4.                                       CHANGE OF NAME

 

The Company may change its name by resolution of the board.

 

SHARES

 

5.                                       SHARE CAPITAL

 

5.1                                The allotted and issued share capital of the Company at the date of adoption of these Articles is 106,271,712 Ordinary Shares.

 

5.2                                The Ordinary Shares shall have such rights as are provided for by these Articles. On a return of capital of the Company on a winding up, any Shareholder who is an organisation that is a subsidiary or subsidiary undertaking of the Company shall only be entitled to receive out of the assets of the Company available for distribution to its shareholders the nominal value paid up on any shares for the Ordinary Shares held by such shareholders, but shall not be entitled to any further participation in the distribution of any assets of the Company.

 

6.                                       ALLOTMENT

 

6.1                                Subject to the provisions of the Act and any relevant authority given by the Company in a general meeting, the board may exercise any power of the Company to allot shares in one or more series, or to grant rights to subscribe for or to convert or exchange any security into or for shares or its successors in one or more series, to such persons or excluding such persons, at such times and on such terms as the board may determine.

 

6.2                                The board may at any time after the allotment of a share, but before a person has been entered in the register as the holder of the share, recognise a renunciation of the share by the allottee in favour of another person and may grant to an allottee a right to effect a renunciation on such terms and conditions as the board thinks fit.

 

7.                                       POWER TO ATTACH RIGHTS

 

Subject to the provisions of the Act and to any rights attached to any existing shares, any share may be allotted or issued with nominal value in any currency and with, or have attached to it, such powers, designations, preferences and relative participating, optional or other special rights and qualifications, limitations and restrictions attaching thereto as the board may determine, including rights to (a) receive dividends (which may include rights to receive preferential or cumulative dividends), (b) distributions

 

6



 

made on a winding up of the Company and (c) be convertible into, or exchangeable for, shares of any other class or classes or of any other series of the same or any other class or classes of shares, at such prices or prices (subject to the Act) or at such rates of exchange and with such adjustments as may be determined by the board.

 

8.                                       VARIATION OF CLASS RIGHTS

 

8.1                                Where there are two or more classes of shares in issue, and subject to the provisions of the Act, the rights attached to a class of shares may be varied or abrogated (whether or not the Company is being wound up) either with the consent in writing of the holders of at least three—fourths of the nominal amount of the issued shares of that class (excluding any shares held as treasury shares) or with the sanction of a special resolution passed at a separate meeting of the holders of the issued shares of that class validly held in accordance with Article 8.3 and other relevant provisions of these Articles.

 

8.2                                The rights attached to a class of shares are not, unless otherwise expressly provided for in the rights attaching to those shares, varied or deemed to be varied by the allotment or issue of, or the grant of rights to subscribe for or to convert or exchange any security into or for, further shares ranking in priority to or pari passu with or subsequent to them or by the purchase or redemption by the Company of its own shares in accordance with the provisions of the Act.

 

8.3                                All Articles relating to general meetings will apply to any class meeting, with any necessary changes. The following changes will also apply:

 

(a)                                  a quorum for the purposes of any class meeting or adjournment thereof will comprise qualifying persons, who together hold at least 50% of the voting rights of the issued shares of the relevant class. For the purposes of this Article 8.3, a proxy, attorney or other representative of a shareholder will be considered to be entitled to cast only the voting rights to which his appointment relates and not any other voting rights held by the shareholder he represents; and

 

(b)                                  every qualifying person who is present in person or by proxy and entitled to vote is entitled to one vote for every share he has of the class (but this is subject to any special rights or restrictions which are attached to any class of shares).

 

8.4                                The provisions of Articles 8.1, 8.2 and 8.3 will apply to any variation or abrogation of rights of shares forming part of a class. Each part of the class which is being treated differently is treated as a separate class in applying this Article.

 

9.                                       REDEEMABLE SHARES

 

Subject to the provisions of the Act and to any rights attached to any existing shares, shares may be issued that are to be redeemed or are liable to be redeemed at the option of the Company or the holder, and the board may determine the terms, conditions and manner of redemption of any shares so issued.

 

10.                                COMMISSION AND BROKERAGE

 

The Company may exercise all the powers conferred or permitted by the provisions of the Act of paying commission or brokerage. Subject to the provisions of the Act, any such commission or brokerage may be satisfied by the payment of cash or by the allotment of fully or partly paid shares or by the grant of an option to call for such an allotment or by any combination of such methods as the board thinks fit.

 

11.                                TRUSTS NOT RECOGNISED

 

Except as ordered by a court of competent jurisdiction or as required by law, no person shall be recognised by the Company as holding any share on trust and (except as otherwise provided by these Articles or by

 

7



 

law) the Company shall not be bound by or recognise any interest in any share except an absolute right in the holder to the whole of the share, whether or not the Company shall have notice thereof.

 

12.                                ALTERATION OF SHARE CAPITAL

 

12.1                         Subject to the provisions of the Act, the Company may:

 

(a)                                  increase its share capital by allotting new shares in accordance with the Act and these Articles;

 

(b)                                  by ordinary resolution consolidate and divide all or any of its share capital into shares of a larger nominal amount than its existing shares;

 

(c)                                   by ordinary resolution sub—divide its shares, or any of them, into shares of a smaller nominal amount than its existing shares; and

 

(d)                                  by special resolution approve (subject to the confirmation of a court) a reduction of its share capital, any capital redemption reserve and any share premium account in any way.

 

13.                                PURCHASE OF OWN SHARES

 

Subject to the provisions of the Act, the Company may purchase its own shares (including any redeemable shares). On any purchase by the Company of its own shares, neither the Company nor the board shall be required to select the shares to be purchased ratably or in any manner as between the holders of shares of the same class or as between them and the holders of shares of any other class or in accordance with the rights as to dividends or capital conferred by any class of shares.

 

14.                                EVIDENCE OF OWNERSHIP OF SHARES

 

Subject to the Act, evidence of ownership of legal title in shares of the Company may be in any form authorised by the board, including in certificated form, uncertificated form, electronically, by book—entry or as may otherwise be permitted by law.

 

15.                                UNCERTIFICATED SHARES

 

15.1                         Subject to the provisions of the Act, the Uncertificated Securities Regulations and the facilities and requirements of any relevant system concerned, the board may permit the holding of shares in any class of shares in uncertificated form, including, resolving that a class of shares shall become a participating security and/or that a class of shares shall cease to be a participating security.

 

15.2                         Uncertificated shares of a class are not to be regarded as forming a separate class from certificated shares of that class as a consequence of such shares being held in uncertificated form or of any provision in these Articles or the Uncertificated Securities Regulations applying only to such shares.

 

15.3                         Any share of a class that is a participating security may be changed from a certificated share to an uncertificated share and from an uncertificated share to a certificated share in accordance with the Uncertificated Securities Regulations.

 

15.4                         The Company may give notice to a shareholder requiring the shareholder to change uncertificated shares to certificated shares by the time stated in the notice. The notice may also state that the shareholder may not change certificated shares to uncertificated shares. If the shareholder does not comply with the notice, the board may authorise a person to change the uncertificated shares to certificated shares in the name and on behalf of the shareholder.

 

15.5                         While a class of shares is a participating security, these Articles only apply to an uncertificated share of that class to the extent that these Articles are consistent with:

 

8



 

(a)                                  the holding of such shares of that class in uncertificated form;

 

(b)                                  the transfer of title to such shares of that class by means of a relevant system; and

 

(c)                                   the Uncertificated Securities Regulations.

 

15.6                         Notwithstanding any provisions of these Articles to the contrary, the directors shall have power to implement any arrangements they may, in their absolute discretion, think fit in relation to the evidencing of issue or title to and transfer of an uncertificated share and any related procedures (subject to the Uncertificated Securities Regulations and the facilities and requirements of any relevant system concerned).

 

15.7                         The Company shall enter or cause to be entered on the register how many shares are held by each shareholder in uncertificated form and in certificated form and shall maintain or cause to be maintained the register in each case as required by the Uncertificated Securities Regulations and any relevant system concerned. Unless the directors otherwise determine, holdings of the same holder or joint holders in certificated form and uncertificated form shall be treated as separate holdings.

 

15.8                         The Company shall be entitled to assume that the entries on any record of securities maintained by it in accordance with the Uncertificated Securities Regulations and regularly reconciled with the relevant Operator register of securities are a complete and accurate reproduction of the particulars entered in the Operator register of securities and shall accordingly not be liable in respect of any act or thing done or omitted to be done by or on behalf of the Company in reliance upon such assumption; in particular, any provision of these Articles that requires or envisages that action will be taken in reliance on information contained in the register shall be construed to permit that action to be taken in reliance on information contained in any relevant record of securities (as so maintained and reconciled).

 

15.9                         Any instruction given by means of a relevant system as referred to in these Articles shall be a dematerialised instruction given in accordance with the Uncertificated Securities Regulations, the facilities and requirements of the relevant system and the Operator’s rules and practices.

 

15.10                  Where the Company is entitled under the Act, the Operator’s rules and practices, these Articles or otherwise to dispose of, forfeit, enforce a lien over or impose a restriction on or sell or otherwise procure the sale of any shares of a class that is a participating security that are held in uncertificated form, the board may take such steps (subject to the Uncertificated Securities Regulations and to such rules and practices) as may be required or appropriate, by instruction by means of the relevant system or otherwise, to effect such disposal, forfeiture, enforcement, imposition or sale including by:

 

(a)                                  requesting or requiring the deletion of any computer—based entries in the relevant system relating to the holding of such shares in uncertificated form;

 

(b)                                  altering such computer—based entries so as to divest the holder of such shares of the power to transfer such shares other than to a person selected or approved by the Company for the purpose of such transfer;

 

(c)                                   requiring any holder of such shares, by notice in writing to him, to change his holding of such uncertificated shares into certificated form within any specified period;

 

(d)                                  requiring any holder of such shares to take such steps as may be necessary to sell or transfer such shares as directed by the Company;

 

(e)                                   otherwise rectify or change the register in respect of any such shares in such manner as the board considers appropriate (including by entering the name of a transferee into the register as the next holder of such shares); and/or

 

9



 

(f)                                    appointing any person to take any steps in the name of any holder of such shares as may be required to change such shares from uncertificated form to certificated form and/or to effect the transfer of such shares (and such steps shall be effective as if they had been taken by such holder).

 

15.11                  The provisions of Articles 16 and 17 shall not apply to uncertificated shares.

 

SHARE CERTIFICATES

 

16.                                RIGHT TO CERTIFICATE

 

16.1                         A person (except a person to whom the Company is not required by law to issue a certificate) whose name is entered in the register as a holder of a certificated share is entitled, without charge, to receive within two months of allotment or lodgement with the Company of a transfer to him of those shares or within two months after the relevant instruction is received by the Company (or within any other period as the terms of issue of the shares provide) one certificate for all the certificated shares of a class registered in his name or, in the case of certificated shares of more than one class being registered in his name, to a separate certificate for each class of shares.

 

16.2                         Where a shareholder transfers part of his shares comprised in a certificate, he is entitled, without charge, to one certificate for the balance of certificated shares retained by him.

 

16.3                         The Company is not bound to issue more than one certificate for certificated shares held jointly by two or more persons, and delivery of a certificate to one joint holder is sufficient delivery to all joint holders.

 

16.4                         A share certificate shall specify the number and class and the distinguishing numbers (if any) of the shares in respect of which it is issued and the amount paid up on the shares. In addition, it shall specify the powers, designations, preferences and relative participating, optional or other special rights of such shares and the qualifications, limitations or restrictions of such rights, set forth in full or summarised on the face or back of the certificate. Alternatively, the Company may set forth on the face or back of the certificate a statement that the Company will furnish, without charge, to the shareholder holding such certificate and who so requests it, the powers, designations, preferences and relative participating, optional or other special rights of such shares and the qualifications, limitations or restrictions of such rights.

 

16.5                         A certificate shall be issued under the seal, which may be affixed to or printed on it, or in such other manner as the board may approve, having regard to the terms of allotment or issue of the shares.

 

16.6                         The issued shares of a particular class that are fully paid up and rank pari passu for all purposes shall not bear a distinguishing number. All other shares shall bear a distinguishing number.

 

16.7                         Notwithstanding anything in this Article 16, but subject to the Act, the board may from time to time determine, either generally or in any particular case, the method by which any share certificate issued by the Company in respect of the Company’s shares, debentures or other securities shall be authenticated or executed by or on behalf of the Company and, in particular:

 

(a)                                  whether to dispense with the need to affix the common seal, or any official seal, of the Company to such certificate;

 

(b)                                  the manner, and by whom, any such certificate is to be signed, and may dispense with the need for such certificate to be signed or executed in any way; and

 

(c)                                   whether to permit the signature or a facsimile of the signature of any person to be applied to such share certificate by any mechanical or electronic means in place of that person’s actual signature;

 

and any certificate issued in accordance with the requirements of the board shall, as against the Company, be prima facie evidence of the title of the person named in that certificate to the shares comprised in it.

 

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17.                                REPLACEMENT CERTIFICATES

 

17.1                         Where a shareholder holds two or more certificates for shares of one class, the Company may at his request, on surrender of the original certificates and without charge, cancel the certificates and issue a single replacement certificate for certificated shares of that class.

 

17.2                         At the request of a shareholder, the Company may cancel a certificate and issue two or more in its place (representing certificated shares in such proportions as the shareholder may specify), on surrender of the original certificate and on payment of such reasonable sum as the Company may determine.

 

17.3                         Where a certificate is worn out or defaced, the Company may require the certificate to be delivered to it before issuing a replacement and cancelling the original. If a certificate is lost or destroyed, the Company may cancel it and issue a replacement certificate on such terms as to provision of evidence and indemnity (and/or bond) and to payment of any exceptional out—of—pocket expenses incurred by the Company in the investigation of that evidence and the preparation of that indemnity (and/or bond) as the Company may determine.

 

17.4                         Any or all of the signatures on a certificate may be facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Company with the same effect as if he were such officer, transfer agent or registrar at the date of issue.

 

LIEN

 

18.                                COMPANY’S LIEN ON SHARES NOT FULLY PAID

 

18.1                         The Company has a first and paramount lien on all partly paid shares for an amount payable in respect of the share, whether the due date for payment has arrived or not. The lien applies to all dividends from time to time declared or other amounts payable in respect of the share.

 

18.2                         The board may either generally or in a particular case declare a share to be wholly or partly exempt from the provisions of this Article. Unless otherwise agreed with the transferee, the registration of a transfer of a share operates as a waiver of the Company’s lien (if any) on that share.

 

19.                                ENFORCEMENT OF LIEN BY SALE

 

19.1                         For the purpose of enforcing the lien referred to in Article 18, the Company may sell all or any of the shares subject to the lien at such time or times and in such manner as the board may determine, provided that:

 

(a)                                  the due date for payment of the relevant amounts has arrived; and

 

(b)                                  the Company has served a written notice on the shareholder concerned (or on any person who is entitled to the shares by transmission or by operation of law) stating the amounts due, demanding payment thereof and giving notice that if payment has not been made within 14 clear days after the service of the notice that the Company intends to sell the shares.

 

19.2                         To give effect to such sale, the Company may authorise a person to transfer the shares in the name and on behalf of the shareholder (or any person who is entitled to the shares by transmission or by operation of law), or to cause the transfer of such shares, to the purchaser or his nominee. The purchaser is not bound to see to the application of the purchase money and the title of the transferee is not affected by an irregularity in or invalidity of the proceedings connected with the sale or transfer. Any instrument or exercise referred to in this Article 19.2 shall be effective as if it had been executed or exercised by the holder of, or the person entitled by transmission to, the shares to which it relates.

 

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20.                                APPLICATION OF PROCEEDS OF SALE

 

The net proceeds of a sale effected under Article 19, after payment of the Company’s costs of the sale, shall be applied in or towards satisfaction of the amount in respect of which the lien exists. The balance (if any) shall (on surrender to the Company for cancellation of any certificate for the shares sold, or the provision of an indemnity (and/or bond) as to any lost or destroyed certificate required by the board and subject to a like lien for any amounts not presently payable as existed on the shares before the sale) be paid to the shareholder (or any person entitled to the shares by transmission or by operation of law) immediately before the sale.

 

CALLS ON SHARES

 

21.                                CALLS

 

The board may make calls on shareholders in respect of amounts unpaid on the shares held by them respectively (whether in respect of the nominal value or a premium) and not, by the terms of issue thereof, made payable on a fixed date. Each shareholder shall (on receiving at least 14 clear days’ notice specifying when and where payment is to be made) pay to the Company, at the time and place specified, the amount called as required by the notice. A call may be made payable by installments and may, at any time before receipt by the Company of an amount due, be revoked or postponed in whole or in part as the board may determine. A call is deemed made at the time when the resolution of the board authorising the call is passed. A person on whom a call is made remains liable to pay the amount called despite the subsequent transfer of the share in respect of which the call is made. The joint holders of a share are jointly and severally liable to pay all calls in respect of that share.

 

22.                                POWER TO DIFFERENTIATE

 

The board may make arrangements on the allotment or, subject to the terms of the allotment, on the issue of shares for a difference between the allottees or holders in the amounts or times of payment of a call on their shares or both.

 

23.                                INTEREST ON CALLS

 

If a sum called is not paid on or before the date fixed for payment, the person from whom it is payable shall pay interest on the unpaid amount from the day the unpaid amount is due until the day it has been paid and all costs, charges and expenses that the Company may have incurred by reason of such non—payment. The interest rate may be fixed by the terms of allotment or issue of the share or, if no rate is fixed, at such rate (not exceeding 8% per annum) as the board may determine. The board may waive payment of the interest in whole or in part.

 

24.                                PAYMENT IN ADVANCE

 

24.1                         The board may, if it thinks fit, receive from a shareholder all or part of the amounts uncalled and unpaid on shares held by him. A payment in advance of calls extinguishes to the extent of the payment the liability of the shareholder on the shares in respect of which it is made. The Company may pay interest on the amount paid in advance, or on so much of it as from time to time exceeds the amount called on the shares in respect of which the payment in advance has been made, at such rate (not exceeding 8% per annum) as the board may determine.

 

24.2                         No sum paid up on a share in advance of a call shall entitle the shareholder to any portion of a dividend subsequently declared or paid in respect of any period prior to the date on which such sum would, but for such payment, become due and payable.

 

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25.                                AMOUNTS DUE ON ALLOTMENT OR ISSUE TREATED AS CALLS

 

An amount (whether in respect of the nominal value or a premium) which by the terms of issue of a share becomes payable on allotment or issue or on a fixed date shall be deemed to be a call. In case of non—payment, the provisions of these Articles as to payment of interest, forfeiture or otherwise apply as if that amount has become payable by virtue of a call.

 

FORFEITURE

 

26.                                NOTICE IF CALL NOT PAID

 

If a shareholder fails to pay the whole of a call or an installment of a call by the date fixed for payment, the board may serve notice on the shareholder or on a person entitled automatically by law to the share in respect of which the call was made demanding payment of the unpaid amount, on a date not less than 14 clear days from the date of the notice, together with any interest that may have accrued on it and all costs, charges and expenses incurred by the Company by reason of the non—payment. The notice shall state:

 

(a)                                  the place where payment is to be made; and

 

(b)                                  that if the notice is not complied with the share in respect of which the call was made will be liable to be forfeited.

 

27.                                FORFEITURE FOR NON—COMPLIANCE

 

If the notice referred to in Article 26 is not complied with, any share in respect of which it is given may, at any time before the payment required by the notice (including interest, costs, charges and expenses) has been made, be forfeited by a resolution of the board. All dividends declared or other amounts due in respect of the forfeited share and not paid before the forfeiture shall also be forfeited.

 

28.                                NOTICE AFTER FORFEITURE

 

When a share has been forfeited, the Company shall serve notice of the forfeiture on the person who was before such forfeiture the holder of the share or the person entitled by transmission to the share. An entry of the fact and date of forfeiture shall be made in the register. No forfeiture shall be invalidated by any omission to provide such notice or to make such entry in the register.

 

29.                                DISPOSAL OF FORFEITED SHARES

 

29.1                         A forfeited share and all rights attaching to it shall become the property of the Company and may be sold, re—allotted or otherwise disposed of, either to the person who was before such forfeiture the holder thereof or to another person, on such terms and in such manner as the board may determine. The board may, if necessary, authorise a person to transfer a forfeited share to a new holder. The Company may receive the consideration (if any) for the share on its disposal and may register or cause the registration of the transferee as the holder of the share.

 

29.2                         The forfeiture or surrender of a share shall involve the extinction at the time of forfeiture or surrender of all interest in and all claims and demands against the Company in respect of the share as between the shareholder whose share is forfeited or surrendered and the Company, except only such of those rights and liabilities as are by these Articles expressly saved, or as are by the Act given or imposed in the case of past shareholders.

 

29.3                         The board may, before a forfeited share has been sold, re—allotted or otherwise disposed of, annul the forfeiture on such conditions as it thinks fit.

 

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29.4                         A statutory declaration that the declarant is a director or the secretary and that a share has been forfeited or sold to satisfy a lien of the Company on the date stated in the declaration is conclusive evidence of the facts stated in the declaration against all persons claiming to be entitled to the share. The declaration (subject if necessary to the transfer of the share) constitutes good title to the share and the person to whom the share is sold, re—allotted or disposed of is not bound to see to the application of the consideration (if any). His title to the share is not affected by an irregularity in or invalidity of the proceedings connected with the forfeiture or disposal.

 

30.                                ARREARS TO BE PAID NOTWITHSTANDING FORFEITURE

 

A person whose share has been forfeited ceases on forfeiture to be a shareholder in respect thereof and if that share is in certificated form shall surrender to the Company for cancellation any certificate for the forfeited share. A person remains liable to pay all calls, interest, costs, charges and expenses owing in respect of such share at the time of forfeiture, with interest, from the time of forfeiture until payment, at such rate as may be fixed by the terms of allotment or issue of such share or, if no rate is fixed, at such rate (not exceeding 8% per annum) as the board may determine. The board may if it thinks fit enforce payment without allowance for the value of such share at the time of forfeiture or for any consideration received on its disposal.

 

31.                                SURRENDER

 

The board may accept the surrender of a share liable to be forfeited and, in that case, references in these Articles to forfeiture include surrender.

 

TRANSFER OF SHARES

 

32.                                METHOD OF TRANSFER

 

32.1                         A shareholder may transfer all or any of his certificated shares by instrument of transfer in writing in any usual form or in any other form approved by the board, and the instrument shall be executed by or on behalf of the transferor and (in the case of a transfer of a share which is not fully paid) by or on behalf of the transferee.

 

32.2                         A shareholder may transfer all or any of his uncertificated shares in accordance with the Uncertificated Securities Regulations.

 

32.3                         Subject to the provisions of the Uncertificated Securities Regulations, the transferor of an uncertificated share is deemed to remain the holder of the share until the name of the transferee is entered in the register in respect of it.

 

33.                                RIGHT TO REFUSE REGISTRATION

 

33.1                         In exceptional circumstances approved by the relevant regulatory authority (if any), the board may refuse to register a transfer of certificated shares provided that such refusal would not disturb the market in those shares. Subject to the requirements of the relevant listing rules (if applicable), the board may, in its absolute discretion, refuse to register the transfer of a certificated share that is not fully paid or the transfer of a certificated share on which the Company has a lien.

 

33.2                         The board may also, in its absolute discretion, refuse to register the transfer of a certificated share or a renunciation of a renounceable letter of allotment unless all of the following conditions are satisfied:

 

(a)                                  it is in respect of only one class of shares;

 

(b)                                  it is in favour of (as the case may be) a single transferee or renouncee or not more than four joint transferees or renouncees;

 

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(c)                                   it is duly stamped (if required); and

 

(d)                                  it is delivered for registration to the office or such other place as the board may determine, accompanied by the certificate for the shares to which it relates (except in the case of a transfer by a recognised financial institution where a certificate has not been issued, or in the case of a renunciation) and such other evidence as the board may reasonably require to prove the title of the transferor or person renouncing and the due execution by him of the transfer or renunciation or, if the transfer or renunciation is executed by some other person on his behalf, the authority of that person to do so.

 

33.3                         If the board refuses to register the transfer of a certificated share it shall, within two months after the date on which the transfer was lodged with the Company, send notice of the refusal, together with its reasons for the refusal, to the transferee. An instrument of transfer which the board refuses to register shall (except in the case of suspected fraud) be returned to the person depositing it. Subject to Article 131, the Company may retain all instruments of transfer which are registered.

 

33.4                         In accordance with and subject to the provisions of the Uncertificated Securities Regulations, the Operator of the relevant system shall register a transfer of title to any uncertificated share or any renounceable right of allotment of a share that is a participating security held in uncertificated form unless the Uncertificated Securities Regulations permit the Operator of the relevant system to refuse to register such a transfer in certain circumstances, in which case, such Operator may refuse such registration.

 

33.5                         If the Operator of the relevant system refuses to register the transfer of an uncertificated share or of any such uncertificated renounceable right of allotment of a share, it shall, within the time period stipulated by the Uncertificated Securities Regulations, send notice of the refusal to the transferee.

 

33.6                         In accordance with and subject to the provisions of the Uncertificated Securities Regulations, where title to an uncertificated share is transferred by means of a relevant system to a person who is to hold such share in certificated form thereafter, the Company as participating issuer shall register the transfer in accordance with the relevant Operator—instruction, but so that the Company may refuse to register such a transfer in any circumstance permitted by the Uncertificated Securities Regulations.

 

33.7                         In accordance with the Uncertificated Securities Regulations, if the Company as participating issuer refuses to register the transfer of title to an uncertificated share transferred by means of a relevant system to a person who is to hold such share in certificated form thereafter, it shall, within two months after the date on which the Operator—instruction was received by the Company, send notice of the refusal, together with its reasons for the refusal, to the transferee.

 

34.                                NO FEES ON REGISTRATION

 

No fee shall be charged for registering the transfer of a share or the renunciation of a renounceable letter of allotment or other document or instructions relating to or affecting the title to a share or the right to transfer it or for making any other entry in the register.

 

TRANSMISSION OF SHARES

 

35.                                ON DEATH

 

35.1                         Except where a shareholder had (by giving notice to the Company in accordance with any manner approved by the board for such purpose) elected otherwise, the Company shall recognise only the personal representative or representatives of a deceased shareholder as having title to a share held by that shareholder alone or to which he alone was entitled. In the case of a share held jointly by more than one person, the Company may recognise only the survivor or survivors as being entitled to it.

 

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35.2                         Nothing in these Articles releases the estate of a deceased shareholder from liability in respect of a share which has been solely or jointly held by him.

 

36.                                ELECTION OF PERSON ENTITLED BY TRANSMISSION

 

36.1                         A person becoming entitled by transmission to a share may, on production of such evidence as the board may require as to his entitlement, elect either to be registered as a shareholder or to have a person nominated by him registered as a shareholder.

 

36.2                         If he elects to be registered himself, he shall give notice to the Company to that effect. If he elects to have another person registered, he shall:

 

(a)                                  if it is a certificated share, execute an instrument of transfer of the share to that person; or

 

(b)                                  if it is an uncertificated share:

 

(i)                                      procure that instructions are provided by means of a relevant system to effect transfer of the share to that person; or

 

(ii)                                   change the share to a certificated share and execute an instrument of transfer of the share to that person.

 

36.3                         All the provisions of these Articles relating to the transfer of certificated shares apply to the notice or instrument of transfer (as the case may be) as if it were an instrument of transfer executed by the shareholder and his death, bankruptcy or other event giving rise to a transmission of entitlement had not occurred.

 

36.4                         The board may give notice requiring a person to make the election referred to in Article 36.1. If that notice is not complied with within 60 clear days, the board may withhold payment of all dividends and other amounts payable in respect of the share until notice of election has been made.

 

37.                                RIGHTS ON TRANSMISSION

 

Where a person becomes entitled by transmission to a share, the rights of the holder in relation to that share cease. The person entitled by transmission may, however, provide a good discharge for dividends and other amounts payable in respect of the share and, subject to Articles 36 and 111, has the rights to which he would be entitled if he were the holder of the share. The person entitled by transmission is not, however, before he is registered as the holder of the share, entitled in respect of it to receive notice of or exercise rights conferred on shareholders in relation to meetings of the Company or a separate meeting of the holders of a class of shares.

 

UNTRACED SHAREHOLDERS

 

38.                                POWER OF SALE

 

38.1                         Subject to the Uncertificated Securities Regulations, the Company may sell the share of a shareholder or of a person entitled by transmission at the best price reasonably obtainable at the time of sale, if:

 

(a)                                  during a period of not less than 12 years before the date of publication of the advertisements referred to in Article 38.1(c) (or, if published on two different dates, the first date) (the “ relevant period ”) at least three cash dividends have become payable in respect of the share;

 

(b)                                  throughout the relevant period no cheque, warrant or money order payable on the share has been presented by the holder of, or the person entitled by transmission to, the share to the paying bank of the relevant cheque, warrant or money order, no payment made by the Company by any other

 

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means permitted by Article 111.1 has been claimed or accepted and, so far as any director at the end of the relevant period is then aware, the Company has not at any time during the relevant period received any communication from the holder of, or person entitled by transmission to, the share;

 

(c)                                   on expiry of the relevant period the Company has given notice of its intention to sell the share by advertisement in a newspaper in general circulation in the area of the address of the holder of, or person entitled by transmission to, the share shown in the register; and

 

(d)                                  the Company has not, so far as the board is aware, during a further period of three months after the date of the advertisements referred to in Article 38.1(c) (or the later advertisement if the advertisements are published on different dates) and before the exercise of the power of sale received a communication from the holder of, or person entitled by transmission to, the share.

 

38.2                         Where a power of sale is exercisable over a share pursuant to Article 38.1, the Company may at the same time also sell any additional share issued in right of such share or in right of such an additional share previously so issued provided that the requirements of Articles 38.1(a) to 38.1(d) (as if the words “throughout the relevant period” were omitted from Article 38.1(b) and the words “on expiry of the relevant period” were omitted from Article 38.1(c)) shall have been satisfied in relation to the additional share.

 

38.3                         To give effect to a sale pursuant to Articles 38.1 or 38.2, the board may authorise a person to transfer the share in the name and on behalf of the holder of, or the person entitled by transmission to, the share, or to cause the transfer of such share, to the purchaser or his nominee and such transfer shall be effective as if it had been carried out by the registered shareholder, and in relation to an uncertificated share may require the Operator to convert the share into certificated form in accordance with the Uncertificated Securities Regulations. The purchaser is not bound to see to the application of the purchase money and the title of the transferee is not affected by an irregularity or invalidity in the proceedings connected with the sale of the share.

 

39.                                APPLICATION OF PROCEEDS OF SALE

 

The Company shall be indebted to the shareholder or other person entitled by transmission to the share for the net proceeds of sale and shall carry any amount received on sale to a separate account. The Company is deemed to be a debtor and not a trustee in respect of that amount for the shareholder or other person. Any amount carried to the separate account may either be employed in the business of the Company or invested as the board may think fit. No interest is payable on that amount and the Company is not required to account for money earned on it.

 

FRACTIONS

 

40.                                FRACTIONS

 

40.1                         If, as the result of consolidation and division or sub—division of shares, shareholders would become entitled to fractions of a share, the board may on behalf of the shareholders deal with the fractions as it thinks fit. Subject to the provisions of the Act, the board may, in effecting divisions and/or consolidations, treat a shareholder’s shares held in certificated form and uncertificated form as separate holdings. In particular, the board may:

 

(a)                                  sell any shares representing fractions to a person (including, subject to the provisions of the Act, to the Company) and distribute the net proceeds of sale in due proportion amongst the persons entitled or, if the board so determines, some or all of the sum raised on a sale may be retained for the benefit of the Company; or

 

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(b)                                  subject to the provisions of the Act, allot or issue to a shareholder credited as fully paid by way of capitalisation the minimum number of shares required to round up his holding of shares to a number which, following consolidation and division or sub—division, leaves a whole number of shares (such allotment or issue being deemed to have been effected immediately before consolidation or sub—division, as the case may be).

 

40.2                         To give effect to a sale pursuant to Article 40.1(a), the board may arrange for the shares representing the fractions to be entered in the register as certificated shares. The board may also authorise a person to execute a transfer of the shares sold on behalf of the shareholders so entitled, or, in respect of uncertificated shares, nominate any person to transfer such shares in accordance with the facilities and requirements of the relevant system concerned or, in either case, in accordance with the directions of the purchaser thereof or any other person nominated by the purchaser and may cause the name of the purchaser or his nominee to be entered in the register as the holder of the shares comprised in any such transfer. The purchaser is not bound to see to the application of the purchase money and the title of the transferee to the shares is not affected by an irregularity or invalidity in the proceedings connected with the sale.

 

40.3                         If shares are allotted or issued pursuant to Article 40.1(b), the amount required to pay up those shares may be capitalised as the board thinks fit out of amounts standing to the credit of reserves (including a share premium account, capital redemption reserve and profit and loss account), whether or not available for distribution, and applied in paying up in full the appropriate number of shares. A resolution of the board capitalising part of the reserves has the same effect as if the capitalisation had been effected pursuant to Article 117. In relation to the capitalisation the board may exercise all the powers conferred on it by Article 117.

 

GENERAL MEETINGS

 

41.                                ANNUAL GENERAL MEETINGS

 

The Company shall hold annual general meetings in accordance with the requirements of the Act. Without prejudice to these Articles, such meetings shall be convened by the board at such times and places as it thinks fit. General meetings shall include annual general meetings unless expressly specified to the contrary.

 

42.                                CONVENING OF GENERAL MEETINGS

 

The board, the chairman, the chief executive officer, the president or the secretary may call a general meeting whenever, and at any place it or he thinks fit. A general meeting may also be convened in accordance with Article 81.

 

43.                                LENGTH AND FORM OF NOTICE

 

43.1                         Subject to the provisions of the Act, an annual general meeting shall be called by not less than 21 clear days’ notice and not more than 60 clear days’ notice and all other general meetings shall be called by not less than 14 clear days’ notice and not more than 60 clear days’ notice.

 

43.2                         Subject to the provisions of the Act, and although called by shorter notice than that specified in Article 43.1, a general meeting is deemed to have been duly called 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 meeting; and

 

(b)                                  in the case of a general meeting (other than an annual general meeting), by a majority in number of the shareholders having a right to attend and vote at the meeting, being a majority who together hold not less than 95% in nominal value for the shares giving that right.

 

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43.3                         The notice of meeting shall:

 

(a)                                  if it is a notice calling an annual general meeting, state that the meeting is an annual general meeting;

 

(b)                                  specify the time, the date and the place of the meeting (including any satellite meeting place arranged for the purpose of Article 55, which shall be identified as such in the notice of meeting);

 

(c)                                   if the meeting is convened to consider a special resolution, include the text of the resolution and specify the intention to propose the resolution as a special resolution; and

 

(d)                                  state, with reasonable prominence, that a shareholder is entitled to appoint another person as his proxy to exercise all or any of his rights to attend and to speak and vote at the meeting and to appoint more than one proxy in relation to the meeting (provided that each proxy is appointed to exercise the rights attached to a different share or shares held by him), and that a proxy need not also be a shareholder.

 

43.4                         The notice of meeting shall be given to the shareholders (other than any who, under the provisions of these Articles or the terms of allotment or issue of shares, are not entitled to receive notice), to the directors and to the auditors.

 

43.5                         The board may determine that persons entitled to receive notices of such meeting are those persons entered on the register at the close of business on a day determined by the board (which shall not be more than 60 days nor less than 10 days before the date for the holding of such meeting), provided that, if the Company is a participating issuer, the day determined by the board shall not be more than 21 days before the day that the relevant notice of the meeting is being given.

 

43.6                         The notice of meeting must also specify a time (which shall not be more than 60 days (or, if less, the maximum period permitted by the Act) nor less than 10 days (or, if the maximum period permitted by the Act is less than 10 days, such date that is the maximum period permitted by the Act) before the date for the holding of the meeting) by which a person must be entered on the register in order to have the right to attend or vote at the meeting. Changes to entries on the register after the time so specified in the notice shall be disregarded in determining the rights of any person to so attend or vote. In calculating the period referred to in this Article 43.6, if the maximum period permitted by the Act is less than 10 days, no account shall be taken of any part of a day that is not a working day.

 

43.7                         The notice of meeting shall include details of any arrangements made for the purpose of Article 55 making it clear that participation in those arrangements will amount to attendance at the meeting to which the notice relates.

 

43.8                         Where the Company has given an electronic address in any notice of meeting, any document or information relating to proceedings at the meeting may be sent by electronic means to that address, subject to any conditions or limitations specified in the relevant notice of meeting.

 

44.                                OMISSION TO SEND NOTICE

 

Subject to the provisions of the Act, the accidental omission to give notice of a meeting or any resolution intended to be moved at a meeting or any document relating to a meeting, or the non—receipt of any such notice, resolution or document by a person entitled to receive any such notice, resolution or document, shall not invalidate the proceedings at that meeting.

 

45.                                POSTPONEMENT OF GENERAL MEETINGS

 

If the board, in its absolute discretion, considers that it is impractical, inadvisable or unreasonable for any reason to hold a general meeting at the time or place specified in the notice calling the general meeting, it

 

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may move and/or postpone the general meeting to another time and/or place. When a meeting is so moved and/or postponed, public notice of the time and place of the moved and/or postponed meeting shall (if practical) be made. Notice of the business to be transacted at such moved and/or postponed meeting is not required. The board must take reasonable steps to ensure that qualifying persons trying to attend the general meeting at the original time and/or place are informed of the new arrangements for the general meeting. Proxy forms can be delivered as specified in Article 63 until the time for holding the rearranged meeting. Any moved and/or postponed meeting may also be further moved and/or postponed under this Article.

 

46.                                SHAREHOLDER PROPOSALS AND NOMINATIONS

 

46.1                         No person (a “ nominee ”) shall be appointed or reappointed as a director at any general meeting unless:

 

(a)                                  he or she is recommended by the board; or

 

(b)                                  he or she is nominated by a shareholder who was a shareholder of record at the time of giving notice required by these Articles and at the time of the general meeting, i s entitled to vote at the general meeting and complies with the notice procedures and other requirements set forth in these Articles and the following information has been delivered in writing (a “ notice ”) to the secretary at the office:

 

(i)                                      in relation to each nominee:

 

(A)                                all information relating to such nominee and its nominating shareholder group that is required to be disclosed in a proxy statement or other filing required to be made in connection with solicitations of proxies for election of directors in a contested election (even if a contested election is not involved), or is otherwise required, in each case pursuant to Section 14 under the Exchange Act (including such person’s written consent to being named in the proxy statement as a nominee and to serving as a director if elected);

 

(B)                                a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings (whether written or oral) during the past three years, and any other material relationships, between or among such nominee and its affiliates and associates and anyone acting in concert with any of them, on the one hand, and any member of its nominating shareholder group, on the other hand, including  all information that would be required to be disclosed pursuant to Item 404 of Regulation S—K promulgated by the SEC under the Exchange Act if the nominating shareholder group were the “registrant” for purposes of such rule and the nominee were a director or executive officer of such registrant; and

 

(C)                                a completed questionnaire (the form of which questionnaire shall be provided by the secretary upon written request) signed by the nominee with respect to the background and qualifications of such nominee and the background of each member of its nominating shareholder group, warranting and representing that:

 

(1)                                  neither such nominee nor any member of its nominating shareholder group is, nor will become, a party to any agreement, arrangement, understanding (whether written or oral) or relationship with, and has not given any commitment or assurance to, any person as to how the nominee, if appointed as a director, will act or vote on any issue or question (a “ Voting Commitment ”) that has not been disclosed to the Company, including any Voting Commitment that could limit or interfere with such nominee’s ability to comply, if appointed as a director, with such nominee’s fiduciary duties under applicable law;

 

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(2)                                  neither such nominee nor any member of its nominating shareholder group is, nor will become, a party to any agreement, arrangement, understanding (whether written or oral) or relationship with any person other than the Company with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action as a director that has not been disclosed to the Company;

 

(3)                                  such nominee, in their individual capacity and on behalf of any member of its nominating shareholder group would be in compliance, if appointed as a director, and (save as authorised by the board) will comply with all applicable corporate governance, conflict of interest, confidentiality, securities ownership and trading policies and guidelines of the Company and any other policies and guidelines of the Company applicable to directors;

 

(4)                                  such nominee intends to serve for the full period of his election;

 

(5)                                  such nominee irrevocably submits his resignation as a director effective upon a finding by a court of competent jurisdiction that such nominee has breached such written representation and agreement; and

 

(6)                                  such other information as may reasonably be required by the Company to determine the eligibility of such nominee to serve as an independent director or that could be material to a reasonable shareholder’s understanding of the independence, or lack thereof, of such nominee; and

 

(ii)                                   in relation to any nominating shareholder:

 

(A)                                the name and address of such nominating shareholder (which must be as they appear in the register);

 

(B)                                the class or series and number of shares which are, directly or indirectly, owned beneficially or of record by any member of its nominating shareholder group or in which any member of such nominating shareholder group has an interest together with details of any member of its nominating shareholder group owning or interested in such shares;

 

(C)                                any option, warrant, convertible security, or other interest in shares or share appreciation right or similar right with an exercise or conversion privilege or a settlement payment or mechanism at a price related to any class or series of shares or with a value derived in whole or in part from the value of the Company or any class or series of shares or other securities of the Company, whether or not such instrument or right shall be subject to settlement in the underlying class or series of shares or otherwise, in each case directly or indirectly owned beneficially by any member of its nominating shareholder group and any other direct or indirect opportunity to profit or share in any profit derived from any increase or decrease in the value of any security or instrument of the Company, in each case, regardless of whether (1) such interest in shares conveys any voting rights in such security to such member of the nominating shareholder group, (2) such interest is required to be, or is capable of being, settled through delivery of such security or instrument or (3) such member of the nominating shareholder group may have entered into other transactions to hedge the economic effect of such interest (any such interest in this Article 46.1(b)(ii)(C), a “ Derivative Instrument ”) or confirmation that there is no such Derivative Instrument;

 

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(D)                                the name of each person with whom any member of its nominating shareholder group has any agreement, arrangement, understanding (whether written or oral) or relationship (1) for the purposes of acquiring, holding, voting (except pursuant to a revocable proxy given to such person in response to a public proxy or consent solicitation made generally by such person to all holders of shares) or disposing of any shares, (2) to cooperate in obtaining, changing or influencing the control (as defined in these Articles) of the Company (except independent financial, legal and other advisors acting in the ordinary course of their respective businesses), (3) with the effect or intent of increasing or decreasing the voting power of, or that contemplates any person voting together with, any member of any such nominating shareholder group with respect to any shares or any business proposed by such nominating shareholder or (4) otherwise in connection with the proposal of such nominating shareholder or any other business or resolution proposed by any member of any such nominating shareholder group and a description of each such agreement, arrangement, understanding or relationship (any agreement, arrangement, understanding or relationship described in this Article 46.1(b)(ii)(D), a “ Voting Agreement ”) or confirmation that there is no such Voting Agreement;

 

(E)                                 details of all other material interests of any member of its nominating shareholder group in any security of the Company (including any rights to dividends or performance—related fees based on any increase or decrease in the value of such security or Derivative Instruments or if such person directly or indirectly, through any contract, arrangement, understanding (whether written or oral), relationship or otherwise, has the opportunity to profit or share in any profit derived from any decrease in the value of the subject security) (collectively, “ Other Interests ”) or confirmation that there are no such Other Interests;

 

(F)                                  a list of all transactions by the members of its nominating shareholder group involving any securities of the Company or any Derivative Instruments, Voting Agreements or Other Interests within the six month period prior to the date of the notice or confirmation there have been no such transactions;

 

(G)                                details of any interest in shares or Derivative Instruments held, directly or indirectly, by a general or limited partnership in which any member of its nominating shareholder group is a general partner or, directly or indirectly, beneficially owns an interest in a general partner or confirmation there are no interests in shares or Derivative Instruments;

 

(H)                               details of any performance—related fees (other than an asset—based fee) that any member of its nominating shareholder group is or may become entitled to, based on any increase or decrease in the value of shares or Derivative Instruments, including any such interests held by shareholders of any member of such nominating shareholder group’s immediate family who share the same household or confirmation that there are no such performance—related fees;

 

(I)                                    a representation that the nominating shareholder is a holder of shares entitled to vote at a general meeting and intends to appear in person or by proxy at the relevant general meeting;

 

(J)                                    a representation as to whether any member of its nominating shareholder group intends, or is part of a group that intends, to (1) deliver a proxy statement and/or form of proxy to holders of at least the percentage of the Company’s shares required to approve or adopt the proposal or (2) otherwise solicit proxies or votes from shareholders in support of such proposal;

 

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(K)                                details of any significant equity interests or any Derivative Instruments or Other Interests in any principal competitor of the Company held by any member of its nominating shareholder group or confirmation there are no such significant equity interests, Derivative Interests or Other Interests; and

 

(L)                                 any other information relating to any member of its nominating shareholder group that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for, as applicable, the proposal and/or the election of directors in a contested election pursuant to Section 14 of the Exchange Act,

 

the information required by this Article 46.1(b)(ii) shall be updated by such nominating shareholder as at the record date for the relevant general meeting and delivered in writing to the secretary at the office not later than three days after the record date for the relevant general meeting.

 

46.2                         Any request by a proposing shareholder to deal with any business or to propose a resolution at any meeting of the Company which relates to any business other than the appointment or re—appointment of a director (a “ request ”) must, to the fullest extent permitted by the Act, in order for the business to be dealt with or the resolution to be properly moved at a meeting of the Company, (i) be pursuant to the Act and be in compliance with the requirements of the Act and these Articles, and (ii) contain:

 

(a)                                  a comprehensive description of the business desired to be brought before the meeting, the reasons for conducting such business and/or proposing such resolution at the meeting, the text of any proposal (including the complete text of any resolution(s) proposed for consideration) and any material interest in such business of any member of the proposing shareholder group, individually or in the aggregate, including any anticipated benefit to any member of the proposing shareholder group therefrom;

 

(b)                                  a description of all agreements, arrangements and understandings (whether written or oral) between any member of the proposing shareholder group and any other person or persons (including their names) in connection with the request; and

 

(c)                                   all of the information referred to in Article 46.1(b)(ii), as if each of the references in Article 46.1(b)(ii) to nominating shareholder and nominating shareholder group were to proposing shareholder and proposing shareholder group, respectively, and all of the references to notice were to request.

 

46.3                         Without prejudice to the rights of any nominating shareholder or proposing shareholder under the Act, a nominating shareholder or proposing shareholder who serves a notice or request, respectively, in relation to an annual general meeting, must deliver such notice or request (as the case may be) to the secretary at the office such that it is received by the secretary at the office not earlier than the close of business on the 120th day and not later than the close of business on the 90th day prior to the first anniversary of the preceding year’s annual general meeting; provided, however, that in the event that the date of the annual general meeting is more than 30 days before or more than 70 days after such anniversary date, notice by the shareholder to be timely must be so delivered not earlier than the close of business on the 120th day prior to the date of such annual general meeting and not later than the close of business on the later of the 90th day prior to the date of such annual general meeting or, if the first public announcement of the date of such annual general meeting is less than 100 days prior to the date of such annual general meeting, the 10th day following the day on which public announcement of the date of such meeting is first made by the Company. Notwithstanding anything in the foregoing provisions of this Article 46 to the contrary, in the event that the number of directors to be elected to the board is increased and there is no public announcement by the Company naming all of the nominees for director or specifying the size of the increased board of directors made by the Company at least ninety (90) days prior to the date of the first anniversary of the preceding year’s annual general meeting, a notice required by this Article 46 shall also be considered as validly delivered in accordance with Article 46, but only with respect to nominees for any

 

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new positions created by such increase, if it shall be delivered to the secretary at the Company’s registered office not later than 5:00 pm, local time, on the tenth (10th) day after the day on which such public announcement is first made by the Company. In no event shall any adjournment or postponement of an annual general meeting or the announcement thereof commence a new time period for the delivery of a notice or request.

 

46.4                         Notwithstanding any other provisions of this Article 46, any nominating shareholder or proposing shareholder shall also comply with all applicable requirements of the Act and the Exchange Act with respect to the matters set forth in this Article 46; provided, however, that any references in the Articles to the Exchange Act or the rules and regulations promulgated thereunder are not intended to and shall not limit the requirements of these Articles applicable to shareholder notices and requests. Nothing in this Article 46 shall be deemed to affect any rights of (a) shareholders to request inclusion of proposals in, nor the right of the Company to omit proposals from, the Company’s proxy statement pursuant to Rule 14a—8 under the Exchange Act or (b) the holders of any series of preferred shares if and to the extent provided for under law or these Articles.

 

46.5                         Except as otherwise provided by law or these Articles, the chairman of the board shall have the power and duty determine whether a shareholder notice or request complies with the requirements of this Article 46.

 

46.6                         For the purposes of this Article 46:

 

(a)                                  nominating shareholder ” shall mean any shareholder or Shareholder Associated Person who validly proposes the appointment or re—appointment of any director at any general meeting of the Company;

 

(b)                                  nominating shareholder group ” shall mean all the Shareholder Associated Persons of the nominating shareholder and, unless the nominating shareholder is a Depositary acting solely in such capacity, the nominating shareholder itself;

 

(c)                                   proposing shareholder ” shall mean any shareholder or Shareholder Associated Person who validly serves a request to deal with any business or to propose a resolution at any meeting of the Company which relates to any business other than the appointment or re—appointment of a director; and

 

(d)                                  proposing shareholder group ” shall mean all the Shareholder Associated Persons of the proposing shareholder and, unless the proposing shareholder is a Depositary acting solely in such capacity, the proposing shareholder itself.

 

46.7                         For the purposes of the annual general meeting of the Company to be held in 2018, references in this Article 46 to the Company’s “ preceding year’s annual general meeting ” shall be construed as references to the 2017 annual meeting of Parent.

 

46.8                         For the purpose of this Article 46, where a request or notice is delivered by or on behalf of more than one nominating shareholder or proposing shareholder, references to a nominating shareholder or proposing shareholder in relation to such request or notice and other information requirements shall apply to each proposing shareholder or nominating shareholder, respectively, as the context requires.

 

47.                                LIST OF SHAREHOLDERS

 

47.1                         At least 10 days (or, if the maximum period permitted by the Act for determining the shareholders entitled to attend or vote at the meeting is less than 10 days, such date that is the maximum period permitted by the Act) before every general meeting, the secretary shall prepare a complete list of the shareholders entitled to attend and vote at the meeting.

 

47.2                         The list of shareholders shall:

 

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(a)                                  be arranged in alphabetical order;

 

(b)                                  show the address of each shareholder; and

 

(c)                                   show the number of shares registered in the name of each shareholder.

 

47.3                         The list of shareholders shall be available during ordinary business hours for a period beginning at least 10 days (or, if the maximum period permitted by the Act for determining the shareholders entitled to attend or vote at the meeting is less than 10 days, such date that is the maximum period permitted by the Act) before the meeting for inspection by any shareholder for any purpose relevant to the meeting. The notice of the meeting may specify the place where the list of shareholders may be inspected. If the notice of the meeting does not specify the place where shareholders may inspect the list of shareholders, the list of shareholders shall be available for inspection at the place where the meeting is to be held.

 

47.4                         The list of shareholders shall be available for inspection by any shareholder who is present at the meeting, at the place, and for the duration, of the meeting.

 

PROCEEDINGS AT GENERAL MEETINGS

 

48.                                QUORUM

 

48.1                         No business may be transacted at a general meeting unless a quorum is present. The absence of a quorum does not prevent the appointment of a chairman in accordance with these Articles, which shall not be treated as part of the business of the meeting.

 

48.2                         Save as otherwise provided by these Articles, a quorum will comprise qualifying persons, who together are entitled to cast at least the majority of the voting rights of the Company. For the purposes of this Article 48, a proxy, attorney or other representative of a shareholder will be considered to be entitled to cast only the voting rights to which his appointment relates and not any other voting rights held by the shareholder he represents.

 

48.3                         The absence of a quorum will not prevent the appointment of a chairman of the meeting. Such appointment shall not be treated as being part of the business of the meeting.

 

49.                                PROCEDURE IF QUORUM NOT PRESENT

 

49.1                         If a quorum is not present within 30 minutes (or such longer time not exceeding 90 minutes as the chairman determines to wait) after the time fixed for the start of the meeting or if there is no longer a quorum present at any time during the meeting, the meeting stands adjourned to such other day (being not less than 14 nor more than 28 days later) and at such other time and/or place as the chairman (or, if he is not willing or able, the board) determines. If at the adjourned meeting a quorum is not present within 30 minutes (or such longer time not exceeding 90 minutes as the chairman determines to wait) after the time fixed for the start of the meeting, the meeting is dissolved.

 

49.2                         The Company shall provide not less than seven clear days’ notice of any meeting adjourned for the lack of a quorum and the notice shall state the quorum requirement. No business may be dealt with at any meeting adjourned for the lack of a quorum the general nature of which was not stated in the notice convening the original meeting.

 

50.                                CHAIRMAN

 

50.1                         The chairman (if any) of the board or, in his absence, the deputy chairman (if any) or, in his absence, the chief executive officer (if a director) shall preside as chairman at a general meeting. If there is no chairman, deputy chairman or chief executive officer (if a director) present, or if at a meeting none is present and willing and able to act within five minutes after the time fixed for the start of the meeting, the directors

 

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present shall select one of their number to be chairman. If only one director is present and willing and able to act, he shall be chairman. In default, the shareholders present in person or by proxy and entitled to vote shall choose by poll one of their number to be chairman.

 

50.2                         Without prejudice to any other power which he may have under the provisions of these Articles or at common law, the chairman may take such action as the chairman thinks fit to promote the orderly conduct of the business of the meeting as specified in the notice of meeting. The chairman’s decision on matters of procedure or arising incidentally from the business of the meeting shall be final, as shall be his determination as to whether any matter is of such a nature.

 

51.                                RIGHT TO ATTEND AND SPEAK

 

51.1                         Each director shall be entitled to attend and speak at a general meeting and at a separate meeting of the holders of a class of shares or debentures whether or not he is a shareholder.

 

51.2                         The chairman may invite any person to attend and speak at any general meeting of the Company where he considers that this will assist in the deliberations of the meeting.

 

52.                                POWER TO ADJOURN

 

52.1                         The chairman or qualifying persons, who together are entitled to cast at least the majority of the voting rights of the Company, shall have the power to adjourn any such meeting from time to time, without notice other than announcement at such meeting. For the purposes of this Article 52.1, a proxy, attorney or other representative of a shareholder will be considered to be entitled to cast only the voting rights to which his appointment relates and not any other voting rights held by the shareholder he represents.

 

52.2                         Without prejudice to any other power which he may have under the provisions of these Articles or at common law, the chairman may, without a poll, interrupt or adjourn a meeting from time to time and from place to place or for an indefinite period if he determines that it has become necessary to do so in order to:

 

(a)                                  secure the proper and orderly conduct of the meeting;

 

(b)                                  provide all persons entitled to do so a reasonable opportunity of speaking and voting at the meeting; or

 

(c)                                   ensure that the business of the meeting is properly disposed of.

 

53.                                NOTICE OF ADJOURNED MEETING

 

53.1                         Whenever a meeting is adjourned pursuant to Article 52, regardless of the adjournment period, the board may (but need not) make a fresh determination of persons entitled to receive notice of such adjourned meeting (provided any record date shall not be more than 60 days nor less than 10 days before the date for the holding of the adjourned meeting), in which case at least seven clear days’ notice specifying the place, date and time of the adjourned meeting and the general nature of the business to be transacted shall be given to the shareholders (other than any who, under the provisions of these Articles or the terms of allotment or issue of the shares, are not entitled to receive notice), the directors and the auditors. Except in these circumstances, and those expressed in Article 53.2, it is not necessary to give notice of a meeting adjourned pursuant to Article 52 or of the business to be transacted at the adjourned meeting.

 

53.2                         Whenever a meeting is adjourned for more than 30 days or for an indefinite period pursuant to Article 52, at least seven clear days’ notice specifying the place, date and time of the adjourned  meeting and the general nature of the business to be transacted shall be given to the shareholders (other than any who, under the provisions of these Articles or the terms of allotment or issue of the shares, are not entitled to receive notice), the directors and the auditors. Except in these circumstances, and those expressed in Article 53.1, it

 

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is not necessary to give notice of a meeting adjourned pursuant to Article 52 or of the business to be transacted at the adjourned meeting.

 

53.3                         The notice of an adjourned meeting given in accordance with this Article 53.3 must, if the adjournment is for more than 30 days, and may, in all other cases, also specify a date and time (which shall not be more than 60 days (or, if less, the maximum period permitted by the Act) nor less than 10 days (or, if the maximum period permitted by the Act is less than 10 days, such date that is the maximum period permitted by the Act) before the date for the holding of the meeting) by which a person must be entered on the register in order to have the right to attend or vote at the meeting. Changes to entries on the register after the time so specified in the notice shall be disregarded in determining the rights of any person to so attend or vote. In calculating the period referred to in this Article 53.3, if the maximum period permitted by the Act is less than 10 days, no account shall be taken of any part of a day that is not a working day.

 

54.                                BUSINESS AT ADJOURNED MEETING

 

Subject to Article 53.2 at an adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified.

 

55.                                SATELLITE MEETINGS

 

55.1                         The board may resolve to enable persons entitled to attend a general meeting to do so by simultaneous attendance and participation at a satellite meeting place anywhere in the world. The shareholders present in person or by proxy at satellite meeting places shall be counted in the quorum for, and entitled to vote at, the general meeting in question, and that meeting shall be duly constituted and its proceedings valid provided that the chairman of the general meeting is satisfied that adequate facilities are available throughout the general meeting to ensure that shareholders attending at all the meeting places are able to:

 

(a)                                  participate in the business for which the meeting has been convened;

 

(b)                                  hear and see all persons present who speak (whether by the use of microphones, loud—speakers, audio—visual communications equipment or otherwise) in the principal meeting place and any satellite meeting place; and

 

(c)                                   be heard and seen by all other persons present in the same way.

 

55.2                         The chairman of the general meeting shall be present at, and the meeting shall be deemed to take place at, the principal meeting place.

 

56.                                ACCOMMODATION OF SHAREHOLDERS AT MEETING

 

If it appears to the chairman that the principal meeting place or any satellite meeting place is inadequate to accommodate all qualifying persons entitled and desiring to attend, the meeting shall be duly constituted and its proceedings valid if the chairman is satisfied that adequate facilities are available to ensure that a qualifying person who is unable to be accommodated is able to:

 

(a)                                  participate in the business for which the meeting has been convened;

 

(b)                                  hear and see all persons present who speak (whether by the use of microphones, loud—speakers, audio—visual communications equipment or otherwise) whether in the principal meeting place, any satellite meeting place or elsewhere; and

 

(c)                                   be heard and seen by all other persons present in the same way.

 

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57.                                SECURITY

 

The chairman or the board may make any arrangement and impose any restriction he or it considers appropriate to ensure the security of a meeting including adopting rules for the meeting, the searching of a person attending the meeting and the restriction of the items of personal property that may be taken into the meeting place. The chairman or the board may authorise one or more persons, who may include a director, an officer or the secretary or the chairman of the meeting, to:

 

(a)                                  refuse entry to a meeting to a person who refuses to comply with these arrangements or restrictions; and

 

(b)                                  eject from a meeting any person who causes the proceedings to become disorderly.

 

VOTING

 

58.                                METHOD OF VOTING

 

58.1                         Any resolution put to the vote at a meeting shall be decided on a poll and, for the avoidance of doubt, no resolution shall be decided on a show of hands. For so long as any shares are held by a Depositary, this Article 58.1 may only be amended or repealed with the unanimous approval of all of the shareholders.

 

58.2                         Cumulative voting of shares, regardless of the class of shares, is prohibited.

 

59.                                PROCEDURE

 

59.1                         Each poll shall be conducted in such a manner as the chairman directs. In advance of any meeting, the chairman shall appoint scrutineers or inspectors, who need not be shareholders, to act at the meeting. The chairman may appoint one or more persons as alternate scrutineers or inspectors to replace any scrutineer or inspector who fails to act. If no scrutineer or inspector or alternate scrutineer or alternate inspector is willing or able to act at a meeting, the chairman shall appoint one or more other persons to act as scrutineers or inspectors at the meeting. The result of the poll shall be deemed to be the resolution of the meeting at which the poll was conducted.

 

59.2                         Each scrutineer or inspector appointed in accordance with this Article 59.2 shall, prior to acting, be required to provide an undertaking to the Company, in a form determined by the board, that he will execute the duties of a scrutineer or inspector with strict impartiality and according to the best of his ability.

 

59.3                         Any poll conducted on the election of a chairman or on any question of adjournment shall be taken at the meeting and without adjournment. A poll conducted on another question shall be taken at such time and place as the chairman determines, either at once or after an interval or adjournment.

 

59.4                         The date and time of the opening and the closing of a poll for each matter upon which the qualifying persons will vote at a meeting shall be announced at the meeting. No ballot, proxies or votes, nor any revocations thereof or changes thereto, shall be accepted by the scrutineers or inspectors after the closing of the poll unless a court with relevant jurisdiction upon application by a shareholder shall determine otherwise.

 

59.5                         The conduct of a poll (other than on the election of a chairman or on a question of adjournment) does not prevent the meeting continuing for the transaction of business other than the question on which a poll is to be conducted.

 

59.6                         On a poll a shareholder entitled to more than one vote need not, if he votes, use all his votes or cast all the votes he uses in the same way.

 

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60.                                VOTES OF SHAREHOLDERS

 

60.1                         Subject to any rights or restrictions as to voting attached to any class of shares by or in accordance with these Articles and subject to Article 65 and the Act, at a meeting on a vote on a resolution every shareholder (whether present in person or by proxy) has one vote for every share of which he is the holder.

 

60.2                         In the case of joint holders of a share, the vote of the most senior joint holder who tenders a vote, whether in person or by proxy, shall be accepted to the exclusion of the vote or votes of the other joint holder or holders, and seniority shall be determined by the order in which the names of the holders stand in the register.

 

60.3                         A shareholder in respect of whom an order has been made by any court or official having jurisdiction (whether in the United Kingdom, the United States or elsewhere) that he is or may be suffering from a mental disorder or is otherwise incapable of running his affairs may vote by his guardian, receiver, curator bonis or other person authorised for that purpose and appointed by the court. A guardian, receiver, curator bonis or other authorised and appointed person may vote by proxy if evidence (to the satisfaction of the board) of the authority of the person claiming to exercise the right to vote is received at the office (or at another place specified in accordance with these Articles for the delivery or receipt of forms of appointment of a proxy) or in any other manner specified in these Articles for the appointment of a proxy within the time limits prescribed by these Articles for the appointment of a proxy for use at the meeting, adjourned meeting or poll at which the right to vote is to be exercised.

 

61.                                RESTRICTION ON VOTING RIGHTS FOR UNPAID CALLS, ETC.

 

Unless the board otherwise determines, no shareholder is entitled in respect of a share held by him to be present or to vote, either in person or by proxy, at a general meeting or at a separate meeting of the holders of a class of shares or on a poll, or to exercise other rights conferred on shareholders in relation to the meeting or poll, if a call or other amount due and payable in respect of the share is unpaid. This restriction ceases on payment of the amount outstanding and all costs, charges and expenses incurred by the Company by reason of the non—payment.

 

62.                                VOTING BY PROXY

 

62.1                         A shareholder is entitled to appoint another person as his proxy to exercise all or any of his rights to attend and to speak and vote at a meeting. Such a proxy can himself appoint another person to be his proxy in relation to the number of shares held by such person, and such proxy can himself appoint another person to be his proxy in relation to the number of shares held by him and so on ad infinitum, and the provisions of Articles 62 to 64 shall apply to all such appointments as if the appointor was the shareholder and the appointment was made by him. The appointment of a proxy to vote on a matter at a meeting authorises the proxy to demand or join in demanding a poll on that matter.

 

62.2                         A proxy need not be a shareholder.

 

62.3                         An instrument appointing a proxy shall be in any usual form or in any form or manner of communication which the board may approve (and in the case of a proxy relating to shares held by a Depositary, this may include a voter instruction form to be provided to the Company by third parties on behalf of the Depositary). Subject thereto, the appointment of a proxy may be in hard copy form or in electronic form and shall be executed in such manner as may be approved by or on behalf of the Company from time to time. Subject to the foregoing, the appointment of a proxy shall be executed under the hand of the appointor or his duly constituted attorney or, if the appointor is a corporation, under its seal or under the hand of its duly authorised officer or attorney or other person authorised to sign.

 

62.4                         Subject to the Act, the Company may provide an electronic address for the receipt of any document or information relating to proxies for a meeting (including any instrument of proxy or invitation to appoint a proxy, any document necessary to show the validity of, or otherwise relating to, an appointment of proxy

 

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and notice of the termination of the authority of a proxy). The Company shall be deemed to have agreed that any such document or information may be sent by electronic means to that address (subject to any conditions or limitations specified by the Company when providing such address).

 

62.5                         A shareholder may appoint more than one proxy in relation to a meeting provided that each proxy is appointed to exercise the rights attached to a different share or shares held by him. References in these Articles to an appointment of proxy include references to an appointment of multiple proxies.

 

62.6                         Where two or more valid but conflicting appointments of proxy are delivered or received for the same share or shares for use at the same meeting, the one which is last validly delivered or received (regardless of its date or the date of its execution) shall be treated as replacing and revoking the other or others as regards that share or those shares. If the Company is unable to determine which appointment was last validly delivered or received, none of them shall be treated as valid in respect of that share or those shares.

 

62.7                         Delivery or receipt of an appointment of proxy does not prevent a shareholder from attending and voting in person at the meeting or an adjournment of the meeting in lieu of such proxy.

 

62.8                         The appointment of a proxy shall (unless the contrary is stated in it) be valid for an adjournment of the meeting as well as for the meeting or meetings to which it relates. A proxy given in the form of a power of attorney or similar authorisation granting power to a person to vote on behalf of a shareholder at forthcoming meetings in general shall not be treated as valid for a period of more than three years, unless the contrary is stated in it.

 

62.9                         Subject to the provisions of the Act and the requirements of any relevant listing rules (if applicable), the board may at the expense of the Company send or make available appointments of proxy or invitations to appoint a proxy to the shareholders by post or by electronic means or otherwise (with or without provision for their return prepaid) for use at any meeting or at any separate meeting of the holders of any class of shares, either in blank or nominating in the alternative any one or more of the directors or any other person. If for the purpose of any meeting appointments of proxy or invitations to appoint as proxy a person or one of a number of persons specified in the invitation are issued at the Company’s expense, they shall be issued to all (and not to some only) of the shareholders entitled to be sent a notice of the meeting and to vote at it. The accidental omission or the failure, due to circumstances beyond the Company’s control, to send or make available such an appointment of proxy or provide such an invitation to, or the non—receipt thereof by, any shareholder entitled to attend and vote at a meeting shall not invalidate the proceedings at that meeting.

 

63.                                APPOINTMENT OF PROXY

 

63.1                         An appointment of proxy (and, where such proxy is himself appointed by a proxy, such appointor(s) proxies), and (if required by the board) a power of attorney or other authority under which it is, or they are, as applicable, executed or a copy of it notarially certified or certified in some other way approved by the board, shall:

 

(a)                                  in the case of an appointment of proxy in hard copy form, be received at the office, or another place specified in the notice convening the meeting or in any appointment of proxy or any invitation to appoint a proxy sent out or made available by the Company in relation to the meeting, by the time specified by the board (as the board may determine, in compliance with the provisions of the Act) in any such notice, appointment of proxy or invitation to appoint a proxy;

 

(b)                                  in the case of an appointment of proxy by electronic means be received at the electronic address specified in the notice convening the meeting or in any appointment of proxy or any invitation to appoint a proxy sent out or made available by the Company in relation to the meeting, by the time specified by the board (as the board may determine, in compliance with the provisions of the Act) in any such notice, appointment of proxy or invitation by a proxy;

 

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(c)                                   in the case of a poll taken more than 48 hours after the meeting at which the relevant vote was to be taken, be received as aforesaid after such meeting and not less than 24 hours (or such shorter time as the board may determine) before the time appointed for the taking of the poll; or

 

(d)                                  in the case of a poll not taken immediately but taken not more than 48 hours after the meeting at which the relevant vote was to be taken, be delivered at such meeting to the chairman or to the secretary or to any director.

 

An appointment of proxy not received or delivered in accordance with this Article 63.1 is invalid. The board may at its discretion determine that, in calculating the periods mentioned in this Article 63.1, no account shall be taken of any part of any day that is not a business day.

 

63.2                         Without limiting the foregoing, in relation to any shares which are held in uncertificated form, the board may from time to time permit appointments of proxy to be made by electronic means in the form of an uncertificated proxy instruction and may in a similar manner permit supplements to, or amendments or revocations of, any such uncertificated proxy instruction to be made by like means. The board may in addition prescribe the method of determining the time at which any such uncertificated proxy instruction (and/or other instruction or notification) is to be treated as received by the Company or a participant acting on its behalf. The board may treat any such uncertificated proxy instruction which purports to be or is expressed to be sent on behalf of a holder of a share as sufficient evidence of the authority of the person sending that instruction to send it on behalf of that holder.

 

64.                                WHEN VOTES BY PROXY ARE VALID ALTHOUGH AUTHORITY TERMINATED

 

A vote cast by a proxy is valid despite the previous termination of the authority of a person to act as a proxy unless notice of such termination shall have been received by the Company at the office, or at such other place or address at which an appointment of proxy may be duly received or delivered, not later than the time at which an appointment of proxy should have been received or delivered in order for it to be valid for use at the meeting or postponed or adjourned meeting at which the vote is cast or (in the case of a poll taken otherwise than at or on the same day as the meeting or adjourned meeting) for use in relation to the poll at which the vote is cast.

 

ADDITIONAL VOTING PROVISIONS

 

65.                                CORPORATE REPRESENTATIVES

 

65.1                         A corporation that is a shareholder may, by resolution of its directors or other governing body, authorise a person or persons to act as its representative or representatives at any meeting of the Company, or at any separate meeting of the holders of any class of shares (a “ representative ”).

 

65.2                         Subject to Article 65.3, a representative is entitled to exercise (on behalf of the corporation) the same powers as the corporation could exercise if it were an individual shareholder.

 

65.3                         Where a corporation authorises more than one representative and more than one representative purports to exercise a power under Article 65.2 in respect of the same shares:

 

(a)                                  if they purport to exercise the power in the same way as each other, the power is treated as exercised in that way; or

 

(b)                                  if they do not purport to exercise the power in the same way as each other, the power is treated as not exercised.

 

65.4                         A director, the secretary or other person authorised for the purpose by the secretary may require a representative to produce a certified copy of the resolution of authorisation before permitting him to exercise his powers.

 

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66.                                OBJECTIONS TO AND ERROR IN VOTING

 

No objection may be made to the qualification of any person voting at a general meeting or to the counting of, or failure to count, any vote, except at the meeting, postponed or adjourned meeting or poll at which the vote objected to is tendered or at which the error occurs. An objection properly made shall be referred to the chairman whose decision on such matter shall be final and conclusive.

 

67.                                AMENDMENTS TO RESOLUTIONS

 

No amendment to a resolution duly proposed as a special resolution (other than an amendment to correct a patent error) may be considered or voted on. No amendment to a resolution duly proposed as an ordinary resolution (other than an amendment to correct a patent error) may be considered or voted on unless either:

 

(a)                                  at least 48 hours before the time appointed for holding the meeting or postponed or adjourned meeting at which the ordinary resolution is to be considered, notice of the terms of the amendment and intention to move it has been lodged at the office; or

 

(b)                                  the chairman in his absolute discretion determines that the amendment may be considered or voted on.

 

If an amendment proposed to a resolution under consideration is ruled out of order by the chairman the proceedings on the substantive resolution are not invalidated by an error in his ruling.

 

68.                                FAILURE TO DISCLOSE INTERESTS IN SHARES

 

68.1                         Where notice is served by the Company under section 793 of the Act (a “ section 793 notice ”) on a shareholder, or another person appearing to be interested in shares held by that shareholder, and the shareholder or other person has failed in relation to any shares (the “ default shares ,” which expression includes any shares allotted or issued after the date of the section 793 notice in respect of those shares and to any other shares registered in the name of such shareholder or in which such other person is interested, as the case may be, at any time whilst the default subsists) to provide the Company with the information required (and for the avoidance of doubt, in the case of a Depositary acting solely in the Depositary’s capacity as such, only the information required under Article 68.4) within the prescribed period from the date of service of the section 793 notice, the following sanctions apply, unless the board otherwise determines:

 

(a)                                  the shareholder shall not be entitled in respect of the default shares to be present or to vote (either in person or by proxy) at a general meeting or at a separate meeting of the holders of a class of shares or on a poll, or to exercise other rights conferred by membership in relation to the meeting or poll;

 

(b)                                  where the default shares represent at least 0.25% in nominal value of the issued shares of their class:

 

(i)                                      a dividend (or any part of a dividend) or any monies which would otherwise be payable in respect of the default shares (except on the winding up of a company) shall be withheld by the Company, which has no obligation to pay interest on it, and the shareholder shall not be entitled to elect, pursuant to Article 116, to receive shares instead of a dividend; and

 

(ii)                                   no transfer of any default shares (in the case of any uncertificated shares, subject to the Uncertificated Securities Regulations) shall be registered unless the transfer is an excepted transfer or:

 

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(A)                                the shareholder is not himself in default in supplying the information required; and

 

(B)                                the shareholder proves to the satisfaction of the board that no person in default in supplying the information required is interested in any of the shares the subject of the transfer; and

 

(c)                                   the shareholder (except for a Depositary acting solely in the Depositary’s capacity as such) that is the subject of a section 793 notice is in breach of these Articles.

 

68.2                         The board may, to enable the Company to deal with default shares in accordance with the provisions of this Article, give notice in writing to any shareholder requiring the shareholder holding default shares held in uncertificated form:

 

(a)                                  to change his holding of such shares from default shares held in uncertificated form into certificated form in the name of the shareholder by the time stated in the notice; or

 

(b)                                  to appoint any person to take any steps, by instruction by means of the relevant system or otherwise, in the name of any holder of default shares as may be required to change such default shares from uncertificated form into certificated form. If the shareholder does not comply with the notice, the board may require the Operator to convert default shares held in uncertificated form into certificated form in the name and on behalf of the shareholder in accordance with the Uncertificated Securities Regulations.

 

68.3                         Where any person appearing to be interested in any shares has been served with a section 793 notice and such shares are held by a Depositary, the provisions of this Article 68 shall be deemed to apply only to those shares held by the Depositary in which such person appears to be interested and not (so far as that person’s apparent interest is concerned) to any other shares held by the Depositary in which such person does not have an interest and references to default shares shall be construed accordingly.

 

68.4                         Where the shareholder on whom a section 793 notice has been served is a Depositary, the obligations of the Depositary (acting solely in the Depositary’s capacity as such) shall be limited to disclosing to the Company such information relating to any person appearing to be interested in the shares held by it as has been recorded by the Depositary.

 

68.5                         The sanctions under Article 68.1 cease to apply seven days after the earlier of:

 

(a)                                  receipt by the Company of notice of an excepted transfer, but only in relation to the shares thereby transferred; and

 

(b)                                  receipt by the Company, in a form satisfactory to the board, of all the information required by the section 793 notice.

 

68.6                         Where, on the basis of information obtained from a shareholder in respect of a share held by him, the Company issues a section 793 notice to another person, it shall at the same time send a copy of the section 793 notice to the shareholder, but the accidental omission to do so, or the non—receipt by the shareholder of the copy, does not invalidate or otherwise affect the application of Articles 68.1 and 68.2.

 

68.7                         For the purposes of this Article 68:

 

(a)                                  a person, other than the holder of a share, shall be treated as appearing to be interested in shares if the shareholder has informed the Company that the person is or may be interested, or if the Company (after taking account of information obtained from the shareholder or, pursuant to a section 793 notice, from anyone else or otherwise) knows or has reasonable cause to believe that the person is or may be interested in the shares;

 

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(b)                                  interested ” shall be construed as it is for the purpose of section 793 of the Act and references in this Article 68 to persons interested in shares and to “ interests in shares ” shall be construed in accordance with section 820 of the Act;

 

(c)                                   reference to a person having failed to provide the Company the information required by a section 793 notice, or being in default in supplying such information, includes (i) reference to his having failed or refused to provide all or any part of it, and (ii) reference to his having given information which he knows to be false in a material particular or having recklessly given information which is false in a material particular;

 

(d)                                  the “ prescribed period ” means 14 days;

 

(e)                                   transfer ” means a transfer of a share or (where applicable) a renunciation of a renounceable letter of allotment or other renounceable document of title relating to a share;

 

(f)                                    an “ excepted transfer ” means, in relation to shares held by a shareholder:

 

(i)                                      a transfer pursuant to acceptance of a takeover offer for the Company (within the meaning of Section 974 of the Act); or

 

(ii)                                   a transfer that results from a sale made through the NYSE or any other recognised investment exchange (as defined in the Financial Services and Markets Act 2000) or any other stock exchange outside the United Kingdom on which shares in the capital of the Company are normally traded; or

 

(iii)                                a transfer which is shown to the satisfaction of the board to be made as a result of a sale of the whole of any interest in the shares to a person who is unconnected with the shareholder and with any other person appearing to be interested in the shares.

 

68.8                         None of the provisions contained in this Article 68 shall in any way limit or restrict the rights of the Company under sections 793 and 794 of the Act or any order made by the court under section 794 or elsewhere under Part 22 of the Act nor shall any sanction imposed by the board pursuant to this Article 68 cease to have effect, otherwise than as provided in this Article, unless it is so ordered by the court.

 

APPOINTMENT AND RETIREMENT OF DIRECTORS

 

69.                                NUMBER OF DIRECTORS

 

69.1                         The number of directors must not be less than two and must not be more than nine. The number of directors may be fixed within the foregoing limits from time to time by resolution of the board.

 

69.2                         If the number of directors is reduced below the minimum number fixed in accordance with these Articles, the directors for the time being may act for the purpose of filling vacancies in their number or of calling a general meeting of the Company, but for no other purpose. If there are no directors willing to act, then any two shareholders may summon a general meeting for the purpose of appointing directors.

 

70.                                POWER OF THE COMPANY TO APPOINT DIRECTORS

 

Without prejudice to the power of the board to appoint a person to be a director pursuant to these Articles, the Company may, by ordinary resolution appoint a person who has been nominated in accordance with Article 46 and who is willing to act to be a director, either to fill a vacancy or as an addition to the board, but the total number of directors may not exceed any number fixed in accordance with these Articles.

 

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71.                                POWER OF THE BOARD TO APPOINT DIRECTORS

 

Notwithstanding the specific rights of shareholders to appoint and nominate directors pursuant to these Articles, the board may appoint a person who is willing to act as a director, either to fill a vacancy or as an addition to the board, but the total number of directors may not exceed any number fixed in accordance with these Articles.

 

72.                                NO SHARE QUALIFICATION

 

A director is not required to hold any shares in the capital of the Company.

 

73.                                VOTING ON RESOLUTION FOR APPOINTMENT

 

At a general meeting, a motion for the appointment of two or more persons as directors by a single resolution shall not be made unless an ordinary resolution that it should be so made has first been agreed to by the meeting without any vote being given against it, and for the purposes of this Article 73 a motion for approving a person’s appointment or for nominating a person for appointment shall be treated as a motion for his appointment. A resolution moved in contravention of this Article 73 is void (whether or not its being so moved was objected to at the time).

 

74.                                ANNUAL APPOINTMENT OF DIRECTORS

 

74.1                         The directors shall be appointed at each annual general meeting of the Company by ordinary resolution.

 

74.2                         Other than pursuant to Article 75, each director elected shall hold office until his successor is elected or until his earlier resignation or removal pursuant to any of Article 75.

 

74.3                         No person shall be appointed a director at any general meeting unless:

 

(a)                                  he is recommended by the board; or

 

(b)                                  notice in respect of that person is given by a shareholder qualified to vote at the meeting and received by the Company in accordance with Article 46 (and, if applicable, section 338 of the Act) of the intention to propose that person for appointment stating the particulars which would, if he were so appointed, be required to be included in the Company’s register of directors, together with notice by that person of his willingness to be appointed.

 

74.4                         If at a meeting of the Company it is proposed to vote upon a number of resolutions for the appointment of a person as a director (each a “ Director Resolution ”) that exceeds the total number of directors that may be appointed to the board at that meeting (the “ Board Number ”), the persons that shall be appointed shall first be the person who receives the greatest number of “for” votes (whether or not a majority of those votes cast in respect of that Director Resolution), and then shall second be the person who receives the second greatest number of “for” votes (whether or not a majority of those votes cast in respect of that Director Resolution), and so on, until the number of directors so appointed equals the Board Number.

 

75.                                RESIGNATION, DISQUALIFICATION AND REMOVAL OF DIRECTOR

 

75.1                         A person ceases to be a director as soon as:

 

(a)                                  he resigns by notice delivered to the secretary at the office or tendered at a board meeting or if he shall offer in writing to resign, when the other directors resolve to accept such offer;

 

(b)                                  his term expires without re-appointment;

 

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(c)                                   he ceases to be a director by virtue of a provision of the Act, is removed from office pursuant to these Articles or is prohibited by law or, if applicable, any rules of the NYSE, from being a director;

 

(d)                                  he becomes bankrupt or compounds with his creditors generally or he applies to the court for an interim order under section 253 of the Insolvency Act 1986 in connection with a voluntary arrangement under that statute; or

 

(e)                                   a registered medical practitioner who is treating him gives a written opinion to the Company stating that he has become physically or mentally incapable of acting as a director and may remain so for more than three months, and the board resolves that his office be vacated.

 

75.2                         The Company may, without prejudice to the provisions of the Act, by ordinary resolution remove any director from office (notwithstanding any provision of these Articles or of any agreement between the Company and such director, but without prejudice to any claim he may have for damages for breach of any such agreement).

 

75.3                         A resolution of the board declaring a director to have vacated office under the terms of this Article 75 is conclusive as to the fact and grounds of vacation stated in the resolution.

 

75.4                         If the office of a director is vacated for any reason, he shall cease to be a member of any committee.

 

REMUNERATION, EXPENSES AND PENSIONS

 

76.                                REMUNERATION AND EXPENSES OF DIRECTORS

 

76.1                         Subject to the provisions of these Articles, the board shall have the authority to determine the compensation of directors who are not officers or employees of the Company or a subsidiary of the Company and for any family of his. Such directors may be paid their expenses, if any, of attendance at each meeting of the board or committee and may be paid a fixed sum or a variable sum for attendance at or participation in each meeting of the board or committee, which may be in addition to stated director compensation in cash or equity (such as shares, options or units) or other benefits, or any combination thereof.

 

76.2                         No such compensation under Article 76.1 shall preclude any director from serving the Company in any other capacity and receiving compensation therefor. Members of any special or standing committees may be allowed like compensation for attending or participating in committee meetings. A non-executive chairman of the board and the chairman of a special or standing committee may be paid a supplemental sum for serving as chairman of each meeting of the board or the special or standing committee.

 

76.3                         Subject to the provisions of the Act, the Company may also fund a director’s expenditure on defending proceedings (including investigations by or action proposed to be taken by any regulatory authority) or in connection with any application under the Act and may do anything to enable a director to avoid incurring such expenditure.

 

77.                                ADDITIONAL REMUNERATION

 

77.1                         A director who, at the request of the board, travels or resides abroad, undertakes a special journey or performs a special service on behalf of the Company may be paid such reasonable additional remuneration (whether by way of salary, percentage of profits or otherwise) and expenses as the board may determine provided that payment of such remuneration or expenses would not result in non-compliance with any rules of the NYSE.

 

77.2                         Subject to the provisions of the Act, the board may enter into an agreement or arrangement with any director for the provision of any services outside the scope of the ordinary duties of a director. Any such agreement or arrangement may be made on such terms and conditions as the board thinks fit and, without

 

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prejudice to any other provision of these Articles, it may remunerate any such director for such services as it thinks fit and provide for the payment of expenses properly incurred by the director in each case provided that the payment of such remuneration or expenses would not result in non-compliance with any rules of the NYSE.

 

78.                                DIRECTORS’ PENSIONS AND OTHER BENEFITS

 

78.1                         The board may exercise all the powers of the Company to provide pensions or other retirement or superannuation benefits and to provide death or disability benefits or other allowances or gratuities (by insurance or otherwise) for a person who is or has at any time been a director of:

 

(a)                                  the Company;

 

(b)                                  a company that is or was a subsidiary undertaking of the Company;

 

(c)                                   a company that is or was allied to or associated with the Company or a subsidiary undertaking of the Company; or

 

(d)                                  a predecessor in business of the Company or of a subsidiary undertaking of the Company;

 

or, in each case, for any member of his family, including a spouse or former spouse, a civil partner or a former civil partner, or a person who is or was dependent on him. For this purpose the board may establish, maintain, subscribe and contribute to any scheme, trust or fund and pay premiums. The board may arrange for this to be done by the Company alone or in conjunction with another person.

 

78.2                         A director or former director is entitled to receive and retain for his own benefit a pension or other benefit provided under Articles 76-78 and is not obliged to account for it to the Company.

 

79.                                INSURANCE

 

Subject to the provisions of the Act, the board may exercise all the powers of the Company to purchase and maintain insurance for the benefit of a person who is or was a director, or officer of the Company, or a director or officer of any associated company, or is or was serving or has agreed to serve at the request of the Company as a director or officer of another organisation or trustee of any employee benefit plan, against any liability attaching to him in connection with any negligence, default, breach of duty or breach of trust or any other liability which may lawfully be insured against by the Company, any associated company or such other organisation.

 

POWERS AND DUTIES OF THE BOARD

 

80.                                POWERS OF THE BOARD

 

Subject to the provisions of the Act and these Articles and to directions given by special resolution of the Company, the business and affairs of the Company shall be managed by the board at properly convening meetings pursuant to these Articles, and the board may exercise all the powers of the Company whether relating to the management of the business or not. No alteration of these Articles and no direction given by the Company shall invalidate a prior act of the board that would have been valid if the alteration had not been made or the direction had not been given. The provisions of these Articles giving specific powers to the board do not limit the general powers given by this Article.

 

81.                                POWERS OF DIRECTORS BEING LESS THAN MINIMUM REQUIRED NUMBER

 

If the number of directors is less than the minimum prescribed by these Articles, the remaining director or directors may act only for the purposes of appointing an additional director or directors to make up that minimum or convening a general meeting of the Company for the purpose of making such appointment. If

 

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no director or directors is or are able or willing to act, notwithstanding any other provisions of these Articles, the chief executive officer, the secretary or a shareholder may convene a general meeting for the purpose of appointing directors. An additional director appointed in this way holds office (subject to these Articles) only until the dissolution of the next annual general meeting after his appointment unless he is reappointed during the meeting.

 

82.                                OFFICERS

 

82.1                         The officers of the Company shall be chosen in such a manner, shall hold their offices for such terms and shall carry out such duties as are prescribed herein or determined solely by the board, subject to the right of the board to remove any officer or officers at any time. The board may determine that all of the officers of the Company shall be appointed or reappointed by the board on an annual basis.

 

82.2                         The officers of the Company shall include a chief executive officer, one or more presidents, one or more vice presidents (any one or more of whom may be designated by the board as executive vice president or senior vice president), a treasurer, a secretary and if the board so elects, a chairman of the board and such other officers as the board may from time to time elect or appoint. Any number of offices may be held by the same person unless the Act or these Articles otherwise provide.

 

82.3                         Such other officers and assistant officers and agents as may be deemed necessary may be elected or appointed by the board.

 

82.4                         Any officer of the Company may be removed at any time, with or without cause, by the board.

 

82.5                         The compensation and benefits which may include equity awards of all officers and agents of the Company shall be fixed by the board or a duly constituted committee thereof.

 

82.6                         Each officer of the Company shall hold office until his successor is appointed or until his earlier death, resignation, retirement or removal. Any vacancy occurring in any office of the Company may be filled by the board.

 

83.                                CHAIRMAN OF THE BOARD, CHIEF EXECUTIVE OFFICER AND PRESIDENTS

 

83.1                         Unless the board shall otherwise delegate such duties and subject in all respects to the powers and duties of the board, the chief executive officer shall have general and active management of the business of the Company, and shall see that all orders and resolutions of the board are carried into effect. The chief executive officer shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the Company, except where required or permitted by law to be otherwise signed and executed, including designation of authority by power of attorney, or where the signing and execution thereof shall be expressly delegated by the board to some other officer or agent of the Company. The chief executive officer or such other officer as shall be authorised by him shall have such powers and duties as usually pertain to the office of chief executive officer, except as the same may be modified by the board. Further, unless the board otherwise determines, he shall, in the absence of the chairman of the board or if there be no chairman of the board, preside at all general meetings and meetings of the board.

 

83.2                         If so appointed, the chairman of the board shall preside at all general meetings and meetings of the board; and he shall have such other powers and duties as may be delegated by the board.

 

83.3                         In the absence of the chief executive officer, or in the event of his inability or refusal to act, a president designated by the board shall perform the duties of the chief executive officer, and when so acting shall have all the powers of and be subject to all the restrictions upon the chief executive officer. In the absence of a designation by the board of a president to perform the duties of the chief executive officer, or in the event of his absence or inability or refusal to act, the president who is present and who is senior in terms of time as a president of the Company shall so act. The presidents shall perform such other duties and have such other powers as may be delegated by the board from time to time.

 

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84.                                VICE PRESIDENTS

 

The vice presidents shall perform such duties as expressly assigned to them by the chief executive officer, any president, or by a more senior vice president, as well as such other duties as may be delegated by the board from time to time. The ranking of vice presidents shall be in the following sequence (higher to lower): executive vice president, senior vice president and vice president.

 

85.                                DELEGATION TO COMMITTEES

 

85.1                         The board may by a majority of the whole board delegate any of its powers, authorities and discretions (with power to sub—delegate) to a committee consisting of one or more persons (whether a member or members of the board or not) as it thinks fit. A committee may exercise its power to sub—delegate by sub—delegating to any person or persons (whether or not a member or members of the board or of the committee). The board may retain or exclude its right to exercise the delegated powers, authorities or discretions collaterally with the committee. The board may at any time revoke the delegation or alter any terms and conditions or discharge the committee in whole or in part. Where a provision of these Articles refers to the exercise of a power, authority or discretion by the board (including the power to pay fees, remuneration, additional remuneration, expenses and pensions and other benefits) and that power, authority or discretion has been delegated by the board to a committee, the provision shall be construed as permitting the exercise of the power, authority or discretion by the committee.

 

85.2                         Committee membership designations shall be subject to provisions regarding independence or other qualifications for committee service which may be imposed by applicable laws, rules, regulations or listing rules.

 

85.3                         The board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee.

 

85.4                         Standing committee functions, one or more of which may be performed by a single committee, may include audit, compensation, finance and nominating and governance and/or such other committees as may be designated by the board from time to time. Any committee, to the extent provided in the resolution of the board or the board approved committee charter, shall have and may exercise all the powers and authority of the board in the management of the business and affairs of the Company, including:

 

(a)                                  authorising the seal of the Company to be affixed to all papers that may require it;

 

(b)                                  in relation to the allotment or issue of shares approved by the board, fix any of the preferences or rights of such shares relating to voting, dividends, redemption, dissolution, any distribution of assets of the Company or the conversion into, or the exchange of such shares for, shares of any other class or classes or any other series of the same or any other class or classes of shares; but no such committee shall have the power or authority in reference to:

 

(i)                                      adopting an agreement of merger, consolidation, scheme of arrangement or similar arrangement;

 

(ii)                                   recommending to the shareholders the sale, lease or exchange of all or substantially all of the Company’s property and assets; and

 

(iii)                                recommending to the shareholders a dissolution of the Company or a revocation of a dissolution,

 

provided further that, unless the resolution or these Articles expressly so provide, no such committee shall have the power or authority to declare a dividend or to authorise the allotment or issue of shares.

 

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Such committee or committees shall have such name or names as may be determined from time to time by resolution of the board.

 

86.                                AGENTS

 

The board may by power of attorney or otherwise appoint a person to be the agent of the Company and may delegate to that person any of its powers, authorities and discretions for such purposes, for such time and on such terms and conditions (including as to remuneration) as it thinks fit. In particular the board may grant the power to sub—delegate and may retain or exclude the right of the board to exercise the delegated powers, authorities or discretions collaterally with the agent. The board may at any time revoke or alter the terms and conditions of the appointment or delegation with or without cause.

 

87.                                EXERCISE OF VOTING POWERS

 

The board may exercise or cause to be exercised the voting powers conferred by shares in the capital of another company held or owned by the Company, or a power of appointment to be exercised by the Company, in any manner it thinks fit (including the exercise of the voting power or power of appointment in favour of the appointment of a director as an officer or employee of that company or in favour of the payment of remuneration to the officers or employees of that company).

 

88.                                PROVISION FOR EMPLOYEES

 

The board may exercise the powers conferred on the Company by the Act to make provision for the benefit of a person employed or formerly employed by the Company or any of its subsidiaries (other than a director or former director or alternate or shadow director) in connection with the cessation or the transfer to a person of the whole or part of the undertaking of the Company or the subsidiary.

 

89.                                REGISTERS

 

Subject to the provisions of the Act, the board may exercise the powers conferred on the Company with regard to the keeping of an overseas branch, local or other register and may make and vary regulations as it thinks fit concerning the keeping of a register.

 

90.                                REGISTER OF CHARGES

 

The Company shall keep a register of charges in accordance with the provisions of the Act and the fee to be paid by a person other than a creditor or shareholder for each inspection of the register of charges is the maximum sum prescribed by the provisions of the Act or, failing which, determined by the board.

 

91.                                DIRECTORS’ CONFLICTS OF INTEREST OTHER THAN IN RELATION TO TRANSACTIONS OR ARRANGEMENTS WITH THE COMPANY

 

91.1                         Subject to the provisions of the Act, if a situation (a “ relevant situation ”) arises in which a director has, or can have, a direct or indirect interest that conflicts, or possibly may conflict, with the interests of the Company (including in relation to the exploitation of any property, information or opportunity, whether or not the Company could take advantage of any such property, information or opportunity, but excluding any situation which cannot reasonably be regarded as likely to give rise to a conflict of interest) the following provisions shall apply if the conflict of interest does not arise in relation to a transaction or arrangement with the Company:

 

(a)                                  if the relevant situation arises from the appointment or proposed appointment of a person as a director, the board may resolve to authorise the appointment of the director and the relevant situation; or

 

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(b)                                  if the relevant situation arises in circumstances other than those in Article 91.1(a), the board may resolve to authorise the relevant situation and the continuing performance by the director of his duties, in each case on such terms as the board may determine and such determination shall be notified in writing to the relevant directors.

 

91.2                         Any authorisation under Article 91.1 shall be effective only if:

 

(a)                                  the matter in question shall have been proposed in writing for consideration of the board, in accordance with the board’s normal procedures or in such other manner as the board may approve;

 

(b)                                  any requirement as to the quorum at the meeting of the board for that part of the meeting at which the matter is considered is met without counting the director in question and any other interested director (together the “ interested directors ”); and

 

(c)                                   the matter was agreed to without the interested directors voting or would have been agreed to if the votes of the interested directors had not been counted and, subject to the last sentence of Article 91.4 and to Article 91.8, may be terminated by the board at any time after prior consultation with the interested directors, reasonable account being taken of their representations.

 

91.3                         Any reference in Article 91.1 to a conflict of interest includes a conflict of interest and duty and a conflict of duties.  Any authorisation of a matter pursuant to Article 92 shall extend to any actual or potential conflict of interest which may reasonably be expected to arise out of the matter so authorised.

 

91.4                         Any terms determined by the board under Article 91.1(a) or Article 91.1(b) may be imposed at the time of the authorisation or may be imposed or varied subsequently after prior consultation with the interested directors, reasonable account being taken of their representations, and may include:

 

(a)                                  whether the interested director(s) may vote (or be counted in the quorum at a meeting) in relation to any resolution relating to the relevant situation;

 

(b)                                  the exclusion of the interested director(s) from all information and discussion by the board or any committee of the relevant situation; and

 

(c)                                   (without prejudice to the general obligations of confidentiality) the application, subject to Article 91.8, to the interested director(s) of a strict duty of confidentiality to the Company for any confidential information of the Company in relation to the relevant situation.

 

Notwithstanding any other provision of these Articles, no authorisation given in respect of any director may be revoked or amended to the extent that such authorisation was given on or before the date on which the first sale of shares registered under the U.S. securities laws is consummated or relates to the employment, relationship or connection of such director to Parent or any of its subsidiary undertakings.

 

91.5                         A director must act in accordance with any terms determined by the board under Article 91.1(a) or Article 91.1(b) and shall be entitled to rely on any such determination in the absence of fraud.

 

91.6                         Except as specified in Article 91.2, any proposal made to the board and any authorisation by the board in relation to a relevant situation shall be dealt with in the same way as any other matter that may be proposed to and resolved upon by the board in accordance with the provisions of these Articles.

 

91.7                         A director shall be under no duty to the Company with respect to any information which he obtains or has obtained otherwise than as a director of the Company and in respect of which he owes a duty of confidentiality to another person. However, if the relationship with that other person gives rise to a conflict of interest or possible conflict of interest, only if the relevant situation has been authorised by the board under Article 91.1 then (subject, in any case, to any terms determined by the board under Article 91.1(a) or Article 91.1(b)):

 

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(a)                                  where the director obtains (other than through his position as a director) information relating to that relevant situation which is confidential to a third party, he will not be obliged to disclose it to the board or to any director or other officer or employee of the Company or to use it in relation to the Company’s affairs in circumstances where to do so would amount to a breach of that confidence;

 

(b)                                  the director may absent himself from meetings of the board or any committee at which anything relating to that relevant situation will or may be discussed; and

 

(c)                                   the director may make such arrangements as he thinks fit for board and committee papers to be received and read by a professional adviser on his behalf;

 

and the general duties which any director owes to the Company under the Act will not be infringed by anything done (or omitted to be done) in accordance with the provisions of this Article 91.7.

 

91.8                         Notwithstanding any other Article, each director shall be entitled to disclose to the Parent and its directors, officers and employees, any information regarding the Company regardless of how such director became aware of such information (including where he became so aware partly or wholly through the holding of office with, or performance of duties in respect of, the Company) and, to that extent, shall owe no duty of confidentiality to the Company regarding such information.

 

91.9                         A director shall not be liable to account to the Company for any profit, remuneration or other benefit which he (or any person connected with him within the meaning of section 252 of the Act) may derive from any relevant situation authorised under Article 91.1 (subject, in any case, to any terms determined by the board in connection with such authorisation that are notified as aforesaid) and no contract, arrangement, transaction or proposal is liable to be avoided on the grounds of any director (or any person connected with him as aforesaid) having any type of interest authorised under Article 91.1 (subject as aforesaid).

 

92.                                DECLARATIONS OF INTEREST BY DIRECTORS

 

92.1                         A director must declare the nature and extent of his interest in any relevant situation within Article 91.1 to the other directors.

 

92.2                         If a director is in any way, directly or indirectly, interested in a proposed transaction or arrangement with the Company, he must declare the nature and extent of his interest to the other directors.

 

92.3                         Where a director is in any way, directly or indirectly, interested in a transaction or arrangement that has been entered into by the Company, he must declare the nature and extent of his interest to the other directors, unless the interest has already been declared under Article 92.2.

 

92.4                         The declaration of interest must (in the case of Article 92.3) and may, but need not (in the case of Article 92.1 or 92.2) be made:

 

(a)                                  at a meeting of the board; or

 

(b)                                  by notice to the other directors in accordance with either (i) section 184 of the Act (notice in writing); or (ii) section 185 of the Act (general notice).

 

92.5                         If a declaration of interest proves to be, or becomes, inaccurate or incomplete, a further declaration must be made.

 

92.6                         Any declaration of interest required by Article 92.1 must be made as soon as is reasonably practicable. Failure to comply with this requirement does not affect the underlying duty to make the declaration of interest.

 

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92.7                         Any declaration of interest required by Article 92.2 must be made before the Company enters into the transaction or arrangement.

 

92.8                         Any declaration of interest required by Article 92.3 must be made as soon as is reasonably practicable. Failure to comply with this requirement does not affect the underlying duty to make the declaration of interest.

 

92.9                         A declaration in relation to an interest of which the director is not aware, or where the director is not aware of the transaction or arrangement in question, is not required. For this purpose a director is treated as being aware of matters of which he ought reasonably to be aware.

 

92.10                  A director need not declare an interest:

 

(a)                                  if it cannot be reasonably be regarded as likely to give rise to a conflict of interest;

 

(b)                                  if, or to the extent that, the other directors are already aware of it (and for this purpose the other directors are treated as being aware of anything of which they ought reasonably to be aware); or

 

(c)                                   if, or to the extent that, it concerns terms of his service contract that have been or are to be considered:

 

(i)                                      by a meeting of the board; or

 

(ii)                                   by a committee appointed for the purpose.

 

93.                                DIRECTORS’ INTERESTS IN RELATION TO TRANSACTIONS OR ARRANGEMENTS WITH THE COMPANY

 

93.1                         Subject to the provisions of the Act and provided he has declared his interest in accordance with and to the extent required by Article 92, a director, notwithstanding his office:

 

(a)                                  may enter into or otherwise be interested in a contract, arrangement, transaction or proposal with the Company or in which the Company is otherwise interested either in connection with his tenure of an office or place of profit or as seller, buyer or otherwise;

 

(b)                                  may hold another office or place of profit with the Company (except that of auditor or auditor of a subsidiary of the Company) in conjunction with the office of director and may act by himself or through his firm in a professional capacity to the Company, and in that case on such terms as to remuneration and otherwise as the board may determine either in addition to or instead of remuneration provided for by another Article; and/or

 

(c)                                   may be or become a director or other officer of, or employed by, or a party to a contract, transaction, arrangement or proposal with or otherwise interested in, a company in which the Company is interested as a shareholder or otherwise or as regards which the Company has a power of appointment.

 

93.2                         A director shall not be liable to account to the Company for any profit, remuneration or other benefit resulting from any interests permitted under Article 93.1 and no contract, arrangement, transaction or proposal is liable to be avoided on the grounds of any director having any type of interest permitted under Article 93.1.

 

93.3                         A director may not vote on or be counted in the quorum in relation to a resolution of the board or of a committee concerning any contract, arrangement, transaction or proposal with the Company or in which the Company is otherwise interested and in which he has an interest that may reasonably be regarded as likely

 

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to give rise to a conflict of interest, but this prohibition does not apply to a resolution concerning any of the following matters:

 

(a)                                  any contract, arrangement, transaction or proposal in which he is interested by virtue of an interest in shares, debentures or other securities of the Company, or otherwise in or through the Company;

 

(b)                                  the giving of a guarantee, security or indemnity in respect of money lent or obligations incurred by him or any other person at the request of or for the benefit of the Company or any of its subsidiary undertakings;

 

(c)                                   the giving of a guarantee, security or indemnity in respect of a debt or obligation of the Company or any of its subsidiary undertakings for which he himself has assumed responsibility in whole or in part, either alone or jointly with others, under a guarantee or indemnity or by the giving of security;

 

(d)                                  a contract, arrangement, transaction or proposal concerning an offer of shares, debentures or other securities of the Company or any of its subsidiary undertakings for subscription or purchase, in which offer he is or may be entitled to participate as a holder of securities or in the underwriting or sub—underwriting of which he is to participate;

 

(e)                                   a contract, arrangement, transaction or proposal to which the Company is or is to be a party concerning another company (including a subsidiary undertaking of the Company) in which he is interested (directly or indirectly) and whether as an officer, director, shareholder, creditor or otherwise (a “ relevant company ”), if he does not to his knowledge hold an interest in shares (as that term is used in sections 820 to 825 of the Act) representing 1% or more of either any class of the equity share capital of or the voting rights in the relevant company;

 

(f)                                    a contract, arrangement, transaction or proposal for the benefit of the employees of the Company or any of its subsidiary undertakings (including any pension fund or retirement, death or disability scheme) which does not award him a privilege or benefit not generally awarded to the employees to whom it relates; and

 

(g)                                   a contract, arrangement, transaction or proposal concerning:

 

(i)                                      indemnification (including advances or expenses made in connection with it) by the Company in relation to the performance of his duties on behalf of the Company as a director or officer of the Company, or a director or officer or trustee of any other organisation; or

 

(ii)                                   the purchase or maintenance of any insurance policy for the benefit of directors or for the benefit of persons including directors.

 

93.4                         A director may not vote on or be counted in the quorum in relation to a resolution of the board or committee concerning his own appointment (including fixing or varying the terms of his appointment or its termination) as the holder of an office or place of profit with the Company or any company in which the Company is interested. Where proposals are under consideration concerning the appointment (including fixing or varying the terms of appointment or its termination) of two or more directors to offices or places of profit with the Company or a company in which the Company is interested, such proposals shall be divided and a separate resolution considered in relation to each director. In that case each of the directors concerned (if not otherwise debarred from voting under this Article) is entitled to vote (and be counted in the quorum) in respect of each resolution except that concerning his own appointment.

 

93.5                         If a question arises at a meeting of the board or of a committee as to whether the interest of a director (other than the interest of the chairman of the meeting) may reasonably be regarded as likely to give rise to a conflict of interest or as to the entitlement of a director (other than the chairman) to vote or be counted in a

 

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quorum and the question is not resolved by his voluntarily agreeing to abstain from voting or being counted in the quorum, the question shall be referred to the chairman and his ruling in relation to the director concerned is conclusive and binding on all concerned.

 

93.6                         If a question arises at a meeting of the board or of a committee as to whether the interest of the chairman of the meeting may reasonably be regarded as likely to give rise to a conflict of interest or as to the entitlement of the chairman to vote or be counted in a quorum and the question is not resolved by his voluntarily agreeing to abstain from voting or being counted in the quorum, the question shall be determined by resolution of the directors or committee members present at the meeting (excluding the chairman) whose majority vote is conclusive and binding on all concerned.

 

93.7                         For the purposes of this Article, the interest of a person who is connected with (within the meaning of section 252 of the Act) a director is treated as the interest of the director.

 

93.8                         Subject to the provisions of the Act, the Company may by ordinary resolution suspend or relax to any extent the provisions of these Articles probability a director from voting or being counted in a quorum extent or ratify any contract, arrangement, transaction or proposal not properly authorised by reason of a contravention of these Articles.

 

PROCEEDINGS OF DIRECTORS AND COMMITTEES

 

94.                                BOARD MEETINGS

 

94.1                         Subject to these Articles, the board may meet for the dispatch of business, adjourn and otherwise regulate its proceedings as it thinks fit.

 

94.2                         The first board meeting following the election of directors at an annual general meeting shall ordinarily be held immediately following the annual general meeting, but may be held at such other time and place as shall be specified in a notice given to the directors in accordance with Article 95.

 

95.                                NOTICE OF BOARD MEETINGS

 

95.1                         Regular meetings of the board may be held without notice at such time and at such place as shall from time to time be determined by the board.

 

95.2                         Special meetings of the board may be called by the chairman of the board, the chief executive officer or the president on not less than 24 hours’ advance notice to each director, given personally by telephone, in hard copy form or by electronic means; special meetings shall be called by the chief executive officer or secretary, in like manner and on like notice, on the written request of a majority of the directors then in office.

 

95.3                         A director may waive the requirement that notice be given to him of a board meeting, either prospectively or retrospectively.

 

96.                                QUORUM

 

96.1                         The quorum necessary for the transaction of business is a majority of the directors then in office. A duly convened meeting of the board at which a quorum is present is competent to exercise all or any of the authorities, powers and discretions vested in or exercisable by the board.

 

96.2                         If a quorum shall not be present at any board meeting, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present.

 

96.3                         If there is an insufficient number of directors to constitute a quorum entitled to vote (or would be so entitled if they were participating in the meeting) in relation to any resolution, the quorum for such directors’

 

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meeting in respect of such resolution shall be equal to such number of directors as are entitled to vote (or would be so entitled if they were participating in the meeting) in relation to such resolution.

 

97.                                CHAIRMAN OF BOARD

 

The board may appoint one of its body as chairman to preside at every board meeting at which he is present and one or more deputy chairman or chairmen and determine the period for which he is or they are to hold office (and may at any time remove him or them from office). If no chairman or deputy chairman is elected, or if at a meeting neither the chairman nor a deputy chairman is present within five minutes of the time fixed for the start of the meeting, the directors present shall choose one of their number to be chairman. If two or more deputy chairmen are present, the senior of them shall act as chairman, seniority being determined by length of office since their last appointment or reappointment or deemed reappointment. As between two or more who have held office for an equal length of time, the deputy chairman to act as chairman shall be determined by those directors present. A chairman or deputy chairman may hold executive office or employment with the Company.

 

98.                                VOTING

 

Questions arising at a meeting of the board are determined by a majority of votes.

 

99.                                PARTICIPATION BY TELEPHONE

 

A director may participate in a meeting of the board or a committee through the medium of conference telephone, video teleconference or similar form of communication equipment if all persons participating in the meeting are able to hear and speak to each other throughout the meeting. A person participating in this way is deemed to be present in person at the meeting and is counted in a quorum and entitled to vote. Subject to the provisions of the Act, all business transacted in this way by the board or a committee is for the purposes of these Articles deemed to be validly and effectively transacted at a meeting of the board or a committee although fewer than two directors are physically present at the same place. The meeting is deemed to take place where the largest group of those participating is assembled or, if there is no such group, where the chairman of the meeting then is.

 

100.                         RESOLUTION IN WRITING

 

100.1                  Any director may, and the secretary at the request of a director shall, propose a written resolution by giving written notice to the other directors entitled to receive notice of a meeting of the board or a meeting of a committee (as the case may be).

 

100.2                  A directors’ written resolution is adopted when all the directors entitled to vote on such a resolution have signed one or more copies of it, or otherwise indicated their agreement to it in writing or by electronic means.

 

100.3                  Any resolution in writing is to be kept with the minutes of the proceedings of the board (or committee, as the case may be).

 

100.4                  Once a directors’ written resolution has been adopted, it must be treated as if it had been a resolution passed at a directors’ meeting in accordance with these Articles.

 

101.                         PROCEEDINGS OF COMMITTEES

 

101.1                  At all meetings of committees, a majority of the directors who are members of the committee shall constitute a quorum for the transaction of business and the act of a majority of the committee members present at any meeting at which there is a quorum shall be the act of the committee, except as may be otherwise specifically provided by the Act or these Articles. If a quorum shall not be present at any meeting

 

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of a committee, the committee members present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present.

 

101.2                  Regular committee meetings may be held without notice at such time and at such place as shall from time to time be determined by the committee.

 

101.3                  Special committee meetings may be called by the chairman of a committee on not less than 24 hours’ advance notice to each committee member, given personally by telephone, in hard copy form or by electronic means; special meetings shall be called by the chief executive officer or secretary, in like manner and on like notice on the written request of two committee members unless the committee consists of only one member, in which case special meetings shall be called by the chief executive officer or secretary in like manner and on like notice on the written request of the sole committee member.

 

101.4                  Subject to these Articles, proceedings of any committee shall be conducted in accordance with applicable provisions of these Articles regulating the proceedings of the board.

 

102.                         MINUTES OF PROCEEDINGS

 

102.1                  The board shall cause minutes to be made in books kept for the purpose of:

 

(a)                                  all appointments of officers and committees made by the board and of any remuneration fixed by the board;

 

(b)                                  all proceedings at meetings of the Company, the holders of any class of shares in the capital of the Company, the board and its Committees, including the names of directors present at every such meetings; and

 

(c)                                   all orders and regulations of the Company.

 

102.2                  Any minutes, purporting to be signed by the chairman of the meeting at which the proceedings were held or by the chairman of the next succeeding meeting, shall be sufficient evidence of the facts stated in them.

 

102.3                  Minutes of every meeting of a committee shall be distributed to all of the directors of the Company.

 

103.                         VALIDITY OF PROCEEDINGS OF BOARD OR COMMITTEE

 

All acts done by a meeting of the board, or of a committee, or by a person acting as a director or member of a committee are, notwithstanding that it is afterwards discovered that there was a defect in the appointment of a person or persons acting, or that they or any of them were or was disqualified from holding office or not entitled to vote, or had in any way vacated their or his office, as valid as if every such person had been duly appointed, and was duly qualified and had continued to be a director or member of a committee and entitled to vote.

 

SECRETARY AND AUTHENTICATION OF DOCUMENTS

 

104.                         SECRETARY

 

104.1                  Subject to the provisions of the Act, the board shall appoint a secretary or joint secretaries and may appoint one or more persons to be an assistant or deputy secretary on such terms and conditions (including remuneration) as it thinks fit. Each joint secretary (to the extent appointed) shall, unless otherwise determined by the board, be individually authorised to perform the duties and exercise the powers of the secretary. The board may remove a person appointed pursuant to this Article 104 from office and appoint another or others in his place.

 

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104.2                  The secretary or other officer appointed by the board shall attend meetings of the board and general meetings, and record all the proceedings of the general meetings and of the board in a book to be kept for that purpose. The secretary shall give, or cause to be given, notice of all general meetings and meetings of the board, and shall perform such other duties as may be prescribed by the board or the chief executive officer, under whose supervision he shall act.

 

104.3                  The assistant secretaries, in the order of their seniority, unless otherwise determined by the board, shall, in the event of absence or disability of the secretary, or if directed by the secretary, perform the duties and exercise the powers of the secretary. They shall perform such other duties and have such other powers as the board may from time to time prescribe or as the chief executive officer or the secretary may from time to time delegate.

 

104.4                  Any provision of the Act or of these Articles requiring or authorising a thing to be done by or to a director and the secretary is not satisfied by its being done by or to the same person acting both as director and as, or in the place of, the secretary.

 

105.                         AUTHENTICATION OF DOCUMENTS

 

A director or the secretary or another person appointed by the board for the purpose may authenticate documents affecting the constitution of the Company (including these Articles) and resolutions passed by the Company or holders of a class of shares or the board or a committee and books, records, documents and accounts relating to the business of the Company, and certify copies or extracts as true copies or extracts; and where any books, records, documents or accounts are elsewhere than the office, the local manager or other officer of the Company having their custody shall be deemed to be a person appointed by the board for this purpose. A document purporting to be a copy of a resolution, or an extract from the minutes of a meeting, of the Company, the board or any committee which is so certified shall be conclusive evidence in favour of all persons dealing with the Company that such resolution has been duly passed or, as the case may be, that any minute so extracted is a true and accurate record of the proceedings at a duly constituted meeting.

 

SEALS

 

106.                         SAFE CUSTODY

 

The secretary shall provide for the safe custody of every seal.

 

107.                         APPLICATION OF SEALS

 

107.1                  A seal shall have the Company’s name engraved in legible characters.

 

107.2                  Subject to the provisions of these Articles in relation to share certificates issued by the Company in respect of the Company’s shares, stock, debentures or other securities, a seal may be used only by the secretary, treasurer, an assistant secretary or an assistant treasurer with the authority of a resolution of the board. The secretary, treasurer, an assistant secretary, or an assistant treasurer shall sign an instrument (other than such share certificates) to which a seal is affixed. The board may determine, either generally or in a particular case, that a signature may be dispensed with or affixed by mechanical means.

 

DIVIDENDS AND OTHER PAYMENTS

 

108.                         RESERVES

 

Subject to the provisions of the Act, the board may, before paying any dividend (whether preferential or otherwise), carry to reserve out of the profits of the Company such sums as it thinks fit. All sums standing to reserve may be applied from time to time, at the discretion of the board, for any purpose to which the profits of the Company may properly be applied, and pending such application may, at the like discretion,

 

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either be employed in the business of the Company or be invested in such investments as the board thinks fit. The board may divide the reserve into such special reserves as it thinks fit, and may consolidate into one fund any special funds or any parts of any special funds into which the reserve may have been divided as it thinks fit. Any sum which the board may carry to reserve out of the unrealised profits of the Company shall not be mixed with any reserve to which profits available for distribution have been carried. The board may also, without placing the same to reserve, carry forward any profits which it may think prudent not to distribute.

 

109.                         PAYMENT OF DIVIDENDS

 

Subject to the provisions of the Act, if the board considers that the financial position of the Company justifies such payments, it can pay interim, final or other dividends on any class of shares of any amounts and on any dates and for any periods which it determines.

 

110.                         ENTITLEMENT TO DIVIDENDS

 

110.1                  All dividends will be divided and paid in proportions based on the amounts paid up on the shares during any period for which the dividend is paid, provided that no dividend (nor, for the avoidance of doubt, any dividend in specie or any scrip dividend payable in accordance with Articles 115 or 116, respectively) shall be payable in respect of any share which is for the time being held by or for the benefit of any organisation which is a subsidiary or subsidiary undertaking of the Company. Sums which have been paid up in advance of calls will not count as paid up for this purpose. If the terms of any share provide that it will be entitled to a dividend as if it were a fully paid up, or partly paid up, share from a particular date (in the past or future), it will be entitled to a dividend on this basis. This Article 110 applies unless these Articles, the rights attached to any shares, or the terms of any shares, provide otherwise.

 

110.2                  If the share capital is divided into different classes, the board may:

 

(a)                                  pay dividends on shares which confer deferred or non-preferred rights with regard to dividends as well as on shares which confer preferential rights with regard to dividends, but no dividend shall be paid on shares carrying deferred or non-preferred rights if, at the time of payment, any preferential dividend is in arrear; and

 

(b)                                  pay at intervals settled by it any dividend payable at a fixed rate if it appears to the board that the profits available for distribution justify the payment.

 

If the board acts in good faith it shall not incur any liability to the holders of shares conferring preferred rights for any loss they may suffer by the lawful payment of an interim dividend on any shares having deferred or non-preferred rights.

 

110.3                  Except as otherwise provided by these Articles or the rights attached to any shares:

 

(a)                                  a dividend or any other money payable in respect of a share can be declared and paid in any currency the board determines;

 

(b)                                  the Company may agree with a shareholder that any dividend declared or that may become due in one currency will be paid to the shareholder in another currency; and

 

(c)                                   with the prior written consent of the Depositary, the board may determine that a Depositary should receive dividends in a currency other than the currency in which they were declared and can make arrangements accordingly; in particular, if a Depositary has chosen or agreed to receive dividends in another currency, the board may make arrangements with the Depositary for payment to be made to the Depositary for value on the date on which the relevant dividend is paid, or a later date determined by the board,

 

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in each case using an exchange rate selected by the board for any currency conversions required. The board can also determine how any costs relating to the choice of currency will be met.

 

110.4                  The board can offer shareholders the choice to receive dividends and other money payable in respect of their shares in a currency other than that in which the dividend or other money payable is declared on such terms and conditions as the board may prescribe from time to time.

 

110.5                  If a shareholder owes the Company any money for calls on shares or money in any other way relating to a share held by him, the board can deduct any of this money from any dividend or other money payable to the shareholder on or in respect of that share. Money deducted in this way can be used to pay amounts owed to the Company.

 

110.6                  Unless the rights attached to any shares, or the terms of any shares, provide otherwise, no dividend or other sum payable by the Company on or in respect of its shares carries a right to interest from the Company.

 

111.                         METHOD OF PAYMENT

 

111.1                  The Company may pay any dividend, interest or other amount payable in respect of a share:

 

(a)                                  in cash;

 

(b)                                  by cheque, warrant or money order made payable to or to the order of the person entitled to the payment (and which may, at the Company’s option, be crossed “account payee” where appropriate);

 

(c)                                   by a bank or other funds transfer system to an account designated in writing by the person entitled to the payment;

 

(d)                                  if the board so determines, by means of a relevant system in respect of an uncertificated share, subject to any procedures established by the board to enable a holder of uncertificated shares to elect not to receive dividends by means of a relevant system and to vary or revoke any such election; or

 

(e)                                   by such other method as the person entitled to the payment may in writing direct and the board may agree.

 

111.2                  The Company may send a cheque, warrant or money order by post:

 

(a)                                  in the case of a sole holder of shares, to his registered address;

 

(b)                                  in the case of joint holders of shares, to the registered address of the person whose name stands first in the register;

 

(c)                                   in the case of a person or persons entitled by transmission to a share, as if it were a notice given in accordance with Article 128;

 

(d)                                  in the case of a Depositary, and subject to the approval of the board, to such persons and postal addresses as the Depositary may direct; or

 

(e)                                   in any case, to a person and address that the person or persons entitled to the payment may in writing direct.

 

111.3                  Where a share is held jointly or two or more persons are jointly entitled by transmission to a share:

 

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(a)                                  the Company may pay any dividend, interest or other amount payable in respect of that share to any one joint holder, or any one person entitled by transmission to the share, and in either case that holder or person may give an effective receipt for the payment; and

 

(b)                                  for any of the purposes of this Article 111, the Company may rely in relation to a share on the written direction or designation of any one joint holder of the share, or any one person entitled by transmission to the share.

 

111.4                  Without prejudice to the generality of the foregoing, in respect of shares in uncertificated form, such payment may include the sending by the Company or by any person on its behalf of an instruction to the Operator of the relevant system to credit the cash memorandum account of the holder or joint holders or, if permitted by the Company, of such person as the holder or joint holders may in writing direct.

 

111.5                  Payment of such cheque, warrant or money order, the collection of funds from or transfer of funds by a bank in accordance with such direct debit or bank transfer or, in respect of shares in uncertificated form, the making of payment by means of a relevant system, shall be a good discharge to the Company.

 

111.6                  Every cheque, warrant or money order sent by post is sent at the risk of the person entitled to the payment. If payment is made by bank or other funds transfer, by means of a relevant system or by another method at the direction of the person entitled to payment, the Company is not responsible for amounts lost or delayed in the course of making that payment.

 

111.7                  Without prejudice to Article 68, the board may withhold payment of a dividend (or part of a dividend) payable to a person entitled by transmission to a share until he has provided such evidence of his right as the board may reasonably require.

 

112.                         DIVIDENDS NOT TO BEAR INTEREST

 

No dividend or other amount payable by the Company in respect of a share bears interest as against the Company unless otherwise provided by the rights attached to the share.

 

113.                         UNCLAIMED DIVIDENDS, ETC.

 

Any unclaimed dividend, interest or other amount payable by the Company in respect of a share may be invested or otherwise made use of by the board for the benefit of the Company until claimed. A dividend unclaimed for a period of 12 years from the date it was declared or became due for payment is forfeited and ceases to remain owing by the Company. The payment of an unclaimed dividend, interest or other amount payable by the Company in respect of a share into a separate account does not constitute the Company a trustee in respect of it.

 

114.                         UNCASHED DIVIDENDS

 

If, in respect of a dividend or other amount payable in respect of a share, on any one occasion:

 

(a)                                  a cheque, warrant or money order is returned undelivered or left uncashed; or

 

(b)                                  a transfer made by a bank or other funds transfer system is not accepted;

 

and reasonable enquiries have failed to establish another address or account of the person entitled to the payment, the Company is not obliged to send or transfer a dividend or other amount payable in respect of that share to that person until he notifies the Company of an address or account to be used for that purpose. If the cheque, warrant or money order is returned undelivered or left uncashed or transfer not accepted on two consecutive occasions, the Company may exercise this power without making any such enquiries.

 

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115.                         PAYMENT OF DIVIDENDS IN SPECIE

 

Without prejudice to Article 68, the board may direct that payment of a dividend may be satisfied wholly or in part by the distribution of specific assets and in particular of paid—up shares or debentures of another company. Where a difficulty arises in connection with the distribution, the board may settle it as it thinks fit and in particular may:

 

(a)                                  issue fractional certificates (or ignore fractions);

 

(b)                                  fix the value for distribution of the specific assets (or any part of them);

 

(c)                                   determine that a cash payment be made to a shareholder on the basis of the value so fixed, in order to secure equality of distribution; and

 

(d)                                  vest assets in trustees on trust for the persons entitled to the dividend as seems expedient to the board.

 

116.                         PAYMENT OF SCRIP DIVIDENDS

 

116.1                  Subject to the provisions of the Act, but without prejudice to Article 68, the board may allot to those holders of a particular class of shares who have elected to receive them further shares of that class or shares of any other class in either case credited as fully paid (“ new shares ”) instead of cash in respect of all or part of any dividend or dividends, subject to any exclusions, restrictions or other arrangements the board may in its absolute discretion deem necessary or expedient to deal with legal or practical problems under the laws of, or the requirements of a recognised regulatory body or a stock exchange in, any territory.

 

116.2                  The board shall determine the basis of allotment of new shares so that, as nearly as may be considered convenient without involving rounding up of fractions, the value of the new shares (including a fractional entitlement) to be allotted (calculated by reference to the average quotation, or the nominal value of the new shares, if greater) equals (disregarding an associated tax credit) the amount of the dividend which would otherwise have been received by the holder (the “ relevant dividend ”). For this purpose the “ average quotation ” of each of the new shares is the average of the middle—market quotations for a fully—paid share of the Company of that class derived from such source as the board may deem appropriate for the business day on which the relevant class of shares is first quoted “ex” the relevant dividend (or such other date as the board may deem appropriate) and the four subsequent business day(s). A certificate or report by the auditors as to the value of the new shares to be allotted in respect of any dividend shall be conclusive evidence of that amount.

 

116.3                  The board may make any provision it considers appropriate in relation to an allotment made or to be made pursuant to this Article, including:

 

(a)                                  the giving of notice to holders of the right of election offered to them;

 

(b)                                  the provision of forms of election (whether in respect of a particular dividend or dividends generally);

 

(c)                                   determination of the procedure for making and revoking elections;

 

(d)                                  the place at which, and the latest time by which, forms of election and other relevant documents must be lodged in order to be effective;

 

(e)                                   the disregarding or rounding up or down or carrying forward of fractional entitlements, in whole or in part, or the accrual of the benefit of fractional entitlements to the Company (rather than to the holders concerned); and

 

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(f)                                    the exclusion from any offer to elect to receive scrip dividends of any holders of shares where the board considers that the making of the offer to them would or might involve the contravention of the laws of any territory or that for any other reason the offer should not be made to them.

 

116.4                  The board can exclude or restrict the right to elect to receive new shares under this Article 116 in the case of any shareholder or other person who is a Depositary if the election by such shareholder or Depositary on behalf of any person holding any interest in the shares would involve the contravention of the laws of any territory or if for any other reason the board determines that the offer to elect to receive new shares should not be made to any such person.

 

116.5                  The dividend (or that part of the dividend in respect of which a right of election has been offered) is not declared or payable on shares in respect of which an election has been duly made (the “ elected shares ”); instead new shares are allotted to the holders of the elected shares on the basis of allotment calculated as in Article 116.2. For that purpose, the board may resolve to capitalise out of amounts standing to the credit of reserves (including a share premium account, capital redemption reserve and profit and loss account), whether or not available for distribution, a sum equal to the aggregate nominal amount of the new shares to be allotted and apply it in paying up in full the appropriate number of new shares for allotment and distribution to the holders of the elected shares. A resolution of the board capitalising part of the reserves has the same effect as if the board had resolved to effect the capitalisation pursuant to Article 117. In relation to the capitalisation the board may exercise all the powers conferred on it by Article 117.

 

116.6                  The new shares rank pari passu in all respects with each other and with the fully—paid shares of the same class in issue on the record date for the dividend in respect of which the right of election has been offered, but they will not rank for a dividend or other distribution or entitlement which has been declared or paid by reference to that record date.

 

116.7                  In relation to any particular proposed dividend, the board may in its absolute discretion determine:

 

(a)                                  that shareholders shall not be entitled to make any election in respect thereof and that any election previously made shall not extend to such dividend; or

 

(b)                                  at any time prior to the allotment of the new shares which would otherwise be allotted in lieu thereof, that all elections to take ordinary shares in lieu of such dividend shall be treated as not applying to that dividend, and if so the dividend shall be paid in cash as if no elections had been made in respect of it.

 

117.                         CAPITALISATION OF RESERVES

 

Subject to the provisions of the Act and Articles 118, the board may:

 

(a)                                  resolve to capitalise an amount standing to the credit of reserves (including a share premium account, capital redemption reserve and profit and loss account), whether or not available for distribution;

 

(b)                                  appropriate the sum resolved to be capitalised to the shareholders in proportion to the nominal amount of shares (whether or not fully paid) held by them respectively and apply that sum on their behalf in or towards:

 

(i)                                      paying up the amounts (if any) for the time being unpaid on shares held by them respectively; or

 

(ii)                                   paying up in full unissued shares or debentures of a nominal amount equal to that sum;

 

and allot the shares or debentures, credited as fully paid, to the shareholders (or as they may direct) in those proportions, or partly in one way and partly in the other, but the share premium

 

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account, the capital redemption reserve and profits which are not available for distribution may, for the purposes of this Article, only be applied in paying up unissued shares to be allotted to shareholders credited as fully paid;

 

(c)                                   make any arrangements it thinks fit to resolve a difficulty arising in the distribution of a capitalised reserve and in particular where shares or debentures become distributable in fractions the board may deal with the fractions as it thinks fit, including issuing fractional certificates, disregarding fractions or selling shares or debentures representing the fractions to a person for the best price reasonably obtainable and distributing the net proceeds of the sale in due proportion amongst the shareholders (except that if the amount due to a shareholder is less than £5.00, or such other sum as the board may determine, the sum may be retained for the benefit of the Company);

 

(d)                                  authorise a person to enter (on behalf of all the shareholders concerned) into an agreement with the Company providing for either:

 

(i)                                      the allotment to the shareholders respectively, credited as fully paid, of shares or debentures to which they may be entitled on the capitalisation, or

 

(ii)                                   the payment by the Company on behalf of the shareholders (by the application of their respective proportions of the reserves resolved to be capitalised) of the amounts or part of the amounts remaining unpaid on their existing shares, an agreement made under the authority being effective and binding on all those shareholders; and

 

(e)                                   generally do all acts and things required to give effect to the resolution.

 

118.                         CAPITALISATION OF RESERVES — EMPLOYEES’ SHARE SCHEMES

 

118.1                  This Article (which is without prejudice to the generality of the provisions of the immediately preceding Article 117) applies where:

 

(a)                                  a person is granted pursuant to an employees’ share scheme a right to subscribe for shares in the capital of the Company in cash at a subscription price less than their nominal value; and

 

(b)                                  pursuant to an employees’ share scheme, the terms on which any person is entitled to subscribe for shares in the capital of the Company are adjusted as a result of a capitalisation issue, rights issue or other variation of capital so that the subscription price is less than their nominal value.

 

118.2                  In any such case the board shall:

 

(a)                                  transfer to a reserve account a sum equal to the deficiency between the subscription price and the nominal value of the shares (the “ cash deficiency ”) from the profits or reserves of the Company which are available for distribution and not required for the payment of any preferential dividend; and

 

(b)                                  subject to Article 118.4, not apply that reserve account for any purpose other than paying up the cash deficiency on the allotment of those shares.

 

118.3                  Whenever the Company is required to allot shares pursuant to such a right to subscribe, the board shall, subject to the provisions of the Act:

 

(a)                                  appropriate to capital out of the reserve account an amount equal to the cash deficiency applicable to those shares;

 

(b)                                  apply that amount in paying up the deficiency on the nominal value of those shares; and

 

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(c)                                   allot those shares credited as fully paid to the person entitled to them.

 

118.4                  If any person ceases to be entitled to subscribe for shares as described, the restrictions on the reserve account shall cease to apply in relation to such part of the account as is equal to the amount of the cash deficiency applicable to those shares.

 

118.5                  No right shall be granted under any employees’ share scheme under Article 118.1(a) and no adjustment shall be made as mentioned in Article 118.1(b) unless there are sufficient profits or reserves of the Company available for distribution and not required for the payment of any preferential dividend to permit the transfer to a reserve account in accordance with this Article of an amount sufficient to pay up the cash deficiency applicable to the shares concerned.

 

119.                         RECORD DATES

 

Notwithstanding any other provision of these Articles, but subject to the provisions of the Act and rights attached to shares, the board may fix any date (which shall not be more than 60 days before the date on which a dividend, distribution, allotment or issue is declared, made or paid) as the record date for a dividend, distribution, allotment or issue.

 

ACCOUNTS

 

120.                         TREASURER

 

120.1                  The treasurer shall have the custody of the corporate funds and securities, and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Company, and shall deposit all moneys and other valuable effects in the name and to the credit of the Company in such depositories as may be designated by the board.

 

120.2                  The treasurer shall disburse the funds of the Company as may be ordered by the board, taking proper vouchers for such disbursements, and shall render to the chief executive officer and the board at its meetings, or when the board so requires, an account of all his transactions as treasurer, and of the financial condition of the Company, which account may be submitted directly or through the chief financial officer. The treasurer shall perform such other duties and have such other authority and powers as the board may from time to time prescribe or as the chief executive officer may from time to time delegate.

 

120.3                  If required by the board, the treasurer shall provide the Company a bond in such sum, and with such surety or sureties, as shall be satisfactory to the board for the faithful execution of the duties of his office, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the Company.

 

120.4                  The assistant treasurers, in the order of their seniority, unless otherwise determined by the board, shall, in the event of absence or disability of the treasurer, perform the duties and exercise the powers of the treasurer. They shall perform such other duties and have such other powers as the board may from time to time prescribe or the chief executive officer may from time to time delegate.

 

121.                         KEEPING AND INSPECTION OF ACCOUNTING RECORDS

 

121.1                  The board shall ensure that accounting records are kept in accordance with the provisions of the Act.

 

121.2                  The accounting records shall be kept at the office or, subject to the provisions of the Act, at another place determined by the board and shall be available at all times for the inspection of the directors and other officers. No shareholder (other than a director or other officer who is also a shareholder and in his capacity as an officer or director) has the right to inspect an accounting record or other document except if that right is conferred by the Act or ordered by a court of competent jurisdiction or he is authorised by the board or by an ordinary resolution of the Company.

 

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122.                         ACCOUNTS TO BE SENT TO SHAREHOLDERS, ETC.

 

122.1                  In respect of each financial year, a copy of the Company’s annual accounts and reports on those accounts shall be sent to:

 

(a)                                  every shareholder (whether or not entitled to receive notices of general meetings);

 

(b)                                  every holder of debentures (whether or not entitled to receive notices of general meetings); and

 

(c)                                   every other person who is entitled to receive notices of general meetings;

 

not less than 21 clear days before the date of the meeting at which copies of those documents are to be laid in accordance with the Act (the “ accounts meeting ”).

 

This Article does not require copies of the documents to which it applies to be sent to:

 

(d)                                  a person for whom the Company does not have a current address; or

 

(e)                                   more than one of the joint holders of shares or debentures.

 

122.2                  The board may determine that persons entitled to receive a copy of the Company’s annual accounts, the directors’ report and the auditors’ report on those accounts and on the directors’ report are those persons entered on the register at the close of business on a day determined by the board, provided that, if the Company is a participating issuer, the day determined by the board may not be more than 21 days before the day that the relevant copies are being sent.

 

122.3                  Where permitted by the Act, a copy of the strategic report together with any supplementary material containing the information prescribed by the Act may be sent to a person so electing in place of the documents required to be sent by Article 122.1.

 

123.                         EXTERNAL AUDITOR

 

The audit committee shall have exclusive authority and responsibility to recommend, approve the compensation of, and oversee the Company’s external audit firm. The external auditor shall be recommended by the audit committee on an annual basis, and such auditor recommendation shall be submitted for shareholder approval at the accounts meeting.

 

NOTICES

 

124.                         NOTICES TO BE IN WRITING

 

124.1                  A notice to be given to or by any person pursuant to these Articles shall be in writing.

 

124.2                  Where any notice is required to be given under the Act or these Articles, to the extent permitted by the Act, a waiver thereof in writing and signed by the persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent thereto.

 

125.                         SERVICE OF NOTICES, DOCUMENTS AND INFORMATION ON SHAREHOLDERS

 

125.1                  Any notice, document or information may be given, sent or supplied by the Company to any shareholder:

 

(a)                                  personally;

 

(b)                                  by sending it by post in a pre—paid envelope addressed to the shareholder at his registered address;

 

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(c)                                   by hand at the shareholder’s registered address;

 

(d)                                  by sending it in electronic form to the electronic address specified for the purpose by the shareholder (generally or specifically), provided that the shareholder has agreed (generally or specifically) that the notice, document or information may be sent or supplied in that form (and has not revoked that agreement); or

 

(e)                                   subject to the provisions of the Act, by making it available on a website, provided that the requirements in Article 125.2 are satisfied.

 

125.2                  The requirements referred to in Article 125.1(e) are that:

 

(a)                                  the shareholder has agreed (generally or specifically) that the notice, document or information may be sent or supplied to him by being made available on a website (and has not revoked that agreement), or the shareholder has been asked by the Company to agree that the Company may send or supply notices, documents and information generally, or the notice, document or information in question, to him by making it available on a website and the Company has not received a response within the period of 28 days beginning with the date on which the Company’s request was sent and the shareholder is therefore taken to have so agreed (and has not revoked that agreement);

 

(b)                                  the shareholder is sent a notification of the presence of the notice, document or information on a website, the address of that website, the place on that website where it may be accessed, and how it may be accessed (“ notice of availability ”);

 

(c)                                   in the case of a notice of general meeting, the notice of availability states that it concerns a notice of a general meeting of the Company, specifies the place, date and time of the meeting, and states whether it will be an annual general meeting; and

 

(d)                                  the notice, document or information continues to be published on that website, in the case of a notice of meeting, throughout the period beginning with the date of the notice of availability and ending with the conclusion of the meeting and, in all other cases, throughout the period specified by any applicable provision of the Act or, if no such period is specified, throughout the period of 28 days beginning with the date on which the notice of availability is sent to the shareholder, save that if the notice, document or information is made available for part only of that period then failure to make it available throughout that period shall be disregarded where such failure is wholly attributable to circumstances which it would not be reasonable to have expected the Company to prevent or avoid.

 

125.3                  In the case of joint holders of shares:

 

(a)                                  it shall be sufficient for all notices, documents and other information to be given, sent or supplied to the joint holder whose name stands first in the register in respect of the joint holding (the “ first named holder ”) only; and

 

(b)                                  anything to be agreed or specified in relation to any notice, document or information to be sent or supplied to them may be agreed or specified by the first named holder and any such agreement or specification shall be binding on all the joint holders.

 

125.4                  For the avoidance of doubt, the provisions of this Article 125 are subject to Article 44.

 

125.5                  The Company may at any time and at its sole discretion choose to give, send or supply notices, documents and information only in hard copy form to some or all shareholders.

 

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126.                         EVIDENCE OF SERVICE

 

126.1                  Any notice, document or information given, sent or supplied by the Company to the shareholders or any of them:

 

(a)                                  by being delivered or left (other than by post) at a registered address or address for service (other than an address for the purposes of communicating by electronic means) shall be deemed to have been served or delivered on the day it was so delivered or left;

 

(b)                                  by post, shall be deemed to have been received 24 hours after the time at which the envelope containing the notice, document or information was posted unless it was sent by second class post or there is only one class of post in which case it shall be deemed to have been received 48 hours after it was posted. Proof that the envelope was properly addressed, prepaid and posted shall be conclusive evidence that the notice, document or information was sent;

 

(c)                                   by electronic means, shall be deemed to have been received 6 hours after it was sent provided that the Company is able to show that it was properly addressed;

 

(d)                                  by making it available on a website, shall be deemed to have been received on the date on which notice of availability on the website is deemed to have been received in accordance with this Article or, if later, the date on which it is first made available on the website; or

 

(e)                                   by means of a relevant system shall be deemed to have been received 24 hours after the Company, or any sponsoring system—participant acting on the Company’s behalf, sends the issuer—instruction relating to the notice, document or information.

 

126.2                  Any notice, document or information given, sent or supplied by the Company by any other means authorised in writing by the shareholder concerned is deemed to be received when the Company has taken the action it has been authorised to take for that purpose.

 

126.3                  A shareholder present in person or by proxy at a meeting or at a meeting of the holders of a class of shares is deemed to have received due notice of the meeting and, where required, of the purposes for which it was called.

 

127.                         NOTICE BINDING ON TRANSFEREES, ETC.

 

A person who becomes entitled to a share by transmission, transfer or otherwise is bound by a notice in respect of that share (other than a notice served by the Company under section 793 of the Act) which, before his name is entered in the register, has been properly served on a person from whom he derives his title.

 

128.                         NOTICE IN CASE OF ENTITLEMENT BY TRANSMISSION

 

Where a person is entitled by transmission to a share, any notice, document or information may be given, sent or supplied by the Company to that person as if he were the holder of a share by sending or delivering it in any manner authorised by these Articles for the giving of notice to a shareholder addressed to that person by name, or by the title of representative of the deceased or trustee of the bankrupt shareholder (or by similar designation), at the address supplied for that purpose by the person claiming to be entitled by transmission. Until such an address has been supplied, any notice, document or information may be given, sent or supplied in any manner in which it might have been given if the death or bankruptcy or other event had not occurred. The giving of notice in accordance with this Article is sufficient notice to any other person interested in the share.

 

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129.                         VALIDATION OF DOCUMENTS IN ELECTRONIC FORM

 

129.1                  Where a document is required under these Articles to be signed by a shareholder or any other person, if the document is in electronic form, then in order to be valid the document must either:

 

(a)                                  incorporate the electronic signature, or personal identification details (which may be details previously allocated by the Company), of that shareholder or other person, in such form as the board may approve; or

 

(b)                                  be accompanied by such other evidence, such as an identification or control number, as the board may require in order to be satisfied that the document is genuine.

 

129.2                  The Company may designate mechanisms for validating any document in electronic form and a document not validated by the use of any such mechanisms shall be deemed as having not been received by the Company. In the case of any document or information relating to a meeting, an instrument of proxy or invitation to appoint a proxy, any validation requirements shall be specified in the relevant notice of meeting in accordance with Articles 43 and 62.

 

MISCELLANEOUS

 

130.                         DISPUTE RESOLUTION

 

130.1                  The courts of England and Wales shall have exclusive jurisdiction to determine any dispute brought by a shareholder in that shareholder’s capacity as such, or related to or connected with any derivative claim in respect of a cause of action vested in the Company or seeking relief on behalf of the Company, against the Company, the board or any of the directors, officers, employees or shareholders individually (or any combination of the foregoing persons), arising out of or in connection with these Articles or (to the maximum extent permitted by applicable law) otherwise.

 

130.2                  Damages alone may not be an adequate remedy for any breach of this Article 130, so that, in the event of a breach or anticipated breach, the remedies of injunction and an order for specific performance would in appropriate circumstances be available.

 

130.3                  The governing law of these Articles is the substantive law of England and Wales and these Articles shall be interpreted and construed in accordance with such law.

 

130.4                  For the purposes of this Article 130:

 

(a)                                  a “ dispute ” shall mean any dispute, controversy or claim;

 

(b)                                  references to “ Company ” shall be read so as to include the Company; and

 

(c)                                   director ” and “ officer ” shall be read so as to include each and any director and officer of the Company from time to time in his capacity as such or as an employee of the Company and shall include any former director or officer of the Company.

 

131.                         DESTRUCTION OF DOCUMENTS

 

131.1                  The Company may destroy:

 

(a)                                  a share certificate which has been cancelled at any time after one year from the date of cancellation;

 

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(b)                                  a mandate for the payment of dividends or other amounts or a variation or cancellation of a mandate or a notification of change of name or address at any time after two years from the date the mandate, variation, cancellation or notification was recorded by the Company;

 

(c)                                   an instrument of transfer of shares (including a document constituting the renunciation of an allotment of shares) which has been registered and all other documents on the basis of which any entry in the register at any time after six years from the date of registration;

 

(d)                                  any instrument of proxy which has been used for the purpose of a poll at any time after one year from the date of use; and

 

(e)                                   any instrument of proxy which has not been used for the purpose of a poll at any time after one month from the end of the general meeting or annual general meeting to which the instrument of proxy relates;

 

provided that the Company may destroy any such type of document at a date earlier than that authorised by this Article 131 if a copy of such document is made and retained (whether electronically, by microfilm, by digital imaging or by other similar means) until the expiration of the period applicable to the destruction of the original document.

 

131.2                  It is conclusively presumed in favour of the Company that every share certificate destroyed in accordance with this Article was a valid certificate validly cancelled, that every instrument of transfer destroyed in accordance with this Article was a valid and effective instrument duly and properly registered, that every entry in the register purporting to have been made on the basis of an instrument of transfer or other document destroyed in accordance with this Article was duly and properly made and that every other document destroyed in accordance with this Article was a valid and effective document in accordance with the recorded particulars in the books or records of the Company, but:

 

(a)                                  the provisions of this Article apply only to the destruction of a document in good faith and without express notice to the Company that the document is relevant to a claim;

 

(b)                                  nothing contained in this Article imposes on the Company any liability in respect of the destruction of a document earlier than provided for in this Article or in any case where the conditions of this Article are not fulfilled; and

 

(c)                                   references in this Article to the destruction of a document include reference to its disposal in any manner.

 

132.                         WINDING UP

 

Subject to the provisions of these Articles, on a voluntary winding up of the Company the liquidator may as he shall determine, on obtaining any sanction required by law, (a) divide among the shareholders in kind the whole or any part of the assets of the Company, whether or not the assets consist of property of one kind or of different kinds, and (b) vest the whole or any part of the assets in trustees for the benefit of the shareholders. For this purpose the liquidator may set the value he deems fair on a class or classes of property, and may determine on the basis of that valuation and in accordance with the then existing rights of shareholders how the division is to be carried out between shareholders or classes of shareholders. The liquidator may not, however, distribute to a shareholder without his consent any asset to which there is attached a liability or potential liability for the owner.  The liquidator may not, however, distribute to a shareholder without his consent any asset on which there is a liability or potential liability for the owner. The power of sale of a liquidator shall include a power to sell wholly or partially shares or debentures or other obligations of another body corporate, either then already constituted, or about to be constituted, for the purpose of carrying out the sale.

 

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133.                         INDEMNITY

 

133.1                  To the fullest extent permitted by the Act (and any other applicable laws) and without prejudice to any indemnity to which any person may otherwise be entitled:

 

(a)                                  The Company shall indemnify, out of assets of the Company, any person who is or was a director of the Company, or a director of any associated company, or is or was serving or has agreed to serve at the request of the Company as a director, partner, trustee, officer or fiduciary of another organisation or trustee of any employee benefit plan, directly or indirectly against all loss or liability, whether in connection with any negligence, default, breach of duty or breach of trust by him or otherwise, in relation to the Company, any associated company or such other organisation or employee benefit plan, where the basis of such proceeding is the execution or discharge of the duties of his office or otherwise related thereto;

 

(b)                                  The Company shall indemnify, out of assets of the Company, any person who is or was a director of the Company, or a director of any associated company where the Company or such associated company acts as a trustee of a pension scheme, directly or indirectly against any liability incurred by him in connection with the company’s or the individual’s activities as trustee of such pension scheme; and

 

(c)                                   The Company may create a trust fund, grant a security interest and/or use other means (including insurance, letters of credit, surety bonds and/or other similar arrangements), as well as enter into contracts providing indemnification to the full extent authorised or permitted by law and including as part thereof provisions with respect to any or all of the foregoing paragraphs of this Article 133.1 to ensure the payment of such amounts as may become necessary to effect indemnification as provided therein, or elsewhere;

 

provided that this Article 133 shall only have effect insofar as its provisions are not void under sections 232 or 234 of the Act ;

 

133.2                  Subject to sections 205(2) to (4) of the Act, the Company shall provide a director with funds to meet expenditures incurred or to be incurred by him in defending (or seeking relief in respect of) any civil or criminal proceedings brought or threatened against him in connection with any alleged negligence, default, breach of duty or breach of trust by him in relation to the Company or an associated company, and the Company shall be permitted to take or omit to take any action or enter into any arrangement which would otherwise be prohibited under sections 197 to 203 of the Act to enable a director to avoid incurring such expenditure.

 

133.3                  The Company shall also provide a director with funds to meet expenditures incurred or to be incurred by him in defending himself in an investigation by a regulatory authority or against action proposed to be taken by a regulatory authority in connection with any alleged negligence, default, breach of duty or breach of trust by him in relation to the Company or any associated company and the Company shall be permitted to take or omit to take any action or enter into any arrangement which would otherwise be prohibited under section 197 of the Act to enable a director to avoid incurring such expenditure.

 

133.4                  For the purpose of Article 143 the expression associated company shall mean a company which is either a subsidiary or a holding company of the Company or a subsidiary of such holding company, as such terms are defined in the Act.

 

133.5                  Where a person is indemnified against any liability in accordance with this Article , such indemnity shall extend to all costs, charges, losses, expenses and liabilities incurred by him in relation thereto.

 

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TRANSACTIONS WITH INTERESTED SHAREHOLDERS

 

134.                         TRANSACTIONS WITH INTERESTED SHAREHOLDERS

 

134.1                  The Company shall not engage in any Business Combination with any Interested Shareholder for a period of 3 years following the date that such shareholder became an Interested Shareholder, unless:

 

(a)                                  prior to such date the Board approved either the Business Combination or the transaction which resulted in the shareholder becoming an Interested Shareholder, or

 

(b)                                  upon consummation of the transaction which resulted in the shareholder becoming an Interested Shareholder, the Interested Shareholder owned at least 85 per cent. of the Voting Shares of the Company issued at the time the transaction commenced, excluding for these purposes, shares owned by (i) persons who are Directors and also executive officers of the Company and (ii) employee share plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer, or

 

(c)                                   on or subsequent to such date the Business Combination is approved by the Board and authorised at a general meeting of shareholders by the affirmative vote of at least 66.66 per cent of the issued Voting Shares which are not owned by the Interested Shareholder.

 

134.2                  The restrictions contained in Article 134.1 shall not apply:

 

(a)                                  Prior to the Trigger Date; or

 

(b)                                  if a shareholder becomes an Interested Shareholder inadvertently and (i) as soon as practicable divests itself of ownership of sufficient shares so that the shareholder ceases to be an Interested Shareholder and (ii) would not, at any time within the 3 year period immediately prior to a Business Combination between the Company and such shareholder, have been an interested shareholder but for the inadvertent acquisition of ownership; or

 

(c)                                   if the Business Combination is proposed prior to the consummation or abandonment of and subsequent to the earlier of the public announcement or any notice required hereunder of a proposed transaction which:

 

(i)                                      constitutes one of the transactions described in Article 134.3;

 

(ii)                                   is with or by a person who either was not an Interested Shareholder during the previous 3 years or who became an Interested Shareholder with the approval of the Board of Directors; and

 

(iii)                                is approved or not opposed by a majority of the shareholders of the Board of Directors then in office (but not less than 1) who were Directors prior to any person becoming an Interested Shareholder during the previous 3 years or were recommended for election or elected to succeed such Directors by a majority of such Directors.

 

134.3                  The proposed transactions referred to in Article 134.2(c) are limited to:

 

(a)                                  a merger or consolidation of the Company (except for a merger in respect of which, pursuant to Section 251(f) of the General Corporation Law of the State of Delaware, U.S., no vote of the shareholders would be required if the Company were incorporated under the law of such State);

 

(b)                                  a sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of transactions) of assets of the Company or of any direct or indirect majority-owned

 

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subsidiary of the Company (other than to any direct or indirect wholly-owned subsidiary or to the Company) having an aggregate market value equal to 50 per cent. or more of either that aggregate market value of all of the assets of the Company determined on a consolidated basis or the aggregate market value of all the outstanding shares of the Company; or

 

(c)                                   a proposed tender or exchange offer for 50 per cent. or more of the outstanding Voting Shares of the Company.

 

134.4                  The Company shall give not less than 20 clear days’ notice to all Interested Shareholders prior to the consummation of any of the transactions described in Article 134.1 and Article 134.2.

 

134.5                  As used in Article 134, the term:

 

affiliate ” means a person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, another person.

 

associate ” when used to indicate a relationship with any person means:

 

(a)                                  any corporation, partnership, unincorporated association or other entity of which such person is a director, officer or partner or which is, directly or indirectly, the owner of 20 per cent. or more of any class of Voting Shares;

 

(b)                                  any trust or other estate in which such person has at least a 20 per cent. beneficial interest or as to which such person serves as trustee or in a similar fiduciary capacity; and

 

(c)                                   any relative or spouse of such person, or any relative of such spouse, who has the same residence as such person.

 

Business Combination ”, when used in reference to the Company and any Interested Shareholder of the Company, means:

 

(a)                                  any merger or consolidation of the Company or any direct or indirect majority-owned subsidiary of the Company with (i) the Interested Shareholder, or (ii) with any other corporation, partnership, unincorporated association or other entity if the merger or consolidation is caused by the Interested Shareholder and as a result of such merger or consolidation Article 134 is not applicable to the surviving entity;

 

(b)                                  any sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or series of transactions), except proportionately as a shareholder of the Company, to or with the Interested Shareholder, of assets of the Company or of any direct or indirect majority-owned subsidiary of the Company which assets have an aggregate market value equal to 10 per cent. or more of either the aggregate market value of all the assets of the Company determined on a consolidated basis or the aggregate market value of all the Voting Shares of the Company;

 

(c)                                   any transaction which results in the issuance or transfer by the Company or by any direct or indirect majority-owned subsidiary of the Company of any shares of the Company or of such subsidiary to the Interested Shareholder, except (i) pursuant to the exercise, exchange or conversion of securities exercisable for, exchangeable for or convertible into shares of the Company or any such subsidiary which securities were outstanding prior to the time that the Interested Shareholder became such, (ii) pursuant to a merger which could be accomplished under Section 251(g) of the General Corporation Law of the State of Delaware, U.S. if the Company were incorporated under the laws of such State, (iii) pursuant to a dividend or distribution paid or made, or the exercise, exchange or conversion of securities exercisable for, exchangeable for or convertible into shares of such Company or any such subsidiary which security is distributed, pro rata to all holders of a class or series of shares of such Company subsequent to the time the

 

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Interested Shares became such, (iv) pursuant to an exchange offer by the Company to purchase shares made on the same terms to all holders of said shares, or (v) any issuance or transfer of shares by the Company, provided however, that in no case under (iii)-(v) above shall there be an increase in the Interested Shareholder’s proportionate share of the shares of any class or series of the Company or of the voting shares of the Company;

 

(d)                                  any transaction involving the Company or any direct or indirect majority owned subsidiary of the Company which has the effect, directly or indirectly, of increasing the proportionate share of the shares of any class or securities convertible into the shares of any class of the Company or of any such subsidiary which is owned by the Interested Shareholder, except as a result of immaterial changes due to fractional share adjustments or as a result of any purchase or redemption of any shares not caused, directly or indirectly, by the Interested Shareholder; or

 

(e)                                   any receipt by the Interested Shareholder of the benefit, directly or indirectly (except proportionately as a shareholder of the Company) of any loans, advance, guarantees, pledges or other financial benefits (other than those expressly permitted in subparagraphs (a)-(d) above) provided by or through the Company or any direct or indirect majority owned subsidiary.

 

control ,” including the term “ controlling ”, “ controlled by ” and “ under common control with ” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and polices of a person whether through the ownership of Voting Shares, by contract or otherwise. A person who is the owner of 20 per cent. or more of the outstanding Voting Shares of any corporation, partnership, unincorporated association or other entity shall be presumed to have control of such entity in the absence of proof by a preponderance of the evidence to the contrary. Notwithstanding the foregoing, a presumption of control shall not apply where such person holds Voting Shares, in good faith and not for the purpose of circumventing this Article, as an agent, bank, broker, nominee, custodian or trustee for one or more owners who do not individually or as a group have control of such entity.

 

Interested Shareholder ” means any person (other than the Company and any direct or indirect majority-owned subsidiary of the Company) that:

 

(a)                                  is the owner of 15 per cent. or more of the issued Voting Shares of the Company, or

 

(b)                                  is an affiliate or associate of the Company and was the owner of 15 per cent. or more of the outstanding Voting Shares of the Company at any time within the 3 year period immediately prior to the date on which it is sought to be determined whether such person is an Interested Shareholder; and the affiliates and associates of such person; provided, however, that the term “Interested Shareholder” shall not include any person whose ownership of shares in excess of the 15 per cent. limitation set forth herein is the result of action taken solely by the Company provided that such person shall be an Interested Shareholder if thereafter such person acquires additional Voting Shares of the Company, except as a result of further corporate action not caused, directly or indirectly, by such person. For the purpose of determining whether a person is an Interested Shareholder, the Voting Shares of the Company deemed to be outstanding shall include shares deemed to be owned by the person through application of these Articles but shall not include any other unissued shares of the Company which may be issuable pursuant to any agreement, arrangement or understanding, or upon exercise of conversion rights, warrants or options, or otherwise.

 

owner ” including the terms “own” and “owned” when used with respect to any shares means a person (other than a Depositary) that individually or with or through any of its affiliates or associates:

 

(a)                                  beneficially owns such shares directly or indirectly; or

 

(b)                                  has (i) the right to acquire such shares (whether such right is exercisable immediately or only after the passage of time) pursuant to any agreement, arrangement or understanding or upon the

 

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exercise of conversion rights, exchange rights, warrants or options, or otherwise; provided, however, that a person shall not be deemed the owner of shares tendered pursuant to a tender or exchange offer made by such person or any of such person’s affiliates or associates until such tendered stock is accepted for purchase or exchange; or (ii) the right to vote such shares pursuant to any agreement, arrangement or understanding; provided, however, that a person shall not be deemed the owner of any shares because of such person’s right to vote such shares if the agreement, arrangement or understanding to vote such shares arises solely from a revocable proxy or consent given in response to a proxy or consent solicitation made to 10 or more persons; or

 

(c)                                   has any agreement, arrangement or understanding for the purpose of acquiring, holding, voting (except voting pursuant to a revocable proxy or consent send by or on behalf of the Company or the board) disposing of such shares with any other person that beneficially owns, or whose affiliates or associates beneficially own, directly or indirectly, such shares.

 

134.6                  In addition to any approval of shareholders required pursuant to the terms of any class of shares, following approval by the Board of Directors, the authorisation at a general meeting of shareholders by the affirmative vote of at least a majority of the issued Voting Shares shall be required in order for the Company to “sell, lease, or exchange all or substantially all of its property and assets” (as that phrase is interpreted for the purposes of Section 271 of the General Corporation Law of the State of Delaware, U.S., as amended or re-enacted from time to time), provided that the foregoing approval by shareholders shall not be required in the case of any transaction between the Company and any entity the Company “directly or indirectly controls” (as that phrase is defined in Rule 405 under the United States Securities Act of 1933, as amended or re-enacted from time to time).

 

*                *                *

 

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Exhibit 10.1

 

Final Form

 

VENATOR MATERIALS

2017 STOCK INCENTIVE PLAN

 

SECTION 1.    Purpose of the Plan .

 

The Venator Materials 2017 Stock Incentive Plan, as amended from time to time (the “ Plan ”), is intended to promote the interests of Venator Materials PLC, a public company limited by shares and incorporated under the laws of England and Wales (the “ Company ”), by encouraging Employees , Consultants and Directors to acquire or increase their equity interest in the Company and to provide a means whereby they may develop a sense of proprietorship and personal involvement in the development and financial success of the Company, and to encourage them to remain with and devote their best efforts to the business of the Company, thereby advancing the interests of the Company and its stockholders.  The Plan is also contemplated to enhance the ability of the Company and its Subsidiaries to attract and retain the services of individuals who are essential for the growth and profitability of the Company.

 

The Plan (disregarding the Annex) is intended to satisfy the definition of “employees share scheme” for the purpose of section 1166 of the Companies Act; provided , however , that Annex A under which Consultants and Directors are eligible to benefit is not intended to satisfy the definition of an “employees share scheme” for the purpose of section 1166 of the Companies Act.

 

SECTION 2.    Definitions .

 

As used in the Plan, the following terms shall have the meanings set forth below:

 

Affiliate ” means, with respect to any Person, any other Person that directly or indirectly through one or more intermediaries controls, is controlled by or is under common control with, the Person in question.  As used herein, the term “control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract or otherwise.

 

“Award ” shall mean an Option, Restricted Stock, Performance Award, Phantom Share, SAR, Bonus Stock, Dividend Equivalent, Substitute Award, or Other Stock-Based Award.

 

Award Agreement ” shall mean any written or electronic agreement, contract, instrument, or document evidencing any Award, which may, but need not, be executed or acknowledged by a Participant and shall also include any other written instrument (including any employment, severance, change of control or similar agreement or arrangement) that establishes any terms, conditions, restrictions and/or limitations applicable to Awards in addition to those established by this Plan and by the Committee’s exercise of its administrative powers, including any such instrument entered into prior to or following the Effective Date.

 

Board ” shall mean the Board of Directors of the Company.

 



 

Bonus Stock ” shall mean Ordinary Shares granted as a bonus pursuant to Section 6(f).

 

Change of Control ” shall mean: (a) with respect to an Award that is subject to section 409A of the Code, the occurrence of any event which constitutes a change of control under section 409A of the Code, including any regulations promulgated pursuant thereto; and (b) with respect to any other Award, the occurrence of any of the following events:  (i) the acquisition by any “person,” as such term is used in sections 13(d) and 14(d) of the Exchange Act, other than the Company, an Affiliate of the Company or a Company employee benefit plan, of “beneficial ownership” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 20% or more of the combined voting power of the Company’s then outstanding securities entitled to vote generally in the election of directors; or (ii) the consummation of a reorganization, merger, consolidation or other form of corporate transaction or series of transactions, in each case, with respect to which Persons who were the stockholders of the Company immediately prior to such reorganization, merger or consolidation or other transaction do not, immediately thereafter, own more than 20% of the combined voting power entitled to vote generally in the election of directors of the reorganized, merged or consolidated company’s then outstanding voting securities in substantially the same proportions as their ownership immediately prior to such event; or (iii) the sale or disposition by the Company of all or substantially all the Company’s assets (other than any such sale or disposition involving solely the Company and one or more Persons that are “affiliates” of the Company (within the meaning of Rule 12b-2 under the Exchange Act)); or (iv) a change in the composition of the Board, as a result of which fewer than a majority of the directors are Incumbent Directors; or (v) the approval by the Board or the stockholders of the Company of a complete or substantially complete liquidation or dissolution of the Company; or (c) with respect to all Awards: (i) a court-sanctioned compromise or arrangement between the Company and its shareholders under section 899 of the Companies Act, resulting in a change of Control of the Company; (ii) the obtaining by any Person (or group of Persons acting in concert) of Control of the Company as the result of making a general offer to (A) acquire all of the issued Ordinary Share capital of the Company, which is made on a condition that, if it is satisfied, such acquiring Person or Persons, as applicable, will have Control of the Company or (B) acquire all of the shares in the Company which are of the same class as the Ordinary Shares; (iii) any Person (or group of Persons acting in concert) becoming bound or entitled under Sections 979 to 982 or Sections 983 to 985 of the Companies Act (or similar law of another jurisdiction) to acquire shares of the same class as the Ordinary Shares.

 

Code ” shall mean the Internal Revenue Code of 1986, as amended from time to time, and the rules and regulations thereunder.

 

Committee ” shall mean the Board or any committee of the Board designated, from time to time, by the Board to act as the Committee under the Plan; provided , however , that, unless otherwise determined by the Board, the Committee shall consist solely of two or more directors, each of whom shall be a Qualified Member (except to the extent administration of this Plan by “outside directors” is not then required in order to qualify for tax deductibility under section 162(m) of the Code).

 

Companies Act ” shall mean the U.K. Companies Act of 2006, as amended.

 



 

Consultant ” shall mean any individual who is not an Employee or a Director and who provides consulting, advisory or other similar services to the Company or a Subsidiary.

 

Control ” shall have the same meaning as in section 995 of the U.K. Income Tax Act 2007.

 

Covered Employee ” shall mean an Employee who is designated by the Committee, at the time of grant of a Performance Award, as likely to be a “covered employee” within the meaning of section 162(m) of the Code.

 

Director ” shall mean any member of the Board who is not an Employee.

 

Dividend Equivalent ” shall mean a right, granted to an Employee under Section 6(g), to receive cash, Ordinary Shares, other Awards or other property equal in value to dividends paid with respect to a specified number of shares of Ordinary Shares, or other periodic payments.

 

Effective Date ” shall mean August 1, 2017.

 

Employee ” shall mean any employee (whether or not also an officer) of the Company or a Subsidiary (having, for this purpose, the meaning given to it in Section 1159 of the Companies Act).

 

Exchange Act ” shall mean the Securities Exchange Act of 1934, as amended from time to time, and the rules and regulations thereunder.

 

Fair Market Value ” shall mean, as of any applicable date, the closing sales price for a Share on the New York Stock Exchange (or such other national securities exchange which constitutes the principal trading market for the Shares) for the applicable date as reported by such reporting service approved by the Committee; provided , however , that if Shares shall not have been quoted or traded on such applicable date, Fair Market Value shall be determined based on the last preceding date on which they were quoted or traded, or, if deemed appropriate by the Committee, in such other manner as it may determine to be appropriate, including in accordance with the Non-Qualified Deferred Compensation Rules.  In the event the Ordinary Shares are not publicly traded at the time a determination of its Fair Market Value is required to be made hereunder, the determination of Fair Market Value shall be made in good faith by the Committee, taking into account all factors the Committee deems appropriate, including without limitation the Non-Qualified Deferred Compensation Rules.

 

Incentive Stock Option ” or “ ISO ” shall mean an Option granted under Section 6(a) of the Plan that is intended to qualify as an “incentive stock option” under section 422 of the Code or any successor provision thereto.

 

Incumbent Directors ” shall mean directors who either (A) are directors of the Company as of the Effective Date, or (B) are elected, or nominated for election, thereafter to the Board with the affirmative votes of at least a majority of the Incumbent Directors at the time of such election or nomination, but “Incumbent Director” shall not include an individual whose election or nomination is in connection with (i) an actual or threatened election contest (as such terms are used in Rule 14a-11 of Regulation 14A promulgated under the Exchange Act) or an actual or

 



 

threatened solicitation of proxies or consents by or on behalf of a Person other than the Board or (ii) a plan or agreement to replace a majority of the then Incumbent Directors.

 

Non-Employee Stock Incentive Plan ” shall mean Annex A to the Plan, as amended from time to time.

 

Non-Qualified Deferred Compensation Rules ” shall mean the limitations or requirements of section 409A of the Code and the guidance and regulations promulgated thereunder.

 

Non-Qualified Stock Option ” or “ NQO ” shall mean an Option granted under Section 6(a) of the Plan that is not intended to be an Incentive Stock Option.

 

Option ” shall mean an option entitling the holder to acquire Shares upon payment of the exercise price. Incentive Stock Options and Non-Qualified Stock Options may be granted under the Plan.

 

Other Stock-Based Award ” shall mean an Award granted under Section 6(i) of the Plan.

 

Participant ” shall mean any Employee who was granted an Award under the Plan that remains outstanding.

 

Performance Award ” shall mean any right granted under Section 6(c) of the Plan.

 

Person ” shall mean any individual, corporation, partnership, limited liability company, association, joint-stock company, trust, unincorporated organization, government or political subdivision thereof or other entity.

 

Personal Data ” shall mean any personal information that could identify a Participant, including but not limited to, the Participant’s name, date of birth, home address, contact details (including any telephone number and e-mail address), National Insurance number (or equivalent), Awards under the Plan or awards under any other employee share scheme operated by the Company and any data collected as part of any documents the Participant completes when participating in the Plan.

 

Phantom Shares ” shall mean the right to receive Shares or cash equal to the Fair Market Value of such Shares, or any combination thereof, as determined by the Committee, at the end of a specified deferral period (which may or may not be coterminous with the Restricted Period of the Award), which is granted pursuant to Section 6(d) of the Plan.

 

Qualified Member ” shall mean a member of the Committee who is a “nonemployee director” within the meaning of Rule 16b-3(b)(3) and an “outside director” within the meaning of Treasury regulation 1.162-27 under section 162(m) of the Code.

 

Restricted Period ” shall mean the period established by the Committee with respect to an Award during which the Award either remains subject to forfeiture or is not exercisable by the Participant.

 



 

Restricted Stock ” shall mean any Share, prior to the lapse of restrictions thereon, granted under Section 6(b) of the Plan.

 

Rule 16b-3 ” shall mean Rule 16b-3 promulgated by the SEC under the Exchange Act, or any successor rule or regulation thereto as in effect from time to time.

 

SAR ” shall mean a stock appreciation right granted under Section 6(e) of the Plan that entitles the holder to receive the excess of the Fair Market Value of a Share on the relevant date over the exercise price of such SAR, with the excess paid in cash and/or in Shares in the discretion of the Committee, subject to the limitation on cash payments in Section 4(d).

 

SEC ” shall mean the Securities and Exchange Commission, or any successor thereto.

 

Shares ” or “ Ordinary Shares ” shall mean the ordinary shares in the capital of the Company, $0.001 par value per share.

 

Subsidiary ” shall mean, except as where noted otherwise herein, any entity (whether a corporation, partnership, joint venture, limited liability company or other entity) in which the Company owns a majority of the voting power of the entity directly or indirectly, and any other entity in which the Company has an economic interest that is designated by the Committee as a Subsidiary for purposes of the Plan, except (i) with respect to the grant of an ISO, in which case the term Subsidiary shall mean any “subsidiary corporation” of the Company as defined in section 424 of the Code, or (ii) in the case of Options or SARs that are intended to comply with Treasury regulation 1.409A-1(b)(5)(i), in which case the term Subsidiary shall mean an entity in a chain of entities in which each entity has a “controlling interest” in another entity in the chain, starting with the Company.

 

Substitute Award ” shall mean an Award granted pursuant to Section 6(h) of the Plan.

 

U.K. Participant ” shall mean a Participant the grant of an Award to whom or the exercise of an Award by whom is subject to taxation in the United Kingdom.

 

U.S. Participant ” shall mean a Participant the grant of an Award to whom or the exercise of an Award by whom is subject to taxation in the United States.

 

SECTION 3.    Administration .

 

(a)                                  General . The Plan shall be administered by the Committee.  A majority of the Committee shall constitute a quorum, and the acts of the members of the Committee who are present at any meeting thereof at which a quorum is present, or acts unanimously approved by the members of the Committee in writing, shall be the acts of the Committee.  Subject to the terms of the Plan and applicable law, and in addition to other express powers and authorizations conferred on the Committee by the Plan, the Committee shall have full power and authority to:  (i) designate Participants; (ii) determine the type or types of Awards to be granted to a Participant; (iii) determine the number of Shares to be covered by, or with respect to which payments, rights, or other matters are to be calculated in connection with, Awards; (iv) determine the terms and conditions of any Award; (v) determine whether, to what extent, and under what circumstances Awards may be settled or exercised in cash, Shares, other securities, other Awards

 



 

or other property, or canceled, forfeited, or suspended and the method or methods by which Awards may be settled, exercised, canceled, forfeited, or suspended; (vi) interpret and administer the Plan and any instrument or agreement relating to an Award made under the Plan; (vii) establish, amend, suspend, or waive such rules and regulations and appoint such agents as it shall deem appropriate for the proper administration of the Plan; (viii) amend any Award under the Plan as provided in Section 7(b); and (ix) make any other determination and take any other action that the Committee deems necessary or desirable for the administration of the Plan.  Unless otherwise expressly provided in the Plan, all designations, determinations, interpretations, and other decisions under or with respect to the Plan or any Award shall be within the sole discretion of the Committee, may be made at any time and shall be final, conclusive, and binding upon all Persons, including the Company and any of its Affiliates and Subsidiaries, any Participant, any holder or beneficiary of any Award, any stockholder and any other Person.  The Committee may, subject to any applicable law, regulatory, securities exchange or other similar restrictions, delegate to one or more officers of the Company the authority to grant Awards to Employees who are not, and whose family members are not, subject to section 16(b) of the Exchange Act (for this purpose “family members” include the brothers or sisters (whether by whole or half blood), spouse, ancestors, or lineal descendants of the Employee, and any spouse of any of the foregoing).  The Committee may impose such limitations and restrictions, in addition to any required limitations or restrictions, as the Committee may determine in its sole discretion.  Any Award granted pursuant to such a delegation shall be subject to all of the provisions of the Plan concerning such Award.

 

(b)                                  Participants in Non-U.S. Jurisdictions . Notwithstanding any provision of the Plan to the contrary, to comply with applicable laws in countries other than the United States in which the Company or any of its Affiliates or Subsidiaries operates or has employees, directors or other service providers from time to time, or to ensure that the Company complies with any applicable requirements of foreign securities exchanges, the Committee, in its sole discretion, shall have the power and authority to: (i) determine which of the Company’s Affiliates or Subsidiaries shall be covered by the Plan; (ii) determine which Eligible Persons outside the United States are eligible to participate in the Plan; (iii) modify the terms and conditions of any Award granted to Eligible Persons outside the United States to comply with applicable foreign laws or listing requirements of any foreign exchange; (iv) establish sub-plans and modify exercise procedures and other terms and procedures, to the extent such actions may be necessary or advisable (any such sub-plans and/or modifications shall be attached to the Plan as appendices), provided , however , that no such sub-plans and/or modifications shall increase the share limitations contained in Section 4(a) below without the approval of the Company’s shareholders (to the extent required by applicable law and listing requirements); and (v) take any action, before or after an Award is granted, that it deems advisable to comply with any applicable governmental regulatory exemptions or approval or listing requirements of any such foreign securities exchange.  For purposes of the Plan, all references to foreign laws, rules, regulations or taxes shall be references to the laws, rules, regulations and taxes of any applicable jurisdiction other than the United States or a political subdivision thereof.

 

SECTION 4.    Shares Available for Awards .

 

(a)                                  Shares Available .  Subject to adjustment as provided in Section 4(c), the number of Shares that may be issued with respect to Awards (including pursuant to the exercise of

 



 

Incentive Stock Options) under the Plan and the Non-Employee Stock Incentive Plan shall be 12,750,000 Ordinary Shares.  To the extent an Award has been or is settled with the delivery of Shares, such Shares shall not be available for issuance under future Awards under the Plan and the Non-Employee Stock Incentive Plan.  If an Award is surrendered, exchanged, forfeited, settled in cash or otherwise lapses, expires, terminates or is canceled without the actual delivery of Shares, including (i) Shares forfeited with respect to Restricted Stock that are not acquired into the Company’s treasury shares or are cancelled, (ii) Shares repurchased by the Company in accordance with Section 6(b) at the same price paid by the Participant; or (iii) the number of Shares withheld or surrendered in payment of any exercise or purchase price of an Award or taxes relating to Awards, then the Shares covered by such Award, to the extent of such surrender, exchange, forfeiture, expiration, lapse, termination, cancellation or payment in cash, shall again be Shares that may be issued with respect to Awards granted under the Plan and the Non-Employee Stock Incentive Plan. Notwithstanding the foregoing provisions, if any such Shares could not again be available for Awards to a particular Covered Employee under applicable law or regulation, such Shares shall be available exclusively for Awards to Participants who are not subject to such limitation.

 

(b)                                  Sources of Shares Deliverable Under Awards .  Any Shares delivered pursuant to an Award may, to the extent permitted by the laws of England and Wales, consist in whole or in part of authorized and unissued Shares, treasury shares or shares acquired by or gifted to the trustees of an employee benefit trust established in connection with the Plan.

 

(c)                                   Anti-dilution Adjustments .  With respect to any “equity restructuring” event (such as a stock dividend, stock split, reverse stock split or similar event with respect to Shares) that could result in an additional compensation expense to the Company pursuant to the provisions of the Financial Accounting Standards Board, Accounting Standards Codification, Topic 718—Stock Compensation, as the same may be amended or superseded from time to time (“ ASC Topic 718 ”), if adjustments to Awards with respect to such event were discretionary, the Committee shall equitably adjust the number and type of Shares (or other securities or property) covered by each outstanding Award and the terms and conditions, including the exercise price and performance criteria (if any), of such Award to equitably reflect such restructuring event. With respect to any other similar event that would not result in an ASC Topic 718 accounting charge if the adjustment to Awards with respect to such event were subject to discretionary action, the Committee shall have complete discretion to adjust Awards in such manner as it deems appropriate with respect to such other event.  In the event the Committee makes any adjustment pursuant to the foregoing provisions of this Section 4(c), the Committee shall make a corresponding and proportionate adjustment to the maximum number and the type of Shares (or other securities or property) with respect to which Awards may be granted under the Plan and the Non-Employee Stock Incentive Plan after such event as provided in Section 4(a) and the individual participant annual grant limits with respect to Awards (other than dollar-denominated Awards) as provided in Section 4(d).  Any such adjustments pursuant to this Section 4(c) shall be evidenced by written addendums to the Plan and Award Agreements prepared by the Company and, with respect to Options, shall be in accordance with the Treasury regulations concerning Incentive Stock Options.

 

(d)                                  Individual Participant Limits .  Subject to adjustment as provided in Section 4(c), the maximum number of Share-denominated Awards that may be granted under the Plan and the

 



 

Non-Employee Stock Incentive Plan to any individual during any calendar year during any part of which this Plan is in effect shall not relate to more than 3,000,000 Ordinary Shares.  The maximum amount of dollar-denominated Awards that may be granted to any individual during any calendar year may not exceed $15,000,000.

 

SECTION 5.    Eligibility .

 

Any Employee shall be eligible to be designated a Participant by the Committee. Awards may also be granted under an Annex or sub-plan to the Plan. Directors and Consultants are not eligible to be granted Awards under the main rules of the Plan, and shall only be eligible to participate in Awards granted under Annex A to the Plan.

 

SECTION 6.    Awards .

 

(a)                                  Options .  Subject to the provisions of the Plan, the Committee shall have the authority to determine Employees to whom Options shall be granted, the number of Shares to be covered by each Option, the exercise price therefor and the conditions and limitations applicable to the exercise of the Option, including the applicable Restricted Period and/or performance objectives, if any, and the following terms and conditions and such additional terms and conditions, as the Committee shall determine, that are not inconsistent with the provisions of the Plan.

 

(i)                                      Exercise Price .  The exercise price per Share purchasable under an Option shall be determined by the Committee at the time the Option is granted; provided , however , that except with respect to a Substitute Award, the exercise price shall not be less than the Fair Market Value per Share on the effective date of such grant, and provided , further , however , that the exercise price of any Option, including a Substitute Award, shall not be lower than the par value per Share on the effective date of such grant.

 

(ii)                                   Time and Method of Exercise .  The Committee shall determine and provide in the Award Agreement the time or times at which an Option may be exercised in whole or in part, and the method or methods by which, and the form or forms (which may include, without limitation, cash, check acceptable to the Company, Shares already-owned by the Participant, a “cashless-broker” exercise (through procedures approved by the Company), other securities or other property, a note (to the extent permitted by applicable law), a withholding or “netting” of Shares from the Option if it is not an Incentive Stock Option, or any combination thereof, having a Fair Market Value on the exercise date equal to the relevant exercise price) in which payment of the exercise price with respect thereto may be made or deemed to have been made.  An Option may not be exercised on or after the earliest of the following to take place:

 

(A)                                the date falling 10 years following grant;

 

(B)                                the expiry of the period of six months following a Change of Control falling within paragraphs c(i) or (ii) of its definition; and

 

(C)                                the expiry of the period during which any Person (or groups of Persons acting in concert) is bound or entitled under Sections 979 to 982 or

 



 

Sections 983 to 985 of the Companies Act 2006 (or similar law of another jurisdiction) to acquire shares of the same class as the Ordinary Shares.

 

(iii)                                Incentive Stock Options .  No Incentive Stock Option may be granted unless or until the requirements of Section 422(b)(i) of the Code has been met.  An Incentive Stock Option may be granted only to an Employee who is an employee of the Company or any parent or subsidiary corporation (as defined in section 424 of the Code) at the time the Option is granted and must be granted within 10 years from the date the Plan was approved by the Board or the stockholders of the Company, whichever is earlier.  To the extent that the aggregate Fair Market Value (determined at the time the respective Incentive Stock Option is granted) of Ordinary Shares with respect to which Incentive Stock Options are exercisable for the first time by an individual during any calendar year under all incentive stock option plans of the Company and its parent and subsidiary corporations exceeds $100,000, or such Options fail to constitute Incentive Stock Options for any reason, such purported Incentive Stock Options shall be treated as Non-Qualified Stock Options.  The Committee shall determine, in accordance with applicable provisions of the Code, Treasury regulations and other administrative pronouncements, which of a Participant’s purported Incentive Stock Options do not constitute Incentive Stock Options and shall notify the Participant of such determination as soon as reasonably practicable after such determination.  No Incentive Stock Option shall be granted to an individual if, at the time the Option is granted, such individual owns stock possessing more than 10% of the total combined voting power of all classes of stock of the Company or of its parent or subsidiary corporation, within the meaning of section 422(b)(6) of the Code, unless (i) at the time such Option is granted the option price is at least 110% of the Fair Market Value of the Ordinary Shares subject to the Option and (ii) such Option by its terms is not exercisable after the expiration of five years from the date of grant.  An Incentive Stock Option shall not be transferable otherwise than by will or the laws of descent and distribution, and shall be exercisable during the Participant’s lifetime only by such Participant or the Participant’s guardian or legal representative.  The terms of any Incentive Stock Option granted under the Plan shall comply and be interpreted consistently in all respects with the provisions of section 422 of the Code, or any successor provision, and any regulations promulgated thereunder.

 

(iv)                               Forfeiture .  Unless otherwise specified in the applicable Award Agreement, upon a Participant’s termination of service with the Company and its Subsidiaries, whether voluntary or involuntary (and including without limitation termination on account of death, disability, or retirement), all such Participant’s Options as to which the Restricted Period has not elapsed as of the date of termination shall be forfeited, and all such Participant’s Options as to which the Restricted Period has elapsed as of the date of termination shall remain exercisable for the period of time set forth in the Award Agreement, after which time any such Options which remain unexercised shall be forfeited. However, the Committee may, when it finds that a waiver would be in the best interests of the Company, waive in whole or in part any or all remaining restrictions with respect to a Participant’s Options.

 



 

(b)                                  Restricted Stock .  The Committee shall have the authority to grant Awards of Restricted Stock to Employees upon such terms and conditions as the Committee may determine, including any provision that is required by Section 6(j)(vi) of this Plan.

 

(i)                                      Terms and Conditions .  Each Restricted Stock Award shall be subject to the fulfillment during the Restricted Period of such conditions, including performance objectives, if any, as the Committee may specify at the date of grant, which conditions may lapse separately or in combination at such times, under such circumstances, in such installments or otherwise, as the Committee may determine. During the Restricted Period, the Participant shall have such rights of ownership in or with respect to the Restricted Stock as set forth in the Award Agreement, subject to Section 6(b)(ii) below concerning dividends.

 

(ii)                                   Dividends .  Unless otherwise specified in the applicable Award Agreement, dividends and distributions made with respect to a share of Restricted Stock shall be held by the Company in a bookkeeping account for the Participant (credited either as cash (without interest) or as Phantom Shares), which account shall be subject to the same vesting and forfeiture restrictions as the share of Restricted Stock with respect to which such dividends and distributions are made.

 

(iii)                                Registration .  Any Restricted Stock may be evidenced in such manner as the Committee shall deem appropriate, including, without limitation, book-entry registration or issuance of a stock certificate or certificates.  In the event any stock certificate is issued in respect of Restricted Stock granted under the Plan, such certificate shall be registered in the name of the Participant and shall bear an appropriate legend referring to the terms, conditions, and restrictions applicable to such Restricted Stock.

 

(iv)                               Forfeiture .  Unless otherwise specified in the applicable Award Agreement with respect to a Permitted Waiver Event, upon a Participant’s termination of service with the Company and its Subsidiaries during an applicable Restricted Period, all Restricted Stock subject to such Restricted Period shall (at the direction of the Committee) be transferred by the Participant to the company or to a person nominated by the Company, in either case, at a cash price per share equal to the price paid by the Participant for such Restricted Stock or such other amount as may be specified in the applicable Award Agreement. Notwithstanding the foregoing, the Committee may, when it finds that a waiver would be in the best interests of the Company, waive in whole or in part any or all remaining forfeiture and other restrictions with respect to such Participant’s Restricted Stock if such termination of service is (x) due to the Participant’s death, disability, or retirement, or (y) an involuntary termination by the Company or Subsidiary other than for “cause,” or a termination by the Participant for a “good reason,” as such terms are defined in the Award Agreement or an employment or severance agreement with (or a plan of) the Company or a Subsidiary, (the foregoing collectively being a “ Permitted Waiver Event ”); provided , however , if the Award is to a Covered Employee and intended to qualify as “performance-based compensation” under section 162(m) of the Code, such waiver may be only upon a termination due to death or disability or a Change of Control of the Company or other event permitted under section 162(m) of the Code.

 



 

(v)                                  Transfer Restrictions .  During the Restricted Period, Restricted Stock will be subject to such limitations on transfer as necessary to comply with section 83 of the Code if section 83 is applicable to such award and the Participant is a U.S. Participant.

 

(c)                                   Performance Awards .  The Committee shall have the authority to determine the Employees who shall receive a Performance Award, pursuant to which the right of such individual to receive a grant, or to exercise or receive settlement, of any Award available under this Plan, and the timing thereof, may be subject to performance objectives as specified by the Committee.  In addition, a Performance Award may be denominated as a cash amount at the time of grant and confer on the Participant the right to receive payment upon the achievement of such performance objectives during such Restricted Periods as the Committee shall establish with respect to the Award.

 

(i)                                      Terms and Conditions .  Subject to the terms of the Plan (including, without limitation, Section 6(j)(vi) of the Plan) and any applicable Award Agreement, the Committee shall determine the performance objectives to be achieved during the applicable Restricted Period, the length of the Restricted Period, the number of Shares or the amount of cash subject to any Performance Award and the amount of any payment to be made upon achievement of the performance objectives applicable to any Performance Award.

 

(ii)                                   Performance Awards to Covered Employees .  If the Committee determines that a Performance Award to be granted to an Employee who is designated by the Committee as likely to be a Covered Employee should qualify as “performance-based compensation” for purposes of section 162(m) of the Code, the performance objectives for such Performance Award shall consist of one or more performance criteria set forth in Section 6(j)(viii) of this Plan. Performance objectives applicable to such a Performance Award shall be objective and shall otherwise meet the requirements of section 162(m) of the Code, including the requirement that the level or levels of performance targeted by the Committee resulting in the achievement of performance objectives be “substantially uncertain” at the time the Committee actually establishes the performance objectives.  Performance objectives shall be established not later than 90 days after the beginning of any Restricted Period applicable to such Performance Awards, or at such other date as may be required or permitted for “performance-based compensation” under section 162(m) of the Code.  The Committee may establish a Performance Award pool, which shall be an unfunded pool based upon the achievement of performance objectives related to one or more of the performance criteria set forth in Section 6(j)(viii) hereof, for purposes of measuring the performance of the Company in connection with such Performance Awards.  All determinations by the Committee with respect to Awards that are intended to constitute “performance-based compensation” within the meaning of section 162(m) of the Code shall be made in writing.  The Committee may not delegate any responsibility relating to such Performance Awards.

 

(iii)                                Payment of Performance Awards .  Performance Awards are earned as of the date the Committee determines the applicable performance objectives have been satisfied.  Performance Awards may be paid (in cash and/or in Shares, in the sole discretion of the Committee) in a lump sum or in installments promptly as of or following

 



 

the date the Committee determines the applicable performance objectives have been satisfied, in accordance with procedures established by the Committee with respect to such Award.  The Committee may exercise its discretion to reduce or increase the amounts payable under any Performance Awards, except with respect to Performance Awards to Covered Employees that are intended to qualify as “performance-based compensation” under section 162(m) of the Code, in which case, the Committee may, in its discretion, reduce the amount of settlement otherwise to be made in connection with such Performance Awards but may not exercise discretion to increase any such amount.

 

(iv)                               Forfeiture .  Unless otherwise specified in the applicable Award Agreement with respect to a Permitted Waiver Event, upon a Participant’s termination of service with the Company and its Subsidiaries during the applicable Restricted Period, whether voluntary or involuntary (and including without limitation termination on account of death, disability, or retirement), all Performance Awards shall be forfeited by the Participant.  However, the Committee may, when it finds that a waiver upon a Permitted Waiver Event would be in the best interests of the Company, waive in whole or in part any or all remaining restrictions with respect to such Participant’s Performance Award; provided , however , if the Award to a Covered Employee is intended to qualify as “performance-based compensation” under section 162(m) of the Code, such waiver may be only upon a termination due to death or disability or a Change of Control of the Company or other event permitted under section 162(m) of the Code.

 

(d)                                  Phantom Shares .  The Committee shall have the authority to grant Awards of Phantom Shares to Employees upon such terms and conditions as the Committee may determine, including any provision that is required by Section 6(j)(vi) of this Plan.

 

(i)                                      Terms and Conditions .  Each Phantom Share Award shall constitute an agreement by the Company to issue or transfer a specified number of Shares or pay an amount of cash equal to the Fair Market Value of a specified number of Shares, or a combination thereof, to the Participant in the future, subject to the fulfillment during the Restricted Period of such conditions, including performance objectives, if any, as the Committee may specify at the date of grant.  The Participant shall not have any rights of ownership in or with respect to the Phantom Shares. Phantom Shares shall be earned upon the lapse of the Restricted Period and shall be settled upon expiration of a specified deferral period (which may or may not be coterminous with the Restricted Period).  The Committee shall cause the corresponding number of Shares to be issued or transferred, or shall cause the corresponding amount to be paid promptly thereafter. The Company may also grant Phantom Share Awards in the form of “restricted stock unit” awards.

 

(ii)                                   Dividend Equivalents .  Unless otherwise specified in the applicable Award Agreement, with respect to a Phantom Share, the economic equivalent of all dividends and other distributions paid on a Share during the Restricted Period shall be credited by the Company in a cash bookkeeping account (without interest) or in additional Phantom Shares, which account shall be subject to the same vesting and forfeiture restrictions as the related Phantom Share.

 



 

(iii)                                Forfeiture .  Unless otherwise provided in an applicable Award Agreement with respect to a Permitted Waiver Event, upon a Participant’s termination of service with the Company and its Subsidiaries during the applicable Restricted Period, all Phantom Shares subject to such Restricted Period shall be forfeited by the Participant.  Notwithstanding the foregoing, the Committee may, when it finds that a waiver upon a Permitted Waiver Event would be in the best interests of the Company, waive in whole or in part any or all remaining forfeiture and other restrictions with respect to such Participant’s Phantom Shares; provided , however , if the Award to a Covered Employee is intended to qualify as “performance-based compensation” under section 162(m) of the Code, such waiver may be only upon a termination due to death or disability or a Change of Control of the Company or such other event permitted by section 162(m) of the Code.

 

(e)                                   SARs .  The Committee shall have the authority to determine the Employees to whom SARs shall be granted, the number of SARs to be granted, the exercise price and the conditions and limitations applicable to the exercise of the SAR, including the applicable Restricted Period and/or performance objectives, if any, and the following terms and conditions and such additional terms and conditions, as the Committee shall determine, that are not inconsistent with the provisions of the Plan (including Section 6(j)(vi) of the Plan).  SARs may be granted in tandem with or separately from an Option.

 

(i)                                      Exercise Price .  The exercise price per SAR shall be determined by the Committee at the time the SAR is granted, but, except with respect to a Substitute Award, shall not be less than the Fair Market Value per Share on the effective date of such grant.

 

(ii)                                   Time of Exercise .  The Committee shall determine and provide in the Award Agreement the time or times at which an SAR may be exercised in whole or in part.  The maximum term for an SAR shall be 10 years.

 

(iii)                                Method of Payment .  Unless provided in the Award Agreement, the Committee shall determine, in its discretion, whether the SAR shall be paid in cash, shares of Ordinary Shares or a combination thereof.

 

(iv)                               Forfeiture .  Unless otherwise provided in an applicable Award Agreement with respect to a Permitted Waiver Event, upon a Participant’s termination of service with the Company and its Subsidiaries, whether voluntary or involuntary (and including without limitation termination on account of death, disability, or retirement), all such Participant’s SARs as to which the Restricted Period has not elapsed as of the date of termination shall be forfeited, and all such Participant’s SARs as to which the Restricted Period has elapsed as of the date of termination shall remain exercisable for the period of time set forth in the Award Agreement, after which time any such SARs which remain unexercised shall be forfeited.  However, the Committee may, when it finds that a waiver would be in the best interests of the Company, waive in whole or in part any or all remaining restrictions with respect to a Participant’s SARs.

 

(f)                                    Bonus Stock .  The Committee is authorized to grant Ordinary Shares as a bonus, or to grant Ordinary Shares or other Awards in lieu of obligations to pay cash or deliver other property under this Plan or under other plans or compensatory arrangements, provided that, in

 



 

the case of Participants subject to section 16 of the Exchange Act, the amount of such grants remains within the discretion of the Committee to the extent necessary to ensure that acquisitions of Bonus Stock or other Awards are exempt from liability under section 16(b) of the Exchange Act.  Bonus Stock or other Awards granted hereunder shall be subject to such other terms as shall be determined by the Committee, including Section 6(j)(vi) of the Plan.  In the case of any grant of Ordinary Shares to an officer of the Company or any of its Subsidiaries in lieu of salary or other cash compensation, the number of shares granted in place of such compensation shall be reasonable, as determined by the Committee.

 

(g)                                   Dividend Equivalents .  The Committee is authorized to grant Dividend Equivalents to an Employees entitling the Participant to receive cash, Ordinary Shares, other Awards, or other property equal in value to dividends paid with respect to a specified number of shares of Ordinary Shares, or other periodic payments.  Dividend Equivalents may be awarded on a free-standing basis or in connection with another Award.  The Committee may provide that Dividend Equivalents shall be paid or distributed when accrued or shall be deemed to have been reinvested in additional Ordinary Shares, Awards, or other investment vehicles, and subject to such restrictions on transferability and risks of forfeiture, as the Committee may specify.

 

(h)                                  Substitute Awards .  Awards may be granted under the Plan in substitution of similar awards held by individuals who become Employees as a result of a merger, consolidation or acquisition by the Company or a Subsidiary of another entity or the assets of another entity.  Such Substitute Awards, if an Option or SAR, may have an exercise price less than the Fair Market Value of a Share on the date of such substitution, to the extent necessary to preserve the value of the award, and will become exercisable upon the lapse of the Restricted Period.  Such Substitute Awards, if Restricted Stock or Phantom Shares, shall be earned by the Participant, and promptly issued, transferred, or paid, upon the lapse of the Restricted Period or other specified deferral period.

 

(i)                                      Other Stock-Based Award .  The Committee may also grant to Employees an Other Stock-Based Award, which shall consist of a right which is an Award denominated or payable in, valued in whole or in part by reference to, or otherwise based on or related to, Shares as is deemed by the Committee to be consistent with the purposes of the Plan, which may include convertible or exchangeable debt securities, other rights convertible or exchangeable into Ordinary Shares, purchase rights for Ordinary Shares, Awards with value and payment contingent upon performance of the Company or any other factors designated by the Committee, and Awards valued by reference to the book value of Ordinary Shares or the value of securities of or the performance of specified Subsidiaries of the Company.  Subject to the terms of the Plan, the Committee shall determine the terms and conditions, including any vesting terms and/or performance objectives, of any such Other Stock-Based Award.  Cash awards, as an element of or supplemental to any other Award under this Plan, may also be granted pursuant to this Section 6(i).

 

(j)                                     General .

 

(i)                                      Award Agreements.   An Award Agreement may be delivered to each Participant to whom an Award is granted.  The terms of the Award Agreement shall be as determined by the Committee, so long as they are consistent with the Plan.

 



 

(ii)                                   Awards May Be Granted Separately or Together .  Subject to Section 7(a), Awards may, in the discretion of the Committee, be granted either alone or in addition to, or in tandem with, or in substitution or exchange for, any other Award granted under the Plan or any award granted under any other plan of the Company or any Subsidiary.  Such additional, tandem and substitute or exchanged Awards may be granted at any time.  If an Award is granted in substitution or exchange for another Award, the Committee shall require the surrender of such other Award in consideration for the grant of the new Award.

 

(iii)                                Limits on Transfer of Awards .

 

(A)                                Except as provided in paragraph (C) below, each Award, and each right under any Award, shall be exercisable only by the Participant during the Participant’s lifetime, or if permissible under applicable law, by the Participant’s guardian or legal representative as determined by the Committee.

 

(B)                                Except as provided in paragraph (C) below or in a qualified domestic relations order, no Award and no right under any such Award may be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by a Participant in any manner (whether for value or other consideration) other than by will or by the laws of descent and distribution, and any such purported prohibited assignment, alienation, pledge, attachment, sale, transfer or encumbrance shall be void and unenforceable against the Company or any Subsidiary.

 

(C)                                To the extent specifically approved in writing by the Committee, an Award (other than an Incentive Stock Option) may be transferred to immediate family members or related family trusts, limited partnerships or similar family entities on such terms and conditions as the Committee may establish or approve.

 

(iv)                               Terms of Awards, Minimum Vesting .  The term of each Award shall be for such period as may be determined by the Committee, provided the term of an Option and SAR shall be limited as provided in Sections 6(a)(ii) and (iii) and Section 6(e)(ii), respectively.  The minimum vesting or forfeiture restriction period with respect to Awards that are Options, SARs or other Awards for which a Participant pays (or the value or amount payable under the Award is reduced by) an amount equal to or exceeding the Fair Market Value of the Stock determined as of the date of grant shall be one year, subject to the Committee’s authority pursuant to Sections 6(a)(iv), 6(b)(iv), 6(c)(iv), 6(d)(iii), 6(e)(iv), 6(j)(x), and 7 of the Plan in the event of a Participant’s termination of employment or service or upon the occurrence of certain events; provided , that the foregoing one-year minimum vesting or forfeiture restriction period shall not apply to the grant of any such Awards with respect to an aggregate number of Shares that does not exceed 5% of the total share pool specified in Section 4(a)(1) hereof.

 

(v)                                  Share Certificates .  All certificates for Shares or other securities of the Company or any Subsidiary delivered under the Plan pursuant to any Award or the exercise thereof shall be subject to such stop transfer orders and other restrictions as the

 



 

Committee may deem advisable under the Plan or the rules, regulations, and other requirements of the SEC, any stock exchange upon which such Shares or other securities are then listed, and any applicable federal or state laws, and the Committee may cause a legend or legends to be put on any such certificates to make appropriate reference to such restrictions.

 

(vi)                               Consideration for Awards .  Awards may be granted for no cash consideration or for such consideration as the Committee determines, including, without limitation, such minimal cash consideration as may be required by applicable law or regulation. In the event that the Committee determines that an applicable law or regulation requires a Participant to provide consideration to the Company in connection with the grant, vesting or settlement of an Award, the Award Agreement shall set forth the terms and conditions of such consideration required of the Participant, which shall not be greater than the par value per Share underlying the Award. Such consideration shall be paid by the Participant in cash, or the Company may deduct the applicable amount from other cash compensation owed to the Participant.

 

(vii)                            Delivery of Shares or other Securities and Payment by Participant of Consideration .  No Shares or other securities shall be delivered pursuant to any Award until payment in full of any amount required to be paid pursuant to the Plan or the applicable Award Agreement (including, without limitation, any exercise price or tax withholding) is received by the Company.  Such payment may be made by such method or methods and in such form or forms as the Committee shall determine, including, without limitation, cash, Shares, other securities, other Awards or other property, withholding of Shares, cashless exercise with simultaneous sale, or any combination thereof, provided that the combined value, as determined by the Committee, of all cash and cash equivalents and the Fair Market Value of any such Shares or other property so tendered to the Company, as of the date of such tender, is at least equal to the full amount required to be paid pursuant to the Plan or the applicable Award Agreement to the Company.

 

(viii)                         Performance Criteria . The Committee shall establish performance goals applicable to those Awards that are intended by the Committee to qualify as “performance-based compensation” as described in section 162(m)(4)(C) of the Code, where such goals are required in order to so comply.  Such performance goals shall be established based upon one or more of the following performance criteria: (A) earnings per share; (B) revenues; (C) cash flow; (D) cash flow returns; (E) free cash flow; (F) operating cash flow; (G) net cash flow; (H) working capital; (I) return on net assets; (J) return on assets; (K) return on investment; (L) return on capital; (M) return on equity; (N) economic value added; (O) gross margin; (P) contribution margin; (Q) operating margin; (R) net income; (S) pretax earnings; (T) pretax earnings before interest, depreciation and amortization (“ EBITDA ”); (U) pretax earnings after interest expense and before incentives, service fees, and extraordinary or special items; (V) operating income; (W) total stockholder return; (X) Share price; (Y) book value; (Z) enterprise value; (AA) debt reduction; (BB) costs or expenses; (CC) objective safety measures (including recordable incident rates and lost time incident rates); (DD) objective environmental measures (including gas releases); (EE) sales; (FF) market share; (GG)

 



 

objective productivity measures; (HH) revenue or earnings per employee; (II) objective measures related to implementation or completion of significant projects or processes; (JJ) significant and objective strategic business criteria, consisting of one or more objectives based on meeting specified market penetration, geographic business expansion, customer satisfaction, employee satisfaction, human resources management, supervision of litigation, information technology, and goals relating to acquisitions, divestitures, joint ventures and similar transactions, and budget comparisons; and (KK) significant and objective individual criteria, including any of the foregoing performance goals, the implementation of policies and plans, the negotiation of transactions, the development of long-term business goals, formation of joint ventures, research or development collaborations, and the completion of other corporation transactions.  Such goals (other than stock price and earnings per share) may be expressed in terms of the Company, a Subsidiary, a parent, department, division, business unit, or product, as determined by the Committee, and may be absolute, relative to one or more other companies, or relative to one or more indexes.  A performance goal need not be based upon an increase or positive result under a business criterion and may, for example, be based upon limiting economic losses or maintaining the status quo.  Which factor or factors to be used with respect to any grant, and the weight to be accorded thereto if more than one factor is used, shall be determined by the Committee, in its sole discretion, at the time of grant.  To the extent consistent with section 162(m) of the Code with respect to Awards intended to constitute “performance-based compensation,” the Committee (A) shall appropriately adjust any evaluation of performance under a performance goal to eliminate the effects of charges for restructurings, discontinued operations, extraordinary items and all items of gain, loss or expense determined to be extraordinary or unusual in nature or related to the disposal of a segment of a business or related to a change in accounting principle, all as determined in accordance with applicable accounting provisions, as well as the cumulative effect of accounting changes, in each case as determined in accordance with generally accepted accounting principles or identified in the Company’s financial statements or notes to the financial statements; and (B) may appropriately adjust any evaluation of performance under a performance goal to exclude any of the following that occurs during the applicable performance period: (1) asset write-downs, (2) litigation, claims, judgments or settlements, (3) the effect of changes in tax law or other such laws or provisions affecting reported results, (4) accruals for reorganization and restructuring programs, or (5) accruals of any amounts for payment under this Plan or any other compensation arrangement maintained by the Company.

 

(ix)                               Change of Control .  Unless otherwise provided for in an Award Agreement and subject to Section 6(j)(x) below, upon a Change of Control, all then-outstanding Awards shall vest in accordance with Section 6(j)(ix)(A) below, except to the extent that another Award meeting the requirements of Section 6(j)(ix)(B) (a “ Replacement Award ”) is provided to the Participant to replace such Award (the “ Replaced Award ”).

 

(A)                                Change of Control Vesting .  Upon a Change of Control, a Participant’s then-outstanding Awards that are not vested and (1) as to which vesting depends solely on the satisfaction of a service obligation by the Participant to the Company or any Subsidiary shall become fully vested; or (2) as

 



 

to which vesting depends upon the satisfaction of one or more performance objectives shall immediately vest and all performance objectives shall be calculated based on either, as determined by the Committee in its sole discretion, (a) actual performance against the stated performance objectives as of the date of the Change of Control or (b) deemed target performance pro-rated based on the number of days elapsed in the applicable performance period until the date of the Change of Control.

 

(B)                                Replacement Awards .  An Award shall meet the conditions of this Section 6(j)(ix)(B) (and hence qualify as a Replacement Award) if: (1) it is of the same type as the Replaced Award (or, it is of a different type than the Replaced Award, provided that the Committee, as constituted immediately prior to the Change of Control, finds such type acceptable); (2) it has an intrinsic value at least equal to the value of the Replaced Award; (3) it relates to publicly traded equity securities of the Company or its successor in the Change of Control or another entity that is affiliated with the Company or its successor following the Change of Control; (4) its terms and conditions comply with the terms of this Section 6(j)(ix)(B) set forth below; and (5) its other terms and conditions are not less favorable to the Participant than the terms and conditions of the Replaced Award (including the provisions that would apply in the event of a subsequent Change of Control). Without limiting the generality of the foregoing, the Replacement Award may take the form of a continuation of the Replaced Award if the requirements of the preceding sentence are satisfied. The determination of whether the conditions of this Section 6(j)(ix)(B) are satisfied shall be made by the Committee, as constituted immediately before the Change of Control, in its sole discretion. Without limiting the generality of the foregoing, the Committee may determine the value of Awards and Replacement Awards that are stock options or stock appreciation rights by reference to either their intrinsic value or their fair value. Upon an involuntary termination of service of a Participant occurring at any time following the Change of Control, other than for cause, all Replacement Awards held by the Participant (a) as to which vesting depends solely on the satisfaction of a service obligation by the Participant to the Company or any Subsidiary shall become fully vested; or (b) as to which vesting depends upon the satisfaction of one or more performance objectives shall immediately vest and all performance objectives shall be calculated based on either, as determined by the Committee in its sole discretion, (i) actual performance against the stated performance objectives as of the date of the Change of Control or (ii) deemed target performance pro-rated based on the number of days elapsed in the applicable performance period until the date of the Change of Control.

 

(x)                                  Unusual Transactions or Events .  In the event of any distribution (whether in the form of cash, Shares, other securities, or other property), recapitalization, reorganization, merger, spin-off, combination, repurchase, or exchange of Shares or other securities of the Company, or other corporate transaction or event or any unusual or nonrecurring transactions or events (including without limitation a Change of Control) affecting the Company, any affiliate of the Company, or the financial statements of the

 



 

Company or any affiliate, or of changes in applicable laws, regulations or accounting principles, and whenever the Committee determines that action is appropriate in order to prevent the dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan or with respect to any Award under the Plan, to facilitate such transactions or events or to give effect to such changes in laws, regulations or principles, the Committee, in its sole discretion and on such terms and conditions as it deems appropriate, may take any one or more of the following actions (unless the discretion to take such action would cause an Award to a Covered Employee to not qualify as “performance-based compensation” under section 162(m) of the Code if intended to so qualify):

 

(A)                                To provide for either (i) the termination of any such Award in exchange for an amount of cash, if any, equal to the amount that would have been attained upon the exercise of such Award or realization of the Participant’s rights (and, for the avoidance of doubt, if as of the date of the occurrence of such transaction or event the Committee determines in good faith that no amount would have been attained upon the exercise of such Award or realization of the Participant’s rights, then such Award may be terminated by the Company without payment) or (ii) the replacement of such Award with other rights or property of substantially equivalent value selected by the Committee in its sole discretion;

 

(B)                                To provide that such Award be assumed by the successor or survivor corporation, or a parent or subsidiary thereof, or shall be substituted for by similar options, rights or awards covering the stock of the successor or survivor corporation, or a parent or subsidiary thereof, with appropriate adjustments as to the number and kind of shares and prices;

 

(C)                                To make adjustments in the number and type of shares of Ordinary Shares (or other securities or property) subject to outstanding Awards, and in the number and kind of outstanding Awards and/or in the terms and conditions of (including the grant or exercise price), and the criteria included in, outstanding Awards and Awards which may be granted in the future, provided that, with respect to outstanding Awards such adjustments shall result in substantially equivalent value to the affected Participants; and

 

(D)                                To provide that such Award shall be exercisable (within such period of time as the Committee may specify, for example, but not by way of limitation, in connection with a Change of Control, the Committee may specify that unexercised, vested Options or SARs terminate upon consummation of the Change of Control), or payable or fully vested with respect to all Shares covered thereby, notwithstanding anything to the contrary in the Plan or the applicable Award Agreement.

 

Notwithstanding the foregoing, with respect to an above event that is an “equity restructuring” event that would be subject to a compensation expense pursuant ASC Topic 718, the provisions in Section 4(c) shall control to the extent they are in conflict with the discretionary provisions of this Section 6(j)(x).

 



 

SECTION 7.    Amendment and Termination .

 

Except to the extent prohibited by applicable law:

 

(a)                                  Amendments to the Plan .  The Board or the Committee may amend, alter, suspend, discontinue, or terminate the Plan without the consent of any stockholder, Participant, other holder or beneficiary of an Award, or other Person (but stockholder approval will be required to the extent required by applicable law or listing requirements); provided , however , notwithstanding any other provision of the Plan or any Award Agreement, without the approval of the stockholders of the Company no such amendment, alteration, suspension, discontinuation, or termination shall be made that would (i) increase the total number of Shares that may be issued under Awards (including ISOs) granted under the Plan, except as provided in Sections 4(c) and 6(j)(x) of the Plan, (ii) increase the class of individuals eligible to receive Awards under the Plan or (iii) materially increase the benefits available under the Plan.  In addition, except in connection with a corporate transaction involving the Company (including, without limitation, any stock dividend, stock split, extraordinary cash dividend, recapitalization, reorganization, merger, consolidation, split-up, spin-off, combination, or exchange of shares) and except as provided in Section 6(j)(x) of this Plan, the terms of outstanding Awards may not be amended to reduce the exercise price of outstanding Options or SARs or cancel outstanding Options or SARs in exchange for cash, other Awards or Options or SARs with an exercise price that is less than the exercise price of the original Options or SARs without stockholder approval.  Notwithstanding the foregoing, without the consent of an affected Participant, no Board or Committee action pursuant to this Section 7(a) may materially or adversely affect the rights of such Participant under any previously granted and outstanding Award.

 

(b)                                  Amendments to Awards .  Subject to Section 7(a) above and any express restrictions in the Plan concerning the acceleration of the vesting of Awards, the Committee may accelerate or waive any conditions or rights under, amend any terms of, or alter any Award theretofore granted, provided that, subject to Section 7(c) below, no change in any Award shall materially adversely affect the rights of a Participant under the Award without the consent of such Participant.  Notwithstanding the foregoing, and subject to Section 7(c) below, (i) with respect to any Award to a Covered Employee that is intended to qualify as “performance-based compensation” under section 162(m) of the Code, no adjustment shall be authorized to the extent such adjustment would cause the Award to fail to so qualify, and (ii) no acceleration of the terms of payment of any Award that provides for a deferral of compensation under the Non-Qualified Deferred Compensation Rules shall be authorized if such acceleration would subject a Participant to additional taxes under the Non-Qualified Deferred Compensation Rules.

 

(c)                                   Amendments to Preserve or Achieve Tax Treatment and Comply with Law .  Notwithstanding Section 7(b) above, the Board or the Committee may amend or alter any terms of any outstanding Award as it deems advisable in order to preserve or achieve its intended tax treatment or to comply with applicable law, provided that such amendments or alterations shall result in substantially equivalent value to the affected Participants.

 



 

(d)                                  Substantially Equivalent Value .  With respect to amendments, alterations, or adjustments of any Award, “substantially equivalent value” may be determined without consideration of any tax consequences of the amendment, alteration, or adjustment.

 

SECTION 8.    General Provisions .

 

(a)                                  No rights to Awards .  No Participant or other Person shall have any claim to be granted any Award, there is no obligation for uniformity of treatment of Participants, or holders or beneficiaries of Awards and the terms and conditions of Awards need not be the same with respect to each recipient.

 

(b)                                  Tax Matters .

 

(i)                                      The Company or any Subsidiary are, to the extent permitted by applicable law, authorized to withhold from any Award, from any payment of cash due or issuance or transfer of Shares made under any Award or from any compensation or other amount owing to a Participant the amount (in cash, Shares, or other property) equal to any applicable taxes for which the Company or Subsidiary is or may be held liable (or which the Company or Subsidiary, as applicable, reasonably believes it is or may be held liable) in respect of the Award, its exercise, the lapse of restrictions thereon, or any payment or transfer under the Award and to take such other action as may be necessary in the opinion of the Company or Subsidiary to satisfy all of its obligations for the payment of such taxes.  In addition, the Committee may provide, in an Award Agreement, that the Participant may direct the Company to satisfy such Participant’s tax withholding obligations through the withholding of Shares otherwise to be acquired upon the exercise or payment of such Award; provided , that, in such case, the number of Shares that shall be so withheld shall be limited to the number of Shares having an aggregate Fair Market Value on the date of withholding equal to the aggregate amount of such tax withholding obligations determined based on an amount that is up to the applicable maximum statutory tax withholding requirements; provided , that the exercise of such discretion by the Committee would not cause an Award otherwise classified as an equity award under ASC Topic 718 to be classified as a liability award under ASC Topic 718.

 

(ii)                                   To the extent permitted by applicable law, the Committee may upon grant of an Award specify that a U.K. Participant will be required as a condition of exercise or vesting at or before the time of exercise or vesting of the Award to enter into an agreement with the Company or any of its Affiliates, as applicable, to allow the Company or any of its Affiliates, as applicable, to recover any applicable Class 1 (secondary) employer’s National Insurance contributions liability relating to the exercise or vesting of the Award or to enter into a joint election with the Company or any of its Affiliates, as applicable, that such National Insurance contributions liability shall be borne by the Participant.

 

(iii)                                The Committee may upon grant of an Award direct that a Participant will be required as a condition of exercise or vesting at or before the time of exercise or vesting of the Award to enter into such tax elections, in such manner and in such time periods, as the Company or relevant Subsidiary may reasonably require.

 



 

(iv)                               Notwithstanding any provision of this Plan, each Participant is solely responsible and liable for the satisfaction of all taxes and penalties of any kind and with respect to any tax jurisdiction that may be imposed on or for the account of such Participant in connection with the Plan.

 

(c)                                   No Right to Employment or Retention .  The grant of an Award shall not be construed as giving a Participant the right to be retained in the employ of the Company or any Subsidiary or under any other service contract with the Company or any Subsidiary, or to remain on the Board.  Further, the Company or a Subsidiary may at any time dismiss a Participant from employment or terminate any contractual agreement or relationship with any Consultant, free from any liability or any claim under the Plan, unless otherwise expressly provided in the Plan, in any Award Agreement or any other agreement or contract between the Company or a Subsidiary and the affected Participant.  If a Participant’s employer ceases to be a Subsidiary, such Participant’s Award or Awards shall continue in full force and effect as if the Participant’s employer were still a Subsidiary, unless and until the Committee, within its discretion, adjusts the Participant’s Award or Awards in any of the manners described in Section 6(j)(x)(A) through (D).

 

(d)                                  Governing Law .  The validity, construction, and effect of the Plan and any rules and regulations relating to the Plan shall be determined in accordance with the laws of the State of Delaware and applicable federal law, without application of the conflicts of law principles thereof.

 

(e)                                   Severability .  If any provision of the Plan or any Award is or becomes or is deemed to be invalid, illegal, or unenforceable in any jurisdiction or as to any Person or Award, or would disqualify the Plan or any Award under any law deemed applicable by the Committee, such provision shall be construed or deemed amended to conform to the applicable laws, or if it cannot be construed or deemed amended without, in the determination of the Committee, materially altering the intent of the Plan or the Award, such provision shall be stricken as to such jurisdiction, Person or Award and the remainder of the Plan and any such Award shall remain in full force and effect.  If such amendment or striking of such provision adversely affects the value of the Award, the Committee shall cause appropriate action to be taken to provide the affected Participant with substantially equivalent value to the Award in question.

 

(f)                                    Other Laws .  The Committee may refuse to issue or transfer any Shares or other consideration under an Award, permit the exercise of an Award and/or the satisfaction of its tax withholding obligation in the manner elected by the Participant, holder or beneficiary if, acting in its sole discretion, it determines that the issuance or transfer of such Shares or such other consideration, the manner of exercise or satisfaction of the tax withholding obligation might violate any applicable law or regulation, including without limitation, the Sarbanes-Oxley Act, or entitle the Company to recover the same under section 16(b) of the Exchange Act, and any payment tendered to the Company by a Participant, other holder or beneficiary in connection with the exercise of such Award shall be promptly refunded or refused, as the case may be, to the relevant Participant, holder or beneficiary.  It is the intent of the Company that the grant of any Awards to or other transaction by a Participant who is subject to section 16 of the Exchange Act shall be exempt from such section pursuant to an applicable exemption (except for transactions acknowledged in writing to be non-exempt by such Participant) and, if any provision of this Plan

 



 

or any Award Agreement does not comply with the requirements of Rule 16b-3 as then applicable to any such transaction, such provision shall be construed or deemed amended to the extent necessary to conform to the applicable requirements of Rule 16b-3 so that such Participant shall avoid liability under section 16(b) of the Exchange Act.

 

(g)                                   No Trust or Fund Created .  Neither the Plan nor any Award shall create or be construed to create a trust or separate fund of any kind or a fiduciary relationship between the Company or any Subsidiary and a Participant or any other Person.  To the extent that any Person acquires a right to receive payments from the Company or any Subsidiary pursuant to an Award, such right shall be no greater than the right of any general unsecured creditor of the Company or any Subsidiary. This Plan shall not constitute an “employee benefit plan” for purposes of section 3(3) of the Employee Retirement Income Security Act of 1974, as amended.

 

(h)                                  Section 409A .  With respect to any Award that is subject to section 409A of the Code, notwithstanding anything in the Plan or the Award Agreement to the contrary such Award shall be construed as necessary to comply with the Non-Qualified Deferred Compensation Rules, including, but not limited to, (i) compensation under such Award may not be distributed earlier than as permitted in section 409A(2) of the Code, (2) the time or schedule of payment of such Award may not be accelerated except as provided in the Treasury regulations under section 409A, and (3) no compensation under such Award may be deferred at the Participant’s election or by the Company except as permitted by Code section 409A. Notwithstanding the preceding sentence or any provision in the Plan or an Award Agreement to the contrary, in the event that a “specified employee” (as defined under the Non-Qualified Deferred Compensation Rules) becomes entitled to a payment under an Award that would be subject to additional taxes and interest under the Nonqualified Deferred Compensation Rules if the Participant’s receipt of such payment or benefits is not delayed until the earlier of (A) the date of the Participant’s death, or (B) the date that is six months after the Participant’s “separation from service,” as defined under the Nonqualified Deferred Compensation Rules (such date, the “ Section 409A Payment Date ”), then such payment or benefit shall not be provided to the Participant until the Section 409A Payment Date.  Any amounts subject to the preceding sentence that would otherwise be payable prior to the Section 409A Payment Date will be aggregated and paid in a lump sum without interest on the Section 409A Payment Date.

 

(i)                                      No Fractional Shares .  No fractional Shares shall be issued or delivered pursuant to the Plan or any Award, and the Committee shall determine whether cash, other securities, or other property shall be paid or transferred in lieu of any fractional Shares or whether such fractional Shares or any rights thereto shall be cancelled, terminated, or otherwise eliminated.

 

(j)                                     Headings .  Headings are given to the Section and subsections of the Plan solely as a convenience to facilitate reference.  Such headings shall not be deemed in any way material or relevant to the construction or interpretation of the Plan or any provision thereof.

 

(k)                                  Undertakings of Certain Subsidiaries .  The Subsidiaries who otherwise agree to the terms of the Plan shall, upon request of the Company, fund the cash portion of any Award for a Participant who is an Employee or Consultant of such Subsidiary.

 



 

(l)                                      Clawback .  This Plan is subject to any written clawback policies the Company, with the approval of the Board, may adopt.  Any such policy may subject a Participant’s rights and benefits under this Plan to reduction, cancellation, forfeiture or recoupment if certain specified events or wrongful conduct occur, including but not limited to an accounting restatement due to the Company’s material noncompliance with financial reporting regulations or other events or wrongful conduct specified in any such clawback policy, adopted to conform to the Dodd-Frank Wall Street Reform and Consumer Protection Act and rules promulgated thereunder by the SEC, and that the Company determines should apply to this Plan.

 

(m)                              Establishment of Sub-Plans .  The Committee may from time to time establish one or more sub-plans under the Plan for purposes of satisfying applicable blue sky, securities or tax laws of various jurisdictions. The Committee will establish such sub-plans by adopting supplements or appendices to the Plan setting forth (i) such limitations on the Committee’s discretion under the Plan as it deems necessary or desirable and (ii) such additional terms and conditions not otherwise inconsistent with the Plan as it deems necessary or desirable. All such supplements or appendices so established will be deemed to be part of the Plan, but each supplement or appendix will apply only to Participants within the affected jurisdiction (as determined by the Committee).

 

SECTION 9.    Data Protection .

 

(a)                                  The Company and the Committee may process certain Personal Data (whether provided in any documents that the Participant completes in order to participate in the Plan or sourced from the Participant’s employment with the Company or any Subsidiaries) about Participants in connection with the Plan.  For the purpose of this Section 9, references to the “Company” shall include any Subsidiary and/or Company Affiliate that employs the Participant from time to time).  This Section 9 sets out:

 

(i)                                      the Personal Data that the Company and the Committee will hold; and

 

(ii)                                   the purposes for which the Company and the Committee will hold and use that Personal Data.

 

(b)                                  A Participant shall be required to disclose Personal Data in order to receive an Award.  Disclosure may occur pursuant to an Award Agreement or in connection with the administrative processes used by the Company in order to populate the Award Agreement and administer the Award.  If a Participant does not disclose the Personal Data which is required by the Company or the Committee in order to comply with the Plan, the Company and the Committee may not be able to grant an Award to the Participant.

 

(c)                                   The Company and the Committee may collect, use and process Personal Data about a Participant in order to administer or otherwise give effect to the Plan including for the following purposes:

 

(i)                                      to correspond with the Participant and discuss the Plan with the Participant;

 



 

(ii)                                   to carry out the Participant’s obligations arising from any contracts entered into between the Participant, the Committee and/or the Company;

 

(iii)                                holding, administering and maintaining Participant records, including, but not limited to, details of the Participant’s Awards;

 

(iv)                               to support and assist any third parties with whom the Committee or the Company may share the Personal Data of Participants to manage and administer the Plan;

 

(v)                                  to manage and administer the relationship between the Participant and the Committee and the Company;

 

(vi)                               to comply with legal obligations of the Company and the Committee and to comply with instructions the Company and the Committee may receive from any regulatory bodies or tax authorities;

 

(vii)                            to provide information to the Company, the Committee, trustees of any employee benefit trust, registrars, brokers or any administrators of the Plan; and

 

(viii)                         to provide information to bona fide prospective purchasers or merger partners of the Company (including advisers to such prospective purchasers or merger partners), or the business in which the Participant works.

 

(d)                                  The Company and the Committee may, in order to administer or otherwise give effect to the Plan, from time to time share the Personal Data of Participants with:

 

(i)                                      any Company Affiliate or any Subsidiary of the Company that does not employ the Participant;

 

(ii)                                   advisers, brokers or registrars engaged by the Company, the Committee, and any Company Affiliate and/or any Subsidiary of the Company that does not employ the Participant; and/or

 

(iii)                                any third parties that provide services to the Company, the Committee, and any Company Affiliate and/or any Subsidiary of the Company that does not employ the Participant.

 

(e)                                   The Company and the Committee will process the Personal Data of Participants in order to:

 

(i)                                      pursue their legitimate interests of administering, or otherwise giving effect to, the Plan; and/or

 

(ii)                                   fulfill their respective obligations as necessary for the performance of a contract with the Participant (or another Person), or in preparation of entering into a contract with the Participant (or another Person).

 



 

(f)                                    The Committee will not retain any Personal Data of Participants relating to the Plan.  Any Personal Data of Participants relating to the Plan will be stored by the Company until termination of the Plan.

 

(g)                                   Where the Company and/or the Committee share with, or transfer to, any person the Personal Data of Participants and that person is located outside the European Economic Area, the Company and/or the Committee will ensure that there are in place adequate safeguards for such information, including, entering into model contract clauses which have been approved by the European Commission.  Copies of such agreements can be obtained by request from Nina Nandelstaedt at the Company.

 

(h)                                  The privacy compliance manager for the Company (and contact details) are: Nina Nandelstaedt (email: Nina_Nandelstaedt@venatorcorp.com; telephone: +49 20 6622 2206).

 

(i)                                      Participants have a number of rights in respect of the use by the Company and the Committee of their Personal Data.  These include:

 

(i)                                      the right to object to direct marketing;

 

(ii)                                   the right (subject to certain exclusions) to receive a copy of Personal Data held by the Committee and the Company; and

 

(iii)                                from 25 May 2018, the following rights:

 

(A)                                the right to be forgotten;

 

(B)                                the right to restrict the use of his/her Personal Data by the Company and the Committee;

 

(C)                                the right to object to the way his/her Personal Data is used; and

 

(D)                                the right to object to profiling and automated decision making.

 

Participants who would like any further information about their rights or how to exercise them, should contact Nina Nandelstaedt.

 

(j)                                     Participants who are unhappy about the use of Personal Data by the Company or the Committee may make a complaint to the Information Commissioner.  Further information can be found at https://ico.org.uk.

 

SECTION 10.    Effective Date of Plan .

 

This Plan shall become effective as of the Effective Date, subject to approval by the stockholders of the Company as necessary pursuant to applicable laws.

 

SECTION 11.    Term of the Plan .

 

No Award shall be granted under this Plan prior to the date this Plan is approved by the stockholders of the Company.  If so approved, the Plan shall continue until the earliest of (i)

 



 

August 1, 2027, (ii) the date the Board terminates the Plan, and (iii) the date Shares are no longer available for Awards under the Plan.  However, unless otherwise expressly provided in the Plan or in an applicable Award Agreement, any Award granted prior to such termination, and the authority of the Committee to amend, alter, adjust, suspend, discontinue, or terminate any such Award or to waive any conditions or rights under such Award, shall extend beyond such termination date.

 



 

ANNEX A

 

VENATOR MATERIALS

2017 STOCK INCENTIVE PLAN

NON-EMPLOYEE STOCK INCENTIVE PLAN

 

SECTION 1.    Purpose of the Non-Employee Stock Incentive Plan.

 

This Annex to the Venator Materials 2017 Stock Incentive Plan (as adopted by Venator Materials PLC, a public company limited by shares and incorporated under the laws of England and Wales (the “ Company ”), effective August 1, 2017, and amended from time to time) (“ Annex A ” or the “ Non-Employee Stock Incentive Plan ”) governs the grant of Awards to (1) Directors and (2) Consultants.

 

SECTION 2.    Definitions .

 

As used in the Non-Employee Stock Incentive Plan, the following terms shall have the meanings set forth below:

 

Affiliate ” means, with respect to any Person, any other Person that directly or indirectly through one or more intermediaries controls, is controlled by or is under common control with, the Person in question.  As used herein, the term “control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract or otherwise.

 

“Award ” shall mean an Option, Restricted Stock Award, Performance Award, Phantom Share, SAR, Bonus Stock Award, Dividend Equivalent, Substitute Award, or Other Stock-Based Award.

 

Award Agreement ” shall mean any written or electronic agreement, contract, instrument, or document evidencing any Award, which may, but need not, be executed or acknowledged by a Participant and shall also include any other written instrument (including any employment, severance, change of control or similar agreement or arrangement) that establishes any terms, conditions, restrictions and/or limitations applicable to Awards in addition to those established by this Non-Employee Stock Incentive Plan and by the Committee’s exercise of its administrative powers, including any such instrument entered into prior to or following the Effective Date.

 

Board ” shall mean the Board of Directors of the Company.

 

Bonus Stock ” shall mean Ordinary Shares granted as a bonus pursuant to Section 6(f) hereof.

 

Change of Control ” shall mean: (a) with respect to an Award that is subject to section 409A of the Code, the occurrence of any event which constitutes a change of control under section 409A of the Code, including any regulations promulgated pursuant thereto; and (b) with respect to any other Award, the occurrence of any of the following events:  (i) the acquisition by any “person,” as such term is used in sections 13(d) and 14(d) of the Exchange Act, other than

 



 

the Company, an Affiliate of the Company or a Company employee benefit plan, of “beneficial ownership” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 20% or more of the combined voting power of the Company’s then outstanding securities entitled to vote generally in the election of directors; or (ii) the consummation of a reorganization, merger, consolidation or other form of corporate transaction or series of transactions, in each case, with respect to which Persons who were the stockholders of the Company immediately prior to such reorganization, merger or consolidation or other transaction do not, immediately thereafter, own more than 20% of the combined voting power entitled to vote generally in the election of directors of the reorganized, merged or consolidated company’s then outstanding voting securities in substantially the same proportions as their ownership immediately prior to such event; or (iii) the sale or disposition by the Company of all or substantially all the Company’s assets (other than any such sale or disposition involving solely the Company and one or more Persons that are “affiliates” of the Company (within the meaning of Rule 12b-2 under the Exchange Act)); or (iv) a change in the composition of the Board, as a result of which fewer than a majority of the directors are Incumbent Directors; or (v) the approval by the Board or the stockholders of the Company of a complete or substantially complete liquidation or dissolution of the Company; or (c) with respect to all Awards: (i) a court-sanctioned compromise or arrangement between the Company and its shareholders under section 899 of the U.K. Companies Act 2006, resulting in a change of Control of the Company; (ii) the obtaining by any Person (or group of Persons acting in concert) of Control of the Company as the result of making a general offer to (A) acquire all of the issued Ordinary Share capital of the Company, which is made on a condition that, if it is satisfied, such acquiring Person or Persons, as applicable, will have Control of the Company or (B) acquire all of the shares in the Company which are of the same class as the Ordinary Shares; (iii) any Person (or group of Persons acting in concert) becoming bound or entitled under Sections 979 to 982 or Sections 983 to 985 of the Companies Act 2006 (or similar law of another jurisdiction) to acquire shares of the same class as the Ordinary Shares.

 

Code ” shall mean the Internal Revenue Code of 1986, as amended from time to time, and the rules and regulations thereunder.

 

Committee ” shall mean the Board or any committee of the Board designated, from time to time, by the Board to act as the Committee under the Non-Employee Stock Incentive Plan; provided , however , that, unless otherwise determined by the Board, the Committee shall consist solely of two or more directors, each of whom shall be a Qualified Member (except to the extent administration of this Non-Employee Stock Incentive Plan by “outside directors” is not then required in order to qualify for tax deductibility under section 162(m) of the Code).

 

Companies Act ” shall mean the U.K. Companies Act of 2006, as amended.

 

Consultant ” shall mean any individual who is not an Employee or a Director and who provides consulting, advisory or other similar services to the Company or a Subsidiary.

 

Control ” shall have the same meaning as in section 995 of the U.K. Income Tax Act 2007.

 



 

Director ” shall mean any member of the Board who is not an Employee.

 

Dividend Equivalent ” shall mean a right, granted under Section 6(g) hereof, to receive cash, Ordinary Shares, other Awards or other property equal in value to dividends paid with respect to a specified number of shares of Ordinary Shares, or other periodic payments.

 

Effective Date ” shall mean August 1, 2017.

 

Employee ” shall mean any employee (whether or not also an officer) of the Company or a Subsidiary (having, for this purpose, the meaning given to it in Section 1159 of the Companies Act).

 

Exchange Act ” shall mean the Securities Exchange Act of 1934, as amended from time to time, and the rules and regulations thereunder.

 

Fair Market Value ” shall mean, as of any applicable date, the closing sales price for a Share on the New York Stock Exchange (or such other national securities exchange which constitutes the principal trading market for the Shares) for the applicable date as reported by such reporting service approved by the Committee; provided , however , that if Shares shall not have been quoted or traded on such applicable date, Fair Market Value shall be determined based on the last preceding date on which they were quoted or traded, or, if deemed appropriate by the Committee, in such other manner as it may determine to be appropriate, including in accordance with the Non-Qualified Deferred Compensation Rules.  In the event the Ordinary Shares are not publicly traded at the time a determination of its Fair Market Value is required to be made hereunder, the determination of Fair Market Value shall be made in good faith by the Committee, taking into account all factors the Committee deems appropriate, including without limitation the Non-Qualified Deferred Compensation Rules.

 

Incentive Stock Option ” or “ ISO ” shall mean an Option intended to qualify as an “incentive stock option” under section 422 of the Code or any successor provision thereto.

 

Incumbent Directors ” shall mean directors who either (A) are directors of the Company as of the Effective Date, or (B) are elected, or nominated for election, thereafter to the Board with the affirmative votes of at least a majority of the Incumbent Directors at the time of such election or nomination, but “Incumbent Director” shall not include an individual whose election or nomination is in connection with (i) an actual or threatened election contest (as such terms are used in Rule 14a-11 of Regulation 14A promulgated under the Exchange Act) or an actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board or (ii) a plan or agreement to replace a majority of the then Incumbent Directors.

 

Non-Employee Stock Incentive Plan ” shall mean this Annex A, as amended from time to time.

 

Non-Qualified Deferred Compensation Rules ” shall mean the limitations or requirements of section 409A of the Code and the guidance and regulations promulgated thereunder.

 



 

Non-Qualified Stock Option ” or “ NQO ” shall mean an Option granted under Section 6(a) of the Non-Employee Stock Incentive Plan that is not intended to be an Incentive Stock Option.

 

Option ” shall mean an option entitling the holder to acquire Shares upon payment of the exercise price. Only Non-Qualified Stock Options may be granted under the Non-Employee Stock Incentive Plan.

 

Other Stock-Based Award ” shall mean an Award granted under Section 6(i) of the Non-Employee Stock Incentive Plan.

 

Participant ” shall mean any Consultant or Director who was granted an Award under the Non-Employee Stock Incentive Plan that remains outstanding.

 

Performance Award ” shall mean any right granted under Section 6(c) of the Non-Employee Stock Incentive Plan.

 

Person ” shall mean any individual, corporation, partnership, limited liability company, association, joint-stock company, trust, unincorporated organization, government or political subdivision thereof or other entity.

 

Personal Data ” shall mean any personal information that could identify a Participant, including but not limited to, the Participant’s date of birth, home address, telephone number, e-mail address, National Insurance number (or equivalent), Awards under the Non-Employee Stock Incentive Plan or awards under any other employee share scheme operated by the Company.

 

Phantom Shares ” shall mean the right to receive Shares or cash equal to the Fair Market Value of such Shares, or any combination thereof, as determined by the Committee, at the end of a specified deferral period (which may or may not be coterminous with the Restricted Period of the Award), which is granted pursuant to Section 6(d) of the Non-Employee Stock Incentive Plan.

 

Plan ” shall mean the Venator Materials 2017 Stock Incentive Plan as assumed and adopted by the Company and amended from time to time.

 

Qualified Member ” shall mean a member of the Committee who is a “nonemployee director” within the meaning of Rule 16b-3(b)(3) and an “outside director” within the meaning of Treasury regulation 1.162-27 under section 162(m) of the Code.

 

Restricted Period ” shall mean the period established by the Committee with respect to an Award during which the Award either remains subject to forfeiture or is not exercisable by the Participant.

 

Restricted Stock ” shall mean any Share, prior to the lapse of restrictions thereon, granted under Section 6(b) of the Non-Employee Stock Incentive Plan.

 



 

Rule 16b-3 ” shall mean Rule 16b-3 promulgated by the SEC under the Exchange Act, or any successor rule or regulation thereto as in effect from time to time.

 

SAR ” shall mean a stock appreciation right granted under Section 6(e) of the Non-Employee Stock Incentive Plan that entitles the holder to receive the excess of the Fair Market Value of a Share on the relevant date over the exercise price of such SAR, with the excess paid in cash and/or in Shares in the discretion of the Committee, subject to the limitation on cash payments in Section 4(d) hereof.

 

SEC ” shall mean the Securities and Exchange Commission, or any successor thereto.

 

Shares ” or “ Ordinary Shares ” shall mean the ordinary shares in the capital of the Company, $0.001 par value per share.

 

Subsidiary ” shall mean, except as where noted otherwise herein, any entity (whether a corporation, partnership, joint venture, limited liability company or other entity) in which the Company owns a majority of the voting power of the entity directly or indirectly, and any other entity in which the Company has an economic interest that is designated by the Committee as a Subsidiary for purposes of the Non-Employee Stock Incentive Plan, except in the case of Options or SARs that are intended to comply with Treasury regulation 1.409A-1(b)(5)(i), in which case the term Subsidiary shall mean an entity in a chain of entities in which each entity has a “controlling interest” in another entity in the chain, starting with the Company.

 

Substitute Award ” shall mean an Award granted pursuant to Section 6(h) of the Non-Employee Stock Incentive Plan.

 

U.K. Participant ” shall mean a Participant the grant of an Award to whom or the exercise of an Award by whom is subject to taxation in the United Kingdom.

 

U.S. Participant ” shall mean a Participant the grant of an Award to whom or the exercise of an Award by whom is subject to taxation in the United States.

 

SECTION 3.    Administration .

 

(a)                                  General . The Non-Employee Stock Incentive Plan shall be administered by the Committee.  A majority of the Committee shall constitute a quorum, and the acts of the members of the Committee who are present at any meeting thereof at which a quorum is present, or acts unanimously approved by the members of the Committee in writing, shall be the acts of the Committee.  Subject to the terms of the Non-Employee Stock Incentive Plan and applicable law, and in addition to other express powers and authorizations conferred on the Committee by the Non-Employee Stock Incentive Plan, the Committee shall have full power and authority to:  (i) designate Participants; (ii) determine the type or types of Awards to be granted to a Participant; (iii) determine the number of Shares to be covered by, or with respect to which payments, rights, or other matters are to be calculated in connection with, Awards; (iv) determine the terms and conditions of any Award; (v) determine whether, to what extent, and under what circumstances Awards may be settled or exercised in cash, Shares, other securities, other Awards or other property, or canceled, forfeited, or suspended and the method or methods by which Awards may be settled, exercised, canceled, forfeited, or suspended; (vi) interpret and administer the Non-

 



 

Employee Stock Incentive Plan and any instrument or agreement relating to an Award made under the Non-Employee Stock Incentive Plan; (vii) establish, amend, suspend, or waive such rules and regulations and appoint such agents as it shall deem appropriate for the proper administration of the Non-Employee Stock Incentive Plan; (viii) amend any Award under the Non-Employee Stock Incentive Plan as provided in Section 7(b) hereof; and (ix) make any other determination and take any other action that the Committee deems necessary or desirable for the administration of the Non-Employee Stock Incentive Plan.  Unless otherwise expressly provided in the Non-Employee Stock Incentive Plan, all designations, determinations, interpretations, and other decisions under or with respect to the Non-Employee Stock Incentive Plan or any Award shall be within the sole discretion of the Committee, may be made at any time and shall be final, conclusive, and binding upon all Persons, including the Company and any of its Affiliates and Subsidiaries, any Participant, any holder or beneficiary of any Award, any stockholder and any other Person.  The Committee may, subject to any applicable law, regulatory, securities exchange or other similar restrictions, delegate to one or more officers of the Company the authority to grant Awards to Consultants who are not, and whose family members are not, subject to section 16(b) of the Exchange Act (for this purpose “family members” include the brothers or sisters (whether by whole or half blood), spouse, ancestors, or lineal descendants of the Consultant, and any spouse of any of the foregoing).  The Committee may impose such limitations and restrictions, in addition to any required limitations or restrictions, as the Committee may determine in its sole discretion.  Any Award granted pursuant to such a delegation shall be subject to all of the provisions of the Non-Employee Stock Incentive Plan concerning such Award.

 

(b)                                  Participants in Non-U.S. Jurisdictions . Notwithstanding any provision of the Non-Employee Stock Incentive Plan to the contrary, to comply with applicable laws in countries other than the United States in which the Company or any of its Affiliates or Subsidiaries operates or has employees, directors or other service providers from time to time, or to ensure that the Company complies with any applicable requirements of foreign securities exchanges, the Committee, in its sole discretion, shall have the power and authority to: (i) determine which of the Company’s Affiliates or Subsidiaries shall be covered by the Non-Employee Stock Incentive Plan; (ii) determine which Eligible Persons outside the United States are eligible to participate in the Non-Employee Stock Incentive Plan; (iii) modify the terms and conditions of any Award granted to Eligible Persons outside the United States to comply with applicable foreign laws or listing requirements of any foreign exchange; (iv) establish sub-plans and modify exercise procedures and other terms and procedures, to the extent such actions may be necessary or advisable (any such sub-plans and/or modifications shall be attached to the Non-Employee Stock Incentive Plan as appendices), provided , however , that no such sub-plans and/or modifications shall increase the share limitations contained in Section 4(a) below without the approval of the Company’s shareholders (to the extent required by applicable law and listing requirements); and (v) take any action, before or after an Award is granted, that it deems advisable to comply with any applicable governmental regulatory exemptions or approval or listing requirements of any such foreign securities exchange.  For purposes of the Non-Employee Stock Incentive Plan, all references to foreign laws, rules, regulations or taxes shall be references to the laws, rules, regulations and taxes of any applicable jurisdiction other than the United States or a political subdivision thereof.

 



 

SECTION 4.    Shares Available for Awards .

 

(a)                                  Shares Available .  Subject to adjustment as provided in Section 4(c) hereof, the number of Shares that may be issued with respect to Awards (including pursuant to the exercise of Incentive Stock Options under the Plan) under the Plan and the Non-Employee Stock Incentive Plan shall be 12,750,000 Ordinary Shares.  To the extent an Award has been or is settled with the delivery of Shares, such Shares shall not be available for issuance under future Awards under the Plan and the Non-Employee Stock Incentive Plan.  If an Award is surrendered, exchanged, forfeited, settled in cash or otherwise lapses, expires, terminates or is canceled without the actual delivery of Shares, including (i) Shares forfeited with respect to Restricted Stock that are not acquired into the Company’s treasury shares or are cancelled, (ii) Shares repurchased by the Company in accordance with Section 6(b) of the Plan at the same price paid by the Participant; or (iii) the number of Shares withheld or surrendered in payment of any exercise or purchase price of an Award or taxes relating to Awards, then the Shares covered by such Award, to the extent of such surrender, exchange, forfeiture, expiration, lapse, termination, cancellation or payment in cash, shall again be Shares that may be issued with respect to Awards granted under the Plan and the Non-Employee Stock Incentive Plan.

 

(b)                                  Sources of Shares Deliverable Under Awards .  Any Shares delivered pursuant to an Award may, to the extent permitted by the laws of England and Wales, consist in whole or in part of authorized and unissued Shares, or shares held by a trust or affiliated entity specifically set up to warehouse available Shares.

 

(c)                                   Anti-dilution Adjustments .  With respect to any “equity restructuring” event (such as a stock dividend, stock split, reverse stock split or similar event with respect to Shares) that could result in an additional compensation expense to the Company pursuant to the provisions of the Financial Accounting Standards Board, Accounting Standards Codification, Topic 718—Stock Compensation, as the same may be amended or superseded from time to time (“ ASC Topic 718 ”), if adjustments to Awards with respect to such event were discretionary, the Committee shall equitably adjust the number and type of Shares (or other securities or property) covered by each outstanding Award and the terms and conditions, including the exercise price and performance criteria (if any), of such Award to equitably reflect such restructuring event. With respect to any other similar event that would not result in an ASC Topic 718 accounting charge if the adjustment to Awards with respect to such event were subject to discretionary action, the Committee shall have complete discretion to adjust Awards in such manner as it deems appropriate with respect to such other event.  In the event the Committee makes any adjustment pursuant to the foregoing provisions of this Section 4(c), the Committee shall make a corresponding and proportionate adjustment to the maximum number and the type of Shares (or other securities or property) with respect to which Awards may be granted under the Plan and the Non-Employee Stock Incentive Plan after such event as provided in Section 4(a) hereof and the individual participant annual grant limits with respect to Awards (other than dollar-denominated Awards) as provided in Section 4(d) hereof.  Any such adjustments pursuant to this Section 4(c) shall be evidenced by written addendums to the Non-Employee Stock Incentive Plan and Award Agreements prepared by the Company.

 



 

SECTION 5.    Eligibility .

 

Any Consultant or Director shall be eligible to be designated a Participant by the Committee. Awards may also be granted under an Annex or sub-plan to the Non-Employee Stock Incentive Plan.

 

SECTION 6.    Awards .

 

(a)                                  Options .  Subject to the provisions of the Non-Employee Stock Incentive Plan, the Committee shall have the authority to determine Consultants and Directors to whom Options shall be granted, the number of Shares to be covered by each Option, the exercise price therefor and the conditions and limitations applicable to the exercise of the Option, including the applicable Restricted Period and/or performance objectives, if any, and the following terms and conditions and such additional terms and conditions, as the Committee shall determine, that are not inconsistent with the provisions of the Non-Employee Stock Incentive Plan.

 

(i)                                      Exercise Price .  The exercise price per Share purchasable under an Option shall be determined by the Committee at the time the Option is granted; provided , however , that except with respect to a Substitute Award, the exercise price shall not be less than the Fair Market Value per Share on the effective date of such grant, and provided , further , however , that the exercise price of any Option, including a Substitute Award, shall not be lower than the par value per Share on the effective date of such grant.

 

(ii)                                   Time and Method of Exercise .  The Committee shall determine and provide in the Award Agreement the time or times at which an Option may be exercised in whole or in part, and the method or methods by which, and the form or forms (which may include, without limitation, cash, check acceptable to the Company, Shares already-owned by the Participant, a “cashless-broker” exercise (through procedures approved by the Company), other securities or other property, a note (to the extent permitted by applicable law), a withholding or “netting” of Shares from the Option if it is not an Incentive Stock Option, or any combination thereof, having a Fair Market Value on the exercise date equal to the relevant exercise price) in which payment of the exercise price with respect thereto may be made or deemed to have been made.  An Option may not be exercised on or after the earliest of the following to take place:

 

(A)                                the date falling 10 years following grant;

 

(B)                                the expiry of the period of six months following a Change of Control falling within paragraphs c(i) or (ii) of its definition; and

 

(C)                                the expiry of the period during which any Person (or groups of Persons acting in concert) is bound or entitled under Sections 979 to 982 or Sections 983 to 985 of the Companies Act 2006 (or similar law of another jurisdiction) to acquire shares of the same class as the Ordinary Shares.

 

(iii)                                Forfeiture .  Unless otherwise specified in the applicable Award Agreement, upon a Participant’s termination of service with the Company and its Subsidiaries, whether voluntary or involuntary (and including without limitation termination on account of death, disability, or retirement), all such Participant’s Options as to which the Restricted Period has not elapsed as of the date of termination shall be

 



 

forfeited, and all such Participant’s Options as to which the Restricted Period has elapsed as of the date of termination shall remain exercisable for the period of time set forth in the Award Agreement, after which time any such Options which remain unexercised shall be forfeited. However, the Committee may, when it finds that a waiver would be in the best interests of the Company, waive in whole or in part any or all remaining restrictions with respect to a Participant’s Options.

 

(b)                                  Restricted Stock .  The Committee shall have the authority to grant Awards of Restricted Stock to Consultants and Directors upon such terms and conditions as the Committee may determine, including any provision that is required by Section 6(j)(vi) of this Non-Employee Stock Incentive Plan.

 

(i)                                      Terms and Conditions .  Each Restricted Stock Award shall be subject to the fulfillment during the Restricted Period of such conditions, including performance objectives, if any, as the Committee may specify at the date of grant, which conditions may lapse separately or in combination at such times, under such circumstances, in such installments or otherwise, as the Committee may determine. During the Restricted Period, the Participant shall have such rights of ownership in or with respect to the Restricted Stock as set forth in the Award Agreement, subject to Section 6(b)(ii) below concerning dividends.

 

(ii)                                   Dividends .  Unless otherwise specified in the applicable Award Agreement, dividends and distributions made with respect to a share of Restricted Stock shall be held by the Company in a bookkeeping account for the Participant (credited either as cash (without interest) or as Phantom Shares), which account shall be subject to the same vesting and forfeiture restrictions as the share of Restricted Stock with respect to which such dividends and distributions are made.

 

(iii)                                Registration .  Any Restricted Stock may be evidenced in such manner as the Committee shall deem appropriate, including, without limitation, book-entry registration or issuance of a stock certificate or certificates.  In the event any stock certificate is issued in respect of Restricted Stock granted under the Non-Employee Stock Incentive Plan, such certificate shall be registered in the name of the Participant and shall bear an appropriate legend referring to the terms, conditions, and restrictions applicable to such Restricted Stock.

 

(iv)                               Forfeiture .  Unless otherwise specified in the applicable Award Agreement with respect to a Permitted Waiver Event, upon a Participant’s termination of service with the Company and its Subsidiaries during an applicable Restricted Period, all Restricted Stock subject to such Restricted Period shall (at the direction of the Company) be transferred by the Participant to the Company (in the case only where no price was paid by the Participant for such Restricted Stock) or to a person nominated by the Company at a cash price per share equal to the price paid by the Participant for such Restricted Stock or such other amount as may be specified in the applicable Award Agreement. Notwithstanding the foregoing, the Committee may, when it finds that a waiver would be in the best interests of the Company, waive in whole or in part any or all remaining forfeiture and other restrictions with respect to such Participant’s Restricted

 



 

Stock if such termination of service is (x) due to the Participant’s death, disability, or retirement, or (y) an involuntary termination by the Company or Subsidiary other than for “cause,” or a termination by the Participant for a “good reason,” as such terms are defined in the Award Agreement or an employment or severance agreement with (or a plan of) the Company or a Subsidiary, (the foregoing collectively being a “ Permitted Waiver Event” ).

 

(v)                                  Transfer Restrictions .  During the Restricted Period, Restricted Stock will be subject to such limitations on transfer as necessary to comply with section 83 of the Code if section 83 is applicable to such award and the Participant is a U.S. Participant.

 

(c)                                   Performance Awards .  The Committee shall have the authority to determine the Consultants and Directors who shall receive a Performance Award, pursuant to which the right of such individual to receive a grant, or to exercise or receive settlement, of any Award available under this Non-Employee Stock Incentive Plan, and the timing thereof, may be subject to performance objectives as specified by the Committee.  In addition, a Performance Award may be denominated as a cash amount at the time of grant and confer on the Participant the right to receive payment upon the achievement of such performance objectives during such Restricted Periods as the Committee shall establish with respect to the Award.

 

(i)                                      Terms and Conditions .  Subject to the terms of the Non-Employee Stock Incentive Plan (including, without limitation, Section 6(j)(vi) of the Non-Employee Stock Incentive Plan) and any applicable Award Agreement, the Committee shall determine the performance objectives to be achieved during the applicable Restricted Period, the length of the Restricted Period, the number of Shares or the amount of cash subject to any Performance Award and the amount of any payment to be made upon achievement of the performance objectives applicable to any Performance Award.

 

(ii)                                   Payment of Performance Awards .  Performance Awards are earned as of the date the Committee determines the applicable performance objectives have been satisfied.  Performance Awards may be paid (in cash and/or in Shares, in the sole discretion of the Committee) in a lump sum or in installments promptly as of or following the date the Committee determines the applicable performance objectives have been satisfied, in accordance with procedures established by the Committee with respect to such Award.  The Committee may exercise its discretion to reduce or increase the amounts payable under any Performance Awards.

 

(iii)                                Forfeiture .  Unless otherwise specified in the applicable Award Agreement with respect to a Permitted Waiver Event, upon a Participant’s termination of service with the Company and its Subsidiaries during the applicable Restricted Period, whether voluntary or involuntary (and including without limitation termination on account of death, disability, or retirement), all Performance Awards shall be forfeited by the Participant.  However, the Committee may, when it finds that a waiver upon a Permitted Waiver Event would be in the best interests of the Company, waive in whole or in part any or all remaining restrictions with respect to such Participant’s Performance Award.

 



 

(d)                                  Phantom Shares .  The Committee shall have the authority to grant Awards of Phantom Shares to Consultants and Directors upon such terms and conditions as the Committee may determine, including any provision that is required by Section 6(j)(vi) of this Non-Employee Stock Incentive Plan.

 

(i)                                      Terms and Conditions .  Each Phantom Share Award shall constitute an agreement by the Company to issue a specified number of Shares or pay an amount of cash equal to the Fair Market Value of a specified number of Shares, or a combination thereof, to the Participant in the future, subject to the fulfillment during the Restricted Period of such conditions, including performance objectives, if any, as the Committee may specify at the date of grant.  The Participant shall not have any rights of ownership in or with respect to the Phantom Shares. Phantom Shares shall be earned upon the lapse of the Restricted Period and shall be settled upon expiration of a specified deferral period (which may or may not be coterminous with the Restricted Period).  The Committee shall cause the corresponding number of Shares to be issued or transferred, or shall cause the corresponding amount to be paid promptly thereafter. The Company may also grant Phantom Share Awards in the form of “restricted stock unit” awards.

 

(ii)                                   Dividend Equivalents .  Unless otherwise specified in the applicable Award Agreement, with respect to a Phantom Share, the economic equivalent of all dividends and other distributions paid on a Share during the Restricted Period shall be credited by the Company in a cash bookkeeping account (without interest) or in additional Phantom Shares, which account shall be subject to the same vesting and forfeiture restrictions as the related Phantom Share.

 

(iii)                                Forfeiture .  Unless otherwise provided in an applicable Award Agreement with respect to a Permitted Waiver Event, upon a Participant’s termination of service with the Company and its Subsidiaries during the applicable Restricted Period, all Phantom Shares subject to such Restricted Period shall be forfeited by the Participant.  Notwithstanding the foregoing, the Committee may, when it finds that a waiver upon a Permitted Waiver Event would be in the best interests of the Company, waive in whole or in part any or all remaining forfeiture and other restrictions with respect to such Participant’s Phantom Shares.

 

(e)                                   SARs .  The Committee shall have the authority to determine the Consultants and Directors to whom SARs shall be granted, the number of SARs to be granted, the exercise price and the conditions and limitations applicable to the exercise of the SAR, including the applicable Restricted Period and/or performance objectives, if any, and the following terms and conditions and such additional terms and conditions, as the Committee shall determine, that are not inconsistent with the provisions of the Non-Employee Stock Incentive Plan (including Section 6(j)(vi) of the Non-Employee Stock Incentive Plan).  SARs may be granted in tandem with or separately from an Option.

 

(i)                                      Exercise Price .  The exercise price per SAR shall be determined by the Committee at the time the SAR is granted, but, except with respect to a Substitute Award, shall not be less than the Fair Market Value per Share on the effective date of such grant.

 



 

(ii)                                   Time of Exercise .  The Committee shall determine and provide in the Award Agreement the time or times at which an SAR may be exercised in whole or in part.  The maximum term for an SAR shall be 10 years.

 

(iii)                                Method of Payment .  Unless provided in the Award Agreement, the Committee shall determine, in its discretion, whether the SAR shall be paid in cash, shares of Ordinary Shares or a combination thereof.

 

(iv)                               Forfeiture .  Unless otherwise provided in an applicable Award Agreement with respect to a Permitted Waiver Event, upon a Participant’s termination of service with the Company and its Subsidiaries, whether voluntary or involuntary (and including without limitation termination on account of death, disability, or retirement), all such Participant’s SARs as to which the Restricted Period has not elapsed as of the date of termination shall be forfeited, and all such Participant’s SARs as to which the Restricted Period has elapsed as of the date of termination shall remain exercisable for the period of time set forth in the Award Agreement, after which time any such SARs which remain unexercised shall be forfeited.  However, the Committee may, when it finds that a waiver would be in the best interests of the Company, waive in whole or in part any or all remaining restrictions with respect to a Participant’s SARs.

 

(f)                                    Bonus Stock .  The Committee is authorized to grant Ordinary Shares as a bonus, or to grant Ordinary Shares or other Awards in lieu of obligations to pay cash or deliver other property under this Non-Employee Stock Incentive Plan or under other plans or compensatory arrangements, provided that, in the case of Participants subject to section 16 of the Exchange Act, the amount of such grants remains within the discretion of the Committee to the extent necessary to ensure that acquisitions of Bonus Stock or other Awards are exempt from liability under section 16(b) of the Exchange Act.  Bonus Stock or other Awards granted hereunder shall be subject to such other terms as shall be determined by the Committee, including Section 6(j)(vi) of the Non-Employee Stock Incentive Plan.  In the case of any grant of Ordinary Shares to an officer of the Company or any of its Subsidiaries in lieu of salary or other cash compensation, the number of shares granted in place of such compensation shall be reasonable, as determined by the Committee.

 

(g)                                   Dividend Equivalents .  The Committee is authorized to grant Dividend Equivalents to Consultants and Directors entitling the Participant to receive cash, Ordinary Shares, other Awards, or other property equal in value to dividends paid with respect to a specified number of shares of Ordinary Shares, or other periodic payments.  Dividend Equivalents may be awarded on a free-standing basis or in connection with another Award.  The Committee may provide that Dividend Equivalents shall be paid or distributed when accrued or shall be deemed to have been reinvested in additional Ordinary Shares, Awards, or other investment vehicles, and subject to such restrictions on transferability and risks of forfeiture, as the Committee may specify.

 

(h)                                  Substitute Awards .  Awards may be granted under the Non-Employee Stock Incentive Plan in substitution of similar awards held by individuals who become Consultants and Directors as a result of a merger, consolidation or acquisition by the Company or a Subsidiary of another entity or the assets of another entity.  Such Substitute Awards, if an Option or SAR, may

 



 

have an exercise price less than the Fair Market Value of a Share on the date of such substitution, to the extent necessary to preserve the value of the award, and will become exercisable upon the lapse of the Restricted Period.  Such Substitute Awards, if Restricted Stock or Phantom Shares, shall be earned by the Participant, and promptly issued, transferred, or paid, upon the lapse of the Restricted Period or other specified deferral period.

 

(i)                                      Other Stock-Based Award .  The Committee may also grant to Consultants and Directors an Other Stock-Based Award, which shall consist of a right which is an Award denominated or payable in, valued in whole or in part by reference to, or otherwise based on or related to, Shares as is deemed by the Committee to be consistent with the purposes of the Non-Employee Stock Incentive Plan, which may include convertible or exchangeable debt securities, other rights convertible or exchangeable into Ordinary Shares, purchase rights for Ordinary Shares, Awards with value and payment contingent upon performance of the Company or any other factors designated by the Committee, and Awards valued by reference to the book value of Ordinary Shares or the value of securities of or the performance of specified Subsidiaries of the Company.  Subject to the terms of the Non-Employee Stock Incentive Plan, the Committee shall determine the terms and conditions, including any vesting terms and/or performance objectives, of any such Other Stock-Based Award.  Cash awards, as an element of or supplemental to any other Award under this Non-Employee Stock Incentive Plan, may also be granted pursuant to this Section 6(i).

 

(j)                                     General .

 

(i)                                      Award Agreements.   An Award Agreement may be delivered to each Participant to whom an Award is granted.  The terms of the Award Agreement shall be as determined by the Committee, so long as they are consistent with the Non-Employee Stock Incentive Plan.

 

(ii)                                   Awards May Be Granted Separately or Together .  Subject to Section 7(a) hereof, Awards may, in the discretion of the Committee, be granted either alone or in addition to, or in tandem with, or in substitution or exchange for, any other Award granted under the Non-Employee Stock Incentive Plan or any award granted under any other plan of the Company or any Subsidiary.  Such additional, tandem and substitute or exchanged Awards may be granted at any time.  If an Award is granted in substitution or exchange for another Award, the Committee shall require the surrender of such other Award in consideration for the grant of the new Award.

 

(iii)                                Limits on Transfer of Awards .

 

(A)                                Except as provided in paragraph (C) below, each Award, and each right under any Award, shall be exercisable only by the Participant during the Participant’s lifetime, or if permissible under applicable law, by the Participant’s guardian or legal representative as determined by the Committee.

 

(B)                                Except as provided in paragraph (C) below or in a qualified domestic relations order, no Award and no right under any such Award may be assigned, alienated, pledged, attached, sold or otherwise transferred or

 



 

encumbered by a Participant in any manner (whether for value or other consideration) other than by will or by the laws of descent and distribution, and any such purported prohibited assignment, alienation, pledge, attachment, sale, transfer or encumbrance shall be void and unenforceable against the Company or any Subsidiary.

 

(C)                                To the extent specifically approved in writing by the Committee, an Award may be transferred to immediate family members or related family trusts, limited partnerships or similar family entities on such terms and conditions as the Committee may establish or approve.

 

(iv)                               Terms of Awards, Minimum Vesting .  The term of each Award shall be for such period as may be determined by the Committee, provided the term of an Option and SAR shall be limited as provided in Sections 6(a)(ii) hereof and (iii) and Section 6(e)(ii) hereof, respectively.  The minimum vesting or forfeiture restriction period with respect to Awards that are Options, SARs or other Awards for which a Participant pays (or the value or amount payable under the Award is reduced by) an amount equal to or exceeding the Fair Market Value of the Stock determined as of the date of grant shall be one year, subject to the Committee’s authority pursuant to Sections 6(a)(iv), 6(b)(iv), 6(c)(iv), 6(d)(iii), 6(e)(iv), 6(j)(x), and 7 of the Non-Employee Stock Incentive Plan in the event of a Participant’s termination of employment or service or upon the occurrence of certain events; provided , that the foregoing one-year minimum vesting or forfeiture restriction period shall not apply to the grant of any such Awards with respect to an aggregate number of Shares that does not exceed 5% of the total share pool specified in Section 4(a)(1) hereof.

 

(v)                                  Share Certificates .  All certificates for Shares or other securities of the Company or any Subsidiary delivered under the Non-Employee Stock Incentive Plan pursuant to any Award or the exercise thereof shall be subject to such stop transfer orders and other restrictions as the Committee may deem advisable under the Non-Employee Stock Incentive Plan or the rules, regulations, and other requirements of the SEC, any stock exchange upon which such Shares or other securities are then listed, and any applicable federal or state laws, and the Committee may cause a legend or legends to be put on any such certificates to make appropriate reference to such restrictions.

 

(vi)                               Consideration for Awards .  Awards may be granted for no cash consideration or for such consideration as the Committee determines, including, without limitation, such minimal cash consideration as may be required by applicable law or regulation. In the event that the Committee determines that an applicable law or regulation requires a Participant to provide consideration to the Company in connection with the grant, vesting or settlement of an Award, the Award Agreement shall set forth the terms and conditions of such consideration required of the Participant, which shall not be greater than the par value per Share underlying the Award. Such consideration shall be paid by the Participant in cash, or the Company may deduct the applicable amount from other cash compensation owed to the Participant.

 



 

(vii)                            Delivery of Shares or other Securities and Payment by Participant of Consideration .  No Shares or other securities shall be delivered pursuant to any Award until payment in full of any amount required to be paid pursuant to the Non-Employee Stock Incentive Plan or the applicable Award Agreement (including, without limitation, any exercise price or tax withholding) is received by the Company.  Such payment may be made by such method or methods and in such form or forms as the Committee shall determine, including, without limitation, cash, Shares, other securities, other Awards or other property, withholding of Shares, cashless exercise with simultaneous sale, or any combination thereof, provided that the combined value, as determined by the Committee, of all cash and cash equivalents and the Fair Market Value of any such Shares or other property so tendered to the Company, as of the date of such tender, is at least equal to the full amount required to be paid pursuant to the Non-Employee Stock Incentive Plan or the applicable Award Agreement to the Company.

 

(viii)                         Performance Criteria . The Committee shall establish performance goals applicable to Awards based upon one or more of the following performance criteria: (A) earnings per share; (B) revenues; (C) cash flow; (D) cash flow returns; (E) free cash flow; (F) operating cash flow; (G) net cash flow; (H) working capital; (I) return on net assets; (J) return on assets; (K) return on investment; (L) return on capital; (M) return on equity; (N) economic value added; (O) gross margin; (P) contribution margin; (Q) operating margin; (R) net income; (S) pretax earnings; (T) pretax earnings before interest, depreciation and amortization (“ EBITDA ”); (U) pretax earnings after interest expense and before incentives, service fees, and extraordinary or special items; (V) operating income; (W) total stockholder return; (X) Share price; (Y) book value; (Z) enterprise value; (AA) debt reduction; (BB) costs or expenses; (CC) objective safety measures (including recordable incident rates and lost time incident rates); (DD) objective environmental measures (including gas releases); (EE) sales; (FF) market share; (GG) objective productivity measures; (HH) revenue or earnings per employee; (II) objective measures related to implementation or completion of significant projects or processes; (JJ) significant and objective strategic business criteria, consisting of one or more objectives based on meeting specified market penetration, geographic business expansion, customer satisfaction, employee satisfaction, human resources management, supervision of litigation, information technology, and goals relating to acquisitions, divestitures, joint ventures and similar transactions, and budget comparisons; and (KK) significant and objective individual criteria, including any of the foregoing performance goals, the implementation of policies and plans, the negotiation of transactions, the development of long-term business goals, formation of joint ventures, research or development collaborations, and the completion of other corporation transactions.  Such goals (other than stock price and earnings per share) may be expressed in terms of the Company, a Subsidiary, a parent, department, division, business unit, or product, as determined by the Committee, and may be absolute, relative to one or more other companies, or relative to one or more indexes.  A performance goal need not be based upon an increase or positive result under a business criterion and may, for example, be based upon limiting economic losses or maintaining the status quo.  Which factor or factors to be used with respect to any grant, and the weight to be accorded thereto if more than one factor is used, shall be determined by the Committee, in its sole discretion, at the time of grant.  The Committee (A) shall appropriately adjust any evaluation of

 



 

performance under a performance goal to eliminate the effects of charges for restructurings, discontinued operations, extraordinary items and all items of gain, loss or expense determined to be extraordinary or unusual in nature or related to the disposal of a segment of a business or related to a change in accounting principle, all as determined in accordance with applicable accounting provisions, as well as the cumulative effect of accounting changes, in each case as determined in accordance with generally accepted accounting principles or identified in the Company’s financial statements or notes to the financial statements; and (B) may appropriately adjust any evaluation of performance under a performance goal to exclude any of the following that occurs during the applicable performance period: (1) asset write-downs, (2) litigation, claims, judgments or settlements, (3) the effect of changes in tax law or other such laws or provisions affecting reported results, (4) accruals for reorganization and restructuring programs, or (5) accruals of any amounts for payment under this Non-Employee Stock Incentive Plan or any other compensation arrangement maintained by the Company.

 

(ix)                               Change of Control .  Unless otherwise provided for in an Award Agreement and subject to Section 6(j)(x) below, upon a Change of Control, all then-outstanding Awards shall vest in accordance with Section 6(j)(ix)(A) below, except to the extent that another Award meeting the requirements of Section 6(j)(ix)(B) hereof (a “ Replacement Award ”) is provided to the Participant to replace such Award (the “ Replaced Award ”).

 

(A)                                Change of Control Vesting .  Upon a Change of Control, a Participant’s then-outstanding Awards that are not vested and (1) as to which vesting depends solely on the satisfaction of a service obligation by the Participant to the Company or any Subsidiary shall become fully vested; or (2) as to which vesting depends upon the satisfaction of one or more performance objectives shall immediately vest and all performance objectives shall be calculated based on either, as determined by the Committee in its sole discretion, (a) actual performance against the stated performance objectives as of the date of the Change of Control or (b) deemed target performance pro-rated based on the number of days elapsed in the applicable performance period until the date of the Change of Control.

 

(B)                                Replacement Awards .  An Award shall meet the conditions of this Section 6(j)(ix)(B) (and hence qualify as a Replacement Award) if: (1) it is of the same type as the Replaced Award (or, it is of a different type than the Replaced Award, provided that the Committee, as constituted immediately prior to the Change of Control, finds such type acceptable); (2) it has an intrinsic value at least equal to the value of the Replaced Award; (3) it relates to publicly traded equity securities of the Company or its successor in the Change of Control or another entity that is affiliated with the Company or its successor following the Change of Control; (4) its terms and conditions comply with the terms of this Section 6(j)(ix)(B) set forth below; and (5) its other terms and conditions are not less favorable to the Participant than the terms and conditions of the Replaced Award (including the provisions that would apply in the event of a subsequent Change of Control). Without limiting the generality of the foregoing, the

 



 

Replacement Award may take the form of a continuation of the Replaced Award if the requirements of the preceding sentence are satisfied. The determination of whether the conditions of this Section 6(j)(ix)(B) are satisfied shall be made by the Committee, as constituted immediately before the Change of Control, in its sole discretion. Without limiting the generality of the foregoing, the Committee may determine the value of Awards and Replacement Awards that are stock options or stock appreciation rights by reference to either their intrinsic value or their fair value. Upon an involuntary termination of service of a Participant occurring at any time following the Change of Control, other than for cause, all Replacement Awards held by the Participant (a) as to which vesting depends solely on the satisfaction of a service obligation by the Participant to the Company or any Subsidiary shall become fully vested; or (b) as to which vesting depends upon the satisfaction of one or more performance objectives shall immediately vest and all performance objectives shall be calculated based on either, as determined by the Committee in its sole discretion, (i) actual performance against the stated performance objectives as of the date of the Change of Control or (ii) deemed target performance pro-rated based on the number of days elapsed in the applicable performance period until the date of the Change of Control.

 

(x)                                  Unusual Transactions or Events .  In the event of any distribution (whether in the form of cash, Shares, other securities, or other property), recapitalization, reorganization, merger, spin-off, combination, repurchase, or exchange of Shares or other securities of the Company, or other corporate transaction or event or any unusual or nonrecurring transactions or events (including without limitation a Change of Control) affecting the Company, any affiliate of the Company, or the financial statements of the Company or any affiliate, or of changes in applicable laws, regulations or accounting principles, and whenever the Committee determines that action is appropriate in order to prevent the dilution or enlargement of the benefits or potential benefits intended to be made available under the Non-Employee Stock Incentive Plan or with respect to any Award under the Non-Employee Stock Incentive Plan, to facilitate such transactions or events or to give effect to such changes in laws, regulations or principles, the Committee, in its sole discretion and on such terms and conditions as it deems appropriate, may take any one or more of the following actions:

 

(A)                                To provide for either (i) the termination of any such Award in exchange for an amount of cash, if any, equal to the amount that would have been attained upon the exercise of such Award or realization of the Participant’s rights (and, for the avoidance of doubt, if as of the date of the occurrence of such transaction or event the Committee determines in good faith that no amount would have been attained upon the exercise of such Award or realization of the Participant’s rights, then such Award may be terminated by the Company without payment) or (ii) the replacement of such Award with other rights or property of substantially equivalent value selected by the Committee in its sole discretion;

 

(B)                                To provide that such Award be assumed by the successor or survivor corporation, or a parent or subsidiary thereof, or shall be substituted for

 



 

by similar options, rights or awards covering the stock of the successor or survivor corporation, or a parent or subsidiary thereof, with appropriate adjustments as to the number and kind of shares and prices;

 

(C)                                To make adjustments in the number and type of shares of Ordinary Shares (or other securities or property) subject to outstanding Awards, and in the number and kind of outstanding Awards and/or in the terms and conditions of (including the grant or exercise price), and the criteria included in, outstanding Awards and Awards which may be granted in the future, provided that, with respect to outstanding Awards such adjustments shall result in substantially equivalent value to the affected Participants; and

 

(D)                                To provide that such Award shall be exercisable (within such period of time as the Committee may specify, for example, but not by way of limitation, in connection with a Change of Control, the Committee may specify that unexercised, vested Options or SARs terminate upon consummation of the Change of Control), or payable or fully vested with respect to all Shares covered thereby, notwithstanding anything to the contrary in the Non-Employee Stock Incentive Plan or the applicable Award Agreement.

 

Notwithstanding the foregoing, with respect to an above event that is an “equity restructuring” event that would be subject to a compensation expense pursuant ASC Topic 718, the provisions in Section 4(c) hereof shall control to the extent they are in conflict with the discretionary provisions of this Section 6(j)(x).

 

SECTION 7.    Amendment and Termination .

 

Except to the extent prohibited by applicable law:

 

(a)                                  Amendments to the Non-Employee Stock Incentive Plan .  The Board or the Committee may amend, alter, suspend, discontinue, or terminate the Non-Employee Stock Incentive Plan without the consent of any stockholder, Participant, other holder or beneficiary of an Award, or other Person (but stockholder approval will be required to the extent required by applicable law or listing requirements); provided , however , notwithstanding any other provision of the Non-Employee Stock Incentive Plan or any Award Agreement, without the approval of the stockholders of the Company no such amendment, alteration, suspension, discontinuation, or termination shall be made that would (i) increase the total number of Shares that may be issued under Awards granted under the Non-Employee Stock Incentive Plan, except as provided in Sections 4(c) and 6(j)(x) of the Non-Employee Stock Incentive Plan, (ii) increase the class of individuals eligible to receive Awards under the Non-Employee Stock Incentive Plan or (iii) materially increase the benefits available under the Non-Employee Stock Incentive Plan.  In addition, except in connection with a corporate transaction involving the Company (including, without limitation, any stock dividend, stock split, extraordinary cash dividend, recapitalization, reorganization, merger, consolidation, split-up, spin-off, combination, or exchange of shares) and except as provided in Section 6(j)(x) of this Non-Employee Stock Incentive Plan, the terms of outstanding Awards may not be amended to reduce the exercise price of outstanding Options or SARs or cancel outstanding Options or SARs in exchange for cash, other Awards or Options or

 



 

SARs with an exercise price that is less than the exercise price of the original Options or SARs without stockholder approval.  Notwithstanding the foregoing, without the consent of an affected Participant, no Board or Committee action pursuant to this Section 7(a) may materially or adversely affect the rights of such Participant under any previously granted and outstanding Award.

 

(b)                                  Amendments to Awards .  Subject to Section 7(a) hereof and any express restrictions in the Non-Employee Stock Incentive Plan concerning the acceleration of the vesting of Awards, the Committee may accelerate or waive any conditions or rights under, amend any terms of, or alter any Award theretofore granted, provided that, subject to Section 7(c) below, no change in any Award shall materially adversely affect the rights of a Participant under the Award without the consent of such Participant.  Notwithstanding the foregoing, and subject to Section 7(c) below, no acceleration of the terms of payment of any Award that provides for a deferral of compensation under the Non-Qualified Deferred Compensation Rules shall be authorized if such acceleration would subject a Participant to additional taxes under the Non-Qualified Deferred Compensation Rules.

 

(c)                                   Amendments to Preserve or Achieve Tax Treatment and Comply with Law .  Notwithstanding Section 7(b) hereof, the Board or the Committee may amend or alter any terms of any outstanding Award as it deems advisable in order to preserve or achieve its intended tax treatment or to comply with applicable law, provided that such amendments or alterations shall result in substantially equivalent value to the affected Participants.

 

(d)                                  Substantially Equivalent Value .  With respect to amendments, alterations, or adjustments of any Award, “substantially equivalent value” may be determined without consideration of any tax consequences of the amendment, alteration, or adjustment.

 

SECTION 8.    General Provisions .

 

(a)                                  No rights to Awards .  No Participant or other Person shall have any claim to be granted any Award, there is no obligation for uniformity of treatment of Participants, or holders or beneficiaries of Awards and the terms and conditions of Awards need not be the same with respect to each recipient.

 

(b)                                  Tax Matters .

 

(i)                                      To the extent permitted by applicable law, the Committee may upon grant of an Award specify that a U.K. Participant will be required as a condition of exercise or vesting at or before the time of exercise or vesting of the Award to enter into an agreement with the Company or any of its Affiliates, as applicable, to allow the Company or any of its Affiliates, as applicable, to recover any applicable Class 1 (secondary) employer’s National Insurance contributions liability relating to the exercise or vesting of the Award or to enter into a joint election with the Company or any of its Affiliates, as applicable, that such National Insurance contributions liability shall be borne by the Participant.

 

(ii)                                   The Committee may upon grant of an Award direct that a Participant will be required as a condition of exercise or vesting at or before the time of exercise or

 



 

vesting of the Award to enter into such tax elections, in such manner and in such time periods, as the Company or relevant Subsidiary may reasonably require.

 

(iii)                                Notwithstanding any provision of the Non-Employee Stock Incentive Plan, each Participant is solely responsible and liable for the satisfaction of all taxes and penalties of any kind and with respect to any tax jurisdiction that may be imposed on or for the account of such Participant in connection with the Non-Employee Stock Incentive Plan.

 

(c)                                   No Right to Continued Services or Retention .  The grant of an Award shall not be construed as giving a Participant the right to be retained in the service of the Company or any Subsidiary or under any other service contract with the Company or any Subsidiary, or to remain on the Board.  Further, the Company or a Subsidiary may at any time dismiss a Participant from service or terminate any contractual agreement or relationship with any Consultant, free from any liability or any claim under the Non-Employee Stock Incentive Plan, unless otherwise expressly provided in the Non-Employee Stock Incentive Plan, in any Award Agreement or any other agreement or contract between the Company or a Subsidiary and the affected Participant.  If a Participant’s service recipient ceases to be a Subsidiary, such Participant’s Award or Awards shall continue in full force and effect as if the Participant’s service recipient were still a Subsidiary, unless and until the Committee, within its discretion, adjusts the Participant’s Award or Awards in any of the manners described in Section 6(j)(x)(A) through (D) hereof.

 

(d)                                  Governing Law .  The validity, construction, and effect of the Non-Employee Stock Incentive Plan and any rules and regulations relating to the Non-Employee Stock Incentive Plan shall be determined in accordance with the laws of the State of Delaware and applicable federal law, without application of the conflicts of law principles thereof.

 

(e)                                   Severability .  If any provision of the Non-Employee Stock Incentive Plan or any Award is or becomes or is deemed to be invalid, illegal, or unenforceable in any jurisdiction or as to any Person or Award, or would disqualify the Non-Employee Stock Incentive Plan or any Award under any law deemed applicable by the Committee, such provision shall be construed or deemed amended to conform to the applicable laws, or if it cannot be construed or deemed amended without, in the determination of the Committee, materially altering the intent of the Non-Employee Stock Incentive Plan or the Award, such provision shall be stricken as to such jurisdiction, Person or Award and the remainder of the Non-Employee Stock Incentive Plan and any such Award shall remain in full force and effect.  If such amendment or striking of such provision adversely affects the value of the Award, the Committee shall cause appropriate action to be taken to provide the affected Participant with substantially equivalent value to the Award in question.

 

(f)                                    Other Laws .  The Committee may refuse to issue or transfer any Shares or other consideration under an Award, permit the exercise of an Award and/or the satisfaction of its tax withholding obligation in the manner elected by the Participant, holder or beneficiary if, acting in its sole discretion, it determines that the issuance or transfer of such Shares or such other consideration, the manner of exercise or satisfaction of the tax withholding obligation might violate any applicable law or regulation, including without limitation, the Sarbanes-Oxley Act, or entitle the Company to recover the same under section 16(b) of the Exchange Act, and any

 



 

payment tendered to the Company by a Participant, other holder or beneficiary in connection with the exercise of such Award shall be promptly refunded or refused, as the case may be, to the relevant Participant, holder or beneficiary.  It is the intent of the Company that the grant of any Awards to or other transaction by a Participant who is subject to section 16 of the Exchange Act shall be exempt from such section pursuant to an applicable exemption (except for transactions acknowledged in writing to be non-exempt by such Participant) and, if any provision of this Non-Employee Stock Incentive Plan or any Award Agreement does not comply with the requirements of Rule 16b-3 as then applicable to any such transaction, such provision shall be construed or deemed amended to the extent necessary to conform to the applicable requirements of Rule 16b-3 so that such Participant shall avoid liability under section 16(b) of the Exchange Act.

 

(g)                                   No Trust or Fund Created .  Neither the Non-Employee Stock Incentive Plan nor any Award shall create or be construed to create a trust or separate fund of any kind or a fiduciary relationship between the Company or any Subsidiary and a Participant or any other Person.  To the extent that any Person acquires a right to receive payments from the Company or any Subsidiary pursuant to an Award, such right shall be no greater than the right of any general unsecured creditor of the Company or any Subsidiary. This Non-Employee Stock Incentive Plan shall not constitute an “employee benefit plan” for purposes of section 3(3) of the Employee Retirement Income Security Act of 1974, as amended.

 

(h)                                  Section 409A .  With respect to any Award that is subject to section 409A of the Code, notwithstanding anything in the Non-Employee Stock Incentive Plan or the Award Agreement to the contrary such Award shall be construed as necessary to comply with the Non-Qualified Deferred Compensation Rules, including, but not limited to, (i) compensation under such Award may not be distributed earlier than as permitted in section 409A(2) of the Code, (2) the time or schedule of payment of such Award may not be accelerated except as provided in the Treasury regulations under section 409A, and (3) no compensation under such Award may be deferred at the Participant’s election or by the Company except as permitted by Code section 409A. Notwithstanding the preceding sentence or any provision in the Non-Employee Stock Incentive Plan or an Award Agreement to the contrary, in the event that a “specified employee” (as defined under the Non-Qualified Deferred Compensation Rules) becomes entitled to a payment under an Award that would be subject to additional taxes and interest under the Nonqualified Deferred Compensation Rules if the Participant’s receipt of such payment or benefits is not delayed until the earlier of (A) the date of the Participant’s death, or (B) the date that is six months after the Participant’s “separation from service,” as defined under the Nonqualified Deferred Compensation Rules (such date, the “ Section 409A Payment Date ”), then such payment or benefit shall not be provided to the Participant until the Section 409A Payment Date.  Any amounts subject to the preceding sentence that would otherwise be payable prior to the Section 409A Payment Date will be aggregated and paid in a lump sum without interest on the Section 409A Payment Date.

 

(i)                                      No Fractional Shares .  No fractional Shares shall be issued or delivered pursuant to the Non-Employee Stock Incentive Plan or any Award, and the Committee shall determine whether cash, other securities, or other property shall be paid or transferred in lieu of any fractional Shares or whether such fractional Shares or any rights thereto shall be cancelled, terminated, or otherwise eliminated.

 



 

(j)                                     Headings .  Headings are given to the Section and subsections of the Non-Employee Stock Incentive Plan solely as a convenience to facilitate reference.  Such headings shall not be deemed in any way material or relevant to the construction or interpretation of the Non-Employee Stock Incentive Plan or any provision thereof.

 

(k)                                  Undertakings of Certain Subsidiaries .  The Subsidiaries who otherwise agree to the terms of the Non-Employee Stock Incentive Plan shall, upon request of the Company, fund the cash portion of any Award for a Participant who is an Employee or Consultant of such Subsidiary.

 

(l)                                      Clawback .  This Non-Employee Stock Incentive Plan is subject to any written clawback policies the Company, with the approval of the Board, may adopt.  Any such policy may subject a Participant’s rights and benefits under this Non-Employee Stock Incentive Plan to reduction, cancellation, forfeiture or recoupment if certain specified events or wrongful conduct occur, including but not limited to an accounting restatement due to the Company’s material noncompliance with financial reporting regulations or other events or wrongful conduct specified in any such clawback policy, adopted to conform to the Dodd-Frank Wall Street Reform and Consumer Protection Act and rules promulgated thereunder by the SEC, and that the Company determines should apply to this Non-Employee Stock Incentive Plan.

 

(m)                              Establishment of Sub-Plans .  The Committee may from time to time establish one or more sub-plans under the Non-Employee Stock Incentive Plan for purposes of satisfying applicable blue sky, securities or tax laws of various jurisdictions. The Committee will establish such sub-plans by adopting supplements or appendices to the Non-Employee Stock Incentive Plan setting forth (i) such limitations on the Committee’s discretion under the Non-Employee Stock Incentive Plan as it deems necessary or desirable and (ii) such additional terms and conditions not otherwise inconsistent with the Non-Employee Stock Incentive Plan as it deems necessary or desirable. All such supplements or appendices so established will be deemed to be part of the Non-Employee Stock Incentive Plan, but each supplement or appendix will apply only to Participants within the affected jurisdiction (as determined by the Committee).

 

SECTION 9.    Data Protection .

 

(a)                                  The Company and the Committee may process certain Personal Data (whether provided in any documents that the Participant completes in order to participate in the Plan or sourced from the Participant’s employment with the Company or any Subsidiaries) about Participants in connection with the Plan.  For the purpose of this Section 9, references to the “Company” shall include any Subsidiary and/or Company Affiliate that employs the Participant from time to time).  This Section 9 sets out:

 

(i)                                      the Personal Data that the Company and the Committee will hold; and

 

(ii)                                   the purposes for which the Company and the Committee will hold and use that Personal Data.

 

(b)                                  A Participant shall be required to disclose Personal Data in order to receive an Award.  Disclosure may occur pursuant to an Award Agreement or in connection with the administrative processes used by the Company in order to populate the Award Agreement and

 



 

administer the Award.  If a Participant does not disclose the Personal Data which is required by the Company or the Committee in order to comply with the Plan, the Company and the Committee may not be able to grant an Award to the Participant.

 

(c)                                   The Company and the Committee may collect, use and process Personal Data about a Participant in order to administer or otherwise give effect to the Plan including for the following purposes:

 

(i)                                      to correspond with the Participant and discuss the Plan with the Participant;

 

(ii)                                   to carry out the Participant’s obligations arising from any contracts entered into between the Participant, the Committee and/or the Company;

 

(iii)                                holding, administering and maintaining Participant records, including, but not limited to, details of the Participant’s Awards;

 

(iv)                               to support and assist any third parties with whom the Committee or the Company may share the Personal Data of Participants to manage and administer the Plan;

 

(v)                                  to manage and administer the relationship between the Participant and the Committee and the Company;

 

(vi)                               to comply with legal obligations of the Company and the Committee and to comply with instructions the Company and the Committee may receive from any regulatory bodies or tax authorities;

 

(vii)                            to provide information to the Company, the Committee, trustees of any employee benefit trust, registrars, brokers or any administrators of the Plan; and

 

(viii)                         to provide information to bona fide prospective purchasers or merger partners of the Company (including advisers to such prospective purchasers or merger partners), or the business in which the Participant works.

 

(d)                                  The Company and the Committee may, in order to administer or otherwise give effect to the Plan, from time to time share the Personal Data of Participants with:

 

(i)                                      any Company Affiliate or any Subsidiary of the Company that does not employ the Participant;

 

(ii)                                   advisers, brokers or registrars engaged by the Company, the Committee, and any Company Affiliate and/or any Subsidiary of the Company that does not employ the Participant; and/or

 

(iii)                                any third parties that provide services to the Company, the Committee, and any Company Affiliate and/or any Subsidiary of the Company that does not employ the Participant.

 



 

(e)                                   The Company and the Committee will process the Personal Data of Participants in order to:

 

(i)                                      pursue their legitimate interests of administering, or otherwise giving effect to, the Plan; and/or

 

(ii)                                   fulfill their respective obligations as necessary for the performance of a contract with the Participant (or another Person), or in preparation of entering into a contract with the Participant (or another Person).

 

(f)                                    The Committee will not retain any Personal Data of Participants relating to the Plan.  Any Personal Data of Participants relating to the Plan will be stored by the Company until termination of the Plan.

 

(g)                                   Where the Company and/or the Committee share with, or transfer to, any person the Personal Data of Participants and that person is located outside the European Economic Area, the Company and/or the Committee will ensure that there are in place adequate safeguards for such information, including, entering into model contract clauses which have been approved by the European Commission.  Copies of such agreements can be obtained by request from Nina Nandelstaedt at the Company.

 

(h)                                  The privacy compliance manager for the Company (and contact details) are: Nina Nandelstaedt (email: Nina_Nandelstaedt@venatorcorp.com; telephone: +49 20 6622 2206).

 

(i)                                      Participants have a number of rights in respect of the use by the Company and the Committee of their Personal Data.  These include:

 

(i)                                      the right to object to direct marketing;

 

(ii)                                   the right (subject to certain exclusions) to receive a copy of Personal Data held by the Committee and the Company; and

 

(iii)                                from 25 May 2018, the following rights:

 

(A)                                the right to be forgotten;

 

(B)                                the right to restrict the use of his/her Personal Data by the Company and the Committee;

 

(C)                                the right to object to the way his/her Personal Data is used; and

 

(D)                                the right to object to profiling and automated decision making.

 

Participants who would like any further information about their rights or how to exercise them, should contact Nina Nandelstaedt.

 



 

(j)                                     Participants who are unhappy about the use of Personal Data by the Company or the Committee may make a complaint to the Information Commissioner.  Further information can be found at https://ico.org.uk.

 

SECTION 10.    Effective Date of Plan .

 

This Non-Employee Stock Incentive Plan shall become effective as of the Effective Date, subject to approval by the stockholders of the Company as necessary pursuant to applicable laws.

 

SECTION 11.    Term of the Non-Employee Stock Incentive Plan .

 

No Award shall be granted under this Non-Employee Stock Incentive Plan prior to the date this Non-Employee Stock Incentive Plan is approved by the stockholders of the Company.  If so approved, the Non-Employee Stock Incentive Plan shall continue until the earliest of (i) August 1, 2027, (ii) the date the Board terminates the Non-Employee Stock Incentive Plan, and (iii) the date Shares are no longer available for Awards under the Plan.  However, unless otherwise expressly provided in the Plan, Non-Employee Stock Incentive Plan or in an applicable Award Agreement, any Award granted prior to such termination, and the authority of the Committee to amend, alter, adjust, suspend, discontinue, or terminate any such Award or to waive any conditions or rights under such Award, shall extend beyond such termination date.