As filed with the Securities and Exchange Commission on January 8, 2018.

Registration No. 333-222310

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

AMENDMENT NO. 1

TO

FORM S-1

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

Gates Industrial Corporation plc

(Exact Name of Registrant as Specified in its Charter)

 

 

 

England and Wales   3560   Not Applicable

(State or other jurisdiction of

incorporation or organization)

 

(Primary Standard Industrial

Classification Code Number)

 

(I.R.S. Employer

Identification Number)

1551 Wewatta Street

Denver, Colorado 80202

Telephone: (303) 744-4876

(Address, including zip code, and telephone number, including area code, of Registrant’s principal executive offices)

 

 

Jamey S. Seely

Executive Vice President, General Counsel and Corporate Secretary

1551 Wewatta Street

Denver, Colorado 80202

Telephone: (303) 744-4876

(Name, address, including zip code, and telephone number, including area code, of agent for service)

 

 

Copies to:

 

Edgar J. Lewandowski

Jonathan R. Ozner

Simpson Thacher & Bartlett LLP

425 Lexington Avenue

New York, New York 10017

Telephone: (212) 455-2000

 

Clare Gaskell

Simpson Thacher & Bartlett LLP

CityPoint, One Ropemaker Street

London EC2Y 9HU

England

Telephone: +44-(0)20-7275-6500

 

Michael Kaplan

Marcel Fausten

Davis Polk & Wardwell LLP

450 Lexington Avenue

New York, New York 10017

Telephone: (212) 450-4000

 

 

Approximate date of commencement of the proposed sale of the securities to the public: As soon as practicable after the Registration Statement is declared effective.

If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box.  ☐

If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ☐

If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ☐

If this form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ☐

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):

 

Large accelerated filer      Accelerated filer  
Non-accelerated filer   ☒  (Do not check if a smaller reporting company)    Smaller reporting company  
     Emerging growth company  

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 7(a)(2)(B) of the Securities Act.  ☐

 

 

CALCULATION OF REGISTRATION FEE

 

 

Title of Each Class of
Securities to be Registered
  

Proposed

Maximum

Aggregate

Offering Price(1)(2)

   Amount of
Registration Fee(3)

Ordinary shares, par value $0.01 per share

   $100,000,000    $12,450

 

 

(1) Estimated solely for the purpose of determining the amount of the registration fee in accordance with Rule 457(o) under the Securities Act of 1933.
(2) Includes ordinary shares that the underwriters have the option to purchase to cover over-allotments, if any.
(3) Previously paid.

 

 

The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.

 

 

 


EXPLANATORY NOTE

Gates Industrial Corporation plc is filing this Amendment No. 1, or “Amendment,” to its registration statement on Form S-1 (File No. 333-222310), or the “Registration Statement,” solely to: (i) update information under Item 15 of Part II of the Registration Statement; (ii) file exhibits 3.1, 3.2, 10.1, 10.2, 10.12, 10.13 and 10.14; and (iii) make conforming changes to the exhibit index and signature page. Accordingly, this Amendment consists only of the facing page, this explanatory note, Part II of the Registration Statement and the exhibits filed herewith. The preliminary prospectus is unchanged and has therefore been omitted.

 


PART II

INFORMATION NOT REQUIRED IN PROSPECTUS

ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.

The following table sets forth the expenses payable by the Registrant expected to be incurred in connection with the issuance and distribution of our ordinary shares being registered hereby (other than underwriting discounts and commissions). All of such expenses are estimates, other than the filing and listing fees payable to the Securities and Exchange Commission, the Financial Industry Regulatory Authority, Inc. and the New York Stock Exchange.

 

Filing Fee—Securities and Exchange Commission

   $          *  

Fee—Financial Industry Regulatory Authority, Inc.

             *  

Listing Fee—New York Stock Exchange

             *  

Fees of Transfer Agent

             *  

Fees and Expenses of Counsel

             *  

Fees and Expenses of Accountants

             *  

Printing Expenses

             *  

Miscellaneous Expenses

             *  
  

 

 

 

Total

   $         *  
  

 

 

 

 

* To be provided by amendment.

ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.

We plan to enter into indemnification agreements with our directors and executive officers to indemnify them to the maximum extent allowed under applicable law. These agreements indemnify these individuals against certain costs, charges, losses, liabilities, damages and expenses incurred by such director or officer in the execution or discharge of his or her duties or the exercise of his or her powers or otherwise in relation to or in connection with his or her duties, powers or office. These agreements do not indemnify our directors against any liability attaching to such individuals in connection with any negligence, default, breach of duty or breach of trust in relation to the company of which he or she is a director, which would be rendered void under the Companies Act 2006.

The Company also maintains directors and officers insurance to insure such persons against certain liabilities.

In the underwriting agreement, the underwriters will agree to indemnify, under certain conditions, the Company, members of the Company’s board of directors, members of the executive management board and persons who control the Issuer within the meaning of the Securities Act against certain liabilities.

Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling us under the foregoing provisions, we have been informed that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.

The indemnification rights set forth above shall not be exclusive of any other right which an indemnified person may have or hereafter acquire under any statute, provision of our Articles, agreement, vote of shareholders or disinterested directors or otherwise.

ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.

In connection with its formation in September 2017, the Registrant issued one ordinary share for $0.01 and one redeemable preferred share for £50,000 to Blackstone Capital Partners (Cayman) VI L.P. in exchange for a

 

II-1


note due on April 2, 2018. The issuance of such shares of common stock was not registered under the Securities Act, because the shares were offered and sold in a transaction by the issuer not involving any public offering exempt from registration under Section 4(a)(2) of the Securities Act.

In connection with the closing of this offering, the Registrant expects to issue                  ordinary shares in consideration for the ordinary shares and certain indebtedness of a newly formed holding company of Omaha Topco Ltd. and the pre-IPO owners will receive depositary receipts representing such ordinary shares. Such securities will be issued in reliance on the exemption contained in Section 4(a)(2) of the Securities Act, as transactions by issuers not involving a public offering. No general solicitation or underwriters will be involved in such issuances.

ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.

(a) Exhibits. See the Exhibit Index immediately preceding the signature pages hereto, which is incorporated by reference as if fully set forth herein.

(b) Financial Statement Schedules

None

ITEM 17. UNDERTAKINGS

 

(1) The undersigned Registrant hereby undertakes to provide to the underwriter at the closing specified in the underwriting agreements certificates in such denominations and registered in such names as required by the underwriter to permit prompt delivery to each purchaser.

 

(2) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question of whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.

 

(3) The undersigned Registrant hereby undertakes that:

 

  (A) For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the Registrant pursuant to Rule 424(b) (1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.

 

  (B) For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

II-2


EXHIBIT INDEX

 

Exhibit No.

  

Description

  1.1    Form of Underwriting Agreement**
  3.1    Certificate of Incorporation of Gates Industrial Corporation plc
  3.2    Form of Memorandum and Articles of Association of Gates Industrial Corporation plc
  4.1    Indenture, dated as of June 26, 2014, among Gates Global LLC, Gates Global Co., the guarantors from time to time party hereto and U.S. Bank National Association, as trustee, Elavon Financial Services Limited, U.K. Branch and Elavon Financial Services Limited*
  4.2    Second Supplemental Indenture, dated as of March 30, 2017, among Gates Global LLC, Gates Global Co., the guarantors from time to time party hereto and U.S. Bank National Association, as trustee*
  5.1    Form of Opinion of Simpson Thacher & Bartlett LLP regarding the issue of ordinary shares being registered*
10.1    Form of Shareholders Agreement
10.2    Form of Registration Rights Agreement
10.3    2014 Omaha Topco Ltd. Stock Incentive Plan*†
10.4    Form of Nonqualified Stock Option Agreement under the 2014 Omaha Topco Ltd. Stock Incentive Plan (Pre-2017 grants to Ivo Jurek, David Naemura, Walter Lifsey, and Rasmani Bhattacharya)*†
10.5    Form of Nonqualified Stock Option Agreement under the 2014 Omaha Topco Ltd. Stock Incentive Plan (Pre-2017 grant to Roger Gaston)*†
10.6    Form of Nonqualified Stock Option Agreement under the 2014 Omaha Topco Ltd. Stock Incentive Plan (2017 grant to Ivo Jurek)*†
10.7    Form of Nonqualified Stock Option Agreement under the 2014 Omaha Topco Ltd. Stock Incentive Plan (2017 grant to Roger Gaston)*†
10.8    Form of Management Equity Subscription Agreement under the 2014 Omaha Topco Ltd. Stock Incentive Plan*†
10.9    2015 Omaha Topco Ltd. Non-Employee Director Stock Incentive Plan*†
10.10    Form of Nonqualified Stock Option Agreement under the 2015 Omaha Topco Ltd. Non-Employee Director Stock Incentive Plan*†
10.11    Form of Gates Industrial Corporation plc Omnibus Incentive Plan**†
10.12    Form of Director and Officer Deed of Indemnity†
10.13    Form of Monitoring Fee Agreement
10.14    Form of Support and Services Agreement
10.15    Form of Executive Severance Plan*†
10.16    Form of Executive Change in Control Plan*†
10.17    Separation Agreement, dated May 14, 2017, between Gates Corporation and Rasmani Bhattacharya*†
10.18    Credit Agreement, dated as of July 3, 2014, among Omaha Holdings LLC, Gates Global LLC, the guarantors party thereto, Credit Suisse AG, Cayman Islands Branch, as administrative agent, collateral agent, swing line lender and L/C issuer, and the lenders party thereto*

 

II-3


Exhibit No.

  

Description

10.19    Amendment No. 1 to Credit Agreement, dated as of April 7, 2017, among Omaha Holdings LLC, Gates Global LLC, the guarantors party thereto, Credit Suisse AG, Cayman Islands Branch, as administrative agent and collateral agent, the lenders party thereto and Credit Suisse AG, Cayman Islands Branch, as the additional B-1 euro term lender and additional B-1 dollar term lender*
10.20    Amendment No. 2 to Credit Agreement, dated as of November 22, 2017, among Omaha Holdings LLC, Gates Global LLC, the guarantors party thereto, Credit Suisse AG, Cayman Islands Branch, as administrative agent and collateral agent, the lenders party thereto and Credit Suisse AG, Cayman Islands Branch, as the additional B-2 euro term lender and additional B-2 dollar term lender*
10.21    Credit Agreement, dated as of July 3, 2014, among Omaha Holdings LLC, Gates Global LLC, Tomkins Automotive Canada Limited, Citibank, N.A., as administrative agent and collateral agent, and the lenders party thereto*
10.22    Amendment No. 1 to Credit Agreement, dated as of April 7, 2017, among Omaha Holdings LLC, Gates Global LLC, Gates Industrial Canada Ltd. (f/k/a Tomkins Automotive Canada Limited), Citibank, N.A., as administrative agent and collateral agent, and the lenders party thereto*
10.23    ABL Intercreditor Agreement, dated as of July  3, 2014, among Citibank, N.A., as ABL agent, Credit Suisse AG, Cayman Islands Branch, as cash flow agent, Gates Global LLC, Omaha Holdings LLC and the other grantors party thereto*
10.24    Security Agreement, dated as of July 3, 2014, among Omaha Holdings LLC, Gates Global LLC, the other grantors party thereto and Citibank, N.A., as collateral agent for the secured parties*
10.25    Security Agreement, dated as of July 3, 2014, among Tomkins Automotive Canada Limited, Gates Canada Inc. and Citibank, N.A., as collateral agent for the secured parties*
10.26    Security Agreement, dated as of July 3, 2014, among Omaha Holdings LLC, Gates Global LLC, the other grantors party thereto and Credit Suisse AG, Cayman Islands Branch, as collateral agent for the secured parties*
21.1    Subsidiaries of the Registrant*
23.1    Consent of Deloitte & Touche LLP*
23.2    Consent of Deloitte & Touche LLP*
23.3    Consent of Simpson Thacher & Bartlett LLP (included as part of Exhibit 5.1)*
24.1    Power of Attorney (included in signature pages of this Registration Statement)*

 

* Previously filed.
** To be filed by amendment.
Management contract or compensatory plan or arrangement.

 

II-4


SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant has duly caused this Registration Statement or amendment thereto to be signed on its behalf by the undersigned, thereunto duly authorized, in Denver, Colorado, on the 8 th day of January, 2018.

 

GATES INDUSTRIAL CORPORATION PLC
By:  

/s/ Ivo Jurek

 

Name: Ivo Jurek

Title: Chief Executive Officer

Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement or amendment thereto has been signed by the following persons in the capacities indicated on the 8 th day of January, 2018.

 

Signature

  

Title

/s/ Ivo Jurek

Ivo Jurek

   Chief Executive Officer and Director
(principal executive officer)

/s/ David H. Naemura

David H. Naemura

  

Chief Financial Officer
(principal financial officer and principal accounting officer)

and Gates’ authorized representative in the United States

*

David L. Calhoun

   Director

*

Neil P. Simpkins

   Director

*

Julia C. Kahr

   Director

*

John Plant

   Director

*

Terry Klebe

   Director

*

Karyn Ovelmen

   Director

 

*   By:  

/s/ Jamey S. Seely

  Name:   Jamey S. Seely
  Title:   Attorney-in-Fact

 

II-5

Exhibit 3.1

 

LOGO

CERTIFICATE OF INCORPORATION

OF A

PUBLIC LIMITED COMPANY

Company Number 10980824

The Registrar of Companies for England and Wales, hereby certifies that

GATES INDUSTRIAL CORPORATION PLC

is this day incorporated under the Companies Act 2006 as a public company, that the company is limited by shares, and the situation of its registered office is in England and Wales.

Given at Companies House, Cardiff, on 25th September 2017 .

The above information was communicated by electronic means and authenticated by the

Registrar of Companies under section 1115 of the Companies Act 2006

 

LOGO    LOGO
Table of Contents

Exhibit 3.2

THE COMPANIES ACT 2006

PUBLIC COMPANY LIMITED BY SHARES

 

 

ARTICLES OF ASSOCIATION

of

Gates Industrial Corporation plc

Company number: 10980824

As at [●] 2018

 

 


Table of Contents

TABLE OF CONTENTS

Table of Contents

 

         Page  

TABLE OF CONTENTS

     1  

1

 

Preliminary

     1  

2

 

Interpretation

     1  

3

 

Liability of members

     5  

4

 

Change of name

     5  

SHARE CAPITAL

     5  

5

 

Allotment of shares and special rights

     5  

6

 

Commissions on issue of shares

     6  

7

 

Reduction of capital

     6  

8

 

Fractions arising on consolidation or subdivision

     6  

9

 

Capitalization of profits and reserves

     7  

10

 

Trusts not recognized

     8  

SHARE CERTIFICATES

     8  

11

 

Issue of share certificates

     8  

12

 

Form of share certificate

     8  

13

 

Replacement of share certificates

     8  

14

 

Consolidated and balance share certificates

     9  

SHARES NOT HELD IN CERTIFICATED FORM

     9  

15

 

UncertIficated shares

     9  

CALLS ON SHARES

     11  

16

 

Sums due on shares

     11  

17

 

Power to differentiate between holders

     11  

18

 

Calls

     11  

19

 

Liability for calls

     12  

20

 

Interest on overdue amounts

     12  

21

 

Payment of calls in advance

     12  

FORFEITURE AND LIEN

     12  

22

 

Notice on failure to pay a call

     12  

23

 

Forfeiture for non-compliance

     13  

24

 

Disposal of forfeited shares

     13  

25

 

Holder to remain liable despite forfeiture

     14  

26

 

Lien on partly-paid shares

     14  

 

1


Table of Contents

27

 

Sale of shares subject to lien

     14  

28

 

Evidence of forfeiture

     16  

VARIATION OF RIGHTS

     16  

29

 

Manner of variation of rights

     16  

30

 

Matters not constituting variation of rights

     16  

TRANSFER OF SHARES

     17  

31

 

Form of transfer

     17  

32

 

Right to refuse registration

     17  

33

 

No fee on registration

     18  

TRANSMISSION OF SHARES

     18  

34

 

Persons entitled to shares on death

     18  

35

 

Election by persons entitled by transmission

     18  

36

 

Rights of persons entitled by transmission

     19  

37

 

Prior notices binding

     19  

UNTRACED SHAREHOLDERS

     19  

38

 

Untraced shareholders

     19  

GENERAL MEETINGS

     20  

39

 

Annual General Meetings

     20  

40

 

Convening of General Meetings

     21  

NOTICE OF GENERAL MEETINGS

     21  

41

 

Length and form of notice

     21  

PROCEEDINGS AT GENERAL MEETINGS

     22  

42

 

Chairperson

     22  

43

 

Requirement for Quorum

     22  

44

 

Adjournment

     22  

45

 

Notice of adjourned meeting

     23  

46

 

Amendments to resolutions

     23  

47

 

Security arrangements and orderly conduct

     23  

48

 

Satellite meeting places

     24  

POLLS

     24  

49

 

Demand for poll

     24  

50

 

Procedure on a poll

     25  

51

 

Timing of poll

     26  

VOTES OF MEMBERS

     26  

52

 

Votes attaching to shares

     26  

53

 

Votes of joint holders

     26  

 

2


Table of Contents

54

 

Validity and result of vote

     26  

PROXIES AND CORPORATE REPRESENTATIVES

     27  

55

 

Appointment of proxies

     27  

56

 

Multiple Proxies

     27  

57

 

Form of proxy

     27  

58

 

Deposit of form of proxy

     28  

59

 

Rights of proxy

     28  

60

 

Termination of proxy’s authority

     29  

61

 

Corporations acting by representatives

     29  

DEFAULT SHARES

     29  

62

 

Restriction on voting in particular circumstances

     29  

DIRECTORS

     31  

63

 

Number of Directors

     31  

64

 

Share qualification

     31  

65

 

Remuneration of Directors

     31  

66

 

Directors’ expenses

     31  

67

 

Directors’ pensions and other benefits

     32  

68

 

Appointment of executive Directors and Chairperson

     32  

69

 

Powers of executive Directors

     32  

APPOINTMENT AND RETIREMENT OF DIRECTORS

     32  

70

 

Methods of appointing Directors

     32  

71

 

Retirement at Annual General Meetings

     34  

72

 

Termination of office

     34  

73

 

Removal of Director by resolution of Company

     35  

MEETINGS AND PROCEEDINGS OF DIRECTORS

     36  

74

 

Convening of meetings of Directors

     36  

75

 

Quorum

     36  

76

 

Chairperson

     36  

77

 

Number of Directors below minimum

     37  

78

 

Directors’ written resolutions

     37  

79

 

Validity of proceedings

     37  

DIRECTORS’ INTERESTS

     37  

80

 

Authorization of Directors’ interests

     37  

81

 

Permitted Interests

     38  

82

 

Investor Directors

     39  

83

 

Restrictions on quorum and voting

     40  

 

3


Table of Contents

84

 

Confidential Information

     42  

85

 

Directors’ interests – general

     42  

POWERS OF DIRECTORS

     43  

86

 

General powers

     43  

87

 

Provision for employees on cessation or transfer of business

     43  

88

 

Bank mandates

     43  

89

 

Borrowing

     43  

DELEGATION OF POWERS

     44  

90

 

Appointment and constitution of committees

     44  

91

 

Local boards and managers

     44  

92

 

Appointment of attorney

     44  

93

 

Alternate Directors

     45  

SECRETARY

     46  

94

 

Secretary

     46  

95

 

The Seal

     46  

AUTHENTICATION OF DOCUMENTS

     46  

97

 

Authentication of documents

     46  

OVERSEAS BRANCH

     47  

98

 

Overseas branch

     47  

DIVIDENDS

     47  

99

 

Declaration of final dividends

     47  

100

 

Fixed and interim dividends

     47  

101

 

Distribution in specie

     48  

102

 

Ranking of shares for dividend

     48  

103

 

Manner of payment of dividends

     48  

104

 

Record date for dividends

     49  

105

 

No interest on dividends

     49  

106

 

Retention of dividends

     49  

107

 

Unclaimed dividend

     50  

108

 

Waiver of dividend

     50  

109

 

Calls or debts may be deducted

     50  

SCRIP DIVIDENDS

     51  

110

 

Scrip dividends

     51  

ACCOUNTS

     52  

111

 

Accounting records

     52  

COMMUNICATIONS WITH MEMBERS

     52  

 

4


Table of Contents

112

 

Service of notices

     52  

113

 

Communication with joint holders

     53  

114

 

Deceased and bankrupt members

     54  

115

 

Failure to supply address

     55  

116

 

Suspension of postal services

     55  

117

 

Signature or authentication of documents sent by electronic means

     55  

118

 

Statutory provisions as to notices

     56  

WINDING UP

     56  

119

 

Directors’ power to petition

     56  

DESTRUCTION OF DOCUMENTS

     56  

120

 

Destruction of documents

     56  

DIRECTORS’ LIABILITIES

     57  

121

 

Indemnity

     57  

122

 

Insurance

     58  

123

 

Defence expenditure

     58  

124

 

Forum

     59  

125

 

Depositary interests other than DTC

     59  

 

5


Table of Contents

The Companies Act 2006

PUBLIC COMPANY LIMITED BY SHARES

ARTICLES OF ASSOCIATION

of Gates Industrial Corporation plc

(the “ Company ”)

 

1 PRELIMINARY

Neither the regulations in The Companies (Model Articles) Regulations 2008 nor any other articles or regulations prescribing forms of articles which may apply to companies under the Act or any former enactment relating to companies shall apply to the Company.

 

2 INTERPRETATION

 

  2.1 In these Articles (if not inconsistent with the subject or context):

Act ” means the Companies Act 2006;

address ” means any address or number (including, in the case of any Uncertificated Proxy Instruction, an identification number of a participant in the relevant system) used for the purposes of sending or receiving notices, documents or information by electronic means and/or by means of a website;

Affiliate ” has the meaning given to it in Rule 12b-2 promulgated under the Exchange Act, as in effect on the date hereof;

Annual General Meeting ” means a General Meeting held as the Company’s annual general meeting in accordance with Section 336 of the Act;

Beneficially Own ” has the meaning given to it in Rule 13d-3 promulgated under the Exchange Act, and “ Beneficial Ownership ” shall be construed accordingly;

Board ” means the Board of Directors of the Company from time to time;

clear days ” means a period of notice of the specified length excluding the day on which the notice is served or deemed to be served and the day for which the notice is given;

Company Communications Provisions ” has the same meaning as in Section 1143 of the Act;

Depositary ” means any depositary, clearing agency, custodian, nominee or similar entity appointed under arrangements entered into by the Company or otherwise approved by the Board that holds, or is interested directly or indirectly, including through a nominee, in, shares, or rights or interests in respect thereof, and which 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;

 

1


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Depositary Interest ” means any certificate, instrument, security, depositary receipt, or other document of title issued or created, or interest recorded in an account maintained, by a Depositary to evidence or record the entitlement of the holder, or account holder, to or to receive shares, or rights or interests in respect thereof;

Depositary Interest Holder ” means the holder of a Depositary Interest;

Directors ” means the Directors of the Company;

DTC ” means The Depository Trust Company and any Affiliate or nominee therefore, including Cede & Co, and any successors thereto;

electronic form ” has the same meaning as in section 1168 of the Act;

electronic means ” has the same meaning as in section 1168 of the Act;

Exchange Act ” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder, as the same may be amended from time to time;

General Meeting ” means any general meeting of the Company, including any General Meeting held as the Company’s Annual General Meeting;

Group ” means the Company and every subsidiary and holding company of the Company and of each such subsidiary and holding company;

hard copy form ” has the same meaning as in section 1168 of the Act;

holder ” means, in relation to shares, the person whose name is entered in the register of members as the holder of the shares;

holding company ” has the meaning given in section 1159 of the Act;

Investor Designee ” has the meaning set given to it in Article 70.3;

Investor Designator ” means the Investor, or any group of Investors collectively, then holding a majority of Ordinary Shares held by all Investors;

Investor Entities ” means the Investors and their Affiliates and their respective successors;

Investors ” means the parties to any shareholders’ agreement in respect of the Company entered into from time to time, and “ Investor ” means any one of them;

in writing ” means written or produced by any substitute for writing (including anything in electronic form) or partly one and partly another;

IPO ” the underwritten initial public offering by the Company of its Ordinary Shares;

month ” means calendar month;

Office ” means the registered office of the Company for the time being;

 

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Operator ” means the operator of a relevant system (as defined in the Uncertificated Securities Regulations) or the transfer agent of the Company (as applicable);

Ordinary Shares ” means the ordinary shares of $0.01 each in the capital of the Company, and any securities issued in respect thereof, or in substitution therefor, in connection with any share split, dividend or combination, or any reclassification, recapitalization, merger, consolidation or similar transaction;

paid ” means paid or credited as paid;

participating security ” means a share or other security which is permitted to be transferred by means of a relevant system;

person entitled ” in relation to a share means a person entitled to that share by reason of the death or bankruptcy of a member or otherwise by operation of law;

Pre-IPO Owners ” means (a) the Investor Entities and (b) any other holders of Ordinary Shares in issue immediately prior to the closing of the IPO and, in each case, any Affiliate of any such holder that shall become a holder of any Ordinary Shares;

Register ” means the register of members of the Company;

relevant system ” means any computer-based system, and procedures, permitted by the Uncertificated Securities Regulations or other applicable regulations, which enable title to shares or other securities to be evidenced and transferred without a written instrument and which facilitate supplementary and incidental matters;

Rights ” has the meaning given to it in Article 5.1;

Seal ” means the common seal of the Company;

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

Securities Seal ” means an official seal kept by the Company for sealing securities issued by the Company, or for sealing documents creating or evidencing securities so issued, as permitted by the Act;

subsidiary ” has the meaning given in section 1159 of the Act;

these Articles ” means these Articles of Association as from time to time altered;

Total Number of Directors ” means the total number of Directors from time to time;

Transfer Office ” means the place where the Register is situated for the time being;

Uncertificated Proxy Instruction ” means a properly authenticated dematerialized instruction, and/or other instruction or notification, sent by means of a relevant system to a participant in that system acting on behalf of the Company as the Directors may prescribe, in such form and subject to such terms and conditions as may from time to time be prescribed by the Directors (subject always to the facilities and requirements of the relevant system);

 

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Uncertificated Securities Regulations ” means the Uncertificated Securities Regulations (2001) (as amended);

United States ” means the United States of America;

Voting Rights ” means the voting rights attaching to any shares which are generally exercisable at General Meetings of the Company; and

year ” means calendar year.

 

  2.2 Any reference to issued shares of any class (whether of the Company or of any other company) shall not include any shares of that class held as treasury shares except where the contrary is expressly provided.

 

  2.3 Words denoting the singular shall include the plural and vice versa. Words denoting the masculine shall include the feminine. Words denoting persons shall include bodies corporate and unincorporated associations.

 

  2.4 References to an Article are to a numbered paragraph of these Articles.

 

  2.5 The words “including” and “include” and words of similar effect shall not be deemed to limit the general effect of the words which precede them.

 

  2.6 References to any statute or statutory provision shall be construed as relating to any statutory modification or re-enactment thereof for the time being in force (whether coming into force before or after the adoption of these Articles).

 

  2.7 References to a share (or to a holding of shares) being in certificated or uncertificated form are references, respectively, to that share being a certificated or an uncertificated unit of a security for the purposes of the Uncertificated Securities Regulations.

 

  2.8 Subject to Article 29.2, the provisions of these Articles relating to General Meetings and to the proceedings at such meetings shall apply to separate meetings of a class of shareholders.

 

  2.9 References to a person being present at a General Meeting include a person present by corporate representative.

 

  2.10 Except as provided above, any words or expressions defined in the Act or the Uncertificated Securities Regulations shall (if not inconsistent with the subject or context) bear the same meanings in these Articles.

 

  2.11 A reference to writing or written includes references to any method of representing or reproducing words in a legible and non-transitory form whether sent or supplied in an electronic form or otherwise.

 

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3 LIABILITY OF MEMBERS

The liability of each member is limited to the amount (if any) for the time being unpaid on the shares held by that member.

 

4 CHANGE OF NAME

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

SHARE CAPITAL

 

5 ALLOTMENT OF SHARES AND SPECIAL RIGHTS

 

  5.1 In accordance with section 551 of the Act, the Directors are generally and unconditionally authorized to allot shares in the Company or grant rights to subscribe for or to convert any security into shares in the Company (the “ Rights ”) up to an aggregate nominal amount of $30,000,000.00, provided that this authority shall, unless renewed, varied or revoked by the Company, expire on the date which is five years from the date of the adoption of these Articles, save that the Company may, before such expiry, make an offer or agreement which would or might require shares to be allotted or Rights to be granted and the Directors may allot shares or grant Rights in pursuance of such offer or agreement notwithstanding that the authority conferred by this resolution has expired.

 

  5.2 The Directors are generally empowered to allot equity securities (as defined in section 560 of the Act) as if section 561(1) of the Act did not apply to any such allotment, provided that this power shall: (i) be limited to the allotment of equity securities up to an aggregate nominal amount of $30,000,000.00; and (ii) unless renewed, varied or revoked by the Company, expire on the date which is five years from the date of the adoption of these Articles, save that the Company may, before such expiry, make an offer or agreement which would or might require equity securities to be allotted after such expiry and the Directors may allot equity securities in pursuance of any such offer or agreement notwithstanding that the power conferred by this resolution has expired.

 

  5.3 The provisions set forth in Articles 5.1 and 5.2 may be renewed at any meeting of the members of the Company.

 

  5.4 Without prejudice to any rights attached to any existing shares and subject to the Act, the Company may issue shares with such rights or restrictions as determined by either the Company by ordinary resolution or, if the Company passes a resolution to so authorize them, the Directors.

 

  5.5 Subject to the Act, these Articles and any resolution of the Company, the Directors may offer, allot (with or without conferring a right of renunciation), grant options over or otherwise deal with or dispose of any shares to such persons, at such times and generally on such terms as the Directors may decide.

 

  5.6 The Company may issue any shares which are to be redeemed, or are liable to be redeemed at the option of the Company or the holder, on such terms and in such manner as the Company may determine by ordinary resolution and the Directors may determine the terms, conditions and manner of redemption of any such shares.

 

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6 COMMISSIONS ON ISSUE OF SHARES

The Company may in connection with the issue of any shares or the sale for cash of treasury shares exercise all powers of paying commission and brokerage permitted by the Act. Such payment may be in cash, by allotting fully or partly paid shares or other securities, or partly in one way and partly in the other.

 

7 REDUCTION OF CAPITAL

The Company may by special resolution reduce its share capital, share premium account, capital redemption reserve or redenomination reserve in any way permitted by the Act.

 

8 FRACTIONS ARISING ON CONSOLIDATION OR SUBDIVISION

 

  8.1 If, as the result of consolidation, consolidation and division or sub division of shares, members would become entitled to fractions of a share, the Directors may on behalf of the members deal with the fractions as they think fit. Subject to the Act, the Directors may, in effecting divisions and/or consolidations, treat a member’s shares held in certificated form and uncertificated form as separate holdings. In particular, the Directors may:

 

  8.1.1 aggregate fractional entitlements and sell any resulting shares to a person or persons (including, subject to the Act, to the Company) and distribute the net proceeds of sale in due proportion amongst the persons entitled or, if the Directors decide, some or all of the sum raised on a sale may be retained for the benefit of the Company; or

 

  8.1.2 subject to the Act, allot or issue to a member credited as fully paid by way of capitalization the minimum number of shares required to round up his holding of shares to a number which, following consolidation, 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, consolidation and division or sub division, as the case may be).

 

  8.2 To give effect to a sale pursuant to Article 8.1.1 above the Directors may arrange for the shares representing the fractions to be entered in the register as certificated shares. The Directors may also authorize a person to transfer the shares to, or to the direction of, the purchaser. 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.

 

  8.3 If shares are allotted or issued pursuant to Article 8.1.2 above, the amount required to pay up those shares may be capitalized as the Directors think 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 Directors capitalizing part of the reserves has the same effect as if the capitalization had been declared by ordinary resolution of the Company pursuant to Article 9. In relation to the capitalization the Directors may exercise all the powers conferred on it by Article 9 without an ordinary resolution of the Company.

 

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9 CAPITALIZATION OF PROFITS AND RESERVES

 

  9.1 If so authorized by an ordinary resolution, the Directors may:

 

  9.1.1 capitalize any sum standing to the credit of any of the Company’s reserve accounts (including any share premium account, capital redemption reserve or any other reserve or fund (whether or not it is available for distribution)); and

 

  9.1.2 capitalize any sum standing to the credit of the profit and loss account that is not required for payment of any preferential dividend.

 

  9.2 Unless the ordinary resolution passed in accordance with Article 9.1 states otherwise the Directors shall set aside such capitalized sum for the holders of ordinary shares (“ entitled members ”), in proportion to the number of ordinary shares held by them on the date that the resolution is passed in accordance with Article 9.1 or such other date as set out in or calculated in accordance with such resolution, or in such other proportions as stated, or fixed as stated, in the resolution.

 

  9.3 The Directors may apply such capitalized sum in paying up new ordinary shares (or, subject to any special rights previously conferred on any shares or class of shares, new shares of any other class). The Company shall then allot such shares credited as fully paid to the entitled members or as they may direct. For the purposes of this Article 9.3, unless the ordinary resolution passed in accordance with Article 9.1 provides otherwise, if the Company holds treasury shares on the date determined in accordance with Article 9.3.2,

 

  9.3.1 it shall be treated as an entitled member; and

 

  9.3.2 all ordinary shares held by it as treasury shares shall be included in determining the proportions in which the capitalized sum is set aside.

 

  9.4 To the extent a capitalized sum is appropriated from profits available for distribution it may also be applied:

 

  9.4.1 in or towards paying up any amounts unpaid on existing shares held by the entitled members; or

 

  9.4.2 in paying up new debentures of the Company which are then allotted credited as fully paid to the entitled members or as they may direct; or

 

  9.4.3 a combination of the two.

 

  9.5 The Directors may:

 

  9.5.1 make such provisions as they think fit for any fractional entitlements which might arise on a capitalization (including to disregard fractional entitlements or for the benefit of them to accrue to the Company); and

 

  9.5.2 authorize any person to enter into an agreement with the Company on behalf of all of the entitled members in relation to the issue of shares or debentures pursuant to this Article 9. Any agreement made under such authority shall be binding on the entitled members.

 

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10 TRUSTS NOT RECOGNIZED

Except as required by law and these Articles, the Company is not obliged to recognize any person as holding any share upon any trust nor any other right in respect of any share, except the holder’s absolute right to the share and the rights attaching to it.

SHARE CERTIFICATES

 

11 ISSUE OF SHARE CERTIFICATES

 

  11.1 The Company shall issue a share certificate to every person whose name is entered in the Register in respect of shares in certificated form, except where the Act allows the Company not to issue a certificate.

 

  11.2 Subject to Article 13, the Company shall issue share certificates without charge.

 

  11.3 The Company shall issue certificates within the time limit prescribed by the Act or, if earlier, within any time limit specified in the terms of the shares or under which they were issued.

 

  11.4 Where shares are held jointly by several persons, the Company is not required to issue more than one certificate in respect of those shares, and delivery of a certificate to one joint holder shall be sufficient delivery to them all.

 

  11.5 Each certificate must be in respect of one class of shares only. If a member holds more than one class of shares, separate certificates must be issued to that member in respect of each class.

 

  11.6 Every share certificate sent in accordance with these Articles will be sent at the risk of the member or other person entitled to the certificate. The Company will not be responsible for any share certificate lost or delayed in the course of delivery.

 

12 FORM OF SHARE CERTIFICATE

 

  12.1 Every share certificate shall be executed by the Company by affixing the Seal or the Securities Seal (or, in the case of shares on a branch register, an official seal for use in the relevant territory) or otherwise in any manner permitted by the Act.

 

  12.2 Notwithstanding the foregoing, any signatures on any share certificates need not be autographic but may be applied to the certificates by some electronic, mechanical or other means or may be printed on them.

 

  12.3 Every share certificate shall specify the number and class of shares to which it relates, the nominal value of those shares, the amount paid up on them and any distinguishing numbers assigned to them.

 

13 REPLACEMENT OF SHARE CERTIFICATES

 

  13.1 A member who has separate certificates in respect of shares of one class may request in writing that it be replaced with a consolidated certificate. The Company may comply with such request at its discretion.

 

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  13.2 A member who has a consolidated share certificate may request in writing that it be replaced with two or more separate certificates representing the shares in such proportions as the member may specify. The Company may comply with such request at its discretion.

 

  13.3 If a share certificate is damaged or defaced or alleged to have been lost, stolen or destroyed, the member shall be issued a new certificate representing the same shares upon request.

 

  13.4 No new certificate will be issued pursuant to this Article 13 unless the relevant member has:

 

  13.4.1 first delivered the old certificate or certificates to the Company for cancellation; or

 

  13.4.2 complied with such conditions as to evidence and indemnity as the Directors may think fit; and

 

  13.4.3 paid such reasonable fee as the Directors may decide.

 

  13.5 In the case of shares held jointly by several persons, any request pursuant to this Article 13 may be made by any one of the joint holders.

 

14 CONSOLIDATED AND BALANCE SHARE CERTIFICATES

 

  14.1 If a member’s holding of shares of a particular class increases, the Company must issue that member with either:

 

  14.1.1 a consolidated certificate in respect of all of the shares of that class held by that member; or

 

  14.1.2 a separate certificate in respect of only the number of shares of that class by which that members holding has increased.

 

  14.2 If only some of the shares comprised in a share certificate are transferred, or the member’s holding of those shares is otherwise reduced, the Company shall issue a new certificate for the balance of such shares.

 

  14.3 No new certificate will be issued pursuant to this Article 14 unless the relevant member has:

 

  14.3.1 first delivered any old certificate or certificates that represent any of the same shares to the Company for cancellation; or

 

  14.3.2 complied with such conditions as to evidence and indemnity as the Directors may think fit and paid such reasonable fee as the Directors may decide.

SHARES NOT HELD IN CERTIFICATED FORM

 

15 UNCERTIFICATED SHARES

 

  15.1 In this Article 15, the “ relevant rules ” means:

 

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  15.1.1 any applicable provision of the Act and the Uncertificated Securities Regulations about the holding, evidencing of title to, or transfer of shares other than in certificated form; and

 

  15.1.2 any applicable legislation, rules or other arrangements made under or by virtue of such provision.

 

  15.2 The provisions of this Article 15 have effect subject to the relevant rules. To the extent any provision of these Articles is inconsistent with the applicable relevant rules it must be disregarded.

 

  15.3 Any share or class of shares of the Company may be issued or held on such terms, or in such a way, that:

 

  15.3.1 title to it or them is not, or must not be, evidenced by a certificate; or

 

  15.3.2 it or they may or must be transferred wholly or partly without a certificate.

 

  15.4 The Directors have power to take such steps as they think fit in relation to:

 

  15.4.1 the evidencing of and transfer of title to uncertificated shares (including in connection with the issue of such shares);

 

  15.4.2 any records relating to the holding of uncertificated shares;

 

  15.4.3 the conversion of certificated shares into uncertificated shares; or

 

  15.4.4 the conversion of uncertificated shares into certificated shares.

 

  15.5 The Company may by notice in writing to the holder of a share require that share:

 

  15.5.1 if it is uncertificated, to be converted into certificated form; or

 

  15.5.2 if it is certificated, to be converted into uncertificated form,

to enable it to be dealt with in accordance with the Articles.

 

  15.6 If:

 

  15.6.1 the Articles give the Directors power to take action, or require other persons to take action, in order to sell, transfer or otherwise dispose of shares; and

 

  15.6.2 uncertificated shares are subject to that power, but the power is expressed in terms which assume the use of a certificate or other written instrument,

the Directors may take such action as is necessary or expedient to achieve the same results when exercising that power in relation to uncertificated shares.

 

  15.7 The Directors may take such action as they consider appropriate to achieve the sale, transfer, disposal, forfeiture, re-allotment or surrender of an uncertificated share or otherwise to enforce a lien in respect of it. This may include converting such share to certificated form.

 

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  15.8 Unless the Directors resolve otherwise, shares which a member holds in uncertificated form must be treated as separate holdings from any shares which that member holds in certificated form.

 

  15.9 A class of shares must not be treated as two classes simply because some shares of that class are held in certificated form and others are held in uncertificated form.

 

  15.10 The Company may be entitled to assume that 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 on such assumption. Any provision of these Articles which 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).

CALLS ON SHARES

 

16 SUMS DUE ON SHARES

 

  16.1 For the purposes of these Articles, any sum (whether on account of the nominal value of the share or by way of premium) which by the terms of allotment of a share becomes payable upon allotment, or at any fixed date, shall be deemed to be a call duly made and payable on the date on which it is payable.

 

  16.2 In case of non-payment, all the relevant provisions of these Articles as to payment of interest and expenses, forfeiture or otherwise shall apply as if such sum had become payable by virtue of a call duly made and notified.

 

17 POWER TO DIFFERENTIATE BETWEEN HOLDERS

On the allotment of shares, the Directors may provide that the amount of calls to be paid on those shares and the times of payment are different for different holders of those shares.

 

18 CALLS

 

  18.1 Subject to the terms of allotment of the shares, the Directors may make a “call” by requiring a member to pay to the Company any money that is payable on the shares such member holds as at the date of the call.

 

  18.2 A call shall be deemed to have been made at the time when the resolution of the Directors authorizing the call was passed.

 

  18.3 Notice in writing of a call must be given to the relevant member and may specify the time or times and place where payment is required to be made.

 

  18.4 A call may be made payable by instalments.

 

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  18.5 A member must pay to the Company the amount called on such member’s shares at the time or times and place specified, but is not required to do so until fourteen days have passed since the notice of call was sent.

 

  18.6 A call may be wholly or partly revoked or postponed at any time before payment of it is made, as the Directors may decide.

 

19 LIABILITY FOR CALLS

 

  19.1 The joint holders of a share shall be jointly and severally liable to pay all calls in respect of such share.

 

  19.2 A person on whom a call is made remains liable for the call notwithstanding the subsequent transfer of the shares in respect of which the call was made.

 

20 INTEREST ON OVERDUE AMOUNTS

 

  20.1 If a sum called in respect of a share is not paid by the time it is due for payment, the member from whom the sum is due shall pay interest on the sum from the time payment was due to the time of actual payment at such rate (not exceeding fifteen per cent per annum) as the Directors decide.

 

  20.2 The Directors may waive payment of such interest wholly or in part at their discretion.

 

21 PAYMENT OF CALLS IN ADVANCE

 

  21.1 Any member may pay to the Company all or any part of the amount (whether on account of the nominal value of the shares or by way of premium) uncalled and unpaid upon the shares held by such member. The Directors may accept or refuse such payment, as they think fit.

 

  21.2 Any payment in advance of calls shall, to the extent of such payment, extinguish the liability upon the shares in respect of which it is made.

 

  21.3 The Company may pay interest upon the money so received (until the same would but for such advance become payable) at such rate as the member paying such sum and the Directors may agree.

FORFEITURE AND LIEN

 

22 NOTICE ON FAILURE TO PAY A CALL

 

  22.1 If a member fails to pay in full any call or instalment of a call on or before the due date for payment, the Directors may at any time serve a notice in writing on such member requiring payment of:

 

  22.1.1 so much of the call or instalment as is due but unpaid;

 

  22.1.2 any interest which may have accrued on the unpaid amount; and

 

  22.1.3 any expenses incurred by the Company by reason of such non-payment.

 

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  22.2 The notice shall state:

 

  22.2.1 a date (not being less than seven days from the date of service of the notice) on or before which the payment is to be made;

 

  22.2.2 the place where the payment is to be made; and

 

  22.2.3 that in the event of non-payment the shares on which the call has been made will be liable to be forfeited.

 

23 FORFEITURE FOR NON-COMPLIANCE

 

  23.1 If the requirements of any notice given pursuant to Article 22 are not complied with and all calls and interest and expenses due in respect of such share remain unpaid, any share in respect of which such notice has been given may be forfeited by a resolution of the Directors to that effect.

 

  23.2 Such forfeiture shall include all dividends declared in respect of the forfeited share and not actually paid before forfeiture.

 

  23.3 Where for the purposes of its disposal a forfeited share is to be transferred to any person:

 

  23.3.1 in the case of a share in certificated form, the directors may authorize any person to execute an instrument of transfer and take such other steps (including the giving of directions to or on behalf of the holder, who shall be bound by them) as they think fit to effect the transfer; and

 

  23.3.2 in the case of a share in uncertificated form, the directors may:

 

  23.3.2.1 to enable the Company to deal with the share in accordance with the provisions of this article, require or procure any relevant person or the Operator (as applicable) to convert the share into certificated form; and

 

  23.3.2.2 after such conversion, authorize any person to execute an instrument of transfer and take such other steps (including the giving of directions to or on behalf of the holder, who shall be bound by them) as they think fit to effect the transfer.

 

24 DISPOSAL OF FORFEITED SHARES

 

  24.1 A share forfeited or surrendered shall become the property of the Company and may be sold, re-allotted or otherwise disposed of to any person (including the person who was before such forfeiture or surrender the holder of that share or entitled to it) on such terms and in such manner as the Directors shall think fit.

 

  24.2 At any time before a sale, re-allotment or disposal, the forfeiture or surrender may be cancelled (and any expenses in respect of the share waived) on such terms as the Directors think fit.

 

  24.3 The Directors may authorize any person to transfer a forfeited or surrendered share pursuant to this Article 24.

 

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25 HOLDER TO REMAIN LIABLE DESPITE FORFEITURE

 

  25.1 A person whose shares have been forfeited or surrendered shall:

 

  25.1.1 cease to be a member in respect of those shares;

 

  25.1.2 in the case of shares held in certificated form, surrender to the Company for cancellation the certificate for such shares; and

 

  25.1.3 remain liable to pay to the Company all moneys which at the date of forfeiture or surrender were payable by such person to the Company in respect of the shares together with interest on such sum at a rate of fifteen per cent per annum (or such lower rate as the Directors may decide) from the date of forfeiture or surrender until the date of actual payment.

 

  25.2 The Directors may at their absolute discretion enforce payment without any allowance for the value of the shares at the time of forfeiture or surrender or for any consideration received on their disposal. They may also waive payment in whole or in part.

 

26 LIEN ON PARTLY-PAID SHARES

 

  26.1 The Company shall have a lien on every share that is not fully-paid for all moneys in respect of the share’s nominal value, or any premium at which it was issued, that have not been paid to the Company and are payable immediately or at a fixed time in the future, whether or not a call has been made on such sums.

 

  26.2 The Company’s lien over a share takes priority over the rights of any third party and extends to any dividends or other sums payable by the Company in respect of that share (including any sale proceeds if that share is sold by the Company pursuant to these Articles).

 

  26.3 The Directors may waive any lien which has arisen and may resolve that any share shall be exempt wholly or partially from the provisions of this Article 26 for such period as the Directors decide.

 

27 SALE OF SHARES SUBJECT TO LIEN

 

  27.1 The Company may sell, in such manner as the Directors decide, any share in respect of which an enforcement notice has been given if that notice has not been complied with.

 

  27.2 An enforcement notice:

 

  27.2.1 may only be given if a sum in respect of which the lien exists is due and has not been paid;

 

  27.2.2 must specify the share concerned;

 

  27.2.3 must require payment of the sum due on a date not less than fourteen days from the date of the notice;

 

  27.2.4 must be in writing and addressed to the holder of, or person entitled to, that share; and

 

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  27.2.5 must give notice of the Company’s intention to sell the share if the notice is not complied with.

 

  27.3 Where for the purposes of its sale the said share is to be transferred to any person:

 

  27.3.1 in the case of a share in certificated form, the Directors may authorize any person to execute an instrument of transfer and take such other steps (including the giving of directions to or on behalf of the holder, who shall be bound by them) as they think fit to effect the transfer; and

 

  27.3.2 in the case of a share in uncertificated form, the Directors may:

 

  (i) to enable the Company to deal with the share in accordance with the provisions of this article, require or procure any relevant person or the Operator (as applicable) to convert the share into certificated form; and

 

  (ii) after such conversion, authorize any person to execute an instrument of transfer and take such other steps (including the giving of directions to or on behalf of the holder, who shall be bound by them) as they think fit to effect the transfer.

 

  27.4 The net proceeds of such sale (after payment of the costs of the sale and of enforcing the lien) shall be applied:

 

  27.4.1 first, in or towards payment or satisfaction of the amount in respect of which the lien exists, to the extent that amount was due on the date of the enforcement notice; and

 

  27.4.2 secondly, to the person entitled to the shares immediately prior to the sale, provided that:

 

  (i) that person has first delivered the certificate or certificates in respect of the shares sold to the Company for cancellation or complied with such conditions as to evidence and indemnity as the Directors may think fit; and

 

  (ii) the Company shall have a lien over such proceeds (equivalent to that which existed upon the shares prior to the sale) in respect of sums which become or became due after the date of the enforcement notice in respect of the shares sold.

 

  27.5 The transferee of the shares has no obligation to ensure that the purchase money is distributed in accordance with the Articles.

 

  27.6 The transferee’s title to the shares shall not be affected by any irregularity in or invalidity of the forfeiture, surrender or sale proceedings.

 

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28 EVIDENCE OF FORFEITURE

A statutory declaration that the declarant is a Director or the Secretary and that a share has been duly forfeited or surrendered or sold to satisfy a lien of the Company on a date stated in the declaration shall be conclusive evidence of the facts stated in it as against all persons claiming to be entitled to the share. Subject to compliance with any other transfer formalities required by the Articles or by law, such declaration shall constitute a good title to the share.

VARIATION OF RIGHTS

 

29 MANNER OF VARIATION OF RIGHTS

 

  29.1 Whenever the share capital of the Company is divided into different classes of shares, the special rights attached to any class may be varied or abrogated:

 

  29.1.1 with the consent in writing of the holders of three-quarters in nominal value of the issued shares of that class, excluding any shares held as treasury shares; or

 

  29.1.2 with the sanction of a special resolution passed at a separate meeting of the holders of the shares of that class,

and may be so varied or abrogated either whilst the Company is a going concern or during or in contemplation of a winding-up.

 

  29.2 The provisions of these Articles relating to General Meetings and to the proceedings at such meetings shall apply to separate meetings of a class of shareholders (with only such changes as are necessary), except that:

 

  29.2.1 the necessary quorum at a separate meeting shall be at least two persons, holding or representing by proxy at least one-third in nominal value of the issued shares of the class;

 

  29.2.2 at any adjourned meeting any holder of shares of the class present in person or by proxy shall be a quorum;

 

  29.2.3 any holder of shares of the class present in person or by proxy may demand a poll;

 

  29.2.4 every such holder shall on a poll have one vote for every share of the class held by the holder; and

 

  29.2.5 if a meeting is adjourned for any reason including a lack of quorum, the adjourned meeting may be held less than ten clear days after the original meeting notwithstanding Article 43.2.

 

  29.3 The provisions of this Article 29 shall apply to the variation or abrogation of the special rights attached to some only of the shares of any class as if each group of shares of the class differently treated form a separate class the special rights of which are to be varied.

 

30 MATTERS NOT CONSTITUTING VARIATION OF RIGHTS

For the avoidance of doubt, the rights attached to a class of shares are not, unless otherwise expressly provided for in the rights attaching to those shares, deemed to be varied by the creation, allotment or issue of further shares ranking in priority to, pari passu with or subsequent to them or by the purchase or redemption by the Company of its own shares in accordance with the Act.

 

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TRANSFER OF SHARES

 

31 FORM OF TRANSFER

 

  31.1 All transfers of shares which are in certificated form may be effected by transfer in writing in any usual or common form or in any other form acceptable to the Directors.

 

  31.2 The instrument of transfer shall be signed by or on behalf of the transferor and, if any of the shares are not fully-paid shares, by or on behalf of the transferee.

 

  31.3 The transferor shall remain the holder of the shares concerned until the name of the transferee is entered in the Register in respect of those shares.

 

  31.4 All instruments of transfer which are registered may be retained by the Company.

 

  31.5 Where any class of shares is, for the time being, a participating security, title to shares of that class which are recorded on an Operator register of members as being held in uncertificated form may be transferred by means of the relevant system concerned. The transfer may not be in favour of more than four transferees.

 

32 RIGHT TO REFUSE REGISTRATION

 

  32.1 The Directors may decline to register any transfer of shares in certificated form unless:

 

  32.1.1 the instrument of transfer is in respect of only one class of share;

 

  32.1.2 the instrument of transfer is lodged at the Transfer Office accompanied by the relevant share certificate(s) or such other evidence as the Directors may reasonably require to show the right of the transferor to make the transfer or, if the instrument of transfer is executed by some other person on the transferor’s behalf, the authority of that person to do so;

 

  32.1.3 it is fully paid;

 

  32.1.4 it is for a share upon which the Company has no lien; and

 

  32.1.5 it is duly stamped or duly certificated or otherwise shown to the satisfaction of the Directors to be exempt from stamp duty (if so required).

 

  32.2 The Directors may also refuse to register an allotment or transfer of shares (whether fully paid or not) in favour of more than four persons jointly.

 

  32.3 The directors may refuse to register a transfer of a share in uncertificated form to a person who is to hold it thereafter in certificated form in any case where the Company is entitled to refuse (or is excepted from the requirement) under the Uncertificated Securities Regulations or other applicable regulations to register the transfer.

 

  32.4 When a transfer of shares has been lodged with the Company, the Company must either:

 

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  32.4.1 register the transfer, or

 

  32.4.2 give the transferee notice of refusal to register the transfer, together with its reasons for the refusal,

as soon as practicable and in any event within two months after the date on which the transfer is lodged with it.

 

  32.5 If the Directors refuse to register the transfer of a share, they shall as soon as reasonably practicable following the date on which the instrument of transfer was lodged with the Company (in the case of a transfer of a share in certificated form) or the date on which transfer instructions were received by the Company or the Operator (in the case of a transfer of a share in uncertificated form to a person who is to hold it thereafter in certificated form) send to the transferee the notice of refusal, together with their reasons for the refusal, within the time limit prescribed by the Act.

 

33 NO FEE ON REGISTRATION

No fee will be charged by the Company in respect of the registration of any transfer or other document relating to or affecting the title to any shares or otherwise for making any entry in the Register affecting the title to any shares.

TRANSMISSION OF SHARES

 

34 PERSONS ENTITLED TO SHARES ON DEATH

 

  34.1 If a member dies the only persons the Company shall recognise as having any title to such member’s interest in the shares shall be:

 

  34.1.1 the survivors or survivor where the deceased was a joint holder; and

 

  34.1.2 executors or administrators of the deceased where the deceased was a sole or only surviving holder.

 

  34.2 Nothing in this Article 34 shall release the estate of a deceased member (whether sole or joint) from any liability in respect of any share held by such member.

 

35 ELECTION BY PERSONS ENTITLED BY TRANSMISSION

 

  35.1 A person becoming entitled to a share in consequence of the death or bankruptcy of a member or otherwise by operation of law may either:

 

  35.1.1 be registered as holder of the share upon giving to the Company notice in writing to that effect; or

 

  35.1.2 transfer such share to some other person,

upon supplying to the Company such evidence as the Directors may reasonably require showing such person’s title to the share.

 

  35.2 All the limitations, restrictions and provisions of these Articles relating to the right to transfer and the registration of transfers of shares shall apply to any such notice or transfer as if the notice or transfer were a transfer made by the member registered as the holder of any such share.

 

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36 RIGHTS OF PERSONS ENTITLED BY TRANSMISSION

 

  36.1 A person becoming entitled to a share in consequence of the death or bankruptcy of a member or otherwise by operation of law:

 

  36.1.1 subject to Article 36.1.2, shall be entitled to the same dividends and other advantages as a registered holder of the share upon supplying to the Company such evidence as the Directors may reasonably require to show such person’s title to the share; and

 

  36.1.2 shall not be entitled to exercise any right in respect of the share in relation to General Meetings until such person has been registered as a member in respect of the share.

 

  36.2 A person entitled to a share who has elected for that share to be transferred to some other person pursuant to Article 36.1.2 shall cease to be entitled to any rights or advantages in relation to such share upon that other person being registered as the holder of that share.

 

37 PRIOR NOTICES BINDING

If a notice is given to a member in respect of a share, a person entitled to that share is bound by the notice if it was given to the member before the name of the person entitled was entered into the Register.

UNTRACED SHAREHOLDERS

 

38 UNTRACED SHAREHOLDERS

 

  38.1 The Company shall be entitled to sell the shares of a member, or a person entitled to those shares, if and provided that:

 

  38.1.1 during the period of twelve years prior to the date of the publication of the advertisements referred to in Article 38.1.2 (or, if published on different dates, the first of them) at least three dividends in respect of the shares have become payable and no dividend in respect of those shares has been claimed;

 

  38.1.2 the Company has inserted advertisements in both (i) a national newspaper in the United States and (ii) a newspaper circulating in the area in which the last known postal address of the member or other address for service notified to the Company is located, giving notice of its intention to sell the shares; and

 

  38.1.3 during the period of three months following the publication of such advertisements the Company has received no communication from such member or person.

 

  38.2 If the Company is entitled to sell any shares pursuant to Article 38.1, it shall do so at the best price reasonably obtainable at the time of sale.

 

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  38.3 Where a power of sale is exercisable over a share pursuant to this Article (a “ Sale Share ”), the Company may at the same time also sell any additional share issued in right of such Sale Share or in right of such an additional share previously so issued provided that the requirements of paragraphs 38.1.1 of this Article (as if the words “during the period of twelve years prior to the date of the publication” were omitted from paragraph 38.1.1 of this Article) shall have been satisfied in relation to the additional share.

 

  38.4 To give effect to any such sale pursuant to this Article:

 

  38.4.1 in the case of a share in certificated form, the directors may authorize any person to execute an instrument of transfer of the share to the purchaser or a person nominated by the purchaser and take such other steps (including the giving of directions to or on behalf of the holder, who shall be bound by them) as it thinks fit to effect the transfer; and

 

  38.4.2 in the case of a share in uncertificated form, the directors may:

 

  38.4.2.1 to enable the Company to deal with the share in accordance with the provisions of this article, require or procure any relevant person or the Operator (as applicable) to convert the share into certificated form; and

 

  38.4.2.2 after such conversion, authorize any person to execute an instrument of transfer of the share to the purchaser or person nominated by the purchaser and take such other steps (including the giving of directions to or on behalf of the holder, who shall be bound by them) as it thinks fit to effect the transfer.

 

  38.5 For the purpose of giving effect to any such sale the Directors may authorize any person to transfer the shares sold to the purchaser or its nominee.

 

  38.6 The transferee’s title to the shares shall not be affected by any irregularity in or invalidity of the sale proceedings.

 

  38.7 The transferee of the shares has no obligation to ensure that the purchase money is distributed in accordance with the Articles.

 

  38.8 The net proceeds of such sale (after payment of the costs of the sale) shall belong to the Company. The Company shall be obliged to account to the former member or other person previously entitled for an amount equal to such proceeds and shall enter the name of such former member or other person in the books of the Company as a creditor for such amount. No trust shall be created in respect of the debt and no interest shall be payable in respect of it. The Company shall not be required to account for any money earned on the net proceeds, which may be employed in the business of the Company or invested in such investments as the Directors may from time to time think fit.

GENERAL MEETINGS

 

39 ANNUAL GENERAL MEETINGS

The Directors shall convene and the Company shall hold Annual General Meetings in accordance with the Act. An Annual General Meeting shall be held at such location as the Directors think fit.

 

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40 CONVENING OF GENERAL MEETINGS

The Directors may, whenever and at such location as they think fit, and shall, on requisition in accordance with the Act, proceed to convene a General Meeting.

NOTICE OF GENERAL MEETINGS

 

41 LENGTH AND FORM OF NOTICE

 

  41.1 Notices of General Meetings shall include all information required to be included by the Act.

 

  41.2 An Annual General Meeting shall be called by not less than 21 clear days’ notice. Subject to the Act, all other General Meetings shall be convened by not less than 14 clear days’ notice in writing, subject to compliance with the provisions of section 307A of the Act. Subject to the Act, the notice shall specify the time, date and place of the meeting and the general nature of the business to be dealt with.

 

  41.3 A notice calling an Annual General Meeting shall state that the meeting is an annual general meeting and a notice convening a meeting to pass a special resolution shall specify the intention to propose the resolution as such and shall include the text of the resolution. 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 be electronic means to that address, subject to any conditions or limitation specified in the relevant notice of meeting.

 

  41.4 Subject to the Act, to the provisions of these Articles and to any restrictions imposed on any shares, notice shall be given to every member and every director. The Company may determine that only those persons entered on the Register at the close of business on a day decided by the Company, such day being no more than twenty-one days before the day that notice of the meeting is sent, shall be entitled to receive such a notice. If a member is added to the Register after the day determined by the Company under this Article, this shall not invalidate the service of the notice, nor entitle such member to receive notice of the meeting.

 

  41.5 For the purposes of determining which persons are entitled to attend or vote at a meeting, and how many votes such persons may cast, the Company must specify in the notice of the meeting 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 of the holding of such meeting, by which a person must be entered on the Register in order to have the right to attend or vote at the meeting.

 

  41.6 Subject to the Act, if the Directors, in their absolute discretion, consider that it is impractical or unreasonable for any reason to hold a General Meeting at the time or place specified in the notice calling the General Meeting, they may move and/or postpone the General Meeting to another time and/or place. Subject to the Act, when a meeting is so moved and/or postponed, notice of the time and place of the moved and/or postponed meeting shall (if practical) be placed in at least two national newspapers in the United States. Notice of the business to be transacted at such moved and/or postponed meeting is not required. The Directors must take reasonable steps to ensure that members 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 57. Any postponed and/or moved meeting may also be postponed and/or moved under this Article 41.

 

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PROCEEDINGS AT GENERAL MEETINGS

 

42 CHAIRPERSON

The Chairperson of the Directors shall preside as Chairperson of any General Meeting at which he/she is present (as long as he/she is willing to do so). If he/she is not present or is unwilling, a Deputy Chairperson, failing whom any Director present and willing to act and, if more than one, chosen by the Directors present at the meeting, shall preside as Chairperson. If no Director is present within ten minutes after the time appointed for holding the meeting and willing to act as Chairperson, a member may be elected to be the Chairperson by a resolution of the Company passed at the meeting.

 

43 REQUIREMENT FOR QUORUM

 

  43.1 No business other than the appointment of a Chairperson shall be transacted at any General Meeting unless a quorum is present at the time when the meeting proceeds to business. A quorum shall be present if members who together represent at least the majority of the voting rights of all the members entitled to vote at the relevant meeting are present in person or by proxy.

 

  43.2 If within five minutes from the time appointed for a General Meeting (or such longer interval as the Chairperson of the meeting may think fit to allow) a quorum is not present, or if during the meeting a quorum ceases to be present, the meeting, if convened on the requisition of members, shall be dissolved or in any other case it shall stand adjourned to such day, time and place as may have been specified for the purpose in the notice convening the meeting or (if not so specified) as the Directors may decide, provided that the adjourned meeting shall be held not less than ten clear days after the original General Meeting.

 

44 ADJOURNMENT

 

  44.1 The Chairperson of any General Meeting at which a quorum is present may adjourn the meeting if:

 

  44.1.1 the members consent to an adjournment by passing an ordinary resolution;

 

  44.1.2 the Chairperson considers it necessary to restore order or to otherwise facilitate the proper conduct of the meeting; or

 

  44.1.3 the Chairperson considers it necessary for the safety of the people attending the meeting (including if there is insufficient room at the meeting venue to accommodate everyone who wishes to, and is entitled to, attend).

 

  44.2 The Chairperson of any General Meeting at which a quorum is present must adjourn the meeting if requested to do so by the meeting.

 

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  44.3 If the Chairperson adjourns a meeting the Chairperson may specify the time and place to which it is adjourned. Where a meeting is adjourned without specifying a new time and place, the time and place for the adjourned meeting shall be fixed by the Directors.

 

  44.4 No business shall be transacted at any adjourned meeting except business which might lawfully have been transacted at the meeting from which the adjournment took place.

 

45 NOTICE OF ADJOURNED MEETING

When a meeting is adjourned for thirty days or more or without specifying a new time, not less than ten clear days’ notice of the adjourned meeting shall be given in accordance with Article 43 (making such alterations as necessary). Otherwise it shall not be necessary to give any such notice.

 

46 AMENDMENTS TO RESOLUTIONS

 

  46.1 A special resolution to be proposed at a General Meeting may be amended by ordinary resolution provided that no amendment may be made other than an amendment to correct a patent, grammatical or clerical error or as may otherwise be permitted by law.

 

  46.2 An ordinary resolution to be proposed at a General Meeting may be amended by ordinary resolution provided that:

 

  46.2.1 in the opinion of the Chairperson of the meeting the amendment is within the scope of the business of the meeting as described and does not impose further obligations on the Company; and

 

  46.2.2 notice in writing of the proposed amendment is given to the Company by a person entitled to vote at the General Meeting in question at least forty eight hours before the meeting or adjourned meeting (as the case may be) or the Chairperson in his absolute discretion decides that the amendment may be considered or voted on.

 

  46.3 If an amendment is proposed to any resolution under consideration but is in good faith ruled out of order by the Chairperson of the meeting, the proceedings on the substantive resolution shall not be invalidated by any error in such ruling.

 

47 SECURITY ARRANGEMENTS AND ORDERLY CONDUCT

 

  47.1 The Directors may put in place such arrangements or restrictions as they think fit to ensure the safety and security of the attendees at a General Meeting and the orderly conduct of the meeting, including requiring attendees to submit to searches.

 

  47.2 The Directors may refuse entry to, or remove from, a General Meeting any member, proxy or other person who fails to comply with such arrangements, restrictions or searches.

 

  47.3 The Chairperson of a General Meeting may take such action as the Chairperson thinks fit to maintain the proper and orderly conduct of the meeting.

 

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48 SATELLITE MEETING PLACES

 

  48.1 To facilitate the organization and administration of any General Meeting, the Directors may decide that the meeting shall be held at two or more locations.

 

  48.2 For the purposes of these Articles any General Meeting taking place at two or more locations shall be treated as taking place where the Chairperson of the meeting presides (the “ principal meeting place ”) and any other location where that meeting takes place is referred to in these Articles as a “ satellite meeting ”.

 

  48.3 A member present in person or by proxy at a satellite meeting may be counted in the quorum and may exercise all rights that they would have been able to exercise if they were present at the principal meeting place.

 

  48.4 The Directors may make and change from time to time such arrangements as they shall in their absolute discretion consider appropriate to:

 

  48.4.1 ensure that all members and proxies for members wishing to attend the meeting can do so;

 

  48.4.2 ensure that all persons attending the meeting are able to participate in the business of the meeting and to see and hear anyone else addressing the meeting;

 

  48.4.3 ensure the safety of persons attending the meeting and the orderly conduct of the meeting; and

 

  48.4.4 restrict the numbers of members and proxies at any one location to such number as can safely and conveniently be accommodated there.

 

  48.5 The entitlement of any member or proxy to attend a satellite meeting shall be subject to any such arrangements then in force and stated by the notice of meeting or adjourned meeting to apply to the meeting.

 

  48.6 If there is a failure of communication equipment or any other failure in the arrangements for participation in the meeting at more than one place, the Chairperson may adjourn the meeting in accordance with Article 44.1.2. Such an adjournment will not affect the validity of such meeting, or any business conducted at such meeting up to the point of adjournment, or any action taken pursuant to such meeting.

 

  48.7 A person (a “ satellite chairperson ”) appointed by the Directors shall preside at each satellite meeting. Every satellite chairperson shall carry out all requests made of the satellite chairperson by the Chairperson of the General Meeting, may take such action as the satellite chairperson thinks necessary to maintain the proper and orderly conduct of the satellite meeting and shall have all powers necessary or desirable for such purposes.

POLLS

 

49 DEMAND FOR POLL

 

  49.1 For so long as any shares are held in a settlement system operated by DTC, any resolution put to the vote at a general meeting must be decided on a poll.

 

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  49.2 Subject to Article 49.1, the Directors may decide in advance of any General Meeting that some or all of the resolutions to be put to the vote at a General Meeting will be decided on a poll.

 

  49.3 At any General Meeting any resolution put to the vote shall be decided on a show of hands unless the Directors have decided pursuant to Article 49.2 (subject always to Article 49.1) that it will be decided on a poll or a poll is (before the resolution is put to the vote on a show of hands, or on the declaration of the result of the show of hands) demanded by:

 

  49.3.1 the Chairperson of the meeting;

 

  49.3.2 not less than five members present in person or by proxy and entitled to vote;

 

  49.3.3 a member or members present in person or by proxy and representing not less than one-tenth of the total voting rights of all the members having the right to vote at the meeting (excluding the rights attaching to any shares held as treasury shares); or

 

  49.3.4 a member or members present in person or by proxy and holding shares in the Company conferring a right to vote at the meeting being shares on which an aggregate sum has been paid up equal to not less than one-tenth of the total sum paid up on all the shares conferring that right (excluding any such shares held as treasury shares).

 

  49.4 A demand for a poll may be withdrawn before the poll is taken but only with the consent of the Chairperson. A demand so withdrawn shall not be taken to have invalidated the result of a show of hands declared before the demand was made.

 

  49.5 Unless a poll is demanded (and the demand is not duly withdrawn), a declaration by the Chairperson that the resolution has been carried, or carried by a particular majority, or lost or not carried by a particular majority, or an entry in respect of such a declaration in minutes of the meeting recorded in accordance with the Act shall be conclusive evidence of the fact without proof of the number or proportion of the rates recorded in favor of or against the resolution.

 

50 PROCEDURE ON A POLL

 

  50.1 A poll shall be taken in such manner (including by use of ballot or voting papers or electronic means, or any combination of means) as the Chairperson of the meeting may direct.

 

  50.2 The Chairperson of the meeting may appoint scrutineers (who need not be members) and may decide how and when the result of the poll is to be declared.

 

  50.3 The result of the poll shall be deemed to be the resolution of the meeting at which the poll was demanded.

 

  50.4 On a poll, votes may be given either personally or by proxy and a person entitled to more than one vote need not use all his/her votes or cast all the votes he/she uses in the same way.

 

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51 TIMING OF POLL

 

  51.1 A poll demanded on the choice of a Chairperson or on a question of adjournment shall be taken immediately. A poll demanded on any other question shall be taken either immediately or at such subsequent time (not being more than thirty days from the date of the meeting) and place as the Chairperson may direct.

 

  51.2 No notice need be given of a poll not taken immediately if the time and place at which it is to be taken are announced at the meeting at which it is demanded. In any other case, at least seven days’ notice must be given specifying the time and place at which the poll is to be taken.

VOTES OF MEMBERS

 

52 VOTES ATTACHING TO SHARES

 

  52.1 Subject to Article 41.3 and to any special rights or restrictions as to voting attached by or in accordance with these Articles to any shares or any class of shares:

 

  52.1.1 on a show of hands, every member who is present in person and, subject to Article 52.1.2, every proxy present who has been duly appointed shall have one vote;

 

  52.1.2 on a show of hands, a proxy has one vote for and one vote against the resolution if the proxy has been duly appointed by more than one member entitled to vote on the resolution, and the proxy has been instructed:

 

  (i) by one or more of those members to vote for the resolution and by one or more other of those members to vote against it; or

 

  (ii) by one or more of those members to vote either for or against the resolution and by one or more other of those members to use his/her discretion as to how to vote, and

 

  52.1.3 on a poll, every member who is present in person or by proxy shall have one vote for every share of which such member is the holder.

 

  52.2 A proxy shall not be entitled to vote on a show of hands or on a poll where the member appointing the proxy would not have been entitled to vote on the resolution had such member been present in person.

 

53 VOTES OF JOINT HOLDERS

In the case of joint holders of a share the vote of the senior who tenders a vote, whether in person or by proxy, shall be accepted to the exclusion of the votes of the other joint holders and for this purpose seniority shall be determined by the order in which the names appear in the Register in respect of the share.

 

54 VALIDITY AND RESULT OF VOTE

 

  54.1 No objection shall be raised as to the qualification of any voter or the admissibility of any vote except at the meeting or adjourned meeting at which the vote is tendered. Every vote not disallowed at such meeting shall be valid for all purposes. Any such objection shall be referred to the Chairperson of the meeting, whose decision shall be final and conclusive.

 

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  54.2 On a vote on a resolution at a meeting on a show of hands, a declaration by the Chairperson that the resolution:

 

  54.2.1 has or has not been passed; or

 

  54.2.2 has been passed with a particular majority,

or an entry in respect of such declaration in the minutes of the meeting recorded in accordance with the Act shall be conclusive evidence of that fact without proof of the number or proportion of the votes recorded in favor of or against the resolution. This Article 54 does not have effect if a poll is demanded in respect of the resolution (and the demand is not subsequently withdrawn).

PROXIES AND CORPORATE REPRESENTATIVES

 

55 APPOINTMENT OF PROXIES

 

  55.1 A member is entitled to appoint a proxy to exercise all or any of such member’s rights to attend and to speak and vote at a General Meeting.

 

  55.2 A proxy need not be a member of the Company.

 

56 MULTIPLE PROXIES

A member 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 such member.

 

57 FORM OF PROXY

 

  57.1 The appointment of a proxy must be in writing in any usual or common form or in any other form which the Directors may approve and:

 

  57.1.1 in the case of an individual must either be signed by the appointer or the appointer’s attorney or authenticated in accordance with Article 117; and

 

  57.1.2 in the case of a corporation must be either given under its common seal or be signed on its behalf by an attorney or a duly authorized officer of the corporation or authenticated in accordance with Article 117.

 

  57.2 Any signature on or authentication of such appointment need not be witnessed. Where an appointment of a proxy is signed or authenticated in accordance with Article 117 on behalf of the appointer by an attorney, the Company may treat that appointment as invalid unless the power of attorney or a notarially certified copy of the power of attorney is submitted to the Company.

 

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58 DEPOSIT OF FORM OF PROXY

 

  58.1 The appointment of a proxy must be received in the manner set out in or by way of note to, or in any document accompanying, the notice convening the meeting (or if no address is so specified, at the Transfer Office):

 

  58.1.1 in the case of a meeting or adjourned meeting, not less than forty eight hours (excluding any part of a day that is not a working day) before the commencement of the meeting or adjourned meeting to which it relates;

 

  58.1.2 in the case of a poll taken following the conclusion of a meeting or adjourned meeting, but not more than forty eight hours (excluding any part of a day that is not a working day) after it was demanded, not less than forty eight hours before the commencement of the meeting or adjourned meeting at which the poll was demanded; and

 

  58.1.3 in the case of a poll taken more than forty eight hours (excluding any part of a day that is not a working day) after it was demanded, not less than twenty four hours before the time appointed for the taking of the poll,

and in default shall not be treated as valid.

 

  58.2 In relation to any shares in uncertificated form the Directors may permit a proxy to be appointed by electronic means or by means of a website in the form of an Uncertificated Proxy Instruction and may permit any supplement to, or amendment or revocation of, any Uncertificated Proxy Instruction to be made by a further Uncertificated Proxy Instruction. The Directors may prescribe the method of determining the time at which any Uncertificated Proxy Instruction is to be treated as received by the Company. The Directors may treat any Uncertificated Proxy Instruction purporting or expressed to be sent on behalf of a holder of a share as sufficient evidence of the authority of the person sending the instruction to send it on behalf of that holder.

 

  58.3 Unless the contrary is stated on the proxy form, the appointment of a proxy shall be as valid for any adjournment of a meeting as it is for the meeting to which it relates.

 

  58.4 The Directors may (and shall for so long as any shares are held in a settlement system operated by DTC or if and to the extent that the Company is required to do so by the Act) allow an appointment of proxy to be sent or supplied in electronic form subject to any conditions or limitations as the Directors may specify. Where the Company has given an electronic address in any instrument of proxy or invitation to appoint a proxy, any document or information relating to proxies for the meeting (including any document necessary to show the validity of, or otherwise relating to, an appointment of proxy, or notice of the termination of the authority of a proxy) may be sent by electronic means to that address, subject to any conditions or limitations specified in the relevant notice of meeting.

 

59 RIGHTS OF PROXY

Subject to the Act, a proxy shall have the right to exercise all or any of the rights of the proxy’s appointor, or (where more than one proxy is appointed by a member) all or any of the rights attached to the shares in respect of which such person is appointed the proxy to attend, and to speak and vote, at a General Meeting.

 

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60 TERMINATION OF PROXY’S AUTHORITY

 

  60.1 Neither the death or insanity of a member who has appointed a proxy, nor the revocation or termination by a member of the appointment of a proxy (or of the authority under which the appointment was made), shall invalidate the proxy or the exercise of any of the rights of the proxy, unless notice of such death, insanity, revocation or termination shall have been received by the Company in accordance with Article 60.2.

 

  60.2 Any such notice of death, insanity, revocation or termination must be in writing and be received at the address or one of the addresses (if any) specified for receipt of proxies in, or by way of note to, or in any document accompanying, the notice convening the meeting to which the appointment of the proxy relates (or if no address is so specified, at the Transfer Office), not later than the last time at which an appointment of proxy should have been delivered or received in order to be valid for use at the relevant meeting or adjourned meeting or (in the case of a poll taken otherwise than at the meeting or on the same day as the meeting or adjourned meeting) for use on the holding of a poll at which the vote is cast.

 

61 CORPORATIONS ACTING BY REPRESENTATIVES

Subject to the Act, any corporation which is a member of the Company may by resolution of its Directors or other governing body authorize a person or persons to act as its representative or representatives at any General Meeting. A Director, the Secretary or another person authorized for the purpose by the Secretary may require a representative to produce a certified copy of the resolution of authorization before permitting him to exercise his powers.

DEFAULT SHARES

 

62 RESTRICTION ON VOTING IN PARTICULAR CIRCUMSTANCES

 

  62.1 Unless the Directors resolve otherwise, no member shall be entitled in respect of any share held by such member to vote either personally or by proxy or to exercise any other right conferred by membership in relation to General Meetings if any call or other sum due from such member to the Company in respect of that share remains unpaid.

 

  62.2 If any member, or any other person appearing to be interested in shares (within the meaning of Part 22 of the Act) held by such member, has been duly served with a notice under Section 793 of the Act and is in default for a period of fourteen days in supplying to the Company the information required by that notice, then (unless the Directors otherwise determine) in respect of:

 

  62.2.1 the shares comprising the shareholding account in the Register which comprises or includes the shares in relation to which the default occurred (all or the relevant number as appropriate of such shares being the “ default shares ”, which expression shall include any further shares which are issued in respect of such shares); and

 

  62.2.2 any other shares held by the member,

the member shall not (for so long as the default continues) nor shall any transferee to whom any of such shares are transferred (other than pursuant to an approved transfer or pursuant to Article 62.3.2) be entitled to attend or vote either personally or by proxy at a General Meeting or to exercise any other right conferred by membership in relation to General Meetings.

 

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  62.3 Where the default shares represent 0.25 per cent or more of the issued shares of the class in question, the Directors may in their absolute discretion by notice in writing (a “ direction notice ”) to such member direct that:

 

  62.3.1 any dividend or part of a dividend (including shares to be issued in lieu of a dividend) or other money which would otherwise be payable in respect of the default shares shall be retained by the Company without any liability to pay interest on it when such dividend or other money is finally paid to the member; and/or

 

  62.3.2 no transfer of any of the shares held by such member shall be registered unless the transfer is an approved transfer or:

 

  (i) the member is not in default as regards supplying the information required; and

 

  (ii) the transfer is of part only of the member’s holding and, when presented for registration, is accompanied by a certificate by the member in a form satisfactory to the Directors to the effect that after due and careful enquiry the member is satisfied that none of the shares that are the subject of the transfer are default shares,

provided that, in the case of shares in uncertificated form, the Directors may only exercise their discretion not to register a transfer if permitted to do so by the Act.

 

  62.4 The Company shall send a copy of the direction notice to each other person appearing to be interested in the shares the subject of that direction notice, but the failure or omission by the Company to do so shall not invalidate such notice.

 

  62.5 Any direction notice shall have effect in accordance with its terms for so long as the default in respect of which the direction notice was issued continues. Any direction notice shall cease to have effect at such time as the Directors decide. Within a period of one week of the default being duly remedied, the Directors shall decide that the relevant direction notice shall cease to have effect and shall give written notice of that fact to the member as soon as reasonably practicable.

 

  62.6 Any direction notice shall cease to have effect in relation to any shares which are transferred by such member by means of an approved transfer or in accordance with Article 62.3.2.

 

  62.7 For the purposes of this Article 62:

 

  62.7.1 a person shall be treated as appearing to be interested in any shares if the member holding such shares has been served with a notice under Section 793 of the Act and either (i) the member has named such person as being so interested or (ii) (after taking into account the response of the member to the said notice and any other relevant information) the Company knows or has reasonable cause to believe that the person in question is or may be interested in the shares, and

 

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  62.7.2 a transfer of shares is an “ approved transfer ” if:

 

  (i) it is a transfer of shares to an offeror by way or in pursuance of acceptance of a takeover offer (as defined in Section 974 of the Act); or

 

  (ii) the Directors are satisfied that the transfer is made pursuant to a genuine sale of the whole of the beneficial ownership of the shares to a party unconnected with the member, or with any person appearing to be interested in such shares, including any such sale made through an investment exchange that has been granted recognition under the Financial Services and Markets Act 2000 or through a stock exchange outside the United Kingdom of Great Britain and Northern Ireland on which the Company’s shares are normally traded. For the purposes of this Article 62 any associate (as that term is defined in Section 435 of the Insolvency Act 1986) shall be included amongst the persons who are connected with the member or any person appearing to be interested in such shares.

 

  62.8 The provisions of this Article 62 are in addition and without prejudice to the provisions of the Act.

DIRECTORS

 

63 NUMBER OF DIRECTORS

Unless and until otherwise decided by the Company by ordinary resolution, the number of directors must not be less than two and is not subject to a maximum number.

 

64 SHARE QUALIFICATION

A Director shall not be required to hold any shares of the Company by way of qualification. A Director who is not a member of the Company shall nevertheless be entitled to attend and speak at General Meetings.

 

65 REMUNERATION OF DIRECTORS

Any Director who holds any executive office (including for this purpose the office of Chairperson or Deputy Chairperson whether or not such office is held in an executive capacity), or who serves on any committee of the Directors, or who otherwise performs services which in the opinion of the Directors are outside the scope of the ordinary duties of a Director, may be paid such extra remuneration by way of salary, commission or otherwise or may receive such other benefits as the Directors may determine.

 

66 DIRECTORS’ EXPENSES

The Company may repay to any Director all such reasonable expenses as that Director may incur in attending and returning from meetings of the Directors or of any committee of the Directors or General Meetings or separate meetings of any class of members or debentures or otherwise in connection with the business of the Company.

 

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67 DIRECTORS’ PENSIONS AND OTHER BENEFITS

The Directors shall have power to pay and agree to pay remuneration, including gratuities, allowances, pensions or other retirement, superannuation, death, sickness or disability benefits, to, or to any person in respect of, a Director.

 

68 APPOINTMENT OF EXECUTIVE DIRECTORS AND CHAIRPERSON

 

  68.1 The Directors may from time to time appoint one or more of them to be the holder of any executive office (or, where considered appropriate, the office of Chairperson or Deputy Chairperson) on such terms and for such period as they may (subject to the provisions of the Act) resolve and, without prejudice to the terms of any contract entered into in any particular case, may at any time revoke or vary the terms of any such appointment.

 

  68.2 The appointment of any Director to any other executive office shall not automatically terminate if such Director ceases to be a Director for any reason, unless the contract or resolution under which such Director holds office shall expressly state otherwise, in which event such termination shall be without prejudice to any claim for damages for breach of any contract of service between such Director and the Company.

 

69 POWERS OF EXECUTIVE DIRECTORS

The Directors may entrust to and confer upon any Director holding any executive office any of the powers exercisable by them as Directors upon such terms and conditions and with such restrictions as they think fit, and either collaterally with or to the exclusion of their own powers. They may from time to time revoke, withdraw, alter or vary all or any of such delegated powers.

APPOINTMENT AND RETIREMENT OF DIRECTORS

 

70 METHODS OF APPOINTING DIRECTORS

 

  70.1 Any person who is willing to act as a Director, and is permitted by law to do so, may be appointed to be a Director by the Company by ordinary resolution, provided that the appointment does not cause the number of Directors to exceed any fixed number as the maximum number of Directors.

 

  70.2

The Investor Designator shall have the right, but not the obligation, to designate, and the individuals nominated for election as Directors by or at the direction of the Board or a duly-authorized committee thereof shall include, a number of individuals such that, following the election of any Directors and taking into account any Director continuing to serve as such without the need for re-election, the number of Investor Designees serving as Directors will be equal to: (i) if the Pre-IPO Owners collectively Beneficially Own 50 per cent. or more of the Ordinary Shares in issue as of the record date for such meeting, the lowest whole number that is greater than 50 per cent. of the Total Number of Directors; (ii) if the Pre-IPO Owners collectively Beneficially Own at least 40 per cent. (but less than 50 per cent.) of the Ordinary Shares in issue as of the record date for such meeting, the lowest whole number that is greater than 40 per cent. of the Total Number of Directors; (iii) if the Pre-IPO Owners collectively Beneficially Own at least 30 per cent. (but less than 40 per cent.) of the Ordinary Shares in issue as of the record date for such meeting, the lowest whole number that is greater than 30 per cent. of the Total Number of Directors; (iv) if the Pre-IPO Owners collectively Beneficially Own at least 20 per cent.

 

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  (but less than 30 per cent.) of the Ordinary Shares in issue as of the record date for such meeting, the lowest whole number that is greater than 20 per cent. of the Total Number of Directors; and (v) if the Pre-IPO Owners collectively Beneficially Own at least 5 per cent. (but less than 20 per cent.) of the Ordinary Shares in issue as of the record date for such meeting, the lowest whole number (such number always being equal to or greater than one) that is greater than 10 per cent. of the Total Number of Directors.

 

  70.3 If at any time the Investor Designator has designated fewer than the total number of individuals that the Investor Designator is then entitled to designate pursuant to Article 70.2, the Investor Designator shall have the right, at any time and from time to time, to designate such additional individuals which it is entitled to so designate, in which case, any individuals nominated by or at the direction of the Board or any duly-authorized committee thereof for election as Directors to fill any vacancy on the Board shall include such designees, and the Company shall use its best efforts to (x) effect the election of such additional designees, whether by increasing the size of the Board or otherwise, and (y) cause the election of such additional designees to fill any such newly-created vacancies or to fill any other existing vacancies. Each such individual whom the Investor Designator shall actually designate pursuant to this Article 70 and who is thereafter elected and qualifies to serve as a Director shall be referred to herein as a “ Investor Designee ”.

 

  70.4 In the event that a vacancy is created at any time by the death, disability, retirement, removal or resignation of any Investor Designee, any individual nominated by or at the direction of the Board or any duly-authorized committee thereof to fill such vacancy shall be, and the Company shall use its best efforts to cause such vacancy to be filled, as soon as possible, by a new designee of the Investor Designator, and the Company shall take or cause to be taken, to the fullest extent permitted by law, at any time and from time to time, all actions necessary to accomplish the same.

 

  70.5 The Company shall, to the fullest extent permitted by law, include in the slate of nominees recommended by the Board at any meeting of members called for the purpose of electing Directors, the persons designated by the Investor Designee pursuant to this Article 70 and use its best efforts to cause the election of each such designee to the Board, including nominating each such individual to be elected as a Director as provided herein, recommending such individual’s election and soliciting proxies or consents in favor thereof. In the event that any Investor Designee shall fail to be elected to the Board at any meeting of members called for the purpose of electing Directors, the Company shall use its best efforts to cause such Investor Designee (or a new designee of the Investor Designator) to be elected to the Board as soon as possible and the Company shall take or cause to be taken, to the fullest extent permitted by law, at any time and from time to time, all actions necessary to accomplish the same, including, without limitation, actions to effect an increase in the Total Number of Directors.

 

  70.6 In addition to any vote or consent of the Board or the members of the Company required by applicable law or these Articles or other organizational document of the Company, and notwithstanding anything to the contrary in any shareholders’ agreement in respect of the Company entered into from time to time, for so long as any such shareholders’ agreement is in effect, any action by the Board to increase or decrease the Total Number of Directors (other than any increase in the Total Number of Directors in connection with the election of one or more Directors elected exclusively by the holders of one or more classes of the Company’s shares other than Ordinary Shares) shall require the prior written consent of the Investor Designator.

 

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  70.7 Where two or more individuals are proposed to be appointed at a General Meeting of the Company pursuant to Article 70.1, unless the members have previously approved otherwise at that General Meeting, the appointments must not be proposed as a single resolution and must be proposed as separate resolutions in accordance with section 160 of the Act.

 

  70.8 The Company may by ordinary resolution elect, and the Directors shall have the power at any time to appoint, any person to be a Director to fill a casual vacancy, provided that: (i) if the Pre-IPO Owners collectively Beneficially Own less than 30 per cent. of the Ordinary Shares for the time being in issue then a casual vacancy may only be filled by the Directors (and not by the Company by ordinary resolution); and (ii) the Total Number of Directors shall not exceed the maximum number (if any) fixed by or in accordance with these articles.

 

71 RETIREMENT AT ANNUAL GENERAL MEETINGS

 

  71.1 At each Annual General Meeting, each Director then in office shall retire from office with effect from the conclusion of the meeting. A retiring Director shall be eligible for re-election.

 

  71.2 Where a Director retires at an Annual General Meeting in accordance with Article 71.1, or otherwise, the Company may at the meeting by ordinary resolution fill the office being vacated by electing the retiring Director. In the absence of such a resolution the retiring Director shall nevertheless be deemed to have been re-elected except in any of the following cases:

 

  71.2.1 where at such meeting a resolution for the re-election of such Director is put to the meeting and lost;

 

  71.2.2 where such Director is ineligible for re-election or has given notice in writing to the Company that he/she is unwilling to be re-elected; or

 

  71.2.3 where a resolution to elect such Director is void by reason of contravention of Section 160 of the Act (whereby at a General Meeting a motion for the appointment of two or more persons as Directors by a single resolution must not be made unless a resolution that it should be made has first been agreed to by the meeting without any vote being given against it).

 

  71.3 The retirement shall not have effect until the conclusion of the meeting except where a resolution is passed to elect some other person in the place of the retiring Director or a resolution for the retiring Director’s re-election is put to the meeting and lost. Accordingly a retiring Director who is re-elected or deemed to have been re-elected will continue in office without a break.

 

72 TERMINATION OF OFFICE

 

  72.1 The office of a Director is terminated if:

 

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  72.1.1 the Director becomes prohibited by law from acting as a Director or ceases to be a Director by virtue of any provision of the Act;

 

  72.1.2 the Company has received notice in writing of the Director’s resignation or retirement from office and such resignation or retirement from office has taken effect in accordance with its terms;

 

  72.1.3 the Director has retired at an Annual General Meeting in accordance with Article 71.1, or otherwise, and any of Articles 71.2.1, 71.2.2 or 71.2.3 applies;

 

  72.1.4 the Director has a bankruptcy order made against him/her, compounds with his/her creditors generally or applies to the court for an interim order under Section 253 of the Insolvency Act 1986 in connection with a voluntary arrangement under that Act or any analogous event occurs in relation to the Director in another country;

 

  72.1.5 an order is made by any court claiming jurisdiction in that behalf on the ground (however formulated) of mental disorder for the Director’s detention or for the appointment of another person (by whatever name called) to exercise powers with respect to the Director’s property or affairs;

 

  72.1.6 the Director is absent from meetings of the Directors for six consecutive months without permission and the Directors have resolved that the Director’s office be vacated;

 

  72.1.7 notice in writing of termination is served or deemed served on the Director and that notice is given by all the Director’s co-Directors for the time being; or

 

  72.1.8 in the case of a Director other than any Director holding an executive office, if the Directors resolve to require the Director to resign and the Director fails to do so within thirty days of notification of such resolution being served or deemed served on the Director.

 

  72.2 If a Director holds an appointment to an executive office which automatically terminates on termination of the Director’s office as Director, the Director’s removal from office pursuant to this Article 72 shall be deemed an act of the Company and shall have effect without prejudice to any claim for damages for breach of any contract of service between the Director and the Company.

 

73 REMOVAL OF DIRECTOR BY RESOLUTION OF COMPANY

In accordance with and subject to the provisions of the Act, the Company may remove any Director from office by ordinary resolution of which special notice has been given and elect another person in place of a Director so removed from office. Such removal may take place notwithstanding any provision of these Articles or of any agreement between the Company and such Director, but shall be without prejudice to any claim the Director may have for damages for breach of any such agreement.

 

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MEETINGS AND PROCEEDINGS OF DIRECTORS

 

74 CONVENING OF MEETINGS OF DIRECTORS

 

  74.1 Subject to the provisions of these Articles, the Directors may meet together for the despatch of business, adjourn and otherwise regulate their proceedings as they think fit. At any time any Director may, and the Secretary at the request of a Director shall, call a meeting of the Directors by giving notice to the other Directors. Notice need not be in writing and may be given personally or by word of mouth or sent (including by electronic means) to any address provided by the Director.

 

  74.2 Any Director may waive notice of any meeting and any such waiver may be retroactive.

 

  74.3 The Directors shall be deemed to meet together if they are in separate locations, but are linked by conference telephone or other communication equipment which allows those participating to hear and speak to each other.

 

75 QUORUM

 

  75.1 The quorum necessary for the transaction of business of the Directors shall be a majority of the Directors then in office. A meeting of the Directors at which a quorum is present shall be competent to exercise all powers and discretions for the time being exercisable by the Directors.

 

  75.2 If a quorum is not present within half an hour of the time appointed for the meeting or if a quorum ceases to be present during the course of the meeting, the Director(s) present shall adjourn the meeting to a specified time and place not less than one day after the original date. The quorum necessary for the transaction of business of the Directors at such adjourned meeting may be fixed from time to time by the Directors and unless so fixed at any other number shall be two.

 

76 CHAIRPERSON

 

  76.1 The Directors may elect from their number a Chairperson, a Deputy Chairperson (or two or more Deputy Chairmen) and a Senior Independent Director, and decide the period for which each is to hold office. If no Chairperson or Deputy Chairperson has been appointed or if at any meeting of the Directors no Chairperson or Deputy Chairperson is present within five minutes after the time appointed for holding the meeting, the Senior Independent Director shall be chairperson of the meeting, or, if no Senior Independent Director has been appointed or the Senior Independent Director is not present at such time, the Directors present may choose one of their number to be chairperson of the meeting.

 

  76.2 If at any time there is more than one Deputy Chairperson the right, in the absence of the Chairperson, to preside at a meeting of the Directors or of the Company shall be determined as between the Deputy Chairmen present (if more than one) by seniority in length of appointment or otherwise as resolved by the Directors.

 

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77 NUMBER OF DIRECTORS BELOW MINIMUM

If and so long as the number of Directors is reduced below the minimum number fixed by or in accordance with these Articles the continuing Directors or Director may act for the purpose of appointing such number of additional Directors as is required to meet the minimum or of summoning General Meetings, but not for any other purpose. If no Directors or Director is able or willing to act, then any two members may summon a General Meeting for the purpose of appointing Directors.

 

78 DIRECTORS’ WRITTEN RESOLUTIONS

 

  78.1 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.

 

  78.2 A Directors’ written resolution is adopted when all the Directors who would have been entitled to vote on such resolution if it had been proposed at a meeting of the Directors have:

 

  78.2.1 signed one or more copies of it; or

 

  78.2.2 otherwise indicated their agreement to it in writing.

 

  78.3 A Directors’ written resolution is not adopted if the number of Directors who have signed it is less than the quorum for Directors’ meetings.

 

  78.4 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 the Articles.

 

79 VALIDITY OF PROCEEDINGS

All acts done by any meeting of Directors, or of any committee or sub-committee of the Directors, or by any person acting as a member of any such committee or sub-committee, shall as regards all persons dealing in good faith with the Company be valid, notwithstanding that there was some defect in the appointment of any Director or any such persons, or that any such persons were disqualified or had vacated office, or were not entitled to vote.

DIRECTORS’ INTERESTS

 

80 AUTHORIZATION OF DIRECTORS’ INTERESTS

 

  80.1 For the purposes of Section 175 of the Act, the Directors shall have the power to authorize any matter which would or might otherwise constitute or give rise to a breach of the duty of a Director to avoid a situation in which the Director has, or can have, a direct or indirect interest that conflicts, or possibly may conflict, with the interests of the Company.

 

  80.2 Authorization of a matter under this Article 80 shall be effective only if:

 

  80.2.1 the matter in question shall have been proposed for consideration at a meeting of the Directors, in accordance with the Directors’ normal procedures or in such other manner as the Directors may resolve;

 

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  80.2.2 any requirement as to the quorum at the meeting of the Directors at which the matter is considered is met without counting the Director in question and any other interested Director (together the “ Interested Directors ”); and

 

  80.2.3 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.

 

  80.3 Any authorization of a matter under this Article 80 may:

 

  80.3.1 extend to any actual or potential conflict of interest which may arise out of the matter so authorized;

 

  80.3.2 be subject to such conditions or limitations as the Directors may resolve, whether at the time such authorization is given or subsequently; and

 

  80.3.3 be terminated by the Directors at any time,

and a Director shall comply with any obligations imposed on the Director by the Directors pursuant to any such authorization.

 

  80.4 A Director shall not, save as otherwise agreed by such Director, be accountable to the Company for any benefit which the Director (or a person connected with the Director) derives from any matter authorized by the Directors under this Article 80 and any contract, transaction or arrangement relating to such a matter shall not be liable to be avoided on the grounds of any such benefit.

 

81 PERMITTED INTERESTS

 

  81.1 Subject to compliance with Article 81.2, a Director, notwithstanding such Director’s office, may have an interest of the following kind:

 

  81.1.1 where a Director (or a person connected with the Director) is a director or other officer of, or employed by, or otherwise interested (including by the holding of shares) in any Relevant Company;

 

  81.1.2 where a Director (or a person connected with the Director) is a party to, or otherwise interested in, any contract, transaction or arrangement with a Relevant Company, or in which the Company is otherwise interested;

 

  81.1.3 where the Director (or a person connected with the Director) acts (or any firm of which the Director is a partner, employee or member acts) in a professional capacity for any Relevant Company (other than as Auditor) whether or not the Director (or such person or firm) is remunerated for such work;

 

  81.1.4 where a Director is or becomes a director or officer of any other body corporate in which the Company does not have an interest if that cannot reasonably be regarded as likely to give rise to a conflict of interest at the time of the Director’s appointment as director or officer of that other body corporate;

 

  81.1.5 where a Director has an interest which cannot reasonably be regarded as likely to give rise to a conflict of interest;

 

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  81.1.6 where a Director has an interest, or a transaction or arrangement giving rise to an interest, of which the Director is not aware; or

 

  81.1.7 where a Director has any other interest authorized by ordinary resolution.

No authorization under Article 80 shall be necessary in respect of any such interest.

 

  81.2 A Director shall declare the nature and extent of any interest permitted under Article 81.1, and not falling within Article 81.3, at a meeting of the Directors or in such other manner as the Directors may resolve.

 

  81.3 No declaration of an interest shall be required by a Director in relation to an interest:

 

  81.3.1 falling within Article 81.1.5 or Article 81.1.6;

 

  81.3.2 if, or to the extent that, the other Directors are already aware of such interest (and for this purpose the other Directors are treated as aware of anything of which they ought reasonably to be aware); or

 

  81.3.3 if, or to the extent that, it concerns the terms of the Director service contract (as defined in Section 227 of the Act) that have been or are to be considered by a meeting of the Directors, or by a committee of Directors appointed for the purpose under these Articles.

 

  81.4 A Director shall not, save as otherwise agreed by the Director, be accountable to the Company for any benefit which the Director (or a person connected with the Director) derives from any such contract, transaction or arrangement or from any such office or employment or from any interest in any Relevant Company or for such remuneration, each as referred to in Article 81.1, and no such contract, transaction or arrangement shall be liable to be avoided on the grounds of any such interest or benefit.

 

  81.5 For the purposes of this Article 81, “ Relevant Company ” shall mean:

 

  81.5.1 the Company;

 

  81.5.2 a subsidiary undertaking of the Company;

 

  81.5.3 any holding company of the Company or a subsidiary undertaking of any such holding company;

 

  81.5.4 any body corporate promoted by the Company; or

 

  81.5.5 any body corporate in which the Company is otherwise interested.

 

82 INVESTOR DIRECTORS

 

  82.1 In addition to the provisions of Article 81 and subject to article 82.3, a Director who is not an employee of the Group shall be authorized for the purposes of section 175 of the Act to act or continue to act as a Director of the Company notwithstanding that at the time of his appointment or subsequently he also:

 

  82.1.1 holds office as a Director of an Investor or of an Affiliate of that Investor;

 

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  82.1.2 holds any other office, employment or engagement with an Affiliate of that Investor; or

 

  82.1.3 is interested directly or indirectly in any shares or debentures (or any rights to acquire shares or debentures) in an Investor or an Affiliate of that Investor.

 

  82.2 A Director who is not an employee of the Group shall be authorized for the purposes of section 175 of the Act to act or continue to act as a Director of the Company, notwithstanding his role as a representative of the Investor for the purposes of monitoring and evaluating its investment in the Company.

 

  82.3 For the avoidance of doubt, this Article 82 does not authorize a Director who is not an employee of the Group for the purposes of section 175 of the Act where:

 

  82.3.1 he or she holds office as a director of an Affiliate of an Investor; and

 

  82.3.2 such Affiliate is considered, following determination by the other Directors at the relevant time, to be in direct competition with the business of the Company or any member of the Group.

 

  82.4 Any determination as to whether an Affiliate of an Investor is in direct competition with the business of the Company or any member of the Group will be effective only if at the meeting at which the matter is considered any requirement as to quorum is met without counting the Director in question or any other Director interested in the matter under consideration and the matter was agreed to without such Director voting. A directorship of an Affiliate of an Investor determined to be in direct competition with the business of the Company or any member of the Group and held by a Director who is not an employee of the Group will be considered in accordance with Article 80.

 

83 RESTRICTIONS ON QUORUM AND VOTING

 

  83.1 Save as provided in this Article 83, and whether or not the interest is one which is authorized pursuant to Article 80 or permitted under Article 81, a Director shall not be entitled to vote on any resolution in respect of any contract, transaction or arrangement, or any other proposal, in which the Director (or a person connected with the Director) is interested. Any vote of a Director in respect of a matter where the Director is not entitled to vote shall be disregarded.

 

  83.2 A Director shall not be counted in the quorum at a meeting of the Directors in relation to any resolution on which the Director is not entitled to vote.

 

  83.3 Subject to the provisions of the Act, a Director shall (in the absence of some other interest than is set out below) be entitled to vote, and be counted in the quorum, in respect of any resolution concerning any contract, transaction or arrangement, or any other proposal:

 

  83.3.1 in which the Director has an interest of which the Director is not aware;

 

  83.3.2 in which the Director has an interest which cannot reasonably be regarded as likely to give rise to a conflict of interest;

 

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  83.3.3 in which the Director has an interest only by virtue of interests in shares, debentures or other securities of the Company, or by reason of any other interest in or through the Company;

 

  83.3.4 which involves the giving of any security, guarantee or indemnity to the Director or any other person in respect of (i) money lent or obligations incurred by the Director or by any other person at the request of or for the benefit of the Company or any of its subsidiary undertakings or (ii) a debt or other obligation of the Company or any of its subsidiary undertakings for which the Director has assumed responsibility in whole or in part under a guarantee or indemnity or by the giving of security;

 

  83.3.5 concerning an offer of shares or debentures or other securities of or by the Company or any of its subsidiary undertakings (i) in which offer the Director is or may be entitled to participate as a holder of securities or (ii) in the underwriting or sub-underwriting of which the Director is to participate;

 

  83.3.6 concerning any other body corporate in which the Director is interested, directly or indirectly and whether as an officer, shareholder, creditor, employee or otherwise, provided that the Director (together with persons connected with the Director) is not the holder of, or beneficially interested in, one per cent or more of the issued equity share capital of any class of such body corporate or of the voting rights available to members of the relevant body corporate;

 

  83.3.7 relating to an arrangement for the benefit of the employees or former employees of the Company or any of its subsidiary undertakings which does not award the Director any privilege or benefit not generally awarded to the employees or former employees to whom such arrangement relates;

 

  83.3.8 concerning the purchase or maintenance by the Company of insurance for any liability for the benefit of Directors or for the benefit of persons who include Directors;

 

  83.3.9 concerning the giving of indemnities in favor of Directors where all other Directors are also being offered indemnities on substantially the same terms;

 

  83.3.10 concerning the funding of expenditure by any Director or Directors (i) on defending criminal, civil or regulatory proceedings or action against the Director or Directors, (ii) in connection with an application to the court for relief, or (iii) on defending the Director or Directors in any regulatory investigations, where all other Directors are being offered substantially the same arrangements;

 

  83.3.11 concerning the doing of anything to enable any Director or Directors to avoid incurring expenditure as described in Article 83.3.10, where all other Directors are being offered substantially the same arrangements; and

 

  83.3.12 in respect of which the Director’s interest, or the interest of Directors generally, has been authorized by ordinary resolution.

 

  83.4

Where proposals are under consideration concerning the appointment (including fixing or varying the terms of appointment) of two or more Directors to offices or employments

 

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  with the Company or any body corporate in which the Company is interested, the proposals may be divided and considered in relation to each Director separately. In such case each of the Directors concerned (if not debarred from voting under Article 83.1) shall be entitled to vote, and be counted in the quorum, in respect of each resolution except that concerning the Director’s own appointment or the fixing or variation of the terms of the Director’s own appointment.

 

  83.5 If a question arises at any time as to whether any interest of a Director prevents the Director from voting, or being counted in the quorum, under this Article 83, and such question is not resolved by the Director voluntarily agreeing to abstain from voting, such question shall be referred to the Chairperson of the meeting and the Chairperson’s ruling in relation to any Director other than the Chairperson shall be final and conclusive except in a case where the nature or extent of the interest of such Director has not been fairly disclosed. If any such question shall arise in respect of the Chairperson of the meeting, the question shall be decided by resolution of the Directors and the resolution shall be conclusive except in a case where the nature or extent of the interest of the Chairperson of the meeting (so far as it is known to the Chairperson) has not been fairly disclosed to the Directors.

 

84 CONFIDENTIAL INFORMATION

 

  84.1 Subject to Article 84.2, if a Director, otherwise than by virtue of the Director’s position as Director, receives information in respect of which the Director owes a duty of confidentiality to a person other than the Company, the Director shall not be required:

 

  84.1.1 to disclose such information to the Company or to the Directors, or to any Director, officer or employee of the Company; or

 

  84.1.2 otherwise to use or apply such confidential information for the purpose of or in connection with the performance of the Director’s duties as a Director.

 

  84.2 Where such duty of confidentiality arises out of a situation in which the Director has, or can have a direct or indirect interest that conflicts, or possibly may conflict, with the interests of the Company, Article 84.1 shall apply only if the conflict arises out of a matter which has been authorized under Article 80 or falls within Article 81.

 

  84.3 This Article 84 is without prejudice to any equitable principle or rule of law which may excuse or release the Director from disclosing information, in circumstances where disclosure may otherwise be required under this Article 84.

 

85 DIRECTORS’ INTERESTS – GENERAL

 

  85.1 For the purposes of Articles 80 to 85, a person is connected with a Director if that person is connected for the purposes of Section 252 of the Act.

 

  85.2 Where a Director has an interest which can reasonably be regarded as likely to give rise to a conflict of interest, the Director may, and shall if so requested by the Directors, take such additional steps as may be necessary or desirable for the purpose of managing such conflict of interest, including compliance with any procedures laid down from time to time by the Directors for the purpose of managing conflicts of interest generally and/or any specific procedures approved by the Directors for the purpose of or in connection with the situation or matter in question, including:

 

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  85.2.1 not attending any meetings of the Directors at which the relevant situation or matter falls to be considered; and

 

  85.2.2 not reviewing documents or information made available to the Directors generally in relation to such situation or matter and/or arranging for such documents or information to be reviewed by a professional adviser to ascertain the extent to which it might be appropriate for the Director concerned to have access to such documents or information.

 

  85.3 The Company may by ordinary resolution ratify any contract, transaction or arrangement, or other proposal, not properly authorized by reason of a contravention of any provisions of Articles 80 to 85 or suspend or relax the provisions of Articles 80 to 85 to any extent.

POWERS OF DIRECTORS

 

86 GENERAL POWERS

The Directors shall manage the business and affairs of the Company and may exercise all powers of the Company other than those that are required by the Act or by these Articles to be exercised by the Company in General Meeting. No alteration of these Articles and no direction given by the Company shall invalidate a prior act of the Directors which 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 Directors do not limit the general powers given by this Article.

 

87 PROVISION FOR EMPLOYEES ON CESSATION OR TRANSFER OF BUSINESS

The Directors may make provision for the benefit of persons employed or formerly employed by the Company or any of its subsidiaries (other than a Director, former Director or shadow director) in connection with the cessation or transfer to any person of the whole or part of the undertaking of the Company or that subsidiary.

 

88 BANK MANDATES

The Directors may by resolution authorize such person or persons as they think fit to act as signatories to any bank account of the Company and may amend or remove such authorisation from time to time by resolution.

 

89 BORROWING

Subject to these Articles and the Act, the Directors may exercise all powers of the Company to borrow money, to guarantee, to indemnify, to mortgage or charge its undertaking, property, assets (present and future) and called capital, and to issue debentures and other securities whether outright or as collateral security for any debt, liability or other obligation of the Company or any third party.

 

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DELEGATION OF POWERS

 

90 APPOINTMENT AND CONSTITUTION OF COMMITTEES

 

  90.1 The Directors may delegate any of their powers or discretions (including all powers and discretions whose exercise involves or may involve the payment of remuneration to or the conferring of any other benefit on all or any of the Directors) to such person (who need not be a Director) or committee (composing any number of persons, who need not be Directors) and in such manner as they think fit. Any such delegation may be either collaterally with or to the exclusion of their own powers and the Directors may revoke or alter the terms of any such delegation. Any such person or committee shall, unless the Directors otherwise resolve, have power to sub-delegate any of the powers or discretions delegated to them.

 

  90.2 Any reference in these Articles to the exercise of a power or discretion by the Directors shall include a reference to the exercise of such power or discretion by any person or committee to whom it has been delegated.

 

  90.3 The Directors may make regulations in relation to the proceedings of committees or sub-committees. Subject to any such regulations, the meetings and proceedings of any committee or sub-committee consisting of two or more persons shall be governed by the provisions of these Articles regulating the meetings and proceedings of the Directors (with such amendments as are necessary).

 

91 LOCAL BOARDS AND MANAGERS

 

  91.1 The Directors may establish any local boards or appoint managers or agents to manage any of the affairs of the Company, in any location they think fit, and may:

 

  91.1.1 appoint any persons to be managers or agents or members of such local boards, and may fix their remuneration;

 

  91.1.2 delegate to any local board, manager or agent any of the powers, authorities and discretions vested in the Directors, with power to sub-delegate;

 

  91.1.3 remove any person so appointed, and may annul or vary any such delegation; and

 

  91.1.4 authorize the members of any local boards, or any of them, to fill any vacancies on such boards, and to act notwithstanding vacancies.

 

  91.2 Any such appointment or delegation may be made upon such terms and subject to such conditions as the Directors may think fit.

 

92 APPOINTMENT OF ATTORNEY

 

  92.1 The Directors may from time to time and at any time appoint any company, firm or person or any fluctuating body of persons, whether nominated directly or indirectly by the Directors, to be the attorney or attorneys of the Company for such purposes and with such powers, authorities and discretions (not exceeding those vested in or exercisable by the Directors under these Articles) and for such period and subject to such conditions as they may think fit.

 

  92.2 Any such appointment may contain such provisions for the protection and convenience of persons dealing with any such attorney as the Directors may think fit.

 

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  92.3 The Directors may also authorize any such attorney to sub-delegate all or any of the powers, authorities and discretions vested in the attorney.

 

93 ALTERNATE DIRECTORS

 

  93.1 Any Director may at any time appoint any person (including another Director) to be the Director’s alternate Director and may at any time terminate such appointment. Such appointment or termination of appointment must be made by notice in writing signed by the Director concerned and deposited at the Office or delivered at a meeting of the Directors. Unless previously approved by the Directors or unless the appointee is another Director, the appointment of an alternate shall have effect only once it has been approved and such person has consented to act as an alternate.

 

  93.2 The appointment of an alternate Director shall terminate:

 

  93.2.1 on the happening of any event referred to in Articles 72.1.1, 72.1.4 or 72.1.5 in relation to that alternate Director; or

 

  93.2.2 if the alternate’s appointor ceases to be a Director, otherwise than by retirement at a General Meeting at which the appointor is re-elected.

 

  93.3 An alternate Director shall be entitled to receive notices of meetings of the Directors and shall be entitled to attend and vote as a Director at any such meeting at which the Director appointing the alternate is not personally present and generally at such meetings to perform all functions of the appointor as a Director. For the purposes of the proceedings at such meetings, the provisions of these Articles shall apply as if the alternate (instead of the appointor) were a Director.

 

  93.4 If an alternate is also a Director or shall attend any such meeting as an alternate for more than one Director, the alternate’s voting rights shall be cumulative but the alternate shall not be counted more than once for the purposes of the quorum.

 

  93.5 If the alternate’s appointor is for the time being temporarily unable to act through ill health or disability or is otherwise unavailable for any reason an alternate’s signature to any resolution in writing of the Directors shall be as effective as the signature of the appointor.

 

  93.6 This Article 93 shall also apply (with such changes as are necessary) to such extent as the Directors may from time to time resolve to any meeting of any committee of the Directors of which the appointor of an alternate Director is a member.

 

  93.7 Except as otherwise provided in this Article 93, an alternate Director shall not have power to act as a Director, nor shall the alternate be deemed to be a Director for the purposes of these Articles, nor shall the alternate be deemed to be the agent of the appointor.

 

  93.8 An alternate Director shall be entitled to contract and be interested in and benefit from contracts or arrangements or transactions and to be repaid expenses and to be indemnified to the same extent as if the alternate were a Director.

 

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  93.9 An alternate shall not be entitled to receive remuneration from the Company in respect of the alternate’s appointment as alternate Director except to the extent the alternate’s appointor directs the Company by written notice to pay to the alternate some of the remuneration otherwise payable to that Director.

SECRETARY

 

94 SECRETARY

The Secretary shall be appointed by the Directors on such terms and for such period as they may think fit. Any Secretary so appointed may at any time be removed from office by the Directors, but without prejudice to any claim for damages for breach of any contract of service between the Secretary and the Company. If thought fit, two or more persons may be appointed as Joint Secretaries. The Directors or the Secretary may also appoint from time to time, on such terms as they or he may think fit, one or more Deputy and/or Assistant Secretaries.

 

95 THE SEAL

 

  96.1 The Directors shall provide for the safe custody of the Seal and any Securities Seal and neither shall be used without the authority of the Directors or of a committee authorized by the Directors for that purpose. The Securities Seal shall be used only for sealing securities issued by the Company and documents creating or evidencing securities so issued.

 

  96.2 Every instrument to which the Seal or the Securities Seal shall be affixed (other than a certificate for or evidencing shares, debentures or other securities (including options) issued by the Company) shall be signed autographically by one Director and the Secretary or by two Directors or by a Director or other person authorized for the purpose by the Directors in the presence of a witness unless the Directors decide, either generally or in a particular case, that a signature may be dispensed with or affixed by mechanical means.

 

  96.3 The Company may exercise the powers conferred by the Act with regard to having an official seal for use abroad and such powers shall be vested in the Directors.

 

  96.4 Any instrument signed by:

 

  96.4.1 one Director and the Secretary; or

 

  96.4.2 by two Directors; or

 

  96.4.3 by a Director in the presence of a witness who attests the signature,

and expressed to be executed by the Company shall have the same effect as if executed under the Seal.

AUTHENTICATION OF DOCUMENTS

 

97 AUTHENTICATION OF DOCUMENTS

 

  97.1 Any Director or the Secretary or any person appointed by the Directors for the purpose shall have power to authenticate:

 

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  97.1.1 any document affecting the constitution of the Company;

 

  97.1.2 any resolution passed at a General Meeting or at a meeting of the Directors or any committee; and

 

  97.1.3 any book, record, document or account relating to the business of the Company, and to certify copies or extracts as true copies or extracts.

 

  97.2 Where any book, record, document or account is elsewhere than at the Office the local manager or other officer of the Company having the custody of it shall be deemed to be a person appointed by the Directors for the purpose of Article 97.1.

 

  97.3 A document purporting to be a copy of any such resolution, or an extract from the minutes of any such meeting, which is certified shall be conclusive evidence in favor 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 proceedings at a duly constituted meeting.

OVERSEAS BRANCH

 

98 OVERSEAS BRANCH

The Company, or the directors on behalf of the Company, may cause to be kept in any territory an overseas branch register of members resident in any such territory, and the directors may make, and vary, such arrangements as they may think fit in relation to the keeping of any such register.

DIVIDENDS

 

99 DECLARATION OF FINAL DIVIDENDS

 

  99.1 The Company may by ordinary resolution declare final dividends.

 

  99.2 No dividend shall be declared unless it has been recommended by the Directors and does not exceed the amount recommended by the Directors.

 

100 FIXED AND INTERIM DIVIDENDS

 

  100.1 If and so far as in the opinion of the Directors the profits of the Company justify such payments, the Directors may:

 

  100.1.1 pay the fixed dividends on any class of shares carrying a fixed dividend expressed to be payable on fixed dates on the dates prescribed for the payment of such dividends; and

 

  100.1.2 pay interim dividends on shares of any class of such amounts and on such dates and in respect of such periods as they think fit.

 

  100.2 Provided the Directors act in good faith they shall not incur any liability to the holders of any shares for any loss they may suffer by the lawful payment of any fixed or interim dividend on any other class of shares having rights ranking after or equal with those shares.

 

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101 DISTRIBUTION IN SPECIE

 

  101.1 Without prejudice to Article 100, the Company may by ordinary resolution direct payment of a dividend in whole or in part by the transfer of specific assets, or by procuring the receipt by shareholders of specific assets, of equivalent value (including paid-up shares or debentures of any other company) and the Directors shall give effect to such resolution.

 

  101.2 Where any difficulty arises in regard to such distribution, the Directors may make such arrangements as they think fit, including:

 

  101.2.1 issuing fractional certificates (or ignoring fractions);

 

  101.2.2 fixing the value of any of the assets to be transferred;

 

  101.2.3 paying cash to any member on the basis of the value fixed for the assets in order to adjust the rights of members; and

 

  101.2.4 vesting any assets in trustees.

 

102 RANKING OF SHARES FOR DIVIDEND

 

  102.1 Unless and to the extent that the rights attached to any shares or the terms of issue of those shares provide otherwise, all dividends shall be:

 

  102.1.1 declared and paid according to the amounts paid up on the shares on which the dividend is paid; and

 

  102.1.2 apportioned and paid proportionately to the amounts paid on the shares during any portion or portions of the period in respect of which the dividend is paid.

 

  102.2 If the terms of issue of a share provide that it ranks for dividends as from a particular date then that share will rank for dividends as from that date.

 

  102.3 For the purposes of this Article 100, no amount paid on a share in advance of the date on which such payment is due shall be treated as paid on the share.

 

103 MANNER OF PAYMENT OF DIVIDENDS

 

  103.1 Any dividend or other sum payable on or in respect of a share shall be paid to:

 

  103.1.1 the holder of that share;

 

  103.1.2 if the share is held by more than one person, whichever of the joint holders’ names appears first in the Register;

 

  103.1.3 if the member is no longer entitled to the share, the person or persons entitled to it; or

 

  103.1.4 such other person or persons as the member (or, in the case of joint holders of a share, all of them) may direct,

 

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and such person shall be the “ payee ” for the purpose of this Article 103.

 

  103.2 Such dividend or other sum may be paid:

 

  103.2.1 by cheque sent by post to the payee or, where there is more than one payee, to any one of them at the address shown in the Register or such address as that person notifies the Company in writing;

 

  103.2.2 by bank transfer to such account as the payee or payees shall in writing direct;

 

  103.2.3 (if so authorized by the holder of shares in uncertificated form) using the facilities of a relevant system (subject to the facilities and requirements of the relevant system); or

 

  103.2.4 by such other method of payment as the payee or payees and the Directors may agree.

 

  103.3 Subject to the provisions of these Articles and to the rights attaching to any shares, any dividend or other sum payable on or in respect of a share may be paid in such currency as the Directors may resolve, using such exchange rate for currency conversions as the Directors may reasonably select.

 

  103.4 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.

 

104 RECORD DATE FOR DIVIDENDS

 

  104.1 Notwithstanding any other provision of these Articles, but subject to the Act and rights attached to shares, the Company or the Directors may fix any date as the record date for a dividend, distribution, allotment or issue. The record date may be on or at any time before or after a date on which the dividend, distribution, allotment or issue is declared, made or paid. The power to fix any such record date shall include the power to fix a time on the chosen date.

 

105 NO INTEREST ON DIVIDENDS

The Company shall not pay interest on any dividend or other sum payable on or in respect of a share unless the terms of issue of that share or the provisions of any agreement between the Company and the holder of that share provide otherwise.

 

106 RETENTION OF DIVIDENDS

 

  106.1 The Directors may retain all or part of any dividend or other sum payable on or in respect of a share on which the Company has a lien in respect of which the Directors are entitled to issue an enforcement notice.

 

  106.2 The Company shall apply any amounts retained pursuant to Article 106.1 in or towards satisfaction of the moneys payable to the Company in respect of that share.

 

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  106.3 The Company shall notify the person otherwise entitled to payment of the sum that it has been retained and how the retained sum has been applied.

 

  106.4 The Directors may retain the dividends payable upon shares:

 

  106.4.1 in respect of which any person is entitled to become a member pursuant to Article 35 until such person shall become a member in respect of such shares; or

 

  106.4.2 which any person is entitled to transfer pursuant to Article 35 until such person has transferred those shares.

 

107 UNCLAIMED DIVIDEND

 

  107.1 The Company may cease to send any cheque, warrant or order (or other means of payment) by post for any dividend on any shares which is normally paid in that manner if in respect of at least two consecutive dividends payable on those shares the cheque, warrant or order has been returned undelivered or remains uncashed but, subject to the provisions of these Articles, shall recommence sending cheques, warrants or orders in respect of the dividends payable on those shares if the holder of or person entitled to them claims the arrears of dividend and does not instruct the Company to pay future dividends in some other way.

 

  107.2 Any unclaimed dividends may be invested or otherwise applied for the benefit of the Company until they are claimed.

 

  107.3 The payment by the Directors of any unclaimed dividend or other sum payable on or in respect of a share into a separate account shall not constitute the Company a trustee in respect of that amount.

 

  107.4 If a dividend remains unclaimed after a period of twelve years from the date on which it was declared or became due for payment the person who was otherwise entitled to it shall cease to be entitled and the Company may keep that sum.

 

108 WAIVER OF DIVIDEND

A shareholder or other person entitled to a dividend may waive it in whole or in part. The waiver of any dividend shall be effective only if such waiver is in writing and signed or authenticated in accordance with Article 116.1 by the shareholder or the person entitled to the dividend and delivered to the Company.

 

109 CALLS OR DEBTS MAY BE DEDUCTED

The Directors may deduct from a dividend or other amounts payable to a person in respect of a share amounts due from him to the Company on account of a call or otherwise in relation to a share.

 

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SCRIP DIVIDENDS

 

110 SCRIP DIVIDENDS

 

  110.1 The Directors may offer to ordinary shareholders the right to elect to receive an allotment of new ordinary shares (“ Scrip Shares ”) credited as fully paid in lieu of the whole or part of a dividend.

 

  110.2 The Directors shall not allot Scrip Shares unless so authorized by ordinary resolution. Such a resolution may give authority in relation to particular dividends or may extend to all dividends declared or paid in the period specified in the resolution. Such period may not be longer than five years from the date of the resolution.

 

  110.3 The Directors may, without the need for any further ordinary resolution, offer rights of election in respect of any dividend declared or proposed after the date of the adoption of these Articles and at or prior to the next Annual General Meeting.

 

  110.4 The Directors may offer such rights of election to shareholders either:

 

  110.4.1 in respect of the next dividend proposed to be paid; or

 

  110.4.2 in respect of that dividend and all subsequent dividends, until such time as the election is revoked or the authority given pursuant to Article 110.2 expires without being renewed (whichever is the earlier).

 

  110.5 The number of the Scrip Shares to be allotted in lieu of any amount of dividend shall be decided by the Directors and shall be such whole number of ordinary shares as have a value equal to or as near as possible to but in no event greater than such amount. For such purpose, the value of an ordinary share shall be the average of the quotations of an ordinary share on the New York Stock Exchange on each of the first five trading days on which the ordinary shares are quoted as being “ex” the relevant dividend. No fraction of an ordinary share shall be allotted.

 

  110.6 If the Directors resolve to offer a right of election they shall give written notice of such right to the ordinary shareholders specifying the procedures to be followed in order to exercise such right. No notice need be given to a shareholder who has previously made, and has not revoked, an earlier election to receive ordinary shares in lieu of all future dividends, but the Directors shall instead send such shareholder a reminder of the election made, indicating how that election may be revoked in time for the next dividend proposed to be paid.

 

  110.7 If a member has elected to receive Scrip Shares in place of a dividend, that dividend (or that part of the dividend in respect of which a right of election has been given) shall not be payable on ordinary shares in respect of which the share election has been duly exercised and has not been revoked (the “ elected Ordinary Shares ”). In place of such dividend, the following provisions shall apply:

 

  110.7.1 such number of Scrip Shares as are calculated in accordance with Article 110.5 shall be allotted to the holders of the elected Ordinary Shares;

 

  110.7.2 unless the Uncertificated Securities Regulations require otherwise, if the elected Ordinary Shares are in uncertificated form on the Record Date then the Scrip Shares shall be issued as uncertificated shares;

 

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  110.7.3 if the elected Ordinary Shares are in certificated form on the Record Date then the Scrip Shares shall be issued as certificated shares;

 

  110.7.4 the Directors shall capitalize in accordance with the provisions of Article 9 (without the need for a separate ordinary resolution) a sum equal to the aggregate nominal amount of the Scrip Shares to be allotted and shall apply that sum in paying up in full the appropriate number of new ordinary shares for allotment and distribution to and amongst the holders of the elected Ordinary Shares; and

 

  110.7.5 the Scrip Shares allotted shall rank equally in all respects with the fully paid ordinary shares then in issue save only as regards participation in the relevant dividend.

 

  110.8 No fraction of an ordinary share shall be allotted. The Directors may make such provision as they think fit for any fractional entitlements including that the whole or part of the benefit of those fractions accrues to the Company or that the fractional entitlements are accrued and/or retained on behalf of any ordinary shareholder.

 

  110.9 In relation to any particular proposed dividend, the Directors may in their absolute discretion resolve and shall so resolve if the Company has insufficient reserves or otherwise does not have the necessary authorities or approvals to issue new ordinary shares:

 

  110.9.1 that shareholders shall not be entitled to make any election to receive shares in place of a cash dividend and that any election previously made shall not extend to such dividend; or

 

  110.9.2 at any time prior to the allotment of the ordinary shares which would otherwise be allotted in lieu of that dividend, that all elections to take shares 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.

ACCOUNTS

 

111 ACCOUNTING RECORDS

Accounting records sufficient to show and explain the Company’s transactions and otherwise complying with the Act shall be kept at the Office, or at such place as the Directors think fit. No person shall have any right simply by virtue of being a member to inspect any account or book or document of the Company except as conferred by the Act or ordered by a court of competent jurisdiction or authorized by the Directors.

COMMUNICATIONS WITH MEMBERS

 

112 SERVICE OF NOTICES

 

  112.1 The Company may, subject to and in accordance with the Act and these Articles, send or supply all types of notices, documents or information to members by electronic means and/or by making such notices, documents or information available on a website.

 

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  112.2 The Company Communications Provisions have effect, subject to the provisions of Articles 112 to 115, for the purposes of any provision of the Act or these Articles that authorizes or requires notices, documents or information to be sent or supplied by or to the Company.

 

  112.3 Any notice, document or information (including a share certificate) which is sent or supplied by the Company in hard copy form, or in electronic form but to be delivered other than by electronic means, and which is sent by pre-paid post and properly addressed shall be deemed to have been received by the intended recipient at the expiration of twenty four hours after the time it was posted (or forty eight hours where first class mail or an equivalent service is not employed for members with a registered address in the UK). In proving such receipt it shall be sufficient to show that such notice, document or information was properly addressed, pre-paid and posted.

 

  112.4 Any notice, document or information which is sent or supplied by the Company by electronic means shall be deemed to have been received by the intended recipient twenty four hours after it was transmitted, and in proving such receipt it shall be sufficient to show that such notice, document or information was properly addressed.

 

  112.5 Any notice, document or information which is sent or supplied by the Company by means of a website shall be deemed to have been received when the material was first made available on the website or, if later, when the recipient received (or, in accordance with this Article 112, is deemed to have received) notice of the fact that the material was available on the website.

 

  112.6 Any notice, document or information which is sent or supplied by the Company by means of a relevant system shall be deemed to have been received by the recipient twenty four 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.

 

  112.7 An accidental failure to send or late sending of, or non-receipt by any person entitled to, any notice of or other document or information relating to any meeting or other proceeding shall not invalidate the relevant meeting or proceeding.

 

  112.8 The provisions of this Article 112 shall have effect in place of the Company Communications Provisions relating to deemed delivery of notices, documents or information.

 

  112.9 A notice, document or information served or delivered by the Company by any other means authorized in writing by the member concerned is deemed to be served when the Company has taken the action it has been authorized to take for that purpose.

 

  112.10 A member present at a General Meeting of the Company is deemed to have received due notice of the meeting and, where required, of the purposes for which it was called.

 

113 COMMUNICATION WITH JOINT HOLDERS

 

  113.1 Anything which needs to be agreed or specified by the joint holders of a share shall for all purposes be taken to be agreed or specified by all the joint holders where it has been agreed or specified by the joint holder whose name stands first in the Register in respect of the share.

 

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  113.2 If more than one joint holder gives instructions or notifications to the Company pursuant to these Articles then save where these Articles specifically provide otherwise, the Company shall only recognize the instructions or notifications of whichever of the joint holders’ names appears first in the Register.

 

  113.3 Any notice, document or information which is authorized or required to be sent or supplied to joint holders of a share may be sent or supplied to the joint holder whose name stands first in the Register in respect of the share, to the exclusion of the other joint holders.

 

  113.4 The provisions of this Article 113 shall have effect in place of the Company Communications Provisions regarding joint holders of shares.

 

  113.5 If two or more persons are registered as joint holders of any share, or are entitled jointly to a share in consequence of the death or bankruptcy of the holder or otherwise by operation of law, any one of them may give instructions to the Company and give effectual receipts for any dividend or other moneys payable or property distributable on or in respect of the share.

 

114 DECEASED AND BANKRUPT MEMBERS

 

  114.1 A person who claims to be entitled to a share in consequence of the death or bankruptcy of a member or otherwise by operation of law shall supply to the Company:

 

  114.1.1 such evidence as the Directors may reasonably require to show such person’s title to the share; and

 

  114.1.2 an address at which notices may be sent or supplied to such person.

 

  114.2 Subject to complying with Article 114.1, such a person shall be entitled to:

 

  114.2.1 have sent or supplied to such address any notice, document or information to which the relevant member would have been entitled. Any notice, document or information so sent or supplied shall for all purposes be deemed to be duly sent or supplied to all persons interested in the share (whether jointly with or as claiming through or under such person); and

 

  114.2.2 give instructions or notifications to the Company pursuant to these Articles in relation to the relevant shares and the Company may treat such instruction or notification as duly given by all persons interested in the share (whether jointly with or as claiming through or under such person).

 

  114.3 Unless a person entitled to the share has complied with Article 114.1, any notice, document or information sent or supplied to the address of any member pursuant to these Articles shall be deemed to have been duly sent or supplied in respect of any share registered in the name of such member as sole or first-named joint holder. This Article shall apply notwithstanding even if such member is dead or bankrupt or in liquidation, and whether or not the Company has notice of such member’s death or bankruptcy or liquidation.

 

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  114.4 The provisions of this Article 114 shall have effect in place of the Company Communications Provisions regarding the death or bankruptcy of a member.

 

115 FAILURE TO SUPPLY ADDRESS

 

  115.1 The Company shall not be required to send notices, documents or information to a member who (having no registered address within the United States) has not supplied to the Company either a postal address within the United States or an electronic address for the service of notices. Any notice that, notwithstanding this Article 115, is sent to a member whose registered address is not within the United States shall be deemed to have been sent for information purposes only.

 

  115.2 If the Company sends more than one document to a member on separate occasions during a twelve month period and each of them is returned undelivered then that member will not be entitled to receive notices from the Company until the member has supplied a new postal or electronic address for the service of notices.

 

116 SUSPENSION OF POSTAL SERVICES

 

  116.1 Where, by any suspension or curtailment of postal services, the Company is unable effectively to give notice of a general meeting, or meeting of the holders of any class of shares, the directors may decide that the only persons to whom notice of the affected general meeting must be sent are the directors, the Company’s auditors, those members to whom notice to convene the general meeting can validly be sent by electronic means and those members to whom notification as to the availability of the notice of meeting on a website can validly be sent by electronic means. In any such case the Company shall also:

 

  116.1.1 advertise the general meeting in at least two national daily newspapers published in the United Sates; and

 

  116.1.2 send or supply a confirmatory copy of the notice to members in the same manner as it sends or supplies notices under article 88 if at least seven clear days before the meeting the posting of notices again becomes practicable.

 

117 SIGNATURE OR AUTHENTICATION OF DOCUMENTS SENT BY ELECTRONIC MEANS

Where these Articles require a notice or other document to be signed or authenticated by a member or other person, then any notice or other document sent or supplied in electronic form is sufficiently authenticated in any manner authorized by the Company Communications Provisions or in such other manner as may be approved by the Directors. The Directors may designate mechanisms for validating any such notice or other document, and any such notice or other document not so validated by use of such mechanisms shall be deemed not to have been received by the Company.

 

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118 STATUTORY PROVISIONS AS TO NOTICES

Nothing in any of these Articles shall affect any provision of the Act that requires or permits any particular notice, document or information to be sent or supplied in any particular manner.

WINDING UP

 

119 DIRECTORS’ POWER TO PETITION

 

  119.1 The Directors shall have power in the name and on behalf of the Company to present a petition to the Court for the Company to be wound up.

 

  119.2 On a voluntary winding up of the Company the liquidator may, on obtaining any sanction required by law, divide among the members 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 vest the whole or any part of the assets in trustees upon such trusts for the benefit of the members as he, with the like sanction, shall determine. 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 members how the division is to be carried out between members or classes of members. The liquidator may not, however, distribute to a member without his consent an asset to which there is attached a liability or potential liability for the owner.

DESTRUCTION OF DOCUMENTS

 

120 DESTRUCTION OF DOCUMENTS

 

  120.1 The Company may destroy:

 

  120.1.1 all instruments of transfer or other documents which have been registered or on the basis of which registration was made at any time after the expiration of six years from the date of registration;

 

  120.1.2 all dividend mandates and notifications of change of address at any time after the expiration of two years from the date of recording of them;

 

  120.1.3 all share certificates which have been cancelled at any time after the expiration of one year from the date of the cancellation;

 

  120.1.4 all proxy appointments from one year after the end of the meeting to which the appointment relates; and

 

  120.1.5 any other document on the basis of which any entry in the register is made at any time after ten years from the date an entry in the register was first made in respect of it.

 

  120.2 It shall conclusively be presumed in favor of the Company that:

 

  120.2.1 every entry in the Register purporting to have been made on the basis of an instrument of transfer or other document so destroyed was duly and properly made;

 

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  120.2.2 every instrument of transfer so destroyed was a valid and effective instrument duly and properly registered;

 

  120.2.3 every share certificate so destroyed was a valid and effective certificate duly and properly cancelled; and

 

  120.2.4 every other document mentioned in this Article 120 so destroyed was a valid and effective document in accordance with the recorded particulars in the books or records of the Company.

 

  120.3 The provisions of this Article 120:

 

  120.3.1 shall apply only to the destruction of a document in good faith and without notice of any claim to which the document might be relevant; and

 

  120.3.2 shall not be construed as imposing upon the Company any liability in respect of the destruction of any such document earlier than provided by this Article 120 or in any other circumstances, which would not attach to the Company in the absence of this Article 120.

 

  120.4 Any document referred to in this Article 120 may, subject to the Act, be destroyed before the end of the relevant period so long as a copy of such document (whether made electronically or by any other means) has been made and is retained until the end of the relevant period.

 

  120.5 References in this Article 120 to the destruction of any document include references to its disposal in any manner.

DIRECTORS’ LIABILITIES

 

121 INDEMNITY

 

  121.1 So far as may be permitted by the Act every Relevant Officer may be indemnified by the Company out of its own funds against:

 

  121.1.1 any liability incurred by or attaching to the Relevant Officer in connection with any negligence, default, breach of duty or breach of trust by the Relevant Officer in relation to the Company or any Associated Company of the Company other than:

 

  (i) any liability to the Company or any Associated Company; and

 

  (ii) any liability of the kind referred to in Section 234(3) of the Act; and

 

  121.1.2 any other liability incurred by or attaching to the Relevant Officer in relation to or in connection with the Relevant Officer’s duties, powers or office, including in connection with the activities of the Company or an Associated Company in its capacity as a trustee of an occupational pension scheme, subject to the limitations provided for in Section 234(3) of the Act.

 

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  121.2 Where a Relevant Officer is indemnified against any liability in accordance with this Article 121, such indemnity may extend to all costs, charges, losses, expenses and liabilities incurred by the Relevant Officer in relation thereto.

 

  121.3 In this Article 121:

 

  121.3.1 Associated Company ” shall have the same meaning as in Section 256 of the Act, and

 

  121.3.2 Relevant Officer ” means a Director or former Director of the Company or of an Associated Company of the Company.

 

122 INSURANCE

 

  122.1 Without prejudice to Article 121, the Directors shall have power to purchase and maintain insurance for or for the benefit of:

 

  122.1.1 any person who is or was at any time a Director or Secretary of any Relevant Company (as defined in Article 122.2); or

 

  122.1.2 any person who is or was at any time a trustee of any pension fund or employees’ share scheme in which employees of any Relevant Company are interested,

including insurance against any liability (including all costs, charges, losses and expenses in relation to such liability) incurred by or attaching to such person in relation to such person’s duties, powers or offices in relation to any Relevant Company, or any such pension fund or employees’ share scheme.

 

  122.2 For the purpose of Article 122.1, “ Relevant Company ” shall mean:

 

  122.2.1 the Company;

 

  122.2.2 any holding company of the Company;

 

  122.2.3 any other body, whether or not incorporated, in which the Company or such holding company or any of the predecessors of the Company or of such holding company has or had any interest whether direct or indirect or which is in any way allied to or associated with the Company; or

 

  122.2.4 any subsidiary undertaking of the Company or of such other body.

 

123 DEFENCE EXPENDITURE

 

  123.1 So far as may be permitted by the Act, the Company may:

 

  123.1.1 provide a Relevant Officer with funds to meet expenditure incurred or to be incurred by the Relevant Officer:

 

  (i) in defending any criminal or civil proceedings in connection with any negligence, default, breach of duty or breach of trust by the Relevant Officer in relation to the Company or an Associated Company of the Company; or

 

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  (ii) in connection with any application for relief under the provisions mentioned in Section 205(5) of the Act; and

 

  123.1.2 do anything to enable any such Relevant Officer to avoid incurring such expenditure.

 

  123.2 The terms set out in Section 205(2) of the Act shall apply to any provision of funds or other things done under Article 123.1.

 

  123.3 So far as may be permitted by the Act, the Company:

 

  123.3.1 may provide a Relevant Officer with funds to meet expenditure incurred or to be incurred by the Relevant Officer in defending himself/herself 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 the Relevant Officer in relation to the Company or any Associated Company of the Company; and

 

  123.3.2 may do anything to enable any such Relevant Officer to avoid incurring such expenditure.

 

  123.4 In this Article 123:

 

  123.4.1 Associated Company ” shall have the same meaning as in Section 256 of the Act; and

 

  123.4.2 Relevant Officer ” means a Director, former Director or Secretary of the Company or of an Associated Company of the Company.

 

124 FORUM

Unless the Company by ordinary resolution consents in writing to the selection of an alternative forum, the courts of England and Wales shall have exclusive jurisdiction to determine any dispute brought by a member in that member’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 and/or the board and/or any of the directors, former directors, officers or other employees or members individually, arising out of or in connection with these Articles or (to the maximum extent permitted by applicable law) otherwise. To the fullest extent permitted by law, any person purchasing or otherwise acquiring any interest in shares in the capital of the Company shall be deemed to have notice of and consents to the provisions of this Article 124.

The governing law of these Articles is the law of England and Wales and these Articles shall be     interpreted in accordance with the laws of England and Wales.

 

125 DEPOSITARY INTERESTS OTHER THAN DTC

 

  125.1 The Directors shall, subject always to applicable law and the provisions of these Articles, have power to implement or approve (or both) any arrangements which they may, in their absolutely discretion, think fit in relation to (without limitation) the evidencing of title to and transfer of Depositary Interests or similar interests in shares.

 

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  125.2 The Directors may from time to time take such actions and do such things as they may, in their absolute direction, think fit in relation to the operator of any such arrangements under Article 125.1 including, without limitation, treating Depositary Interest Holders as if they were holders directly of the shares or interests in shares represented thereby for the purposes of compliance with any obligations imposed under these Articles on members.

 

  125.3 If and to the extent that the Directors implement or approve (or both) any arrangements in relation to the evidencing of title to and transfer of Depositary Interests or similar interests in shares in shares in accordance with Articles 125.2 and 125.3, the Directors shall ensure that such arrangements provide (in so far as is practicable):

 

  125.3.1 a Depositary Interest Holder with the same or equivalent rights as a member of the Company, including, without limitation, in relation to the exercise of voting rights and provision of information;

 

  125.3.2 the Company and the Directors with the same or equivalent powers as given under these Articles in respect of a member of the Company, including, without limitation, the powers of the Directors under Article 62, so that such power may be exercised against a Depositary Interest Holder and the shares or interest in shares represented by such Depositary Interest Holder or similar interests.

 

  125.4 Articles 125.1 to 125.3 shall not apply to any Depositary Interests held in a settlement system operated by DTC.

 

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Exhibit 10.1

SHAREHOLDERS AGREEMENT

DATED AS OF [    ], 2018

AMONG

GATES INDUSTRIAL CORPORATION PLC

AND

THE OTHER PARTIES HERETO


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ARTICLE I.   INTRODUCTORY MATTERS      1  
1.1   Defined Terms      1  
1.2   Construction      4  
ARTICLE II.   CORPORATE GOVERNANCE MATTERS      4  
2.1   Election of Directors      4  
2.2   Compensation      6  
2.3   Other Rights of Shareholder Designees      6  
ARTICLE III.   INFORMATION; VCOC      6  
3.1   Books and Records; Access      6  
3.2   Certain Reports      7  
3.3   VCOC      8  
3.4   Confidentiality      10  
3.5   Information Sharing      11  
ARTICLE IV.   ADDITIONAL COVENANTS      11  
4.1   Pledges      11  
4.2   Spin-Offs or Split-Offs      11  
4.3   Corporate Opportunity      11  
ARTICLE V.   GENERAL PROVISIONS      13  
5.1   Termination      13  
5.2   Notices      13  
5.3   Amendment; Waiver      13  
5.4   Further Assurances      14  
5.5   Assignment      14  
5.6   Third Parties      14  
5.7   Governing Law      14  
5.8   Jurisdiction; Waiver of Jury Trial      14  
5.9   Specific Performance      15  
5.10   Entire Agreement      15  
5.11   Severability      15  

 

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5.12   Table of Contents, Headings and Captions      15  
5.13   Grant of Consent      15  
5.14   Counterparts      15  
5.15   Effectiveness      15  
5.16   No Recourse      15  

 

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SHAREHOLDERS AGREEMENT

This Shareholders’ Agreement is entered into as of [        ], 2018 by and among Gates Industrial Corporation plc, a public limited company incorporated under the laws of England and Wales (the “ Company ”), and each of the other parties from time to time party hereto (collectively, the “ Shareholders ”).

RECITALS:

WHEREAS, the Company is effecting an underwritten initial public offering (“ IPO ”) of its Ordinary Shares (as defined below); and

WHEREAS, in connection with the IPO, the Company and the Shareholders wish to set forth certain understandings between such parties, including with respect to certain governance matters.

NOW, THEREFORE, the parties agree as follows:

ARTICLE I.

INTRODUCTORY MATTERS

1.1 Defined Terms . In addition to the terms defined elsewhere herein, the following terms have the following meanings when used herein with initial capital letters:

Affiliate ” has the meaning set forth in Rule 12b-2 promulgated under the Exchange Act, as in effect on the date hereof.

Agreement ” means this Shareholders Agreement, as the same may be amended, supplemented, restated or otherwise modified from time to time in accordance with the terms hereof.

Beneficially Own ” has the meaning set forth in Rule 13d-3 promulgated under the Exchange Act.

Board ” means the Board of Directors of the Company.

Business Day ” means a day other than a Saturday, Sunday, federal or New York State holiday or other day on which commercial banks in New York City are authorized or required by law to close.

Closing Date ” means the date of the closing of the IPO.

Company ” has the meaning set forth in the Preamble.

Confidential Information ” means any information concerning the Company or its Subsidiaries that is furnished after the date of this Agreement by or on behalf of the Company or its designated representatives to a Shareholder or its designated representatives, together with any notes, analyses, reports, models, compilations, studies, documents, records or extracts thereof containing, based upon or derived from such information, in whole or in part; provided , however , that Confidential Information does not include information:

 

  (i) that is or has become publicly available other than as a result of a disclosure by a Shareholder or its designated representatives in violation of this Agreement;


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  (ii) that was already known to a Shareholder or its designated representatives or was in the possession of a Shareholder or its designated representatives prior to its being furnished by or on behalf of the Company or its designated representatives;

 

  (iii) that is received by a Shareholder or its designated representatives from a source other than the Company or its designated representatives, provided that the source of such information was not actually known by such Shareholder or designated representative to be bound by a confidentiality agreement with, or other contractual obligation of confidentiality to, the Company;

 

  (iv) that was independently developed or acquired by a Shareholder or its designated representatives or on its or their behalf without the violation of the terms of this Agreement; or

 

  (v) that a Shareholder or its designated representatives is required, in the good faith determination of such Shareholder or designated representative, to disclose by applicable law, regulation or legal process, provided that such Shareholder or designated representative takes reasonable steps to minimize the extent of any such required disclosure, provided further that no such steps to minimize disclosure shall be required where disclosure is made (i) in response to a request by a regulatory or self-regulatory authority or (ii) in connection with a routine audit or examination by a bank examiner or auditor and such audit or examination does not specifically reference the Company or this Agreement.

Control ” (including its correlative meanings, “ Controlled by ” and “ under common Control with ”) means possession, directly or indirectly, of the power to direct or cause the direction of management or policies (whether through ownership of securities or partnership or other ownership interests, by contract or otherwise) of a Person.

Director ” means any director of the Company from time to time.

Exchange Act ” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder, as the same may be amended from time to time.

Governmental Authority ” means any nation or government, any state or other political subdivision thereof, and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.

 

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Identified Person ” has the meaning set forth in Section 4.3(b) hereof.

Information ” has the meaning set forth in Section  3.1 hereof.

IPO ” has the meaning set forth in the Recitals.

Law ” means any statute, law, regulation, ordinance, rule, injunction, order, decree, governmental approval, directive, requirement, or other governmental restriction or any similar form of decision of, or determination by, or any interpretation or administration of any of the foregoing by, any Governmental Authority.

Non-Employee Director ” has the meaning set forth in Section 4.3(a) hereof.

Ordinary Shares ” means the ordinary shares, par value $0.01 per share, of the Company, and any securities issued in respect thereof, or in substitution therefor, in connection with any share split, dividend or combination, or any reclassification, recapitalization, merger, consolidation or similar transaction.

Person ” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, or other form of business organization, whether or not regarded as a legal entity under applicable Law, or any Governmental Authority or any department, agency or political subdivision thereof.

Plan Asset Regulation ” has the meaning set forth in Section  3.3(a) hereof.

Pre-IPO Owners ” means (x) the Shareholder Entities and (y) any other holders of Ordinary Shares in issue immediately prior to the closing of the IPO and, in each case, any Affiliate of any such holder that shall become a holder of any Ordinary Shares.

Shareholder Designator ” means the Shareholder, or any group of Shareholders collectively, then holding a majority of Ordinary Shares held by all Shareholders.

Shareholder Designee ” has the meaning set forth in Section  2.1(b) hereof.

Shareholder Entities ” means the Shareholders and their Affiliates and their respective successors.

Subsidiary ” means, with respect to any Person, any corporation, limited liability company, partnership, association or other business entity of which: (i) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, representatives or trustees thereof is at the time owned or Controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or any combination thereof; or (ii) if a limited liability company, partnership, association or other business entity, a majority of the total voting power of stock (or equivalent ownership interest) of the limited liability company, partnership, association or other business entity is at the time owned or Controlled, directly or indirectly, by that Person or one or more Subsidiaries of that Person or any combination thereof. For purposes hereof, a Person or

 

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Persons shall be deemed to have a majority ownership interest in a limited liability company, partnership, association or other business entity if such Person or Persons shall (a) be allocated a majority of limited liability company, partnership, association or other business entity gains or losses or shall be or (b) Control the managing member, managing director or other governing body or general partner of such limited liability company, partnership, association or other business entity.

Total Number of Directors ” means the total number of directors comprising the Board from time to time.

Transfer ” (including its correlative meanings, “ Transferor ,” “ Transferee ” and “ Transferred ”) shall mean, with respect to any security, directly or indirectly, to sell, contract to sell, give, assign, hypothecate, pledge, encumber, grant a security interest in, offer, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend or otherwise transfer or dispose of any economic, voting or other rights in or to such security. When used as a noun, “ Transfer ” shall have such correlative meaning as the context may require.

VCOC Investor ” has the meaning set forth in Section  3.3(a) hereof.

1.2 Construction . The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no rule of strict construction will be applied against any party. Unless the context otherwise requires: (a) “ or ” is disjunctive but not exclusive, (b) words in the singular include the plural, and in the plural include the singular, and (c) the words “ hereof ,” “ herein ,” and “ hereunder ” and words of similar import when used in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section references are to this Agreement unless otherwise specified.

ARTICLE II.

CORPORATE GOVERNANCE MATTERS

2.1 Election of Directors .

(a) Following the Closing Date, the Shareholder Designator shall have the right, but not the obligation, to designate, and the individuals nominated for election as Directors by or at the direction of the Board or a duly-authorized committee thereof shall include, a number of individuals such that, following the election of any Directors and taking into account any Director continuing to serve as such without the need for re-election, the number of Shareholder Designees (as defined below) serving as Directors of the Company will be equal to: (i) if the Pre-IPO Owners collectively Beneficially Own 50% or more of the Ordinary Shares in issue as of the record date for such meeting, the lowest whole number that is greater than 50% of the Total Number of Directors; (ii) if the Pre-IPO Owners collectively Beneficially Own at least 40% (but less than 50%) of the Ordinary Shares in issue as of the record date for such meeting, the lowest whole number that is greater than 40% of the Total Number of Directors; (iii) if the Pre-IPO Owners collectively Beneficially Own at least 30% (but less than 40%) of the Ordinary Shares in issue as of the record date for such meeting, the lowest whole number that is greater

 

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than 30% of the Total Number of Directors; (iv) if the Pre-IPO Owners collectively Beneficially Own at least 20% (but less than 30%) of the Ordinary Shares in issue as of the record date for such meeting, the lowest whole number that is greater than 20% of the Total Number of Directors; and (v) if the Pre-IPO Owners collectively Beneficially Own at least 5% (but less than 20%) of the Ordinary Shares in issue as of the record date for such meeting, the lowest whole number (such number always being equal to or greater than one) that is greater than 10% of the Total Number of Directors.

(b) If at any time the Shareholder Designator has designated fewer than the total number of individuals that the Shareholder Designator is then entitled to designate pursuant to Section  2.1(a) hereof, the Shareholder Designator shall have the right, at any time and from time to time, to designate such additional individuals which it is entitled to so designate, in which case, any individuals nominated by or at the direction of the Board or any duly-authorized committee thereof for election as Directors to fill any vacancy on the Board shall include such designees, and the Company shall use its best efforts to (x) effect the election of such additional designees, whether by increasing the size of the Board or otherwise, and (y) cause the election of such additional designees to fill any such newly-created vacancies or to fill any other existing vacancies. Each such individual whom the Shareholder Designator shall actually designate pursuant to this Section  2.1 and who is thereafter elected and qualifies to serve as a Director shall be referred to herein as a “ Shareholder Designee .”

(c) In the event that a vacancy is created at any time by the death, disability, retirement, removal or resignation of any Shareholder Designee, any individual nominated by or at the direction of the Board or any duly-authorized committee thereof to fill such vacancy shall be, and the Company shall use its best efforts to cause such vacancy to be filled, as soon as possible, by a new designee of the Shareholder Designator, and the Company shall take or cause to be taken, to the fullest extent permitted by law, at any time and from time to time, all actions necessary to accomplish the same.

(d) The Company shall, to the fullest extent permitted by law, include in the slate of nominees recommended by the Board at any meeting of shareholders called for the purpose of electing directors (or consent in lieu of meeting), the persons designated pursuant to this Section  2.1 and use its best efforts to cause the election of each such designee to the Board, including nominating each such individual to be elected as a Director as provided herein, recommending such individual’s election and soliciting proxies or consents in favor thereof. In the event that any Shareholder Designee shall fail to be elected to the Board at any meeting of shareholders called for the purpose of electing directors (or consent in lieu of meeting), the Company shall use its best efforts to cause such Shareholder Designee (or a new designee of the Shareholder Designator) to be elected to the Board, as soon as possible, and the Company shall take or cause to be taken, to the fullest extent permitted by law, at any time and from time to time, all actions necessary to accomplish the same, including, without limitation, actions to effect an increase in the Total Number of Directors.

(e) In addition to any vote or consent of the Board or the shareholders of the Company required by applicable Law or the articles of association or other organizational document of the Company, and notwithstanding anything to the contrary in this Agreement, for so long as this Agreement is in effect, any action by the Board to increase or decrease the Total

 

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Number of Directors (other than any increase in the Total Number of Directors in connection with the election of one or more Directors elected exclusively by the holders of one or more classes or series of the Company’s shares other than Ordinary Shares) shall require the prior written consent of the Shareholder Designator, delivered in accordance with Section  5.13 hereof.

(f) The Company shall use reasonable endeavors to procure that the Board authorizes, in accordance with the Company’s articles of association, any direct or indirect interest of the Shareholder Designee that conflicts, or may possibly conflict, with the interests of the Company and that arises solely in consequence of such Shareholder Designee being a director, manager, officer, employee or member of, or partner in, any of the Shareholder Entities. The provisions of this Section 2.1(f) are not intended to apply, and do not apply, to any actual or possible conflict that may arise in consequence of such Shareholder Designee being a director, officer or employee of any other entity that is an operating Subsidiary of any of the Shareholder Entities.

2.2 Compensation . Except to the extent the Shareholder Designator may otherwise notify the Company, the Shareholder Designees shall be entitled to compensation consistent with the compensation received by other non-employee Directors, including any fees and equity awards, provided that (x) to the extent any Director compensation is payable in the form of equity awards, at the election of a Shareholder Designee, in lieu of any equity award, such compensation shall be paid in an amount of cash equal to the value of the equity award as of the date of the award, with any such cash subject to the same vesting terms, if any, as the equity awarded to other Directors and (y) at the election of a Shareholder Designee, any Director compensation (whether cash, equity awards and/or cash in lieu of equity as may be designated by the electing Shareholder Designee) shall be paid to a Shareholder or an Affiliate thereof specified by such Shareholder Designee rather than to such Shareholder Designee. If the Company adopts a policy that Directors own a minimum amount of equity in the Company, Shareholder Designees shall not be subject to such policy.

2.3 Other Rights of Shareholder Designees . Except as provided in Section 2.2, each Shareholder Designee serving on the Board shall be entitled to the same rights and privileges applicable to all other members of the Board generally or to which all such members of the Board are entitled. In furtherance of the foregoing, the Company shall indemnify, exculpate, and reimburse fees and expenses of the Shareholder Designees (including by entering into an indemnification agreement in a form substantially similar to the Company’s form director indemnification agreement) and provide the Shareholder Designees with director and officer insurance to the same extent it indemnifies, exculpates, reimburses and provides insurance for the other members of the Board pursuant to the charter, articles of association or other organizational document of the Company, applicable law or otherwise.

ARTICLE III.

INFORMATION; VCOC

3.1 Books and Records; Access . The Company shall, and shall cause its Subsidiaries to, keep proper books, records and accounts, in which full and correct entries shall be made of all financial transactions and the assets and business of the Company and each of its Subsidiaries in accordance with generally accepted accounting principles. The Company shall,

 

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and shall cause its Subsidiaries to, (a) permit the Shareholder Entities and their respective designated representatives (or other designees), at reasonable times and upon reasonable prior notice to the Company, to review the books and records of the Company or any of such Subsidiaries and to discuss the affairs, finances and condition of the Company or any of such Subsidiaries with the officers of the Company or any such Subsidiary and (b) provide the Shareholder Entities, in addition to other information that might be reasonably requested by such Shareholder Entities from time to time (including, without limitation, information provided to the Shareholder Entities in a manner consistent with past practice), (i) direct access to the Company’s auditors and officers, (ii) month-end reports, in a format to be prescribed by the Shareholder Entities, to be provided within 10 days after the end of each month or as soon thereafter as practicable, (iii) quarter-end reports, in a format to be prescribed by the Shareholder Entities, to be provided within 30 days after the end of each quarter, (iv) the right to visit and inspect any of the offices and properties of the Company and its subsidiaries, (v) copies of all materials provided to the Company’s Board of Directors (or equivalent governing body) at the same time as provided to the Directors (or their equivalent) of the Company, (vi) access to appropriate officers and Directors of the Company at such times as may be requested by the Shareholder Entities for consultation with the Shareholder Entities with respect to matters relating to the business and affairs of the Company and its Subsidiaries, (vii) information in advance with respect to any significant corporate actions, including, without limitation, extraordinary dividends, mergers, acquisitions or dispositions of assets, issuances of significant amounts of debt or equity and material amendments to the articles of association, certificate of incorporation, bylaws or other organizational document of the Company or any of its Subsidiaries, and to provide the Shareholder Entities with the right to consult with the Company and its Subsidiaries with respect to such actions, (viii) flash data, in a format to be prescribed by the Shareholder Entities, to be provided within 15 days after the end of each quarter or as soon thereafter as practicable and (ix) to the extent otherwise prepared by the Company, operating and capital expenditure budgets and periodic information packages relating to the operations and cash flows of the Company and its Subsidiaries (all such information so furnished pursuant to this Section 3.1, the “ Information ”). The Company agrees to consider, in good faith, the recommendations of the Shareholder Entities in connection with the matters on which the Company is consulted as described above. Subject to Section  3.5 , any Shareholder Entity (and any party receiving Information from a Shareholder Entity) who shall receive Information shall maintain the confidentiality of such Information. Notwithstanding the foregoing, that the Company shall not be required to disclose any privileged Information of the Company so long as the Company has used commercially reasonable efforts to enter into an arrangement pursuant to which it may provide such information to the Shareholder Entities without the loss of any such privilege.

3.2 Certain Reports . The Company shall deliver or cause to be delivered to the Shareholder Entities, at their request:

(a) to the extent otherwise prepared by the Company, operating and capital expenditure budgets and periodic information packages relating to the operations and cash flows of the Company and its Subsidiaries; and

(b) to the extent otherwise prepared by the Company, such other reports and information as may be reasonably requested by the Shareholder Entities; provided , however , that

 

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the Company shall not be required to disclose any privileged information of the Company so long as the Company has used commercially reasonable efforts to enter into an arrangement pursuant to which it may provide such information to the Shareholder Entities without the loss of any such privilege.

3.3 VCOC .

(a) With respect to each Shareholder Entity that is intended to qualify its direct or indirect investment in the Company as a “venture capital investment” as defined in the Department of Labor regulations codified at 29 CFR Section 2510.3-101 (the “ Plan Asset Regulation ”) (each, a “ VCOC Investor ”), for so long as the VCOC Investor, directly or through one or more subsidiaries, continues to hold any Ordinary Shares (or other securities of the Company into which such Ordinary Shares may be converted or for which such Ordinary Shares may be exchanged), without limitation or prejudice of any the rights provided to the Shareholder Entities hereunder, the Company shall, with respect to each such VCOC Investor:

(i) provide each VCOC Investor or its designated representative with:

 

  (A) upon reasonable notice and at mutually convenient times, the right to visit and inspect any of the offices and properties of the Company and its Subsidiaries and inspect and copy the books and records of the Company and its Subsidiaries;

 

  (B) as soon as available and in any event within 45 days after the end of each of the first three quarters of each fiscal year of the Company, consolidated balance sheets of the Company and its Subsidiaries as of the end of such period, and consolidated statements of income and cash flows of the Company and its Subsidiaries for the period then ended prepared in conformity with generally accepted accounting principles in the United States applied on a consistent basis, except as otherwise noted therein, and subject to the absence of footnotes and to year-end adjustments;

 

  (C) as soon as available and in any event within 120 days after the end of each fiscal year of the Company, a consolidated balance sheet of the Company and its Subsidiaries as of the end of such year, and consolidated statements of income and cash flows of the Company and its Subsidiaries for the year then ended prepared in conformity with generally accepted accounting principles in the United States applied on a consistent basis, except as otherwise noted therein, together with an auditor’s report thereon of a firm of established national reputation;

 

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  (D) to the extent the Company is required by law or pursuant to the terms of any outstanding indebtedness of the Company to prepare such reports, any annual reports, quarterly reports and other periodic reports pursuant to Section 13 or 15(d) of the Exchange Act, actually prepared by the Company as soon as available; and

 

  (E) upon written request by the VCOC Investor, copies of all materials provided to the Board, subject to appropriate protections with respect to confidentiality and preservation of attorney-client privilege;

provided that, in each case, if the Company makes the information described in clauses (B) , (C) and (D)  of this Section  3.3(a)(i) available through public filings on the EDGAR System or any successor or replacement system of the U.S. Securities and Exchange Commission, the requirement to deliver such information shall be deemed satisfied;

(ii) make appropriate officers and/or Directors of the Company available, and cause the officers and directors of its Subsidiaries to be made available, periodically and at such times as reasonably requested by each VCOC Investor, upon reasonable notice and at mutually convenient times, for consultation with such VCOC Investor or its designated representative with respect to matters relating to the business and affairs of the Company and its Subsidiaries;

(iii) to the extent that the VCOC Investor requests to receive such information and rights, and to the extent consistent with applicable Law or listing standards (and with respect to events which require public disclosure, only following the Company’s public disclosure thereof through applicable securities law filings or otherwise), inform each VCOC Investor or its designated representative in advance with respect to any significant corporate actions, and to provide (or cause to be provided) each VCOC Investor or its designated representative with the right to consult with the Company and its Subsidiaries with respect to such actions should the VCOC Investor elect to do so; provided , however , that this right to consult must be exercised within five days after the Company informs the VCOC Investor of the proposed corporate action; provided , further , that the Company shall be under no obligation to provide the VCOC Investor with any material non-public information with respect to such corporate action; and

(iv) provide each VCOC Investor or its designated representative with such other rights of consultation which the VCOC Investor’s counsel may determine in writing to be reasonably necessary under applicable legal authorities promulgated after the date hereof to qualify its investment in the Company as a “venture capital investment” for purposes of the Plan Asset Regulation; provided that the parties agree that any such rights of consultation shall be of a nature

 

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consistent with those granted above and nothing in this Agreement shall be deemed to require the Company to grant to the VCOC Investor any additional rights with respect to the governance or management of the Company.

(b) The Company agrees to consider, in good faith, the recommendations of each VCOC Investor or its designated representative in connection with the matters on which it is consulted as described above in this Section  3.3 , recognizing that the ultimate discretion with respect to all such matters shall be retained by the Company.

(c) In the event a VCOC Investor or any of its Affiliates Transfers all or any portion of their investment in the Company to an Affiliated entity that is intended to qualify its investment in the Company as a “venture capital investment” (as defined in the Plan Asset Regulation), such Transferee shall be afforded the same rights with respect to the Company afforded to the VCOC Investor hereunder and shall be treated, for such purposes, as a third party beneficiary hereunder.

(d) In the event that the Company ceases to qualify as an “operating company” (as defined in the first sentence of 2510.3-101(c)(1) of the Plan Asset Regulation), or the investment in the Company by a VCOC Investor does not qualify as a “venture capital investment” as defined in the Plan Asset Regulation, then the Company and each Shareholder Entity will cooperate in good faith and take all reasonable actions necessary, subject to applicable Law, to preserve the VCOC status of each VCOC Investor or the qualification of the investment as a “venture capital investment,” it being understood that such reasonable actions shall not require a VCOC Investor to purchase or sell any investments.

(e) For so long as the VCOC Investor, directly or through one or more subsidiaries, continues to hold any Ordinary Shares (or other securities of the Company into which such Ordinary Shares may be converted or for which such Ordinary Shares may be exchanged) and upon the written request of such VCOC Investor, without limitation or prejudice of any the rights provided to the Shareholder Entities hereunder, the Company shall, with respect to each such VCOC Investor, furnish and deliver a letter covering the matters set forth in Sections 3.3(a) , 3.3(b) , 3.3(c) and 3.3(d) hereof in a form and substance satisfactory to such VCOC Investor.

(f) In the event a VCOC Investor is an Affiliate of a Shareholder Entity, as described in Section  3.3(a) above, such affiliated entity shall be afforded the same rights with respect to the Company and afforded to the Shareholder Entity under this Section 3.3 and shall be treated, for such purposes, as a third party beneficiary hereunder.

3.4 Confidentiality . Each Shareholder agrees that it will, and will direct its designated representatives to, keep confidential and not disclose any Confidential Information; provided, however , that such Shareholder and its designated representatives may disclose Confidential Information to the other Shareholders, to the Shareholder Designees and to (a) its and its affiliates’ attorneys, accountants, consultants, insurers, financing sources and other advisors in connection with such Shareholder’s investment in the Company, (b) any Person, including a prospective purchaser of Ordinary Shares, as long as such Person has agreed to maintain the confidentiality of such Confidential Information, (c) any of such Shareholder’s or

 

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its respective Affiliates’ partners, members, stockholders, directors, officers, employees or agents in the ordinary course of business (the Persons referenced in clauses (a), (b) and (c), a Shareholder’s “designated representatives”) or (d) as the Company may otherwise consent in writing; provided , further , however , that each Shareholder agrees to be responsible for any breaches of this Section  3.4 by such Shareholder’s designated representatives.

3.5 Information Sharing . Each party hereto acknowledges and agrees that Shareholder Designees may share any information concerning the Company and its Subsidiaries received by them from or on behalf of the Company or its designated representatives with each Shareholder and its designated representatives (subject to such Shareholder’s obligation to maintain the confidentiality of Confidential Information in accordance with Section  3.4 ).

ARTICLE IV.

ADDITIONAL COVENANTS

4.1 Pledges . Upon the request of any Shareholder Entity that wishes to pledge, hypothecate or grant security interests in any or all of the Ordinary Shares held by it, including to banks or financial institutions as collateral or security for loans, advances or extensions of credit, the Company agrees to cooperate with each such Shareholder Entity in taking any action reasonably necessary to consummate any such pledge, hypothecation or grant, including without limitation, delivery of letter agreements to lenders in form and substance reasonably satisfactory to such lenders (which may include agreements by the Company in respect of the exercise of remedies by such lenders) and instructing the transfer agent to transfer any such Ordinary Shares subject to the pledge, hypothecation or grant into the facilities of The Depository Trust Company without restricted legends.

4.2 Spin-Offs or Split-Offs . In the event that the Company effects the separation of any portion of its business into one or more entities (each, a “NewCo”), whether existing or newly formed, including without limitation by way of spin-off, split-off, carve-out, demerger, recapitalization, reorganization or similar transaction, and any Shareholder will receive equity interests in any such NewCo as part of such separation, the Company shall cause any such NewCo to enter into a shareholders agreement with the Shareholders that provides the Shareholder Entities with rights vis-á -vis such NewCo that are substantially identical to those set forth in this Agreement.

4.3 Corporate Opportunity .

(a) In recognition and anticipation that (i) certain directors, principals, officers, employees and/or other representatives of the Shareholders may serve as directors, officers or agents of the Company, (ii) the Shareholders and their Affiliates may now engage and may continue to engage in the same or similar activities or related lines of business as those in which the Company and/or any of its Subsidiaries, directly or indirectly, may engage and/or other business activities that overlap with or compete with those in which the Company and/or any of its Subsidiaries, directly or indirectly, may engage, and (iii) members of the Board who are not employees of the Company (“ Non-Employee Directors ”) and their respective Affiliates may now engage and may continue to engage in the same or similar activities or related lines of business as those in which the Company and/or any of its Subsidiaries, directly or indirectly,

 

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may engage and/or other business activities that overlap with or compete with those in which the Company and/or any of its Subsidiaries, directly or indirectly, may engage, the provisions of Section 4.3 of this Agreement are set forth to regulate and define the conduct of certain affairs of the Company with respect to certain classes or categories of business opportunities as they may involve any of the Shareholders, the Non-Employee Directors or their respective Affiliates and the powers, rights, duties and liabilities of the Company and its directors, officers and stockholders in connection therewith.

(b) None of (i) the Shareholders or any of their respective Affiliates or (ii) any Non-Employee Director (including any Non-Employee Director who serves as an officer of the Company in both his or her director and officer capacities) or his or her Affiliates (the Persons identified in (i) and (ii) above being referred to, collectively, as “ Identified Persons ” and, individually, as an “ Identified Person ”) shall, to the fullest extent permitted by law, have any duty to refrain from directly or indirectly (1) engaging in the same or similar business activities or lines of business in which the Company or any of its Affiliates now engages or proposes to engage or (2) otherwise competing with the Company or any of its Affiliates, and, to the fullest extent permitted by law, no Identified Person shall be liable to the Company or its shareholders or to any Affiliate of the Company for breach of any fiduciary duty solely by reason of the fact that such Identified Person engages in any such activities. To the fullest extent permitted by law, the Company hereby renounces any interest or expectancy in, or right to be offered an opportunity to participate in, any business opportunity which may be a corporate opportunity for an Identified Person and the Company or any of its Affiliates. In the event that any Identified Person acquires knowledge of a potential transaction or other business opportunity which may be a corporate opportunity for itself, herself or himself and the Company or any of its Affiliates, such Identified Person shall, to the fullest extent permitted by law, have no duty to communicate or offer such transaction or other business opportunity to the Company or any of its Affiliates and, to the fullest extent permitted by law, shall not be liable to the Company or its shareholders or to any Affiliate of the Company for breach of any fiduciary duty as a shareholder, director or officer of the Company solely by reason of the fact that such Identified Person pursues or acquires such corporate opportunity for itself, herself or himself, or offers or directs such corporate opportunity to another Person.

(c) In addition to and notwithstanding the foregoing provisions of this Section 4.3, a corporate opportunity shall not be deemed to be a potential corporate opportunity for the Company if it is a business opportunity that (i) the Company is neither financially or legally able, nor contractually permitted to undertake, (ii) from its nature, is not in the line of the Company’s business or is of no practical advantage to the Company or (iii) is one in which the Company has no interest or reasonable expectancy.

(d) To the fullest extent permitted by law, any Person purchasing or otherwise acquiring any interest in any shares in the capital of the Company shall be deemed to have notice of and to have consented to the provisions of Section  4.3 .

 

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ARTICLE V.

GENERAL PROVISIONS

5.1 Termination . Except for Section  3.3 hereof, this Agreement shall terminate on the earlier to occur of (i) such time as the Shareholder Designator is no longer entitled to designate a Director pursuant to Section  2.1(a) hereof and (ii) the delivery of a written notice by the Shareholder Designator to the Company requesting that this Agreement terminate. The VCOC Investors shall advise the Company when they collectively first cease to beneficially own any Ordinary Shares (or other securities of the Company into which such Ordinary Shares may be converted or for which such Ordinary Shares may be exchanged), whereupon Section  3.3 hereof shall terminate.

5.2 Notices . Any notice, designation, request, request for consent or consent provided for in this Agreement shall be in writing and shall be either personally delivered, sent by facsimile or sent by reputable overnight courier service (charges prepaid) to the Company at the address set forth below and to any other recipient at the address indicated on the Company’s records, or at such address or to the attention of such other Person as the recipient party has specified by prior written notice to the sending party. Notices and other such documents will be deemed to have been given or made hereunder when delivered personally or sent by facsimile (receipt confirmed) and one (1) Business Day after deposit with a reputable overnight courier service.

The Company’s address is:

Gates Industrial Corporation plc

1551 Wewatta Street

Denver, Colorado 80202

Attention: General Counsel

Each Shareholder address is:

The Blackstone Group L.P.

345 Park Avenue

New York, New York 10154

Attention: Neil P. Simpkins

Fax: (212) 583-5712

5.3 Amendment; Waiver . This Agreement may be amended, supplemented or otherwise modified only by a written instrument executed by the Company and the other parties hereto. Neither the failure nor delay on the part of any party hereto to exercise any right, remedy, power or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege preclude any other or further exercise of the same or of any other right, remedy, power or privilege, nor shall any waiver of any right, remedy, power or privilege with respect to any occurrence be construed as a waiver of such right, remedy, power or privilege with respect to any other occurrence. No waiver shall be effective unless it is in writing and is signed by the party asserted to have granted such waiver.

 

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5.4 Further Assurances . The parties hereto will sign such further documents, cause such meetings to be held, resolutions passed, exercise their votes and do and perform and cause to be done such further acts and things necessary, proper or advisable in order to give full effect to this Agreement and every provision hereof. To the fullest extent permitted by law, the Company shall not directly or indirectly take any action that is intended to, or would reasonably be expected to result in, the Shareholder or any Shareholder Entity being deprived of the rights contemplated by this Agreement.

5.5 Assignment . This Agreement may not be assigned without the express prior written consent of the other parties hereto, and any attempted assignment, without such consents, will be null and void; provided , however, that, without the prior written consent of any other party hereto, a Shareholder may assign its rights and obligations under this Agreement, in whole or in part, to any Transferee of Ordinary Shares, so long as such Transferee, if not already a party to this Agreement, executes and delivers to the Company a joinder to this Agreement evidencing its agreement to become a party to and to be bound by certain or all, as applicable, of the provisions of this Agreement as a Shareholder hereunder, whereupon such Transferee shall be deemed a “Shareholder” hereunder. This Agreement will inure to the benefit of and be binding on the parties hereto and their respective successors and permitted assigns.

5.6 Third Parties . Except as provided for in Article II, Article III and Article IV with respect to any Shareholder Entity, this Agreement does not create any rights, claims or benefits inuring to any person that is not a party hereto nor create or establish any third party beneficiary hereto.

5.7 Governing Law . THIS AGREEMENT AND ITS ENFORCEMENT AND ANY CONTROVERSY ARISING OUT OF OR RELATING TO THE MAKING OR PERFORMANCE OF THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO NEW YORK’S PRINCIPLES OF CONFLICTS OF LAW.

5.8 Jurisdiction; Waiver of Jury Trial . Each party hereto hereby (i) agrees that any action, directly or indirectly, arising out of, under or relating to this Agreement shall exclusively be brought in and shall exclusively be heard and determined by either the Supreme Court of the State of New York sitting in Manhattan or the United States District Court for the Southern District of New York, and (ii) solely in connection with the action(s) contemplated by subsection (i) hereof, (A) irrevocably and unconditionally consents and submits to the exclusive jurisdiction of the courts identified in subsection (i) hereof, (B) irrevocably and unconditionally waives any objection to the laying of venue in any of the courts identified in clause (i) of this Section  5.8 , (C) irrevocably and unconditionally waives and agrees not to plead or claim that any of the courts identified in such clause (i) is an inconvenient forum or does not have personal jurisdiction over any party hereto, and (D) agrees that mailing of process or other papers in connection with any such action in the manner provided herein or in such other manner as may be permitted by applicable law shall be valid and sufficient service thereof. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM OR ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES CONTEMPLATED HEREBY.

 

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5.9 Specific Performance . Each party hereto acknowledges and agrees that in the event of any breach of this Agreement by any of them, the other parties hereto would be irreparably harmed and could not be made whole by monetary damages. Each party accordingly agrees to waive the defense in any action for specific performance that a remedy at law would be adequate and agrees that the parties, in addition to any other remedy to which they may be entitled at law or in equity, shall be entitled to specific performance of this Agreement without the posting of a bond.

5.10 Entire Agreement . This Agreement sets forth the entire understanding of the parties hereto with respect to the subject matter hereof. There are no agreements, representations, warranties, covenants or understandings with respect to the subject matter hereof or thereof other than those expressly set forth herein and therein. This Agreement supersedes all other prior agreements and understandings between the parties with respect to such subject matter.

5.11 Severability . If any provision of this Agreement, or the application of such provision to any Person or circumstance or in any jurisdiction, shall be held to be invalid or unenforceable to any extent, (i) the remainder of this Agreement shall not be affected thereby, and each other provision hereof shall be valid and enforceable to the fullest extent permitted by law, (ii) as to such Person or circumstance or in such jurisdiction such provision shall be reformed to be valid and enforceable to the fullest extent permitted by law, and (iii) the application of such provision to other Persons or circumstances or in other jurisdictions shall not be affected thereby.

5.12 Table of Contents, Headings and Captions . The table of contents, headings, subheadings and captions contained in this Agreement are included for convenience of reference only, and in no way define, limit or describe the scope of this Agreement or the intent of any provision hereof.

5.13 Grant of Consent . Any vote, consent or approval of, or designation by, or other action of, the Shareholder Designator hereunder shall be effective if notice of such vote, consent, approval, designation or action is provided in accordance with Section  5.2 hereof by the Shareholder Party or Parties holding of record a majority of the Ordinary Shares then held of record by Shareholder Parties as of the latest date any such notice is so provided.

5.14 Counterparts . This Agreement and any amendment hereto may be signed in any number of separate counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one Agreement (or amendment, as applicable).

5.15 Effectiveness . This Agreement shall become effective upon the Closing Date.

5.16 No Recourse . This Agreement may only be enforced against, and any claims or cause of action that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement, the transactions contemplated hereby

 

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or the subject matter hereof may only be made against the parties hereto and no past, present or future Affiliate, director, officer, employee, incorporator, member, manager, partner, shareholder, agent, attorney or representative of any party hereto or any past, present or future Affiliate, director, officer, employee, incorporator, member, manager, partner, stockholder, agent, attorney or representative of any of the foregoing (each, a “ Non-Recourse Party ”) shall have any liability for any obligations or liabilities of the parties to this Agreement or for any claim based on, in respect of, or by reason of, the transactions contemplated hereby. Without limiting the rights of any party against the other parties hereto, in no event shall any party or any of its Affiliates seek to enforce this Agreement against, make any claims for breach of this Agreement against, or seek to recover monetary damages from, any Non-Recourse Party.

[ Remainder of Page Intentionally Left Blank ]

 

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written.

 

COMPANY

 

GATES INDUSTRIAL CORPORATION PLC

By:    
Name:  
Title:  

[Signature Page to Gates Industrial Corporation plc Shareholders’ Agreement]


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BLACKSTONE PARTIES:
BLACKSTONE CAPITAL PARTNERS (CAYMAN) VI L.P.
B Y :   Blackstone Management Associates (Cayman) VI L.P., its general partner
B Y :   BCP VI GP L.L.C., its general partner
By:    
Name:  
Title:  

 

BLACKSTONE FAMILY INVESTMENT PARTNERSHIP (CAYMAN) VI – ESC L.P.
B Y :   BCP VI GP L.L.C., its general partner
By:    
Name:  
Title:  

 

BTO OMAHA HOLDINGS L.P.
B Y :   BTO Omaha Manager L.L.C., its general partner
By:    
Name:  
Title:  

 

BLACKSTONE GTS CO-INVEST L.P.
B Y :   Blackstone Management Associates (Cayman) VI L.P., its general partner
B Y :   BCP VI GP L.L.C., its general partner
By:    
Name:  
Title:  

[ Signature Page to Gates Industrial Corporation plc Shareholders’ Agreement ]

Exhibit 10.2

REGISTRATION RIGHTS AGREEMENT

This Registration Rights Agreement (as amended from time to time, this “ Agreement ”) is dated as of [            ], 2018, and is between Gates Industrial Corporation plc, a public limited company organized under the laws of England and Wales (the “ Company ”), and the Blackstone Parties (as defined below).

ARTICLE I

DEFINITIONS

In this Agreement:

Blackstone Parties means, collectively (i) Blackstone Capital Partners (Cayman) VI L.P., an exempted limited partnership organized under the laws of the Cayman Islands, (ii) Blackstone GTS Co-Invest L.P., an exempted limited partnership organized under the laws of the Cayman Islands, (iii) BTO Omaha Holdings L.P., an exempted limited partnership organized under the laws of the Cayman Islands, (iv) Blackstone Family Investment Partnership (Cayman) VI – ESC L.P., an exempted limited partnership organized under the laws of the Cayman Islands, and (v) each transferee to whom such Blackstone Party transfers shares and related rights under this Agreement in accordance with Section 6.1 and their affiliated private equity funds, co-invest and side-by-side entities, and other affiliated investment vehicles that hold shares, as defined below.

Exchange Act means the Securities Exchange Act of 1934, as amended.

IPO means the firm commitment underwritten registered public offering of the Company’s shares in connection with which the shares first becomes listed on the NYSE or The NASDAQ Stock Market.

Securities Act means the Securities Act of 1933, as amended.

Shareholders means collectively, the Blackstone Parties, and individually, a “ Shareholder ”. References to a Shareholder include all of its affiliated private equity funds, co-invest and side-by-side entities, and other affiliated investment vehicles that hold shares. References to Shareholders also include each transferee to whom such Shareholder transfers shares and related rights under this Agreement in accordance with Section 6.1.

shares means the ordinary shares, par value $0.01 per share, of the Company. Shares held by or on behalf of a Shareholder which are not subject to a Securities Act restrictive legend, which shares may be resold freely without registration under the Securities Act and without limitation on volume or manner of sale, will not be considered shares for purposes of the demand and piggyback provisions of this Agreement, provided that, notwithstanding the absence of any such legend, shares held by any Shareholder that, together with its affiliates, is required to file or to be named in a report on Schedule 13D or 13G under the Exchange Act shall continue to be treated as shares for purposes of this Agreement.


WKSI ” means a well-known seasoned issuer, as defined in the SEC’s Rule 405.

ARTICLE II

DEMAND AND PIGGYBACK RIGHTS

2.1 Right to Demand a Non-Shelf Registered Offering . Upon the demand of one or more of the Blackstone Parties made at any time and from time to time, the Company will facilitate in the manner described in this Agreement a non-shelf registered offering and sale of the shares requested by the demanding Blackstone Parties to be included in such offering, together with any piggyback shares, as described below. Any demanded non-shelf registered offering may, at the Company’s option, include shares to be sold by the Company for its own account and will also include shares to be sold by Shareholders that exercise their related piggyback rights in accordance with this Agreement.

2.2 Right to Piggyback on a Non-Shelf Registered Offering . In connection with any registered offering of shares covered by a non-shelf registration statement (whether pursuant to the exercise of demand rights or at the initiative of the Company), the Shareholders may, in accordance with this Agreement, exercise piggyback rights to have included in such offering shares held by them.

2.3 Right to Demand and be Included in a Shelf Registration . Upon the demand of the Blackstone Parties made at any time and from time to time when the Company is eligible to sell shares in a secondary offering on a delayed or continuous basis in accordance with Rule 415, the Company will facilitate in the manner described in this Agreement a shelf registration of shares held by the Blackstone Parties. Any shelf registration filed by the Company covering shares (whether pursuant to a Blackstone Party demand or at the initiative of the Company) will cover shares held by each of the Shareholders up to the highest common percentage of their original respective holdings as may be agreed upon by the demanding Blackstone Parties. If at the time of such request the Company is a WKSI, such shelf registration would, at the request of a majority of the Blackstone Parties, cover an unspecified number of shares to be sold by the Company and its Shareholders.

2.4 Demand and Piggyback Rights for Shelf Takedowns . Upon the demand of one or more of the Blackstone Parties made at any time and from time to time, the Company will facilitate in the manner described in this Agreement a “takedown” off of an effective shelf registration statement of shares held by them that are registered on such shelf. In connection with any shelf takedown (whether pursuant to the exercise of such demand rights or at the initiative of the Company) in connection with which a lockup will be imposed, the Shareholders may exercise piggyback rights to have included in such takedown shares held by them that are registered on such shelf.

2.5 Right to Reload a Shelf . Upon the written request of the Blackstone Parties, the Company will file and seek the effectiveness of a post-effective amendment to an existing shelf in order to register up to the number of shares previously taken down off of such shelf by the Blackstone Parties and not yet “reloaded” onto such shelf (or such higher number as may be agreed by the Blackstone Parties). The Shareholders and the Company will consult and coordinate with each other in order to accomplish such replenishments on behalf of all Shareholders from time to time in a sensible manner.

 

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2.6 Limitations on Demand and Piggyback Rights .

(a) Any demand for the filing of a registration statement or for a registered offering or takedown will be subject to any applicable lockup restrictions, and such demand must be deferred until such lockup restrictions expire, are waived or otherwise no longer apply. If a demand has been made for a non-shelf registered offering or for an underwritten takedown, no further demands may be made so long as the related offering is still being pursued. Notwithstanding anything in this Agreement to the contrary, the Shareholders will not have piggyback rights with respect to registered primary offerings by the Company (i) of shares covered by a Form S-8 registration statement or a successor form applicable to employee benefit-related offers and sales or any registration statement filed solely to cover issuances pursuant to a dividend reinvestment plan, (ii) where the shares are not being sold for cash or (iii) where the offering is a bona fide offering of securities other than shares, even if such securities are convertible into or exchangeable or exercisable for shares that are registered as part of such offering.

(b) The Company may defer the filing of a demanded registration statement or the facilitation of a registered offering or demanded shelf takedown, in any such case for a reasonable “blackout period” that shall not exceed the applicable limits specified below if the board of directors of the Company determines that such registration, offering or takedown could materially interfere with a bona fide business or financing transaction of the Company or is reasonably likely to require premature disclosure of information, the premature disclosure of which could materially and adversely affect the Company. The blackout period will end upon the earlier to occur of, (i) in the case of a bona fide business or financing transaction, a date not later than 90 days from the date such deferral commenced, and (ii) in the case of disclosure of non-public information, the earlier to occur of (x) the filing by the Company of its next succeeding Form 10-K or Form 10-Q, or (y) the date upon which such information otherwise is or becomes public knowledge.

ARTICLE III

PROCEDURES REGARDING DEMANDS AND PIGGYBACKS

3.1 Notifications Regarding Demands and Piggyback Opportunities . In order for the Blackstone Parties to exercise their right to demand that a registration statement be filed or that an underwritten takedown occur, they must so notify the Company indicating the number of shares sought to be registered or taken down and the proposed plan of distribution. The Company will keep the Shareholders contemporaneously apprised of all pertinent aspects of its pursuit of any registration or underwritten shelf takedown of shares, as the case may be (whether pursuant to a Blackstone Party demand or otherwise), including the anticipated timing of the filing of a registration statement or amendment and the finalization of related preliminary and final prospectuses and the timing of pricing, in order that the Shareholders have a reasonable opportunity to exercise their piggyback rights in accordance with this Agreement. Without derogating from the Company’s obligation to keep Shareholders contemporaneously apprised, as

 

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described above, having such a “reasonable opportunity” means that Shareholders must be notified of a piggyback opportunity no later than three full trading days prior to the applicable piggyback deadline referred to in Section 3.2. Pending any required public disclosure and subject to applicable legal requirements, the parties will maintain the confidentiality of these discussions and notifications.

3.2 Notifications Regarding Exercise of Piggyback Rights . Any Shareholder wishing to exercise its piggyback rights with respect to a non-shelf registration statement or underwritten shelf takedown must notify the Company and the other Shareholders of the number of shares it seeks to have included in such registration statement or takedown, as the case may be. Such notice must be given as soon as practicable, but in no event later than 4:30 pm, New York City time, on the second trading day (in the case of a non-shelf offering) or on the trading day (in the case of an underwritten shelf takedown) prior to, (i) if applicable, the date on which the preliminary prospectus or prospectus supplement intended to be used in connection with pre-effective marketing efforts for the relevant offering is expected to be finalized, and (ii) in any case, the date on which the pricing of the relevant offering is expected to occur. Pending any required public disclosure and subject to applicable legal requirements, the parties will maintain the confidentiality of these notifications.

3.3 Plan of Distribution, Underwriters, Advisors and Counsel . If a majority of the shares proposed to be sold in an underwritten offering through a non-shelf registration statement or through a shelf takedown is being sold by the Company for its own account, the Company will be entitled to determine the plan of distribution and select the managing underwriters for such offering. Otherwise, Shareholders holding a majority of the shares requested to be included in such offering will be entitled to determine the plan of distribution and select the managing underwriters and any provider of capital markets advisory services, which may include affiliates of the Shareholders, and such majority will also be entitled to select counsel for the selling Shareholders (which may be the same as counsel for the Company). In the case of a shelf registration statement, the plan of distribution will provide as much flexibility as is reasonably possible, including with respect to resales by transferee Shareholders.

3.4 Cutbacks . If the managing underwriters advise the Company and the selling Shareholders that, in their opinion, the number of shares requested to be included in an underwritten offering exceeds the amount that can be sold in such offering without adversely affecting the distribution of the shares being offered, such offering will include only the number of shares that the underwriters advise can be sold in such offering without such adverse effect. The selling Shareholders and the Company, to the extent it is selling shares in the offering, will be subject to cutback pro rata based on the respective number of shares initially requested by them to be included in such offering, without regard to who initiated or otherwise made the demand for such offering. Except as contemplated by Section 6.1(c), other selling Shareholders (other than transferees to whom a Shareholder has assigned its rights under this Agreement) will be included in an underwritten offering as to which such a cutback has been applied only with the consent of Shareholders holding a majority of the shares being sold in such offering.

3.5 Withdrawals . Even if shares held by a Shareholder have been part of a registered underwritten offering, such Shareholder may, no later than the time at which the public offering price and underwriters’ discount are determined with the managing underwriter, decline to sell all or any portion of the shares being offered for its account.

 

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3.6 Lockups . In connection with any underwritten offering of shares, the Company and each Shareholder will (in the case of Shareholders, with respect to shares respectively held by them) enter into the applicable underwriting agreement so as to be bound by such agreement’s lockup restrictions (which must apply in like manner to all of them) that are agreed to (a) by the Company, if a majority of the shares being sold in such offering are being sold for its account, or (b) by Shareholders holding a majority of the shares being sold in such offering by Shareholders, if a majority of the shares being sold in such offering are being sold by Shareholders, as applicable. Even in the absence of any Shareholder entering into any such underwriting agreement, such Shareholder agrees to be bound by the lockup restrictions set forth therein applicable to other Shareholders. Pending the signing of the applicable underwriting agreement, from the point at which a Shareholder receives notice or otherwise becomes aware that the Company intends to pursue an underwritten registered public offering of shares with respect to which a piggyback opportunity will apply pursuant to this Agreement and until the applicable underwriting agreement is entered into or such offering is abandoned, each Shareholder agrees to be bound by the same restrictions on transfer as were applicable under the underwriting agreement applicable to the Company’s IPO. The lockup restrictions in any such underwriting agreement will be for a customary period specified by the managing underwriters or underwriters not to exceed 90 days following the consummation of any registered public sale of shares by the Company. The Company shall cause its executive officers and directors (and managers, if applicable) and shall use commercially reasonable efforts to cause other holders of shares who beneficially own (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act as in effect on the date of this Agreement) any of the shares participating in such offering, to enter into lockup agreements that contain restrictions that are no less restrictive than the restrictions contained in the lockup agreements executed by the Shareholders.

ARTICLE IV

FACILITATING REGISTRATIONS AND OFFERINGS

4.1 General . If the Company becomes obligated under this Agreement to facilitate a registration and offering of shares on behalf of Shareholders, the Company will do so with the same degree of care and dispatch as would reasonably be expected in the case of a registration and offering by the Company of shares for its own account. Without limiting this general obligation, the Company will fulfill its specific obligations as described in this Article IV.

4.2 Registration Statements . In connection with each registration statement that is demanded by the Blackstone Parties in accordance with this Agreement or as to which piggyback rights apply, the Company will:

(a) (i) prepare and file with the SEC a registration statement covering the applicable shares, (ii) file amendments thereto as warranted, (iii) seek the effectiveness thereof, and (iv) file with the SEC prospectuses and prospectus supplements as may be required, all in consultation with the Shareholders and as reasonably necessary in order to permit the offer and sale of the such shares in accordance with the applicable plan of distribution;

 

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(b) (i) within a reasonable time prior to the filing of any registration statement, any prospectus, any amendment to a registration statement, amendment or supplement to a prospectus or any free writing prospectus, provide copies of such documents to the selling Shareholders and to the underwriter or underwriters of an underwritten offering, if applicable, and to their respective counsel; fairly consider such reasonable changes to any such documents prior to or after the filing thereof as the counsel to the Shareholders or the underwriter or the underwriters may request; and make such of the representatives of the Company as shall be reasonably requested by the selling Shareholders or any underwriter available for discussion of such documents; and

(ii) if requested by the Shareholders, within a reasonable time prior to the filing of any document which is to be incorporated or deemed incorporated by reference into a registration statement or a prospectus, provide copies of such document to counsel for the Shareholders and underwriters; fairly consider such reasonable changes in such document prior to or after the filing thereof as counsel for such Shareholders or such underwriter shall request; and make such of the representatives of the Company as shall be reasonably requested by such counsel available for discussion of such document;

(c) use all reasonable efforts to cause each registration statement and the related prospectus and any amendment or supplement thereto, as of the effective date of such registration statement, amendment or supplement and during the distribution of the registered shares, (x) to comply in all material respects with the requirements of the Securities Act and the rules and regulations of the SEC and (y) not to contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading;

(d) promptly notify each Shareholder, its respective counsel and the sole underwriter or managing underwriter, if any, and, if requested by such Shareholder, confirm such notice in writing, (i) when any registration statement, any prospectus, any amendment to a registration statement, amendment or supplement to a prospectus or any free writing prospectus has been filed, when a registration statement has become effective and when any post-effective amendments and supplements thereto become effective if such registration statement or post-effective amendment is not automatically effective upon filing pursuant to Rule 462, (ii) of any request by the SEC or any other federal or state governmental authority for amendments or supplements to a registration statement or related prospectus or for additional information, (iii) of the issuance by the SEC or any state securities authority of any stop order, injunction or other order or requirement suspending the effectiveness of a registration statement or the initiation of any proceedings for that purpose, (iv) if, between the effective date of a registration statement and the expiration or earlier closing of any over-allotment option under any underwriting, placement or purchase agreement to which the Company is a party, the representations and warranties of the Company contained in such agreement cease to be true and correct in all material respects or if the Company receives any notification with respect to the suspension of the qualification of the shares for sale in any jurisdiction or the initiation of any proceeding for

 

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such purpose, and (v) of the happening of any event during the period a registration statement is effective as a result of which such registration statement or the related prospectus contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading;

(e) promptly furnish counsel for each underwriter, if any, and for the Shareholders copies of any correspondence with the SEC or any state securities authority relating to the registration statement or prospectus (for the avoidance of doubt, including, but not limited to, any comment letters received from the SEC or any state securities authority);

(f) otherwise use all reasonable efforts to comply with all applicable rules and regulations of the SEC, including making available to its security holders an earnings statement covering at least 12 months which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar provision then in force);

(g) use all reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of a registration statement at the earliest possible time; and

(h) provide and cause to be maintained (i) a transfer agent and registrar for all shares covered by a registration statement from and after a date not later than the effective date of such registration statement and (ii) a depositary and a depositary nominee, if applicable, for any depositary receipts representing all shares covered by a registration statement.

4.3 Non-Shelf Registered Offerings and Shelf Takedowns . In connection with any non-shelf registered offering or shelf takedown that is demanded by the Blackstone Parties or with respect to which piggyback rights have been exercised, the Company will:

(a) cooperate with the Shareholders selling shares and the sole underwriter or managing underwriter of an underwritten offering, if any, to facilitate the timely preparation and delivery of certificates representing the shares to be sold and not bearing any restrictive legends; and enable such shares to be in such denominations (consistent with the provisions of the governing documents thereof) and registered in such names as the selling Shareholders or the sole underwriter or managing underwriter of an underwritten offering, if any, may reasonably request at least five days prior to any sale of such shares;

(b) furnish to each Shareholder and to each underwriter, if any, participating in the relevant offering, without charge, as many copies of the applicable prospectus, including each preliminary prospectus, and any amendment or supplement thereto, and such other documents as such Shareholder or underwriter may reasonably request in order to facilitate the public sale or other disposition of the shares; the Company hereby consents to the use of the prospectus, including each preliminary prospectus, by each such Shareholder and underwriter in connection with the offering and sale of the shares covered by the prospectus or the preliminary prospectus;

(c) (i) use all reasonable efforts to register or qualify the shares being offered and sold, no later than the date on which the pricing of the relevant offering is expected to occur, under all applicable state securities or “blue sky” laws of such jurisdictions as each underwriter, if any, or any Shareholder holding shares covered by a registration statement, shall reasonably

 

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request; (ii) use all reasonable efforts to keep each such registration or qualification effective during the distribution of the registered shares; (iii) do any and all other acts and things which may be reasonably necessary or advisable to enable each such underwriter, if any, and Shareholder to consummate the disposition in each such jurisdiction of such shares owned by such Shareholder; provided , however , that the Company shall not be obligated to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to consent to be subject to general service of process (other than service of process in connection with such registration or qualification or any sale of shares in connection therewith) in any such jurisdiction; and (iv) use all reasonable efforts to cause the shares being offered and sold, no later than the date on which the pricing of the relevant offering is expected to occur, to be registered with or approved by such other governmental agencies or authorities within the United States, except as may be required solely as a consequence of the nature of the business of any Shareholder, in which case the Company will cooperate in all reasonable respects with the filing of the applicable registration statement and the granting of such approvals, as may be necessary to enable any Shareholder or the underwriters, if any, to consummate the disposition of such shares;

(d) cause all shares being sold to be qualified for inclusion in or listed on any securities exchange on which shares issued by the Company are then so qualified or listed if so requested by the Shareholders, or if so requested by the underwriter or underwriters of an underwritten offering, if any;

(e) cooperate and assist in any filings required to be made with FINRA and in the performance of any due diligence investigation by any underwriter in an underwritten offering;

(f) use all reasonable efforts to facilitate the distribution and sale of any shares to be offered pursuant to this Agreement, including without limitation by making road show presentations, holding meetings with and making calls to potential investors and taking such other actions as shall be requested by the Shareholders or the lead managing underwriter of an underwritten offering;

(g) in the case of an offering that includes a provider of capital markets advisory services, enter into and perform its obligations under customary agreements (including an advisory services agreement and an indemnification agreement in customary form);

(h) enter into customary agreements (including, in the case of an underwritten offering, one or more underwriting agreements in customary form, and including provisions with respect to indemnification and contribution in customary form and consistent with the provisions relating to indemnification and contribution contained herein) and take all other customary and appropriate actions in order to expedite or facilitate the disposition of such shares, and in connection therewith:

1. make such representations and warranties to the selling Shareholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in similar underwritten offerings;

 

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2. obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the lead managing underwriter, if any) addressed to the underwriters, if any (and, if so requested, to each selling Shareholder), covering the matters customarily covered in opinions requested in sales of securities or underwritten offerings and such other matters as may be reasonably requested by such Shareholders and underwriters;

3. obtain “comfort” letters and updates thereof from the Company’s independent certified public accountants addressed to the underwriters, if any (and, if so requested and if permissible, to each selling Shareholder), which letters shall be customary in form and shall cover matters of the type customarily covered in “comfort” letters to underwriters in connection with primary underwritten offerings;

4. to the extent requested and customary for the relevant transaction, enter into a securities sales agreement with the Shareholders providing for, among other things, the appointment of a representative as agent for the selling Shareholders for the purpose of soliciting purchases of shares, which agreement shall be customary in form, substance and scope and shall contain customary representations, warranties and covenants; and

5. deliver such documents and certificates as the sole underwriter or managing underwriter, if any, any selling Shareholder, or their respective counsel, shall reasonably request to evidence the continued validity of the representations and warranties made in accordance with Section 4.3(h)(1) above and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company;

(i) if required by the Company’s transfer agent for the shares (the “ Transfer Agent ”) and/or The Depository Trust Company (“ DTC ”), the Company will use reasonable efforts to cause opinions of counsel to be delivered to and maintained with the Transfer Agent and/or DTC, together with any other agreements, authorizations, certificates and directions required by the Transfer Agent and/or DTC which authorize and direct the Transfer Agent to transfer shares without any restrictive legend and which allow DTC to accept such shares for settlement; and

(j) use all reasonable efforts to facilitate the settlement of the shares to be sold pursuant to this Agreement, including through the facilities of DTC and by facilitating the issuance or cancellation of depositary receipts underlying such shares.

The above shall be done at such times as customarily occur in similar registered offerings or shelf takedowns.

4.4 Due Diligence . In connection with each registration and offering of shares to be sold by Shareholders, the Company will, in accordance with customary practice, make available for inspection by representatives of the Shareholders and underwriters and any counsel or accountant retained by such Shareholders or underwriters all relevant financial and other records, pertinent corporate documents and properties of the Company and cause appropriate officers, managers, employees, outside counsel and accountants of the Company to supply all information reasonably requested by any such representative, underwriter, counsel or accountant in connection with their due diligence exercise, including through in-person meetings, but subject to customary privilege constraints.

 

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4.5 Information from Shareholders . Each Shareholder that holds shares covered by any registration statement will furnish to the Company such information regarding itself as is required to be included in the registration statement or prospectus, the ownership of shares by such Shareholder and the proposed distribution by such Shareholder of such shares as the Company may from time to time reasonably request in writing.

4.6 Expenses . All expenses incurred in connection with any registration statement or registered offering or shelf takedown covering shares held by Shareholders, including, without limitation, all registration and filing fees, printing expenses, fees and disbursements of counsel (including the fees and disbursements of outside counsel for selling Shareholders), providers of capital markets advisory services (which may include affiliates of the selling Shareholders) and of the independent certified public accountants, the expense of qualifying such shares under state blue sky laws and any expenses relating to analyst and investor presentations or any “road show” (other than those borne by the underwriters), will be borne by the Company. However, underwriters’, brokers’ and dealers’ discounts and commissions applicable to shares sold for the account of a Shareholder will be borne by such Shareholder.

ARTICLE V

INDEMNIFICATION

5.1 Indemnification by the Company . In the event of any registration under the Securities Act by any registration statement pursuant to rights granted in this Agreement of shares held by Shareholders, the Company will indemnify and hold harmless Shareholders, their officers, directors and affiliates (and the officers, directors, employees, general and limited partners, Affiliates and controlling persons of any of the foregoing), and each underwriter of such shares and each other person, if any, who controls any Shareholder or such underwriter within the meaning of the Securities Act against any losses, claims, damages, liabilities, expenses and judgments, joint or several, to which Shareholders or such underwriter or controlling person may become subject under the Securities Act or otherwise, including any amount paid in settlement of any litigation commenced or threatened, and shall promptly reimburse such persons, as and when incurred, for any legal or other expenses reasonably incurred by them in connection with investigating any claims and defending any actions, insofar as such losses, claims, damages, or liabilities (or any actions in respect thereof) arise out of or are based upon any violation or alleged violation by the Company of the Securities Act, any blue sky laws, securities laws or other applicable laws or rules of any state or country in which such shares are offered and relating to action taken or action or inaction required of the Company in connection with such offering, or arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any registration statement (or in any preliminary or final prospectus included therein) under which such shares were registered under the Securities Act or any amendment or supplement to any of the foregoing, or in any document incorporated by reference therein or related document or report, or any issuer free writing

 

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prospectus (including any “road show,” whether or not required to be filed with the SEC), or that arise out of or are based upon the omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however , that the Company shall not be liable to any Shareholder or its underwriters or controlling persons in any such case to the extent that any such loss, claim, damage, or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement or such amendment or supplement or other document, in reliance upon and in conformity with information furnished to the Company through a written instrument duly executed by such Shareholder or such underwriters specifically for use in the preparation of the information with respect to such Shareholder or such underwriters required by Items 403 and 507 of Regulation S-K therein. It is agreed that the indemnity agreement contained in this Section 5.1 shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or action if such settlement is effected without the consent of the Company (it being understood that such consent shall not be unreasonably withheld).

5.2 Indemnification by Shareholders . Each Shareholder will indemnify and hold harmless (in the same manner and to the same extent as set forth in Section 5.1) the Company, each director of the Company, each officer of the Company who shall sign the registration statement, and any person who controls the Company within the meaning of the Securities Act, (i) with respect to any untrue statement or alleged untrue statement in or omission or alleged omission from such registration statement, or any amendment or supplement to it, or any issuer free writing prospectus or other document, to the extent, but only to the extent, that such untrue statement or omission was made in reliance upon and in conformity with information furnished to the Company through a written instrument duly executed by such Shareholder specifically for use in the preparation of the information with respect to such Shareholder required by Items 403 and 507 of Regulation S-K included in such registration statement or amendment or supplement, and (ii) with respect to compliance by such Shareholder with applicable laws in effecting the sale or other disposition of the shares covered by such registration statement; provided that the liability of each Shareholder pursuant to this Section 5.2 shall not exceed the amount by which the total price at which the shares were offered to the public by such Shareholder exceeds the amount of any damages which such Shareholder has otherwise been required to pay by reason of an untrue statement or omission.

5.3 Indemnification Procedures . Promptly after receipt by an indemnified party of notice of the commencement of any action involving a claim referred to in the preceding Sections of this Article V, the indemnified party will, if a resulting claim is to be made or may be made against any indemnifying party, give written notice to the indemnifying party of the commencement of the action. The failure of any indemnified party to give notice shall not relieve the indemnifying party of its obligations in this Article V, except to the extent that the indemnifying party is actually and materially prejudiced by the failure to give notice. If any such action is brought against an indemnified party, the indemnifying party will be entitled to participate in and to assume the defense of the action with counsel reasonably satisfactory to the indemnified party, and after notice from the indemnifying party to such indemnified party of its election to assume defense of the action, the indemnifying party will not be liable to such indemnified party for any legal or other expenses incurred by the latter in connection with the action’s defense. An indemnified party shall have the right to employ separate counsel in any action or proceeding and participate in the defense thereof, but the fees and expenses of such

 

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counsel shall be at such indemnified party’s expense unless the employment of such counsel has been specifically authorized in writing by the indemnifying party, which authorization shall not be unreasonably withheld, (ii) the indemnifying party has not assumed the defense and employed counsel reasonably satisfactory to the indemnified party within 30 days after notice of any such action or proceeding, or (iii) the named parties to any such action or proceeding (including any impleaded parties) include the indemnified party and the indemnifying party and the indemnified party shall have been advised by such counsel that there may be one or more legal defenses available to the indemnified party that are different from or additional to those available to the indemnifying party (in which case the indemnifying party shall not have the right to assume the defense of such action or proceeding on behalf of the indemnified party), it being understood, however, that the indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (in addition to all local counsel which is necessary, in the good faith opinion of both counsel for the indemnifying party and counsel for the indemnified party in order to adequately represent the indemnified parties) for the indemnified party and that all such fees and expenses shall be reimbursed as they are incurred upon written request and presentation of invoices. Whether or not a defense is assumed by the indemnifying party, the indemnifying party will not be subject to any liability for any settlement made without its consent (but such consent will not be unreasonably withheld). No indemnifying party will consent to entry of any judgment or enter into any settlement which (i) does not include as an unconditional term the giving by the claimant or plaintiff, to the indemnified party, of a release from all liability in respect of such claim or litigation or (ii) involves the imposition of equitable remedies or the imposition of any non-financial obligations on the indemnified party.

5.4 Contribution . If the indemnification required by this Article V from the indemnifying party is unavailable to or insufficient to hold harmless an indemnified party in respect of any indemnifiable losses, claims, damages, liabilities, or expenses, then the indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such losses, claims, damages, liabilities, or expenses in such proportion as is appropriate to reflect (i) the relative benefit of the indemnifying and indemnified parties and (ii) if the allocation in clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect the relative benefit referred to in clause (i) and also the relative fault of the indemnified and indemnifying parties, in connection with the actions which resulted in such losses, claims, damages, liabilities, or expenses, as well as any other relevant equitable considerations. The relative benefits received by a party shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by it bear to the total amounts (including, in the case of any underwriter, any underwriting commissions and discounts) received by each other party. The relative fault of the indemnifying party and the indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or parties, and the parties’ relative intent, knowledge, access to information, and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities, and expenses referred to above shall be deemed to include any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding. The Company and Shareholders agree that it would not be

 

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just and equitable if contribution pursuant to this Section 5.4 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the prior provisions of this Section 5.4.

Notwithstanding the provisions of this Section 5.4, no selling Shareholder shall be required to contribute any amount in excess of: (x) the amount by which the total price at which the shares were offered to the public by such indemnifying party exceeds the amount of any damages which such indemnifying party has otherwise been required to pay by reason of an untrue statement or omission, in the case of an indemnifying party that is not an underwriter, and (y) the amount by which the total underwriting discounts and commissions received by such indemnifying party exceeds the amount of any damages which such indemnifying party has otherwise been required to pay by reason of an untrue statement or omission, in the case of an indemnifying party that is an underwriter. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such a fraudulent misrepresentation.

ARTICLE VI

OTHER AGREEMENTS

6.1 Transfer of Rights .

(a) Any Shareholder may transfer all or any of its rights under this Agreement to any transferee of shares held by such Shareholder to the extent such transfer is not in violation of any requirements applicable under any agreement such Shareholder has with the Company. Any such transfer of registration rights will be effective upon receipt by the Company of (i) written notice from such Shareholder stating the name and address of any transferee and identifying the number of shares with respect to which rights under this Agreement are being transferred and the nature of the rights so transferred, and (ii) a joinder to this Agreement evidencing such transferee’s agreement to be bound by the terms of this Agreement. Following any such transfer, the Company and the transferring Shareholder will notify the other Shareholders as to who the transferees are and the nature of the rights so transferred.

(b) In the case of an in-kind distribution of shares pursuant to Section 6.4 of this Agreement with an ability to resell shares off of a shelf registration statement, such in-kind transferees will, as transferee Shareholders, be entitled to the rights under this Agreement applicable to the shares so transferred without the requirement to enter into a written agreement pursuant to Section 6.1(a) above. In that regard, however, in-kind transferees that do not enter in such a written agreement will not be given demand or piggyback rights; rather, their means of registered resale will be limited to sales off a shelf with respect to which no special actions are required by the Company or the other Shareholders, and as to which no lockup will arise.

(c) In the event the Company engages in a merger or consolidation in which the shares are converted into securities of another company, appropriate arrangements will be made so that the registration rights provided under this Agreement continue to be provided to Shareholders by the issuer of such securities. To the extent such new issuer, or any other company acquired by the Company in a merger or consolidation, was bound by registration

 

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rights obligations that would conflict with the provisions of this Agreement, the Company will, unless Shareholders then holding a majority of the shares otherwise agree, use its best efforts to modify any such “inherited” registration rights obligations so as not to interfere in any material respects with the rights provided under this Agreement.

(d) In addition, in the event that the Company effects the separation of any portion of its business into one or more entities (each, a “ NewCo ”), whether existing or newly formed, including without limitation by way of spin-off, split-off, carve-out, demerger, recapitalization, reorganization or similar transaction, and any Shareholder will receive equity interests in any such NewCo as part of such separation, the Company shall cause any such NewCo to enter into a registration rights agreement with each such Shareholder that provides each such Shareholder with registration rights vis-á-vis such NewCo that are substantially identical to those set forth in this Agreement.

6.2 Limited Liability . Notwithstanding any other provision of this Agreement, neither the members, general partners, limited partners or managing directors, or any directors or officers of any members, general or limited partner, advisory director, nor any future members, general partners, limited partners, advisory directors, or managing directors, if any, of any Shareholder shall have any personal liability in respect of any obligation of such Shareholder under this Agreement.

6.3 Rule 144 . If the Company is subject to the requirements of Section 13, 14 or 15(d) of the Exchange Act, the Company covenants that it will file any reports required to be filed by it under the Securities Act and the Exchange Act (or, if the Company is subject to the requirements of Section 13, 14 or 15(d) of the Exchange Act but is not required to file such reports, it will, upon the request of any Shareholder, make publicly available such information), and it will take such further action as any Shareholder may reasonably request so as to enable such Shareholder to sell shares without registration under the Securities Act within the limitation of the exemptions provided by (a) Rule 144 under the Securities Act, as such Rule may be amended from time to time, or (b) any similar rule or regulation hereafter adopted by the SEC. Upon the request of any Shareholder, the Company will deliver to such Shareholder a written statement as to whether it has complied with such requirements.

6.4 In-Kind Distributions . If any Shareholder seeks to effectuate an in-kind distribution of all or part of its shares to its direct or indirect equityholders, the Company will, subject to applicable lockups, work with such Shareholder, the Company’s transfer agent and any depositary to facilitate such in-kind distribution in the manner reasonably requested by such Shareholder, as well as any resales by such transferees under a shelf registration statement covering such distributed shares.

ARTICLE VII

MISCELLANEOUS

7.1 Notices . All notices, Requests, demands and other communications required or permitted hereunder shall be made in writing by hand-delivery, mail, email, fax or air courier guaranteeing delivery:

 

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  (a) If to the Company, to:

Gates Industrial Corporation plc

1551 Wewatta Street

Denver, Colorado 80202

Attention: General Counsel

Email: Jamey.Seely@gates.com

or to such other person or address as the Company shall furnish to the Shareholders in writing;

 

  (b) If to the Blackstone Parties, to:

Blackstone Capital Partners (Cayman) VI L.P.

345 Park Avenue

New York, New York 10154

Attention: Neil P. Simpkins

Facsimile: (212) 583-5257

Email: simpkins@blackstone.com

or to such other person or address as the Blackstone Parties shall furnish to the Company and the other Shareholders in writing;

All such notices, requests, demands and other communications shall be deemed to have been duly given: at the time of delivery by hand, if personally delivered; four business days after being deposited in the mail, postage prepaid, if mailed domestically in the United States (and seven Business Days if mailed internationally); when sent, if by email; when receipt acknowledged, if faxed; and on the business day for which delivery is guaranteed, if timely delivered to an air courier guaranteeing such delivery.

7.2 Section Headings . The article and section headings in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement. References in this Agreement to a designated “Article” or “Section” refer to an Article or Section of this Agreement unless otherwise specifically indicated.

7.3 Governing Law . This Agreement shall be governed by and construed in accordance with the laws of the State of New York.

7.4 Consent to Jurisdiction and Service of Process . The parties to this Agreement hereby agree to submit to the jurisdiction of the courts of the State of New York, the courts of the United States of America for the Southern District of New York, and appellate courts from any thereof in any action or proceeding arising out of or relating to this Agreement.

7.5 Amendments . This Agreement may be amended only by an instrument in writing executed by the Company and Shareholders holding a majority of the shares collectively held by them. Any such amendment will apply to all Shareholders equally, without distinguishing between them. This Agreement will terminate as to any Shareholder when it no longer has demand or piggyback rights under this Agreement with respect to shares and the Company has fulfilled all of its obligations with respect to shares previously sold by such Shareholder in one or more registered offerings covered by this Agreement.

 

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7.6 Entire Agreement . This Agreement constitutes the entire agreement and understanding of the parties with respect to the transactions contemplated hereby and thereby. The registration rights granted under this Agreement supersede any registration, qualification or similar rights with respect to any of the shares granted to one or more Shareholders under any other agreement, and any of such preexisting registration rights are hereby terminated.

7.7 Severability . The invalidity or unenforceability of any specific provision of this Agreement shall not invalidate or render unenforceable any of its other provisions. Any provision of this Agreement held invalid or unenforceable shall be deemed reformed, if practicable, to the extent necessary to render it valid and enforceable and to the extent permitted by law and consistent with the intent of the parties to this Agreement.

7.8 Counterparts . This Agreement may be executed in multiple counterparts, including by means of facsimile, each of which shall be deemed an original, but all of which together shall constitute the same instrument.

7.9 Third Party Beneficiaries . Except as specifically provided below, this Agreement (including the documents and instruments referred to in this Agreement) is not intended to and does not confer upon any person other than the parties hereto any rights or remedies under this Agreement. In connection with any underwritten offering, upon written notice given to the Company by the holders of a majority of the shares being sold by Shareholders in such offering, the underwriters in such offering will become third-party beneficiaries of Sections 3.6, 5.1, 5.3 and/or 5.4, as may be specified in such notice (but no other section or provision of this Agreement), and in such event such underwriters shall be entitled to enforce their rights under such specified sections, provided, that , in the case of Sections 5.1, 5.3 and 5.4, such underwriters have provided the Company with information of the type referred to in Section 4.5 but as such information relates to underwriters in a registered offering, and such underwriters have provided to the Company and the selling Shareholders an indemnity comparable to that provided by the Shareholders in Section 5.2. Notwithstanding any provision hereof to the contrary, no consent, approval or agreement of any third-party beneficiary will be required to amend, modify or waive any provision of this Agreement.

7.10 Equitable Remedies . The parties hereto agree that irreparable harm would occur in the event that any of the agreements and provisions of this Agreement were not performed fully by the parties hereto in accordance with their specific terms or conditions or were otherwise breached, and that money damages are an inadequate remedy for breach of this Agreement because of the difficulty of ascertaining and quantifying the amount of damage that will be suffered by the parties hereto in the event that this Agreement is not performed in accordance with its terms or conditions or is otherwise breached. It is accordingly hereby agreed that the parties hereto shall be entitled to an injunction or injunctions to restrain, enjoin and prevent breaches of this Agreement by the other parties and to enforce specifically the terms and provisions hereof in any court of the United States or any state having jurisdiction, such remedy being in addition to and not in lieu of, any other rights and remedies to which the other parties are entitled to at law or in equity.

 

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7.11 No Inconsistent Agreements . From and after the date of this Agreement, the Company shall not enter into any agreement with any person, including any holder or prospective holder of any securities of the Company, giving or granting any registration (or related) rights the terms of which are more favorable than, senior to or conflict with, the registration or other rights granted to the Blackstone Parties hereunder.

[Rest of page intentionally left blank]

 

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IN WITNESS WHEREOF, the parties hereto have executed this Registration Rights Agreement as of the date set forth in the first paragraph hereof.

 

GATES INDUSTRIAL CORPORATION PLC
By:    
  Name:
  Title:

 

[Signature Page to Registration Rights Agreement]


BLACKSTONE CAPITAL PARTNERS     (CAYMAN) VI L.P.
By:   Blackstone Management Associates (Cayman) VI L.P., its general partner
By:   BCP VI GP L.L.C., its general partner
By:    
  Name:
  Title:
BLACKSTONE GTS CO-INVEST L.P.
By:   Blackstone Management Associates (Cayman) VI L.P.
By:   BCP VI GP L.L.C., its general partner
By:    
  Name:
  Title:
BTO OMAHA HOLDINGS L.P.
By:   BTO Omaha Manager L.L.C., its general partner
By:    
  Name:
  Title:
BLACKSTONE FAMILY INVESTMENT     PARTNERSHIP (CAYMAN) VI – ESC L.P.
By:   BCP VI GP L.L.C., its general partner
By:    
  Name:
  Title:

 

[Signature Page to Registration Rights Agreement]

Exhibit 10.12

 

 

 

DEED OF INDEMNITY

made by

GATES INDUSTRIAL CORPORATION PLC

and

[ ]

                           2018

 

 

 


This DEED OF INDEMNITY is made on                     2018 between Gates Industrial Corporation plc (No. 10980824), a public limited company incorporated in England and Wales, whose registered office is at 35 Great St Helen’s, London, United Kingdom, EC3A 6AP (the “ Company ”) and [●] of [●] (the “ Indemnitee ”).

RECITALS

 

1. The Indemnitee is an officer or director of the Company.

 

2. The Company has agreed, subject to the terms of this Deed, to provide an indemnity to the Indemnitee in respect of certain personal liabilities arising from the Indemnitee’s performance as an officer or director of the Company.

THE PARTIES AGREE as follows:

1. Interpretation

1.1 The following provisions shall have effect for the interpretation of this Deed.

1.2 The following words and expressions shall, unless the context otherwise requires, have the following meanings:

Act ” means the Companies Act 2006, as amended;

Appointment Period ” means the period during which the Indemnitee is an officer or director of the Company;

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

associated company ” means, in relation to the Company, a company which is a subsidiary of the Company, or a holding company of or a subsidiary of any holding company of the Company.

Business Day ” means any day other than a Saturday or Sunday or a day on which commercial banking institutions are not required to be open in the State of New York;

Claim ” means any actual or contemplated proceedings or other dispute resolution procedure, whether civil or criminal or regulatory, brought against the Indemnitee, which might give rise to a right to indemnification under the Indemnity;

Dispute ” has the meaning set out in Clause 13.2;

Indemnity ” means the indemnity contained in Clause 3, which is subject to the provisions of this Deed;

Liability ” means all legal and other costs, charges and expenses reasonably incurred by the Indemnitee, and all losses, damages, penalties, liabilities, compensation and other awards incurred by the Indemnitee;

Notice ” has the meaning set out in Clause 9.1;

officer ” means an employee of the Company designated as an executive officer of the Company; and

Proceedings ” has the meaning set out in Clause 13.4.

 

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1.3 In this Deed, a reference to:

(a) a “ subsidiary ” or “ holding company ” is to be construed in accordance with section 1159 (and Schedule 6) of the Act;

(a) “ includes ” or “ including ” or words of similar meaning, unless specified otherwise, shall be deemed to be followed by the words “without limitation”;

(b) a statutory provision includes a reference to the statutory provision as modified or re-enacted or both from time to time before the date of this Deed and any subordinate legislation made under the statutory provision (as so modified or re-enacted) before the date of this Deed;

(c) a “ person ” includes a reference to any individual, firm, company, corporation or other body corporate, government, state or agency of a state or any joint venture, association or partnership, works council or employee representative body (whether or not having separate legal personality);

(d) a “ party ” includes a reference to that party’s successors and permitted assigns; and

(e) a clause, paragraph or schedule, unless specified otherwise, is a reference to a clause or paragraph of, or schedule to, this Deed, and the schedules form part of this Deed.

2. Commencement

This Deed shall take effect from, and including,                         201[8].

3. Indemnity

3.1 Subject to the provisions of the Act (which, for the purposes of this Deed, shall apply to the Indemnitee as if he or she was a director of the Company) and the terms of this Deed, the Company agrees to indemnify the Indemnitee, out of the assets of the Company, against any Liability arising out of any Claim made against the Indemnitee (whether in connection with any negligence, default, breach of duty or breach of trust by the Indemnitee or otherwise) in relation to the performance of the Indemnitee’s duties as an officer or director of the Company and any associated company, to the fullest extent permitted by law and without prejudice to any other indemnity to which the Indemnitee may otherwise be entitled.

4. Exclusions and Limitations

4.1 The indemnity set out in Clause 3 shall not apply in respect of any Liability incurred by the Indemnitee:

(a) to the Company or to any associated company;

(b) to pay a fine imposed in criminal proceedings;

(c) to pay a sum payable to a regulatory authority by way of a penalty in respect of non-compliance with any requirement of a regulatory nature (however arising);

(d) in defending any criminal proceedings in which the Indemnitee is convicted;

(e) in defending any civil proceedings brought by the Company, or an associated company, in which judgment is given against the Indemnitee;

 

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(f) in connection with any application under any of the following provisions in which the court refuses to grant the Indemnitee relief:

(i) section 661(3) or (4) of the Act (power of court to grant relief in case of acquisition of shares by innocent nominee); or

(ii) section 1157 of the Act (general power of court to grant relief in case of honest and reasonable conduct);

(g) in connection with any Claim or Liability to the extent prohibited by the Act or otherwise as prohibited by law;

(h) to the extent that any recovery of such Liability has been made by the Indemnitee under any policy of insurance or under any other deed of indemnity given by the Company; or

(i) in connection with any Claim against the Indemnitee arising from any acts of the Indemnitee which, directly or indirectly, result in the summary dismissal of that Indemnitee by the Company or any associated Company.

4.2 If a court finds in its judgment that a Liability or Claim arose from the Indemnitee’s fraud, wilful default or gross negligence, the Company may by notice to the Indemnitee request repayment of such amounts as the Company has paid under this indemnity and the Indemnitee shall repay such amounts to the Company (without interest) within 14 days of receipt of such request.

4.3 If a court finds in its judgment that a Liability or Claim arose as a result of the Indemnitee acting beyond the scope of the Indemnitee’s authority or contrary to instructions given by the Company or in breach of agreements reached with the Company or in breach of the fiduciary duties (but not, for the avoidance of doubt, including the duties of skill and care) the Indemnitee owes to the Company (or, in each case, an associated company), the Company may by notice to the Indemnitee request repayment of such amounts as the Company has paid under this indemnity and the Indemnitee shall repay such amounts to the Company (without interest) within 14 days of receipt of such request.

4.4 In Clauses 4.1, 4.2 and 4.3 the reference to a conviction, judgment or refusal of relief is a reference to one that has become final. A conviction, judgment or refusal of relief becomes final:

(a) if not appealed against, at the end of the period for bringing an appeal; or

(b) if appealed against, at the time when the appeal (or any further appeal) is disposed of.

4.5 For the purposes of Clause 4.4, an appeal is disposed of:

(a) if it is determined and the period for bringing any further appeal has ended; or

(b) if it is abandoned or otherwise ceases to have effect.

4.6 The indemnity in this Deed will not modify or waive any of the duties which the Indemnitee owes as an officer or director under law or the rules of any relevant stock exchange or other regulatory body, including duties as to confidentiality, whether during or after any Appointment Period.

 

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4.7 The Indemnitee shall continue to be indemnified under the terms of the indemnities in this Deed for liabilities arising in the Indemnitee’s Appointment Period, notwithstanding that the Indemnitee may have ceased to be an officer or director of the company or an associated company.

5. Conditions

5.1 The Indemnitee’s right to claim under the indemnity is conditional upon the Indemnitee complying with the following (unless and to the extent waived by the Company at its sole discretion):

(a) the Indemnitee shall give notice to the Company as soon as possible of any fact, matter or circumstance coming to the Indemnitee’s attention which may give rise to a Claim, or after becoming aware of any Claim or any circumstance for which there may be Liability under this indemnity;

(b) the Indemnitee shall first take all steps and carry out all actions required to obtain recovery under any applicable policy of insurance or under any other rights which entitle the Indemnitee to make recovery and, if applicable, assist the Company in taking all steps and carrying out all actions required to obtain such recovery on behalf of the Indemnitee;

(c) except where the Claim is brought by the Company or an associated company, the Indemnitee shall forward every letter, claim or other document in any way relevant to such a Claim to the Company immediately on receipt;

(d) except where the Claim is brought by the Company or an associated company, save as required by law, the Indemnitee shall not make, or permit to be made on the Indemnitee’s behalf, any admission, compromise, release, waiver, offer or payment relating to the Claim or take any other action reasonably likely to prejudice the Company’s ability to defend such a Claim, in each case without the prior written consent of the Company;

(e) within five Business Days of receiving a request from the Company, the Indemnitee shall provide the Company with written details of the Liability incurred by the Indemnitee, providing such level of detail, and evidence, of the Liability as requested by the Company; and

(f) except where the Claim is brought by the Company or an associated company, whether before or after any payment by the Company to the Indemnitee pursuant to Clause 3, the Indemnitee shall give full co-operation and provide such information as the Company may require, and do everything that the Company may request to enable the Company to exercise its rights under Clause 6 or be subrogated to the extent of any payment under this indemnity.

6. Conduct of Claims

6.1 Except where the Claim is brought by the Company or an associated company, upon notification by the Indemnitee of any actual or potential Claim under this indemnity, the Company will, subject to Clause 6.3, be entitled to take over and conduct in the Indemnitee’s name the defence or settlement of any Claim or to prosecute in the Indemnitee’s name for its own benefit any Claim or proceedings. The Company shall have full discretion in the conduct or settlement of any Claim or proceedings.

6.2 Subject to Clause 6.3, if the Company exercises its rights under Clause 6.1, it shall instruct legal advisers on behalf of both the Company and the Indemnitee, such that, as far as is possible, legal professional privilege, common interest privilege and/or any other applicable privilege and/or immunity attaches to any documents or advice provided by the legal advisers for the benefit of both the Company and the Indemnitee.

 

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6.3 If the parties to any Claim include both the Company and the Indemnitee, and representation of both such parties by the same legal advisers would be inappropriate due to an actual or potential conflict of interest, the Indemnitee shall have the right, in relation to any such proceedings, to retain the Indemnitee’s own legal advisers, provided that the fees and expenses of such legal advisers shall be borne by the Indemnitee, save where the Company has otherwise agreed in writing.

7. Payments pursuant to the Indemnity

7.1 The Company will pay and discharge at the direction of the Indemnitee such amount to meet any Liability to which this indemnity applies, the reasonable legal and other professional costs and expenses which the Indemnitee may incur in defending any legal action in relation to the Indemnitee’s performance as an officer or director of the Company (or in connection with an application under section 661(3) or (4) of the Act or section 1157 of the Act), on reasonable notice and upon provision of such evidence of the same as the Company may reasonably request, provided , however , that the Indemnitee will forthwith, and in any event not later than such times as are required by the Act, pay to the Company an amount equivalent to any amounts paid by the Company under this Clause 7.1 which it is found by reason of the determination of any legal proceedings that the Company would not have been liable to pay under Clause 4 of this Deed or the Act.

7.2 The Company shall, in the event a payment is made to the Indemnitee under Clause 3 or Clause 7.1 in respect of a particular Liability, be entitled to recover from the Indemnitee an amount equal to any payment received by or on behalf of the Indemnitee under any policy of insurance, or under any other right under which the Indemnitee is entitled to make recovery or from any other third party source to the extent that such payment relates to the Liability, and any such payment to the Indemnitee shall be made on that basis. The Indemnitee will pay over such sum immediately upon the Company’s request.

7.3 Nothing in Clause 3 or Clause 7.1 shall require the Company to indemnify the Indemnitee for an amount which would require the Company to seek its shareholders’ consent for the grant of this indemnity.

8. Grossing up

8.1 If any deductions or withholdings are required by law, or any payments due from the Company under this Deed are liable for taxation in the hands of the Indemnitee, the Company shall be liable to pay to the Indemnitee such further sums as shall be required to ensure that the net amount received by the Indemnitee will equal the full amount which would have been received under this Deed in the absence of any such deductions or withholdings.

8.2 In the event that any amounts are paid to the Indemnitee under Clause 8.1 but a tax deduction, credit or relief is or becomes available to the Indemnitee in respect of the relevant payment under this indemnity received by the Indemnitee or any payment made by the Indemnitee to a third party in respect of the relevant Liability which was not taken into account in calculating the amount payable under Clause 8.1, the Indemnitee shall make a payment to the Company of such an amount as is equal to the benefit of such deduction, credit or relief which was not taken into account.

9. Notices

9.1 A notice or other communication under or in connection with this Deed (a “ Notice ”) shall be:

(a) in writing;

(b) in the English language; and

 

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(c) delivered personally or sent by an internationally recognised next-day courier service to the party due to receive the Notice and/or by email to the address set out in Clause 9.3 or to an alternative address and/or person specified by that party by written notice (including by email) to the other party received not less than seven days before the Notice was despatched.

9.2 Unless there is evidence that it was received earlier, a Notice is deemed given if:

(a) delivered personally, when left at the address referred to in Clause 9.1(c); or

(b) sent by an internationally recognised next-day courier service, on the second Business Day following the date of despatch; or

(c) sent by email, 24 hours after the email has been sent provided that the sender has received a successful transmission receipt.

9.3 The address referred to in Clause 9.1(c) is:

 

The Company:

  Gates Industrial Corporation plc, 35 Great St Helen’s, London, United Kingdom, EC3A 6AP
  (or, if different, its registered office from time to time)
  Email: [●]
  Attention: [●]

The Indemnitee:

  [●]
  Email: [●]

10. General

10.1 A variation or waiver of any term, provision or condition of this Deed is valid only if it is in writing and signed by or on behalf of each party.

10.2 The failure to exercise or delay in exercising a right or remedy provided by this Deed or by law does not impair or constitute a waiver of the right or remedy or an impairment of or a waiver of other rights or remedies. No single or partial exercise of a right or remedy provided by this Deed or by law prevents further exercise of the right or remedy or the exercise of another right or remedy.

10.3 The parties’ rights and remedies contained in this Deed are cumulative and not exclusive of rights or remedies provided by law.

10.4 If at any time any provision of this Deed is or becomes illegal, invalid or unenforceable under the laws of any jurisdiction, that shall not affect:

(a) the legality, validity or enforceability in that jurisdiction of any other provision of this Deed; or

(b) the legality, validity or enforceability under the laws of any other jurisdiction of that or another provision of this Deed.

10.5 This Deed shall be binding upon and inure solely to the benefit of the parties. Nothing in this Deed, express or implied, is intended to confer upon any person who is not a party to this Deed any rights or remedies whatsoever under or by reason of this Deed and no such person has a right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Deed.

 

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11. Entire Agreement

This Deed constitutes the entire agreement of and supersedes any previous agreements between the parties relating to the subject matter of this Deed. No party has entered into this Deed in reliance on any representation, statement, assurance, covenant, undertaking, indemnity, guarantee or commitment (whether contractual or otherwise) other than as expressly set out in this Deed.

12. Assignment

None of the parties shall delegate, transfer, or in any other way alienate any of its obligations under this Deed whether in whole or in part.

13. Governing Law and Jurisdiction

13.1 This Deed and all non-contractual obligations arising from or in connection with it are governed by and to be construed in accordance with English law.

13.2 The courts of England have exclusive jurisdiction to settle any dispute arising from or connected with this Deed (a “ Dispute ”) including a dispute regarding the existence, validity or termination of this Deed, the consequences of its nullity or any non-contractual obligation arising from or in connection with it.

13.3 The parties agree that the courts of England are the most appropriate and convenient courts to settle any Dispute and, accordingly, that they will not argue to the contrary.

13.4 The parties agree that the documents which start any proceedings relating to a Dispute (“ Proceedings ”) and any other documents required to be served in relation to those Proceedings may be served on the Indemnitee and the Company in accordance with Clause 9. These documents may, however, be served in any other manner allowed by law. This Clause 13 applies to all Proceedings wherever started.

IN WITNESS WHEREOF the parties hereto have caused this Deed to be executed as a deed and delivered the day and year first above written.

 

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EXECUTED as a DEED by

GATES INDUSTRIAL CORPORATION PLC

acting by [     ]      
  

 

  

In the presence of:

 

 

   Witness’s signature

 

   Name

 

   Address

 

   Occupation

EXECUTED as a DEED by

the Indemnitee   

 

  

In the presence of:

 

 

   Witness’s signature

 

   Name

 

   Address

 

   Occupation

 

9

Exhibit 10.13

MONITORING FEE AGREEMENT

This MONITORING FEE AGREEMENT (this “ Agreement ”) is dated as of [●], 2018, and is among Gates Industrial Corporation plc, a public limited company incorporated under the laws of England and Wales (the “ Company ”), Gates Corporation, a Delaware corporation (“ Gates Corporation ” and, together with the Company, the “ New Gates Parties ”), Blackstone Management Partners L.L.C., a Delaware limited liability company (“ BMP ”) affiliated with The Blackstone Group L.P. (“ Blackstone ”), and Blackstone Tactical Opportunities Advisors L.L.C., a Delaware limited liability company affiliated with Blackstone (“ BTOA ” and, together with BMP, the “ Managers ”).

BACKGROUND

1. On July 3, 2014, Omaha Topco Ltd., an exempted company incorporated in the Cayman Islands (“ Topco ”), Omaha Intermediate Holding LLC, a Delaware limited liability company (“ Intermediate ”), Omaha Holdings LLC, a Delaware limited liability company (“ Omaha Holdings ”), Gates Global LLC, a Delaware limited liability company (“ Gates Global ”), Finco Omaha Ltd, a limited company incorporated under the laws of England and Wales (“ Finco ”), Omaha Acquisition Inc., a Delaware corporation (“ Omaha Acquisition ”), and Gates Corporation (then known as The Gates Corporation) (together with Topco, Intermediate, Omaha Holdings, Gates Global, Finco and Omaha Acquisition, the “ Existing Gates Parties ”) entered into the Transaction and Monitoring Fee Agreement with the Managers (the “ Existing Agreement ”). The Existing Agreement is being terminated concurrently with the execution of this Agreement.

2. Each of the Managers have expertise in monitoring and providing advice with respect to the business of companies such as the New Gates Parties and their respective subsidiaries and the industry in which they operate, so as to help maximize their value. In accordance with the Existing Agreement, the Managers have been providing to the Existing Gates Parties the monitoring and other services described therein.

3. The Company intends to consummate an initial public offering of its ordinary shares, par value $0.01 per share (the “ IPO ”). Under the terms of the Existing Agreement, upon consummation of the IPO, the Managers’ obligation to provide such monitoring and other services would terminate, and in connection therewith the Managers would be entitled to receive a lump sum termination payment equal to the present value of the estimated monitoring fees that would have accrued through the tenth anniversary of the Existing Agreement, but not to exceed three years of future monitoring fees.

4. The New Gates Parties seek to continue to receive such monitoring services following the consummation of the IPO, and the Managers are willing to continue providing such services and forego receiving such lump sum termination payment in consideration of their continuing to receive the regular monitoring fees provided for in this Agreement.

5. This Agreement (a) eliminates the Managers’ entitlement to such lump sum termination payment, (b) extends the Managers’ obligation to provide monitoring and other services for a period not to exceed the second anniversary of the date of this Agreement, and

 

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(c) extends the Managers’ right to receive monitoring fees from the New Gates Parties for a period not to exceed the end of the fiscal quarter in which the second anniversary of this Agreement occurs.

In consideration of the premises and agreements contained herein and of other good and valuable consideration, the sufficiency of which are hereby acknowledged, the parties agree as follows:

AGREEMENT

SECTION 1. Monitoring Services .

(a) Benefits from Ongoing Services . Following consummation of the IPO, the New Gates Parties seek to continue to avail themselves of the Managers’ expertise in providing the monitoring and other services referenced below. The New Gates Parties believe that this will be beneficial to them, their respective subsidiaries and the Company’s ultimate equityholders, and each of the Managers is willing to provide such ongoing services in consideration of the payment of the monitoring fees described below and the other rights provided to them under this Agreement. Accordingly, the New Gates Parties hereby engage the Managers to continue to render to them and their respective subsidiaries the Monitoring Services described below on the terms and subject to the conditions described in this Agreement.

(b) Services to be Provided . Until the Exit Date (as defined below), utilizing such of its officers, employees, representatives, and agents, and indirectly through other persons and entities, in each case as each Manager in its sole discretion may designate from time to time (collectively “ Representatives ”), but subject to Section 1(d), each Manager, severally and not jointly, will render to the New Gates Parties and their respective subsidiaries such monitoring, advisory and consulting services as the New Gates Parties may from time to time request in the following areas in relation to the affairs of the New Gates Parties and their respective subsidiaries:

 

    advice regarding financings and regarding the New Gates Parties’ and their respective subsidiaries’ relationships with lenders and bankers,

 

    advice regarding the selection, retention and supervision of independent auditors, outside legal counsel, investment bankers and other advisors or consultants,

 

    advice regarding “Environmental, Social and Governance” issues pertinent to the affairs of the New Gates Parties and their respective subsidiaries,

 

    advice regarding the strategic direction of the business of the New Gates Parties and their respective subsidiaries, and

 

    such other advice directly related to or ancillary to the above advisory services as may be reasonably requested by the New Gates Parties

(collectively, the “ Monitoring Services ”).

 

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(c) Implementation of Monitoring Services . The New Gates Parties shall at all times retain final decision-making authority with respect to advice received through the Monitoring Services. The officers and directors of the New Gates Parties shall control and direct the implementation, if any, of such advice, subject to the oversight and control of the Company’s board of directors.

(d) No Other Services . Except as otherwise set forth in this Agreement, the Managers will have no obligation to provide any consulting or other services to the New Gates Parties absent an agreement between the relevant Manager, on the one hand, and either New Gates Party, on the other hand as the case may be, with respect to the scope of such other services and the payment to be made to the relevant Manager for providing such other services. It is further expressly agreed that the Monitoring Services to be rendered hereunder will not include “Ops Support”, as defined in and provided in accordance with the Support and Services Agreement dated the same date as this Agreement, nor will the Monitoring Services, Ops Support or any other service provided by the Managers hereunder include investment banking or other financial advisory services, such as Blackstone’s capital markets advisers program, which may be provided by a Manager or any of its affiliates to either New Gates Party, or any of their affiliates, in connection with any specific acquisition, divestiture, disposition, merger, consolidation, restructuring, refinancing, recapitalization, issuance of private or public debt or equity securities, financing or similar transaction by either New Gates Party or any of their respective subsidiaries. A Manager may be entitled to receive additional compensation for providing services of the type specified in the preceding sentence by mutual agreement of the applicable New Gates Party or such subsidiary, on the one hand, and the relevant Manager or its relevant affiliate, on the other hand.

(e) Definitions . The “ Exit Date ” is the first to occur of (i) the second anniversary of the Closing Date and (ii) the date on which Blackstone Capital Partners (Cayman) VI L.P. (together with its affiliated co-investing funds, “ BCP ”), BTO Omaha Holdings L.P. (“ BTO Holdings ” and, together with BCP and their respective affiliated co-investing funds, the “ Sponsors ”) and their respective affiliated co-investing funds have beneficial ownership (as defined in the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Securities and Exchange Commission thereunder) of less than 5% of the ordinary shares of the Company or its direct or indirect controlling parent, as applicable, and such stake has a fair market value (as determined by the Sponsors) of less than $25 million.

SECTION 2. Fees for Monitoring Services .

(a) Monitoring Fee – General . In consideration of the Monitoring Services being rendered by or at the direction of each Manager, the New Gates Parties will, on a joint and several basis, pay or cause to be paid to each Manager in respect of the period during which the Monitoring Services are required to be provided under this Agreement its share of an annual non-refundable and irrevocable fee in the amount determined in accordance with this Section 2 (the “ Monitoring Fee ”). The Monitoring Fee will be payable annually in advance and will be subject to adjustment as described below.

(b) Annual Monitoring Fee . Pursuant to the Existing Agreement, one or more of the Existing Gates Parties has paid to the Managers a monitoring fee in respect of the

 

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Company’s fiscal year ending on or about December 31, 2018. On the first business day of each fiscal year of the Company that begins after the closing date of the IPO (the “ Closing Date ”), and as the Monitoring Fee in respect of that fiscal year, the New Gates Parties will, jointly and severally, pay to the Managers, allocated between them as described below, an amount (subject to subsequent adjustment as described below) equal to 1% of management’s then current estimate/projection of Consolidated EBITDA (as defined below) for such fiscal year as most recently presented to the Company’s board of directors. No Monitoring Fees will be payable in respect of fiscal years of the Company beginning after the fiscal year of the Company in which the Exit Date occurs. The Monitoring Fee for the fiscal year in which the Exit Date occurs will be reduced by an amount equal to the Monitoring Fee otherwise payable in respect of such entire fiscal year times a fraction, the numerator of which is the number of full fiscal quarters of the Company during such fiscal year, which quarters begin after the Exit Date, and the denominator of which is four.

(c) Post-Fiscal Year True-up . The Credit Agreement, dated as of July 3, 2014, among Gates Global, the guarantors party thereto from time to time, Credit Suisse AG, Cayman Islands Branch, as administrative agent and collateral agent, the lenders party thereto, and the other agents party thereto (as amended or supplemented, the “ Credit Agreement ”) has a definition of “Consolidated EBITDA” of Gates Global or, if applicable, the top level parent of Gates Global that is a guarantor of Gates Global’s indebtedness under the Credit Agreement (either Gates Global or, if applicable, such parent entity, the “ Top Level Credit Party ”). After the preparation of audited financial statements following the end of each fiscal year of the Company, the chief financial officer of the Company will, no later than the corresponding deadline prescribed under the Credit Agreement for the Top Level Credit Party, certify to the Managers the amount of Gates Global’s Consolidated EBITDA for that fiscal year (with respect to Gates Global and a particular fiscal year of Gates Global, “ Consolidated EBITDA ”), calculated on the basis of the Credit Agreement’s definition thereof as though Gates Global were the Top Level Credit Party under the Credit Agreement, as derived from the Company’s or the Gates Global’s audited income statement. If 1% of such certified Consolidated EBITDA is greater than the Monitoring Fee previously paid to the Managers in accordance with Section 2(b) (including the fee paid prior to the IPO covering the fiscal year in which the IPO occurs) in respect of Monitoring Services rendered during that fiscal year, then, within two business days of such certification, the New Gates Parties will, jointly and severally, pay or cause to be paid to the Managers their respective shares of the amount of such excess as an upward adjustment to the Monitoring Fee payable for such fiscal year. If 1% of such certified Consolidated EBITDA is less than the Monitoring Fee previously paid to the Managers in accordance with Section 2(b) in respect of Monitoring Services rendered during that fiscal year, then, within two business days of such certification, the Managers, severally and not jointly, allocated between them in the same manner as such Monitoring Fee previously paid was allocated, will pay or cause to be paid to the Company (or, at the direction of the Company, a subsidiary of the Company) the amount of such shortfall as a downward adjustment to the Monitoring Fee previously paid to the Managers in respect of the Monitoring Services rendered during such fiscal year. In the absence of any required repayment in respect of an excess fee previously paid to a Manager, the New Gates Parties may apply such required repayment amount, by way of offset, against any future payment otherwise owing to the applicable Manager.

 

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(d) Inability to Pay Fee When Due . To the extent the New Gates Parties cannot pay, or cause to be paid, the Monitoring Fee for any reason, including by reason of any prohibition on such payment pursuant to any applicable law or the terms of any debt financing of the New Gates Parties or any of their respective subsidiaries, the payment by the New Gates Parties or any of their respective subsidiaries to the Managers of the accrued and payable Monitoring Fee will be deferred and will be payable immediately on the earlier of (i) the first date on which the payment of such deferred Monitoring Fee is no longer prohibited under any contract applicable to the Company and the Company or its subsidiaries, as applicable, is otherwise able to make such payment, or cause such payment to be made, and (ii) total or partial liquidation, dissolution or winding up of the Company. Notwithstanding anything to the contrary herein, under any applicable law or under any contract applicable to the New Gates Parties or any of their respective subsidiaries, any forbearance of collection of the Monitoring Fee by the Managers shall not be deemed to be a subordination of such payments to any other person, entity or creditor of the Company or its subsidiaries. Any such forbearance shall be at each Manager’s sole option and discretion and shall in no way impair the Manager’s right to collect such payments, provided that if BMP exercises any such forbearance, BTOA will do likewise. Any installment of the Monitoring Fee not paid on the scheduled due date will bear interest, payable in cash on each scheduled due date, at an annual rate of 10%, compounded quarterly, from the date due until paid.

(e) Allocation of Monitoring Fees and Rebates . As between BMP and BTOA, BMP will be entitled to receive the entirety of each Monitoring Fee payable under this Section 2, less the BTOA Portion applicable to such payment, and BTOA will be entitled to receive the BTOA Portion, as calculated for the relevant period on a daily basis for purposes of payments and rebates, with an appropriate adjustment for changes applicable to a period where the applicable payment has been made in advance. The “ BTOA Portion ” will be calculated and will accrue on a daily basis by multiplying the applicable fee amount by a percentage equal to the BTOA Percentage of Monitoring Services Provided. The proportion of the Monitoring Services to be provided by BTOA (expressed as a percentage, the “ BTOA Percentage of Monitoring Services Provided ”) shall be equal to the proportion of the total number of shares of the Company then held by BTO Holdings relative to the total number of shares of the Company then held by the Sponsors and any other investment fund, co-investment vehicle, other investment vehicle or similar entity for which the general partner, advisor or manager of any Sponsor (or any affiliate of such general partner, advisor or manager) serves as the general partner, manager or advisor.

SECTION 3. Reimbursements . In addition to the fees payable pursuant to this Agreement, the New Gates Parties will, jointly and severally, pay, or cause to be paid, directly, or reimburse the Managers and their affiliates for, their respective Out-of-Pocket Expenses (as defined below). For the purposes of this Agreement, the term “ Out-of-Pocket Expenses ” means the reasonable out-of-pocket costs and expenses incurred by the Managers and their affiliates in connection with the Monitoring Services (including prior to the Effective Time), including (a) fees and disbursements of any independent professionals and organizations, including independent accountants, outside legal counsel and other consultants or advisers, retained by the Sponsors, the Managers or any of their affiliates in connection therewith, (b) costs of any outside services or independent contractors such as financial printers, couriers, business publications, online financial services or similar services, retained or used by the Sponsors, the Managers or any

 

5


of their respective affiliates in connection therewith, and (c) transportation, per diem costs, word processing expenses or any similar expense incurred in connection therewith not associated with the Sponsors, the Managers or their affiliates’ ordinary operations. All payments or reimbursements for Out-of-Pocket Expenses and such allocated costs will be made within 20 days of the request for payment or reimbursement.

SECTION 4. Indemnification .

(a) General . The New Gates Parties shall, on a joint and several basis, indemnify and hold harmless each Manager, its affiliates and their respective partners (both general and limited), members (both managing and otherwise), officers, directors, employees, agents and representatives (each such person being an “ Indemnified Party ”) from and against any and all actions, suits, proceedings, investigations, losses, demands, claims, damages, liabilities, costs, charges and expenses (including, without limitation, attorneys’ fees and expenses and any other litigation-related expenses), including in connection with seeking indemnification, whether joint or several (the “ Liabilities ”), related to, arising out of or in connection with the Monitoring Services (including any similar services rendered after receipt of the final monitoring fee payment hereunder), whether or not pending or threatened, whether or not an Indemnified Party is a party, whether or not resulting in any liability and whether or not such action, claim, demand, suit, investigation or proceeding is initiated, brought or threatened by either New Gates Party or any other party, and regardless of whether initiated, brought or threatened before or after the Exit Date. The New Gates Parties shall, on a joint and several basis, reimburse any Indemnified Party for all costs and expenses (including attorneys’ fees and expenses and any other litigation-related expenses) as they are incurred in connection with investigating, preparing, pursuing, defending or assisting in the defense of any such pending or threatened action, claim, demand, suit, investigation or proceeding for which the Indemnified Party would be entitled to indemnification under the terms of the previous sentence, or any such matter related to or arising therefrom, whether or not such Indemnified Party is a party thereto. The New Gates Parties each agrees that it shall not, without the prior written consent of the Indemnified Party, settle, compromise or consent to the entry of any judgment in any pending or threatened action, claim, demand, suit, investigation or proceeding contemplated by this Section 4 (if any Indemnified Party is a party thereto or has been threatened to be made a party thereto) unless such settlement, compromise or consent includes an unconditional release of the Indemnified Party from all liability, known or unknown, without future obligation or prohibition on the part of the Indemnified Party, related to, arising out of or in connection with such action, claim, suit, investigation or proceeding, and does not contain an admission of guilt or liability on the part of the Indemnified Party. The New Gates Parties will not be liable under the foregoing indemnification provision with respect to any particular loss, claim, demand, damage, liability, cost or expense of an Indemnified Party that is determined by a court, in a final judgment from which no further appeal may be taken, to have resulted solely from the gross negligence or willful misconduct of such Indemnified Party. The attorneys’ fees and other expenses of an Indemnified Party shall be paid by one of the New Gates Parties as they are incurred upon receipt, in each case, of an undertaking by or on behalf of the Indemnified Party to repay such amounts if it is judicially determined by a final, non-appealable judgment of a court of competent jurisdiction that the Liabilities in question resulted solely from the gross negligence or willful misconduct of such Indemnified Party.

 

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(b) Primary , Non-Exclusive Rights . The rights of an Indemnified Party to indemnification hereunder will be in addition to any other rights and remedies any such person may have under any other agreement or instrument to which the Indemnified Party is or becomes a party or is or otherwise becomes a beneficiary or under any law or regulation. In that regard, each of the New Gates Parties acknowledges and agrees that the New Gates Parties will, on a joint and several basis, be fully and primarily responsible for the payment to an Indemnified Party in respect of indemnification or advancement of expenses in connection with any jointly indemnifiable claim (as defined below), pursuant to and in accordance with the terms of this Agreement, irrespective of any right of recovery the Indemnified Party may have from the Indemnitee-related entities (as defined below). Under no circumstance shall the New Gates Parties be entitled to any right of subrogation or contribution by the Indemnitee-related entities and no right of advancement or recovery the Indemnified Party may have from the Indemnitee-related entities shall reduce or otherwise alter the rights of the Indemnified Party or the obligations of the New Gates Parties hereunder. In the event that any of the Indemnitee-related entities shall make any payment to the Indemnified Party in respect of indemnification or advancement of expenses with respect to any jointly indemnifiable claim, the Indemnitee-related entity making such payment shall be subrogated to the extent of such payment to all of the rights of recovery of the Indemnified Party against the New Gates Parties and the Indemnified Party shall execute all papers reasonably required and shall do all things that may be reasonably necessary to secure such rights, including the execution of such documents as may be necessary to enable the Indemnitee-related entities effectively to bring suit to enforce such rights. Each of the New Gates Parties and each Indemnified Party agree that each of the Indemnitee-related entities shall be third-party beneficiaries with respect to this Section, entitled to enforce this Section as though each such Indemnitee-related entity were a party to this Agreement.

(c) Definitions . For purposes of Section 4(b), the following terms shall have the following meanings:

(i) The term “ jointly indemnifiable claims ” shall be broadly construed and shall include, without limitation, any action, suit or proceeding for which an Indemnified Party shall be entitled to indemnification or advancement of expenses from both the Indemnitee-related entities and the New Gates Parties pursuant to the Delaware General Corporation Law, any agreement or the certificate of incorporation, articles of association, bylaws, partnership agreement, operating agreement, certificate of formation, certificate of limited partnership or comparable organizational documents of the New Gates Parties or the Indemnitee-related entities, as applicable.

(ii) The term “ Indemnitee-related entities ” means any corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise (other than the New Gates Parties or any other corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise an Indemnified Party has agreed, on behalf of the New Gates Parties or at the New Gates Parties’ request, to serve as a director, officer, employee or agent and which service is covered by the indemnity described in this Agreement) from whom an Indemnified Party may be entitled to indemnification or advancement of expenses with respect to which, in whole or in part, the New Gates Parties may also have an indemnification or advancement obligation (other than as a result of obligations under an insurance policy).

 

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SECTION 5. Miscellaneous .

(a) Amendments . No amendment or waiver of any provision of this Agreement, or consent to any departure by any party hereto from any such provision, will be effective unless it is in writing and signed by each of the parties hereto. Any amendment, waiver or consent will be effective only in the specific instance and for the specific purpose for which given. The waiver by any party of any breach of this Agreement will not operate as or be construed to be a waiver by such party of any subsequent breach.

(b) Notices . Any notices or other communications required or permitted hereunder shall be made in writing and will be sufficiently given if delivered personally or sent by email or facsimile with confirmed receipt, or by overnight courier, addressed as follows or to such other address of which the parties may have given written notice:

if to BMP or BTOA:

c/o The Blackstone Group L.P.

345 Park Avenue

New York, NY 10154

Attention: Julia Kahr / Timur Akazhanov

email: kahr@blackstone.com / timur.akazhanov@blackstone.com

if to the New Gates Parties:

c/o Gates Industrial Corporation plc

1551 Wewatta Street

Denver, CO 80202

Attention: Jamey Seely

Email: jamey.seely@gates.com

Unless otherwise specified herein, such notices or other communications will be deemed received (i) on the date delivered, if delivered personally or sent by email, and (ii) one business day after being sent by facsimile or overnight courier.

(c) Entire Agreement . This Agreement constitutes the entire agreement among the parties with respect to the subject matter hereof, and supersedes all previous oral and written (and all contemporaneous oral) negotiations, commitments, agreements and understandings relating hereto. Notwithstanding the foregoing, the Managers and other third party beneficiaries may have rights under other agreements with the Company, or otherwise, that overlap with the rights provided under this Agreement. Any such overlapping rights are intended to be cumulative.

(d) Governing Law . THIS AGREEMENT AND ITS ENFORCEMENT AND ANY CONTROVERSY ARISING OUT OF OR RELATING TO THE MAKING OR PERFORMANCE OF THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO NEW YORK’S PRINCIPLES OF CONFLICTS OF LAW.

 

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(e) Consent to Jurisdiction; Waiver of Jury Trial . Each party hereto hereby (i) agrees than any action, directly or indirectly, arising out of, under or relating to this Agreement shall exclusively be brought in and shall exclusively be heard and determined by either the Supreme Court of the State of New York sitting in Manhattan or the United States District Court for the Southern District of New York, and (ii) solely in connection with the action(s) contemplated by subsection (i) hereof, (A) irrevocably and unconditionally consents and submits to the exclusive jurisdiction of the courts identified in subsection (i) hereof, (B) irrevocably and unconditionally waives any objection to the laying of venue in any of the courts identified in clause (i) of this paragraph (e), (C) irrevocably and unconditionally waives and agrees not to plead or claim that any of the courts identified in such clause (i) is an inconvenient forum or does not have personal jurisdiction over any party hereto, and (D) agrees that mailing of process or other papers in connection with any such action in the manner provided herein or in such other manner as may be permitted by applicable law shall be valid and sufficient service thereof. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM OR ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES CONTEMPLATED HEREBY.

(f) Assignment . Neither this Agreement nor any of the rights or obligations hereunder may be assigned by the New Gates Parties without the prior written consent of the Managers; provided , however , that each Manager may assign or transfer its duties or interests hereunder to any of its affiliates at the sole discretion of the transferring Manager. Subject to the foregoing, the provisions of this Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Subject to the next sentence, no person or party other than the parties hereto and their respective successors or permitted assigns is intended to be a beneficiary of this Agreement. The parties acknowledge and agree that the Managers and their respective affiliates and their respective partners (both general and limited), members (both managing and otherwise), officers, directors, employees, agents and representatives are intended to be third-party beneficiaries under Section 4 hereof.

(g) Counterparts . This Agreement may be executed by one or more parties to this Agreement on any number of separate counterparts (including by facsimile), and all of said counterparts taken together will be deemed to constitute one and the same instrument.

(h) Severability . Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction will not invalidate or render unenforceable such provision in any other jurisdiction.

(i) Payments . Each payment made by any of the New Gates Parties pursuant to this Agreement shall be paid by wire transfer of immediately available funds to such account or accounts as specified by the relevant Manager to such New Gates Party prior to such payment.

 

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(j) Captions . The captions in this Agreement are for convenience only and shall not be considered a part of or affect the construction or interpretation of any provision of this Agreement.

[ signature page follows ]

 

10


The undersigned have executed, or have caused to be executed, this Monitoring Fee Agreement as of the date first written above.

 

BLACKSTONE MANAGEMENT PARTNERS L.L.C.
By:    
  Name:
  Title:
BLACKSTONE TACTICAL OPPORTUNITIES ADVISORS L.L.C.
By:    
  Name:
  Title:
GATES INDUSTRIAL CORPORATION PLC
By:    
  Name:
  Title:

 

[Signature Page to Monitoring Fee Agreement]

Exhibit 10.14

SUPPORT AND SERVICES AGREEMENT

This SUPPORT AND SERVICES AGREEMENT (this “ Agreement ”) is dated as of [●], 2018, and is among Gates Industrial Corporation plc, a public limited company incorporated under the laws of England and Wales (the “ Company ”), Gates Corporation, a Delaware corporation (“ Gates Corporation and, together with the Company, the “ New Gates Parties ”), Blackstone Capital Partners (Cayman) VI L.P., an exempted limited partnership organized under the laws of the Cayman Islands (together with its affiliated co-investing funds, “ BCP ”), and Blackstone Management Partners L.L.C., a Delaware limited liability company (“ BMP ”) affiliated with The Blackstone Group L.P. (“ Blackstone ”), and Blackstone Tactical Opportunities Advisors L.L.C., a Delaware limited liability company affiliated with Blackstone (“ BTOA ” and, together with BMP, the “ Managers ”).

BACKGROUND

1.    On July 3, 2014, Omaha Topco Ltd., an exempted company incorporated in the Cayman Islands (“ Topco ”), Omaha Intermediate Holding LLC, a Delaware limited liability company (“ Intermediate ”), Omaha Holdings LLC, a Delaware limited liability company (“ Omaha Holdings ”), Gates Global LLC, a Delaware limited liability company (“ Gates Global ”), Finco Omaha Ltd, a limited company incorporated under the laws of England and Wales (“ Finco ”), Omaha Acquisition Inc., a Delaware corporation (“ Omaha Acquisition ”), and Gates Corporation (f/k/a The Gates Corporation, together with Topco, Intermediate, Omaha Holdings, Gates Global, Finco and Omaha Acquisition, the “ Existing Gates Parties ”) entered into the Support and Services Agreement (the “ Existing Agreement ”) with BMP and BCP. The Existing Agreement is being terminated concurrently with the execution of this Agreement.

2.    BMP has provided the Existing Gates Parties or their respective subsidiaries with portfolio company operations support and other services in accordance with the Existing Agreement.

3.    The Company intends to consummate an initial public offering of its ordinary common shares, par value $0.01 per share (the “ IPO ”).

4.    The Company seeks to continue to receive such portfolio company operations support and other services following the consummation of its IPO, and Blackstone and the Managers are willing to continue providing such services.

In consideration of the premises and agreements contained herein and of other good and valuable consideration, the sufficiency of which are hereby acknowledged, the parties agree as follows:

AGREEMENT

SECTION 1. Portfolio Operations Support.

Until the date on which BCP, BTO Omaha Holdings L.P. (“ BTO Holdings ”) and their respective affiliated co-investing funds have beneficial ownership (as defined in the


Securities Exchange Act of 1934 and the rules and regulations of the SEC thereunder) of less than 5% of the common stock of the Company or any of its direct or indirect controlling parents, as applicable, and such stake has a fair market value (as determined in good faith by BCP and BTO Holdings) of less than $25 million (the “ Exit Date ”), or such earlier date as may be chosen by the Managers, the Managers intend to make available to the New Gates Parties and their respective subsidiaries the services customarily provided by Blackstone’s Portfolio Operations group to Blackstone’s private equity portfolio companies (the “ Ops Support ”), and the New Gates Parties agrees to accept the amount and type of Ops Support as may be determined by the Portfolio Operations group, in its sole discretion, to be warranted and appropriate. The Managers may, at any time, choose not to provide any such services. Such services will be provided without charge, other than for the reimbursement of Out-of-Pocket Expenses as described below.

SECTION 2. Other Services.

(a)     Equity Healthcare. Blackstone has also established an “ Equity Healthcare ” group, which leverages the scale of Blackstone’s combined portfolio companies so as to hold down benefit and claims costs and deliver better quality health care to U.S. employees and their families. The Company has previously entered into an agreement pursuant to which the Company will receive the healthcare-related services customarily provided by Blackstone’s Equity Healthcare group to Blackstone’s private equity portfolio companies. In consideration of such services, during the term of such agreement the Company (or its affiliated designee) will pay to BMP (or an affiliated designee) a “ Quarterly Fee ” and a “ Per Employee Fee ”, as described below.

(i)    Per Employee Fee. No later than the fifth business day of each month, the Company (or its affiliated designee) will, jointly and severally, pay to BMP (or an affiliated designee), as the Per Employee Fee in respect of that immediately preceding month, an aggregate amount equal to the Per Employee Fee times the highest number of employees of the Company and its subsidiaries that receive medical benefits from the Company or any of its subsidiaries during such immediately preceding month. The Per Employee Fee is the current fee generally charged in this regard with respect to Blackstone’s portfolio companies generally.

(ii)    Quarterly Fee . No later than the fifth business day after the end of each fiscal quarter of the Company, the New Gates Parties (or an affiliated designee) will pay to BMP (or an affiliated designee) an amount equal to the Applicable Quarterly Fee in respect of such quarter just ended. The “ Applicable Quarterly Fee ” is the current fee generally charged in this regard with respect to Blackstone’s portfolio companies generally.

(b)    Group Purchasing. Blackstone facilitates a group purchasing program, which harnesses the purchasing power of a large number of Blackstone’s private equity portfolio companies. BMP agrees to make available to the New Gates Parties and their respective subsidiaries the opportunity to participate in Blackstone’s group purchasing program. Any such participation would be on terms mutually agreed by the New Gates Parties and BMP.

 

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(c)    No Other Services. Except as otherwise set forth in this Agreement or in the Monitoring Fee Agreement dated the date hereof among the New Gates Parties and the Managers, neither of the Managers nor any of their affiliates will have any obligation to provide any other services to any of the New Gates Parties or their respective subsidiaries absent an agreement between either Manager or one or more of a Manager’s relevant affiliates and such New Gates Party, as the case may be, with respect to the scope of such other services and the payment to be made for providing such other services. It is further expressly agreed that the Ops Support or any other service provided by the Managers hereunder will not include investment banking or other financial advisory services, in connection with any specific acquisition, divestiture, disposition, merger, consolidation, restructuring, refinancing, recapitalization, issuance of private or public debt or equity securities (including, without limitation, an initial public offering of equity securities), financing or similar transaction by any New Gates Party or any of their respective subsidiaries. If it is subsequently agreed that any such services may be provided, the relevant Blackstone entity may be entitled to receive additional compensation for providing services of the type specified in the preceding sentence by mutual agreement of such New Gates Party or such subsidiary, on the one hand, and the relevant Blackstone entity, on the other hand.

(d)    Opportunity to Provide Future Services. If any New Gates Party or any of their respective subsidiaries determines that it is advisable for such New Gates Party or such subsidiary to hire a financial advisor, consultant, investment banker or any similar advisor in connection with any acquisition, divestiture, disposition, merger, consolidation, restructuring, refinancing, recapitalization, issuance of private or public debt or equity securities (including, without limitation, an initial public offering of equity securities), financing or similar transaction, it will notify the Managers of such determination in writing. Promptly thereafter, upon the request of the Managers, the parties will negotiate in good faith to agree upon appropriate services, compensation, indemnification and other terms upon which such New Gates Party or such subsidiary would hire the relevant Blackstone entity to provide such services. However, such New Gates Party or such subsidiary will not be required to hire Blackstone or any of its affiliates for such services.

SECTION 3. Reimbursements.

(a)    The New Gates Parties, jointly and severally, will pay, or cause to be paid, directly, or reimburse the Managers and their affiliates for, their respective Out-of-Pocket Expenses (as defined below). For the purposes of this Agreement, the term “ Out-of-Pocket Expenses means the reasonable out-of-pocket costs and expenses incurred by the Managers and their affiliates in connection with (i) the Ops Support, (ii) any other services provided or arranged by them under this Agreement or any other agreement with any of the New Gates Parties including after the termination or expiration thereof, (iii) in order to make Securities and Exchange Commission and other filings (such as antitrust or other regulatory filings or notices) required to be made by BCP or any of its affiliates in respect of or otherwise relating to the ownership or voting by BCP or any of its affiliates of equity securities of the Company or any of its successors or acquirers (i.e., relating to securities of any such successor or acquirer that may be acquired by BCP or its affiliates), or (iv) otherwise incurred by the Managers or their affiliates from time to time in the future in connection with the direct or indirect acquisition, ownership, voting or subsequent sale or transfer by BCP or its affiliates of capital stock of the

 

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Company or its successor (or any of their respective subsidiaries), including, in the case of clauses (i) through (iv), without limitation, (A) fees and disbursements of any independent professionals and organizations, including independent accountants, outside legal counsel and other consultants, retained in connection therewith by BCP, the Managers or any of their affiliates, including any such fees and disbursements incurred in connection with claims or proceedings or governmental investigations, (B) costs of any outside services or independent contractors such as financial printers, couriers, business publications, on-line financial services or similar services, retained or used by BCP, the Managers or any of their respective affiliates in connection therewith, and (C) transportation and per diem costs in connection with travel to and from Blackstone’s offices and other locations on Company-related business. All payments or reimbursements for Out-of-Pocket Expenses will be made within 20 days of the request for payment or reimbursement. This reimbursement obligation will continue after the end of the period during which Ops Support is provided under this Agreement.

(b)     Deemed Reimbursement. Blackstone has identified and maintains a roster of “senior advisors”: individuals who are highly experienced in many of the industries in which BCP’s portfolio companies operate. The Managers may from time to time arrange for one or more of such individuals to provide services to the New Gates Parties, either at the director level and/or as an employee or consultant.

SECTION 4. Tax and Other Information and Reporting Responsibilities.

(a)     Tax-Related Information — General. Each of the New Gates Parties, will promptly make available to Blackstone all books, records and files of the Company and any of its subsidiaries (collectively, the “ Portfolio Group ”) with respect to tax matters as may be reasonably requested by Blackstone and shall use reasonable efforts to comply with any requests by Blackstone for any tax-related information (including any applicable state withholdings) of the Portfolio Group.

(b)     Responsibility for Tax Returns. The Company will be responsible for the preparation, signing and filing of all tax returns and the maintenance of all books and records of each member of the Portfolio Group.

(c)     Non-Qualifying Income. Each of the New Gates Parties will use its best efforts to avoid making, and to prevent any other member of the Portfolio Group from making, any investment, executing any contract or otherwise undertaking any activities that would generate income that is characterized as other than “qualifying income” as defined in Section 7704(d) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”) that is allocable to BCP. Each of the New Gates Parties will promptly notify the Managers in writing prior to making any investment, executing any contract or otherwise undertaking any activities that could reasonably be expected to result in more than 5.0% of the Portfolio Group’s gross income for any calendar month of investment or undertaking or for any taxable year being characterized as other than “qualifying income” as defined in Section 7704(d) of the Code and allocable to BCP. In the event that the applicable New Gates Party is unable to make such determination, such New Gates Party will consult with BCP to make such determination prior to the making of such investment, the execution of such contract or the undertaking of such activity.

 

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(d)     UBTI/ECI/CAI. Each member of the Portfolio Group shall conduct its activities so that no shareholder of the Company is allocated any income that (i) is treated as “unrelated business taxable income” within the meaning of Section 512 or 514 of the Code, (ii) is treated as “effectively connected with a United States trade or business” within the meaning of Section 864 or 897 of the Code, or (iii) is derived from the conduct of a “commercial activity” within the meaning of Section 892 of the Code.

(e)    CFC and PFIC Status and Information. Each member of the Portfolio Group shall provide to BCP such information as BCP may reasonably request at any time or from time to time in order to permit BCP (i) to determine whether any member of the Portfolio Group has been or may become a “passive foreign investment company” (a “ PFIC ”) or a “controlled foreign corporation” (or a corporation having a similar status) for purposes of the Code, (ii) to determine the consequences to BCP or any of its direct or indirect investors of such status, and (iii) if any member of the Portfolio Group is determined to be a PFIC, the Company shall provide to BCP such information reasonably necessary to make or maintain any election available under the Code related to PFIC status, including a “qualified electing fund” (“ QEF ”) election. Information necessary to permit BCP (or its direct or indirect investors) to make a QEF election with respect to any member of the Portfolio Group shall be provided to BCP as soon as reasonably practicable after the end of each fiscal year and in no event later than within 60 days after the end of the fiscal year of the relevant member of the Portfolio Group for which it is determined that such an election may be made.

(f)    Sharing of Information. Individuals associated with Blackstone may from time to time serve on the boards of directors the Company Parties and their respective subsidiaries. The New Gates Parties, on their own behalf and on behalf of their respective subsidiaries, recognize that such individuals (i) will from time to time receive non-public information concerning the New Gates Parties and their respective subsidiaries, and (ii) may share such information with other individuals associated with Blackstone. Such sharing will be for the dual purpose of facilitating support to such individuals in their capacity as directors and enabling BCP, as equityholder, to better evaluate the Company’s performance and prospects. The New Gates Parties, on behalf of themselves and their respective subsidiaries, hereby irrevocably consent to such sharing.

SECTION 5. Indemnification.

(a)    General. The New Gates Parties, on a joint and several basis, shall indemnify and hold harmless the Managers, their affiliates and their respective partners (both general and limited), members (both managing and otherwise), officers, directors, employees, agents and representatives (each such person being an “ Indemnified Party ”) from and against any and all actions, suits, proceedings, investigations, losses, demands, claims, damages, liabilities, costs, charges and expenses (including, without limitation, attorneys’ fees and expenses and any other litigation-related expenses), including in connection with seeking indemnification, whether joint or several (the “ Liabilities ”), related to, arising out of or in connection with (i) the Ops Support or any other services contemplated by this Agreement or any other agreement with any of the New Gates Parties or the engagement of the Managers pursuant to, and the performance of the Ops Support or any other services contemplated by, this Agreement or any other agreement with any of the New Gates Parties, or (ii) the ownership or

 

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voting of securities of the Company or any of its affiliates, in each case, whether or not pending or threatened, whether or not an Indemnified Party is a party, whether or not resulting in any liability and whether or not such action, claim, demand, suit, investigation or proceeding is initiated, brought or threatened by any of the New Gates Parties or any other party. The New Gates Parties on a joint and several basis shall reimburse any Indemnified Party for all costs and expenses (including attorneys’ fees and expenses and any other litigation-related expenses) as they are incurred in connection with investigating, preparing, pursuing, defending or assisting in the defense of any such pending or threatened action, claim, demand, suit, investigation or proceeding for which the Indemnified Party would be entitled to indemnification under the terms of the previous sentence, or any such matter related to or arising therefrom, whether or not such Indemnified Party is a party thereto. The New Gates Parties each agrees that it shall not, without the prior written consent of the Indemnified Party, settle, compromise or consent to the entry of any judgment in any pending or threatened action, claim, demand, suit, investigation or proceeding contemplated by this Section 5 (if any Indemnified Party is a party thereto or has been threatened to be made a party thereto) unless such settlement, compromise or consent includes an unconditional release of the Indemnified Party from all liability, known or unknown, without future obligation or prohibition on the part of the Indemnified Party, related to, arising out of or in connection with such action, claim, suit, investigation or proceeding, and does not contain an admission of guilt or liability on the part of the Indemnified Party. The New Gates Parties will not be liable under the foregoing indemnification provision with respect to any particular loss, claim, demand, damage, liability, cost or expense of an Indemnified Party that is determined by a court, in a final judgment from which no further appeal may be taken, to have resulted solely from the gross negligence or willful misconduct of such Indemnified Party. The attorneys’ fees and other expenses of an Indemnified Party shall be paid by one of the New Gates Parties as they are incurred upon receipt, in each case, of an undertaking by or on behalf of the Indemnified Party to repay such amounts if it is judicially determined by a final, non-appealable judgment of a court of competent jurisdiction that the Liabilities in question resulted solely from the gross negligence or willful misconduct of such Indemnified Party.

(b)    Primary, Non-Exclusive Rights. The rights of an Indemnified Party to indemnification hereunder will be in addition to any other rights and remedies any such person may have under any other agreement or instrument to which the Indemnified Party is or becomes a party or is or otherwise becomes a beneficiary or under any law or regulation. In that regard, each of the New Gates Parties acknowledges and agrees that the New Gates Parties, on a joint and several basis, will be fully and primarily responsible for the payment to an Indemnified Party in respect of indemnification or advancement of expenses in connection with any jointly indemnifiable claim (as defined below), pursuant to and in accordance with the terms of this Agreement, irrespective of any right of recovery the Indemnified Party may have from the Indemnitee-related entities (as defined below). Under no circumstance shall the New Gates Parties be entitled to any right of subrogation or contribution by the Indemnitee-related entities and no right of advancement or recovery the Indemnified Party may have from the Indemnitee-related entities shall reduce or otherwise alter the rights of the Indemnified Party or the obligations of the New Gates Parties hereunder. In the event that any of the Indemnitee-related entities shall make any payment to the Indemnified Party in respect of indemnification or advancement of expenses with respect to any jointly indemnifiable claim, the Indemnitee-related entity making such payment shall be subrogated to the extent of such payment to all of the rights of recovery of the Indemnified Party against the New Gates Parties, and the

 

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Indemnified Party shall execute all papers reasonably required and shall do all things that may be reasonably necessary to secure such rights, including the execution of such documents as may be necessary to enable the Indemnitee-related entities effectively to bring suit to enforce such rights. Each of the New Gates Parties and each Indemnified Party agree that each of the Indemnitee-related entities shall be third-party beneficiaries with respect to this Section, entitled to enforce this Section as though each such Indemnitee-related entity were a party to this Agreement.

(c)     Definitions. For purposes of this Section 5(c), the following terms shall have the following meanings:

(i)    The term “ jointly indemnifiable claims ” shall be broadly construed and shall include, without limitation, any action, suit or proceeding for which an Indemnified Party shall be entitled to indemnification or advancement of expenses from both the Indemnitee-related entities and the Company Parties pursuant to the Delaware General Corporation Law, any agreement or the certificate of incorporation, articles of association, bylaws, partnership agreement, operating agreement, certificate of formation, certificate of limited partnership or comparable organizational documents of the New Gates Parties or the Indemnitee-related entities, as applicable.

(ii)    The term “ Indemnitee-related entities ” means any corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise (other than the New Gates Parties or any other corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise an Indemnified Party has agreed, on behalf of the New Gates Parties or at any of the New Gates Parties’ request, to serve as a director, officer, employee or agent and which service is covered by the indemnity described in this Agreement) from whom an Indemnified Party may be entitled to indemnification or advancement of expenses with respect to which, in whole or in part, the New Gates Parties may also have an indemnification or advancement obligation (other than as a result of obligations under an insurance policy).

SECTION 6. Disclaimer, Opportunities, Release and Limitation of Liability.

(a)    Disclaimer; Standard of Care. Neither of the Managers makes any representations or warranties, express or implied, in respect of the Ops Support or any other service to be provided hereunder or under any other agreement with any of the New Gates Parties. In no event will either Manager or any Indemnified Party be liable to any New Gates Party or any of their affiliates for any act, alleged act, omission or alleged omission that does not constitute gross negligence or willful misconduct of such Manager as determined by a final, non-appealable determination of a court of competent jurisdiction.

(b)    Release. Each of the New Gates Parties hereby irrevocably and unconditionally releases and forever discharges Blackstone, the Managers, BCP and their respective affiliates and their respective partners (both general and limited), members (both managing and otherwise), officers, directors, employees, agents and representatives from any and all liabilities, claims, causes of action, demands, actions, suits or proceedings related to,

 

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arising out of or in connection with the Ops Support or any other services contemplated by this Agreement or any other agreement with any of the New Gates Parties or the engagement of the Managers pursuant to, and the performance of the Ops Support or any other services contemplated by, this Agreement or any other agreement with any of the New Gates Parties that any of the New Gates Parties may have, or may claim to have, on or after the date hereof, except with respect to any act or omission that constitutes gross negligence or willful misconduct as determined by a final, non-appealable determination of a court of competent jurisdiction.

(c)    Limitation of Liability. In no event will the Managers or any Indemnified Party be liable to any of the New Gates Parties or any of their affiliates (i) for any indirect, special, incidental or consequential damages, including, without limitation, lost profits or savings, whether or not such damages are foreseeable, or for any third-party claims (whether based in contract, tort or otherwise), related to, arising out of or in connection with the Ops Support or any other services contemplated by this Agreement or any other agreement with any of the New Gates Parties or the engagement of the Managers pursuant to, and the performance of the Ops Support or any other services contemplated by, this Agreement or any other agreement with any of the New Gates Parties that any of the New Gates Parties may have with any Blackstone entity, or may claim to have, on or after the date hereof, except with respect to any act or omission that constitutes gross negligence or willful misconduct as determined by a final, non-appealable determination of a court of competent jurisdiction or (ii) for an amount in excess of the fees actually received by the Managers or the relevant Blackstone entity hereunder or under any other applicable agreement.

SECTION 7. Miscellaneous.

(a)    Amendments. No amendment or waiver of any provision of this Agreement, or consent to any departure by any party hereto from any such provision, will be effective unless it is in writing and signed by each of the parties hereto. Any amendment, waiver or consent will be effective only in the specific instance and for the specific purpose for which given. The waiver by any party of any breach of this Agreement will not operate as or be construed to be a waiver by such party of any subsequent breach.

(b)    Notices. Any notices or other communications required or permitted hereunder shall be made in writing and will be sufficiently given if delivered personally or sent by email with confirmed receipt, or by overnight courier, addressed as follows or to such other address of which the parties may have given written notice:

if to the Managers or BCP:

c/o The Blackstone Group L.P.

345 Park Avenue

New York, New York 10154

Attention: Julia Kahr / Timur Akazhanov

email: kahr@blackstone.com / timur.akazhanov@blackstone.com

 

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if to the Company:

c/o Gates Industrial Corporation plc

1551 Wewatta Street

Denver, CO 80202

Attention: Jamey Seely

Email: jamey.seely@gates.com

Unless otherwise specified herein, such notices or other communications will be deemed received (i) on the date delivered, if delivered personally or sent by email, and (ii) one business day after being sent by facsimile or overnight courier.

(c)    Entire Agreement. This Agreement constitutes the entire agreement among the parties with respect to the subject matter hereof, and supersedes all previous oral and written (and all contemporaneous oral) negotiations, commitments, agreements and understandings relating hereto.

(d)    Governing Law. THIS AGREEMENT AND ITS ENFORCEMENT AND ANY CONTROVERSY ARISING OUT OF OR RELATING TO THE MAKING OR PERFORMANCE OF THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO NEW YORK’S PRINCIPLES OF CONFLICTS OF LAW.

(e)    Consent to Jurisdiction; Waiver of Jury Trial. Each party hereto hereby (i) agrees than any action, directly or indirectly, arising out of, under or relating to this Agreement shall exclusively be brought in and shall exclusively be heard and determined by either the Supreme Court of the State of New Y