SEAGATE TECHNOLOGY PLC
PARENT COMPANY STATEMENT OF FINANCIAL POSITION
as at 1 July 2016
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(US Dollars in millions)
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Note
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1 July 2016
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3 July 2015
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ASSETS
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Fixed assets:
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|
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|
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Financial assetsinvestment in subsidiary
|
|
|
3
|
|
$
|
6,792
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|
$
|
6,677
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|
Current assets:
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Debtors
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1
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Cash
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1
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|
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1
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|
|
|
|
|
|
|
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|
|
|
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Total Assets
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$
|
6,794
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$
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6,678
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LIABILITIES
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Capital and reserves:
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Share capital
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5
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|
$
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|
|
$
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|
|
Share premium
|
|
|
|
|
|
1,659
|
|
|
1,580
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|
Other reserves
|
|
|
|
|
|
593
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|
|
477
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|
Profit and loss account
|
|
|
|
|
|
2,178
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|
|
2,358
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|
|
|
|
|
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|
|
|
|
|
|
|
|
|
|
|
|
4,430
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|
|
4,415
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CreditorsAmounts falling due within one year:
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Amounts due to subsidiaries
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|
|
4
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|
|
2,364
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|
|
2,261
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Creditors
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|
|
|
|
|
|
|
2
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,364
|
|
|
2,263
|
|
|
|
|
|
|
|
|
|
|
|
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Total Liabilities
|
|
|
|
|
$
|
6,794
|
|
$
|
6,678
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|
|
|
|
|
|
|
|
|
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|
|
|
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Approved
by the Board of Directors and signed on its behalf on 19 August 2016
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/s/ STEPHEN J. LUCZO
Stephen J. Luczo
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/s/ KRISTEN M. ONKEN
Kristen M. Onken
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A-109
Table of Contents
SEAGATE TECHNOLOGY PLC
PARENT COMPANY STATEMENT OF CHANGES IN EQUITY
as at 1 July 2016
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|
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(US Dollars in millions)
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Share Capital
|
|
Share
Premium
|
|
Other
Reserves
|
|
Profit and
Loss
Account
|
|
Total
|
|
Balance at 27 June 2014
|
|
$
|
|
|
$
|
1,482
|
|
$
|
296
|
|
$
|
3,117
|
|
$
|
4,895
|
|
Profit for the period
|
|
|
|
|
|
|
|
|
|
|
|
992
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|
|
992
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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Total comprehensive income
|
|
|
|
|
|
1,482
|
|
|
296
|
|
|
4,109
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|
|
5,887
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|
|
|
|
|
|
|
|
|
|
|
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|
|
|
|
|
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Transactions with owners recorded directly in equity:
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|
|
|
|
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|
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|
|
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Repurchase and cancellation of ordinary shares
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|
|
|
|
|
|
|
|
|
|
|
(1,087
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)
|
|
(1,087
|
)
|
Issuance of shares in respect of share-based payment plans
|
|
|
|
|
|
98
|
|
|
|
|
|
|
|
|
98
|
|
Dividends to shareholders
|
|
|
|
|
|
|
|
|
|
|
|
(664
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)
|
|
(664
|
)
|
Share-based compensation
|
|
|
|
|
|
|
|
|
181
|
|
|
|
|
|
181
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total transactions with owners
|
|
|
|
|
|
98
|
|
|
181
|
|
|
(1,751
|
)
|
|
(1,472
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at 3 July 2015
|
|
$
|
|
|
$
|
1,580
|
|
$
|
477
|
|
$
|
2,358
|
|
$
|
4,415
|
|
Profit for the period
|
|
|
|
|
|
|
|
|
|
|
|
1,693
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|
|
1,693
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total comprehensive income
|
|
|
|
|
|
1,580
|
|
|
477
|
|
|
4,051
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|
|
6,108
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Transactions with owners recorded directly in equity:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Repurchase and cancellation of ordinary shares
|
|
|
|
|
|
|
|
|
|
|
|
(1,090
|
)
|
|
(1,090
|
)
|
Tax withholding related to vesting of restricted stock units
|
|
|
|
|
|
|
|
|
|
|
|
(56
|
)
|
|
(56
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)
|
Issuance of shares in respect of share-based payment plans
|
|
|
|
|
|
79
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|
|
|
|
|
|
|
|
79
|
|
Dividends to shareholders
|
|
|
|
|
|
|
|
|
|
|
|
(727
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)
|
|
(727
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)
|
Share-based compensation
|
|
|
|
|
|
|
|
|
116
|
|
|
|
|
|
116
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total transactions with owners
|
|
|
|
|
|
79
|
|
|
116
|
|
|
(1,873
|
)
|
|
(1,678
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at 1 July 2016
|
|
$
|
|
|
$
|
1,659
|
|
$
|
593
|
|
$
|
2,178
|
|
$
|
4,430
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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|
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A-110
Table of Contents
SEAGATE TECHNOLOGY PLC
NOTES TO THE FINANCIAL STATEMENT
1. Accounting Policies
Accounting Convention and Basis of Preparation of Financial Statements.
The financial statements of Seagate Technology plc present
the
statement of comprehensive income, statement of financial position and statement of changes in equity on a stand-alone basis, including related party transactions. The financial statements have been
prepared under the historical cost convention except for share based payments which are stated at their fair value and in accordance with Irish law and Financial Reporting Standard 102 ("FRS 102", The
Financial Reporting Standard applicable in the UK and Republic of Ireland) issued by the Financial Reporting Council and promulgated by the Institute of Chartered Accountants in Ireland (Generally
Accepted Accounting Practice in Ireland).
The
company transitioned from previously extant Irish GAAP to FRS 102 as at June 2014. No measurement differences were identified at the date of transition 27 June 2014 or at
3 July 2015. An explanation on how the transition to FRS 102 has affected the reported financial position and financial performance is given in Note 9. The financial statements are
presented in United States dollars, which is the Company's functional and presentational currency and are rounded to the nearest million.
Reduced Disclosure Framework Exemptions Adopted.
On transition to FRS102, the Company has taken advantage of the following disclosure
exemptions as
equivalent disclosures are available in the publicly filed financial statements of the Group, Seagate Technology plc, which consolidates the results of the Company: 1) The requirements
of Section 7 Statement of Cash Flows paragraph 3.17 (d); 2) requirements of Section 33 Related Party Disclosures paragraph 33.7 and 3) Section 26 Share
based payment paragraph 26.18 (b), 26.19 to 26.21 and 26.23. The shareholders of the Company have been notified in writing about, and do not object to, the use of the disclosure exemptions.
In
accordance with Sections 304 (1) and 304 (2) of the Companies Act, 2014, the Company is availing of the exemption from presenting the individual profit and loss
account. For fiscal years 2016 and 2015, the Company's net profit was $1,693 million and $992 million, respectively.
Investment in Subsidiary.
The Company's investment in Seagate Technology ("Seagate-Cayman"), a wholly owned subsidiary, was recorded at
cost which
equaled fair value on 3 July 2010, the date that the Company became the parent of Seagate-Cayman, based on the Company's market capitalization at that time. This initial valuation is the
Company's cost basis for its investment in Seagate-Cayman. The investment is tested for impairment if circumstances or indicators suggest that impairment may exist. On transition to FRS 102 from
previous Irish GAAP, the Company has taken advantage of transitional relief by electing to treat the carrying amount of investment in subsidiary under previous Irish GAAP at the date of transition as
deemed cost on transition to FRS 102.
Amounts due to subsidiaries.
Intercompany notes payable which are basic financial instruments are initially recorded at the present
value of future
payments discounted at a market rate of interest for a similar loan. Subsequently, they are measured at amortized cost using the effective interest method.
Guarantees and Contingencies.
The Company has guaranteed certain liabilities and credit arrangements of group entities. The Company
reviews the
status of these guarantees at each reporting date and considers whether it is required to make a provision for payment on those guarantees based on the probability of the commitment being called.
The
Company concluded that as the likelihood of the guarantees being called upon is remote, no provisions for any guarantees have been booked to these financial statements.
A-111
Table of Contents
SEAGATE TECHNOLOGY PLC
NOTES TO THE FINANCIAL STATEMENT (Continued)
Dividend Income.
Dividend income is recognized when the right to receive payment is established, the amount of which can be reliably
measured and it
is probable that collectability is reasonably assured.
Share-based Payments.
The Seagate Technology group operates several share-based payment plans. The share-based payment expense
associated with the
share plans is recognized as an expense by the entity which receives services in exchange for the share-based compensation. On an individual undertaking basis, the profit and loss account is charged
with the expense related to the services received by Seagate Technology plc. The remaining portion of the share-based payments represents a contribution to group entities and is added to the
carrying amount of those investments.
Taxation.
Corporation tax is provided on taxable profits at the current rates.
Deferred
taxation is accounted for in respect of all timing differences at expected tax rates. Timing differences arise from the inclusion of items of income and expenditure in tax
computations in periods different from those in which they are included in the financial statements. A deferred tax asset is recognized only to the extent that it is probable that they will be
recovered against the reversal of deferred tax liabilities or other future taxable profits.
Foreign Currency.
Transactions denominated in foreign currencies are recorded in the Company's functional currency by applying the spot
rate as at
the date of the transaction. Monetary assets and liabilities denominated in foreign currencies at the balance sheet date are retranslated at the rate of exchange ruling at the statement of financial
position date. All differences are taken to the Statement of Comprehensive Income.
2. History and Description of the Company
Seagate Technology plc became the parent company in the Seagate group following a reorganization that took place in 2010.
The
principal activity of Seagate Technology plc is an investment holding company. Seagate Technology plc is the parent company of subsidiaries that design, manufacture,
market and sell data storage products.
The
Company, which is publicly listed, was incorporated in Ireland and its registered address is 38/39 Fitzwilliam Square, Dublin 2, Ireland.
3. Financial AssetsInvestment in Subsidiary
|
|
|
|
|
(US Dollars in millions)
|
|
|
|
At 27 June 2014
|
|
$
|
6,499
|
|
Capital contribution in respect of share-based payment plans
|
|
|
178
|
|
|
|
|
|
|
At 3 July 2015
|
|
$
|
6,677
|
|
Capital contribution in respect of share-based payment plans
|
|
|
115
|
|
At 1 July 2016
|
|
$
|
6,792
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
At
1 July 2016, the Company had the following subsidiary:
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|
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|
|
Company name
|
|
Registered office
|
|
Nature of business
|
|
Seagate Technology
|
|
|
Cayman Islands
|
|
|
Investment holding
|
|
The
above subsidiary holding represents 100% of the common shares of the subsidiary, which is unlisted.
A-112
Table of Contents
SEAGATE TECHNOLOGY PLC
NOTES TO THE FINANCIAL STATEMENT (Continued)
4. Amounts Due to Subsidiaries
The balance is primarily comprised of notes due to Seagate-Cayman with no stated interest rate and that are payable on demand. During fiscal year 2016, the
Company borrowed $1.8 billion and repaid $1.7 billion by way of applying dividends declared by Seagate-Cayman. The remaining balance outstanding as of 1 July 2016 of
$2.4 billion is unsecured, interest free and due on demand. During fiscal year 2015, the Company borrowed $1.6 billion and repaid $1.0 billion by way of applying dividends
declared by Seagate-Cayman. The remaining balance outstanding as of 3 July 2015 of $2.3 billion was unsecured, interest free and due on demand.
5. Equity
Share Capital
|
|
|
|
|
|
|
|
|
|
1 July 2016
|
|
3 July 2015
|
|
|
|
(US Dollars in millions)
|
|
Authorized:
|
|
|
|
|
|
|
|
40,000 deferred shares of €1 par value per share
|
|
$
|
|
|
$
|
|
|
1,250,000,000 ordinary shares of $.00001 par value per share
|
|
|
|
|
|
|
|
100,000,000 undesignated preferred shares of $.00001 par value per share
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
|
|
$
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1 July 2016
|
|
3 July 2015
|
|
|
|
(US Dollars in millions)
|
|
Allotted, Called Up, and Fully Paid:
|
|
|
|
|
|
|
|
40,000 deferred shares of €1 par value per share
|
|
$
|
|
|
$
|
|
|
298,572,217 (2015: 315,445,536) ordinary shares of $.00001 par value per share
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
|
|
$
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of
Ordinary Shares
|
|
Share Capital
|
|
|
|
(In millions)
|
|
(US Dollars in millions)
|
|
Balance at 27 June 2014
|
|
|
327
|
|
$
|
|
|
Repurchase and cancellation of ordinary shares
|
|
|
(19
|
)
|
|
|
|
Issuance of shares in respect of share-based payment plans
|
|
|
7
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at 3 July 2015
|
|
|
315
|
|
$
|
|
|
Repurchase and cancellation of ordinary shares
|
|
|
(23
|
)
|
|
|
|
Tax withholding related to vesting of restricted stock units
|
|
|
(1
|
)
|
|
|
|
Issuance of shares in respect of share-based payment plans
|
|
|
8
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at 1 July 2016
|
|
|
299
|
|
$
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
A-113
Table of Contents
SEAGATE TECHNOLOGY PLC
NOTES TO THE FINANCIAL STATEMENT (Continued)
Share Premium
This reserve records the amount above the nominal value received for shares sold, less transaction costs.
Other Reserves
Other reserves include an amount of $2,960 and $2,720 for fiscal years 2016 and 2015, respectively, representing a Capital Redemption
Reserve Fund.
Dividends
During fiscal year 2016, the Company paid cash dividends of $2.43 per share of its ordinary shares, aggregating $727 million .
On 2 August 2016, the Board of Directors approved a quarterly cash dividend of $0.63 per share of its ordinary shares, which will be payable on 5 October 2016 to shareholders of record
as of the close of business on 21 September 2016. During fiscal year 2015, the Company declared and paid cash dividends of $2.05 per share of its ordinary shares, aggregating
$664 million.
6. Share-Based Payments
Total share-based payment expense in respect of share-based payment plans was $116 million and $181 million for fiscal years 2016 and 2015, of which
$115 million and $178 million, respectively, was included as a capital contribution in Investment in subsidiary (Note 6). The share-based payment charge in the parent company
balance sheet is calculated and recognized on a graded basis as opposed to a straight line basis in the Consolidated Profit and Loss Account. The Company has applied the requirements of
Section 26 of FRS 102. Note 11 of the Consolidated Financial Statements contains relevant disclosures on the Company's share-based payment plans.
7. Auditor's Remuneration
The fees paid to Ernst & Young Ireland in respect of the audit of the Company individual accounts was $0.03 million and $0.04 million for
periods ended 1 July 2016 and 3 July 2015, respectively. In addition, Ernst & Young Ireland received fees of $0.17 million and $0.13 million for other assurance
services in those periods, respectively. Ernst & Young Ireland did not receive any fees for tax or other non-audit services in 2016 or 2015. Note 19 to the Consolidated Financial
Statements provides additional information regarding auditor's remuneration.
8. Subsequent Events
On 2 August 2016, our Board of Directors approved a quarterly cash dividend of $0.63 per share, which will be payable on
5 October 2016 to shareholders of record as of the close of business on 21 September 2016.
On 11 July 2016, the Company committed to an additional restructuring plan (the "July 2016 Plan") for continued consolidation of
its global footprint across Asia, EMEA and the Americas. The July 2016 Plan included reducing worldwide headcount by approximately 6,500 employees. The July 2016 Plan, which the Company expects to be
largely completed by the end of fiscal year 2017, is
A-114
Table of Contents
SEAGATE TECHNOLOGY PLC
NOTES TO THE FINANCIAL STATEMENT (Continued)
expected
to result in total pretax charges of approximately $164 million in fiscal year 2017. These charges are expected to consist of cash expenditures of approximately $82 million of
employee termination costs and $51 million of other exit costs, as well as other non-cash charges of approximately $31 million.
9. Transition to FRS 102
The Company's financial statements have been prepared in compliance with FRS 102 (The Financial Reporting Standard applicable in the UK and Republic of Ireland).
The Company transitioned from previously extant Irish GAAP to FRS 102 as at June 2014. No measurement differences were identified at the date of transition (28 June 2014).
10. Approval of Financial Statements
The directors approved the financial statements and authorized them for issue on 19 August 2016
A-115
Table of Contents
Appendix B
PROPOSED AMENDMENTS TO AMENDED AND RESTATED
SEAGATE TECHNOLOGY PUBLIC LIMITED COMPANY
2012 EQUITY INCENTIVE PLAN
Table of Contents
TABLE OF CONTENTS
B-i
Table of Contents
B-ii
Table of Contents
B-iii
Table of Contents
I. PURPOSES.
The
Company, by means of this Plan, seeks to provide incentives for the group of persons eligible to receive Share Awards to align their long-term interests
with those of the Company's shareholders and to perform in a manner individually and collectively that enhances the success of the Company. The Plan is further intended to provide a means by which
eligible recipients of Share Awards may be given an opportunity to benefit from increases in value of the Ordinary Shares through the granting of Share Awards including, but not limited to:
(i) Incentive Stock Options, (ii) Nonstatutory Share Options, (iii) Restricted Share Bonuses, (iv) Share Appreciation Rights, (v) Phantom Share Units,
(vi) Restricted Share Units, (vii) Performance Share Bonuses, (viii) Performance Share Units, (ix) Deferred Share Units, and (x) Other Share-Based Awards.
II. DEFINITIONS.
2.1 "
Affiliate
" means generally with respect to the Company, any entity directly, or indirectly through one or more
intermediaries, controlling or controlled by (but not under common control with) the Company. Solely with respect to the granting of any Incentive Stock Options, Affiliate means any parent corporation
or subsidiary corporation of the Company, whether now or hereafter existing, as those terms are defined in Sections 424(e) and (f), respectively, of the Code. Solely with respect to the
granting of any Nonstatutory Share Options or Share Appreciation Rights, Affiliate means any parent corporation or subsidiary corporation of the Company, whether now or hereafter existing, as defined
in Treasury Regulation §1.409A-1(b)(5)(iii)(E).
2.2 "
Beneficial Owner
" means the definition given in Rule 13d-3 promulgated under the Exchange Act.
2.3 "
Board
" means the Board of Directors of the Company.
2.4 "
Change of Control
" means the consummation or effectiveness of any of the following events:
(i) The
sale, exchange, lease or other disposition of all or substantially all of the assets of the Company to a person or group of related persons, as such terms are
defined or described in Sections 3(a)(9) and 13(d)(3) of the Exchange Act;
(ii) A
merger, reorganization, recapitalization, consolidation or other similar transaction involving the Company in which the voting securities of the Company owned by the
shareholders of the Company
immediately prior to such transaction do not represent more than fifty percent (50%) of the total voting power of the surviving controlling entity outstanding immediately after such transaction;
(iii) Any
person or group of related persons, as such terms are defined or described in Sections 3(a)(9) and 13(d)(3) of the Exchange Act, is or becomes the
Beneficial Owner, directly or indirectly, of more than 50% of the total voting power of the voting securities of the Company (including by way of merger, takeover (including an acquisition by means of
a scheme of arrangement), consolidation or otherwise);
(iv) During
any period of two (2) consecutive years, individuals who at the beginning of such period constituted the Board (together with any new Directors whose
election by such Board or whose nomination for election by the shareholders of the Company was approved by a vote of a majority of the Directors of the Company then still in office, who were either
Directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the Board then in office; or
(v) A
dissolution or liquidation of the Company.
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In
addition, if a Change of Control constitutes a payment event with respect to any Share Award which provides for the deferral of compensation and is subject to Section 409A of
the Code,
in order to make payment upon such Change of Control,
the transaction or event described above with respect to such Share Award must also constitute a "change in
the ownership or effective control of the Company or a "change in the ownership of a substantial portion of the assets" of the Company," as defined in Treasury Regulation
§1.409A-3(i)(5
).
), and if it does not, payment of such Share Award will be made on the Share Award's original payment schedule or, if
earlier, upon the death of the Participant.
Notwithstanding
the foregoing, a restructuring of the Company for the purpose of changing the domicile of the Company (including, but not limited to, any change in the structure of the
Company resulting from the process of moving its domicile between jurisdictions), reincorporation of the Company or other similar transaction involving the Company (a
"
Restructuring Transaction
") will not constitute a Change of Control if, immediately after the Restructuring Transaction, the shareholders of the
Company immediately prior to such Restructuring Transaction represent, directly or indirectly, more than fifty percent (50%) of the total voting power of the surviving entity.
2.5 "
Code
" means the U.S. Internal Revenue Code of 1986, as amended.
2.6 "
Committee
" means a committee of one or more Directors (or other individuals who are not members of the Board to the
extent allowed by applicable law) appointed by the Board in accordance with Section 3.3 of the Plan.
2.7 "
Company
" means Seagate Technology Public Limited Company, a public company incorporated under the laws of the Republic
of Ireland with limited liability under registered number 480010, or any successor thereto.
2.8 "
Consultant
" means any person, including an advisor engaged by the Company or an Affiliate, to render consulting or
advisory services and who is compensated for such services.
2.9 "
Continuous Service
" means that the Participant's active service with the Company or an Affiliate, whether as an
Employee, Director or Consultant, is not interrupted or terminated. The Participant's Continuous Service shall not be deemed to have terminated merely because of a change in the capacity in which the
Participant renders service to the Company or an Affiliate as an Employee, Consultant or Director or a change in the entity for which the Participant renders such service,
provided
, that there is no
interruption or termination of the Participant's Continuous Service. For example, a change in status from an Employee of the
Company to a Consultant of an Affiliate or a Director will not constitute an interruption of Continuous Service.
The
Unless otherwise determined by
the
Board or the chief executive officer of the Company
,
(or their delegate),
in such party's sole discretion,
may determine whether
Continuous Service shall
not
be considered interrupted in the case of
any
a
leave of absence approved by the Company or an Affiliate, including sick leave, military leave or any other personal
leave
. For purposes of Incentive Stock Options, no such leave may exceed ninety (90) days, unless reemployment upon expiration of such leave is guaranteed by statute or contract.
If reemployment upon expiration of a leave of absence approved by the Company or an Affiliate is not guaranteed, then three (3) months following the 91
st
day of such leave
any Incentive Stock Option held by the Participant shall cease to be treated as an Incentive Stock Option and shall be treated for tax purposes as a Nonstatutory Share Option
.
2.10 "
Covered Employee
" means the chief executive officer and the three (3) other highest compensated officers of the
Company (other than the chief executive officer and the chief financial officer) for whom total compensation is required to be reported to shareholders under the Exchange Act, as determined for
purposes of Section 162(m), and as such definition may be amended from time to time.
2.11 "
Director
" means a member of the Board.
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2.12 "
Deferred Share Unit
" means any Share Award for which a valid deferral election is made.
2.13 "
Disability
" means the permanent and total disability of a person within the meaning of Section 22(e)(3) of the
Code for all Incentive Stock Options
.
, or to the extent a Share Award provides for the deferral of compensation and is subject to
Section 409A of the Code, a "disability" as defined in Treasury Regulation §1.409A-3(i)(4).
For all other Share Awards, "Disability" means physical or mental
incapacitation such that for a period of six (6) consecutive months or for an aggregate of nine (9) months in any twenty-four (24) consecutive month period, a person is unable to
substantially perform his or her duties. Any question as to the existence of that person's physical or mental incapacitation shall be determined by the Board in its sole discretion.
2.14 "
Dividend Equivalent
" means a right granted to a Participant pursuant to Sections 7.3(iii), 7.4(iv) and 7.6(iv)
of the Plan to receive the equivalent value (in cash or in Shares) of dividends paid on the Ordinary Shares.
2.15 "
Eligible Individual
" means any person who is an Employee, Director or Consultant, as determined by the Board.
2.16 "
Employee
" means any person on the payroll records of the Company or an Affiliate and actively providing services as an
employee. Service as a Director or compensation by the Company or an Affiliate solely for services as a Director shall not be sufficient to constitute "employment" by the Company or an Affiliate.
2.17 "
Exchange Act
" means the U.S. Securities Exchange Act of 1934, as amended.
2.18 "
Fair Market Value
" means, as of any date, the value of an Ordinary Share determined as follows:
(i) Unless
otherwise determined by the Board in accordance with Section 409A of the Code, if the Ordinary Shares are listed on any established stock exchange
(including the New York Stock Exchange) or traded on the NASDAQ Global Select Market, the Fair Market Value of a Share shall be the closing per-share sales price of such Shares as reported on such
date on the Composite Tape of the principal national securities exchange on which such Shares are listed or admitted to trading or, if no Composite Tape exists for such national securities exchange on
such date, then on the principal national securities exchange on which such Shares are listed or admitted to trading; or if the Shares are not listed or admitted to trading on a national securities
exchange, then the Fair Market Value of a Share shall be determined in good faith by the Board, and to the extent appropriate, based on the
reasonable
application of a
reasonable valuation method.
(ii) For
any reference to Fair Market Value in the Plan used to establish the price at which the Company shall issue Ordinary Shares to a Participant under the terms and
conditions of a Share Award (such as a Share Award of Options or Share Appreciation Rights), the date as of which this definition shall be applied shall be the grant date of such Share Award.
2.19 "
Full-Value Share Award
" shall mean any of a Restricted Share Bonus, Restricted Share Units, Phantom Share Units,
Performance Share Bonus, or Performance Share Units.
2.20 "
Incentive Stock Option
" means an Option intended to qualify as an incentive stock option within the meaning of
Section 422 of the Code and the regulations promulgated thereunder.
2.21 "
Nominal Value
" means US$0.00001 per Share.
2.22 "
Non-Employee Director
" means a Director who either (i) is not a current Employee or Officer of the Company or
its parent or a subsidiary, does not receive compensation (directly or indirectly) from the Company or its parent or a subsidiary for services rendered as a consultant or in any capacity other than as
a Director (except for an amount as to which disclosure would not be
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required
under Item 404(a) of Regulation S-K promulgated pursuant to the Securities Act ("
Regulation S-K
")), does not possess an
interest in any other transaction as to which disclosure would be required under Item 404(a) of Regulation S-K and is not engaged in a business relationship as to which disclosure would
be required under Item 404(b) of Regulation S-K; or (ii) is otherwise considered a "non-employee director" for purposes of Rule 16b-3.
2.23 "
Nonstatutory Share Option
" means an Option not intended to qualify as an Incentive Stock Option.
2.24 "
Officer
" means a person who is an officer of the Company within the meaning of Section 16 of the Exchange Act
and the rules and regulations promulgated thereunder.
2.25 "
Option
" means an Incentive Stock Option or a Nonstatutory Share Option granted pursuant to the Plan.
2.26 "
Option Agreement
" means a written agreement between the Company and an Optionholder evidencing the terms and conditions
of an Option grant. Each Option Agreement shall be subject to the terms and conditions of the Plan.
2.27 "
Optionholder
" means a person to whom an Option is granted pursuant to the Plan or, if applicable, such other person who
holds an outstanding Option.
2.28 "
Ordinary Share
" or "
Share
" means an ordinary share of the Company,
nominal value US$0.00001.
2.29 "
Other Share-Based Award
" means a Share Award (other than an Option, a Restricted Share Bonus, a Share Appreciation
Right, a Phantom Share Unit, a Restricted Share Unit, a Performance Share Bonus, a Performance Share Unit or a Deferred Share Unit) subject to the provisions of Section 7.7 of the Plan.
2.30 "
Other Share-Based Award Agreement
" means a written agreement between the Company and a holder of an Other Share-Based
Award setting forth the terms and conditions of an Other Share-Based Award grant. Each Other Share-Based Award Agreement shall be subject to the terms and conditions of the Plan.
2.31 "
Outside Director
" means a Director who either (i) is not a current employee of the Company or an "affiliated
corporation" (within the meaning of U.S. Treasury Regulations promulgated under Section 162(m)), is not a former employee of the Company or an "affiliated corporation" receiving compensation
for prior services (other than benefits under a tax qualified pension plan), was not an Officer of the Company or an "affiliated corporation" at any time and is not currently receiving direct or
indirect remuneration from the Company or an "affiliated corporation" for services in any capacity other than as a Director; or (ii) is otherwise considered an "outside director" for purposes
of Section 162(m).
2.32 "
Participant
" means a person to whom a Share Award is granted pursuant to the Plan or, if applicable, such other person
who holds an outstanding Share Award.
2.33 "
Performance Goal
" means, for a Performance Period, the one or more goals established by the Committee measured by the
achievement of certain results, whether financial, transactional or otherwise. Financial results may be, but are not required to be, based on Qualifying Performance Criteria.
2.34 "
Performance Period
" means one or more periods of time, which may be of varying and overlapping duration, as the
Committee may select, over which the attainment of one or more Performance Goals will be measured for the purpose of determining a Participant's right to, and the payment of, a Share Award determined
in accordance with Article VIII of the Plan.
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2.35 "
Performance Share Bonus
" means a grant of Ordinary Shares subject to the provisions of Section 7.5 of the Plan.
2.36 "
Performance Share Bonus Agreement
" means a written agreement between the Company and a Participant setting forth the
terms and conditions of a Performance Share Bonus grant. Each Performance Share Bonus Agreement shall be subject to the terms and conditions of the Plan.
2.37 "
Performance Share Unit
" means the right to receive the value of one (1) Ordinary Share subject to the provisions
of Section 7.6 of the Plan.
2.38 "
Performance Share Unit Agreement
" means a written agreement between the Company and a holder of a Performance Share
Unit setting forth the terms and conditions of a Performance Share Unit grant. Each Performance Share Unit Agreement shall be subject to the terms and conditions of the Plan.
2.39 "
Phantom Share Unit
" means the right to receive the value of one (1) Ordinary Share, subject to the provisions of
Section 7.3 of the Plan.
2.40 "
Phantom Share Unit Agreement
" means a written agreement between the Company and a holder of a Phantom Share Unit
setting forth the terms and conditions of a Phantom Share Unit grant. Each Phantom Share Unit Agreement shall be subject to the terms and conditions of the Plan.
2.41 "
Plan
" means this Amended and Restated 2012 Equity Incentive Plan of Seagate Technology Public Limited Company, as
amended from time to time.
2.42 "
Predecessor Plan
" means the Seagate Technology Public Limited Company 2004 Share Compensation Plan.
2.43 "
Qualifying Performance Criteria
" means any one or more of the following performance criteria, or derivations of such
performance criteria, either individually, alternatively or in any combination, applied to either the Company as a whole or to a business unit or subsidiary, and measured, including annually or
cumulatively over a period of years, on an absolute basis or relative to a pre-established target, to previous years' results or to a designated comparison group, in each case as specified by the
Committee: (a) pre- and after-tax income; (b) operating income; (c) net operating income or profit (before or after taxes); (d) net earnings; (e) net income (before
or after taxes); (f) operating margin; (g) gross margin; (h) cash flow (before or after dividends); (i) earnings per share; (j) return on equity; (k) return
on assets, net assets, investments or capital employed; (l) revenue; (m) market share; (n) cost reductions or savings; (o) funds from operations; (p) total
shareholder return; (q) share price; (r) earnings before any one or more of the following items: interest, taxes, depreciation or amortization; (s) market capitalization;
(t) economic value added; (u) operating ratio; (v) product development or release schedules; (w) new product innovation; (x) implementation of the Company's critical
processes or projects; (y) customer service or customer satisfaction; (z) product quality measures; (aa) days sales outstanding or working capital management; (bb) inventory or inventory
turns; (cc) pre-tax profit and/or (dd) cost reductions. Unless applicable U.S. tax and/or securities laws are amended to permit the Committee's discretion to change Qualifying Performance Criteria
without shareholder approval, the Committee shall have no discretion to change Qualifying Performance Criteria without obtaining shareholder approval.
2.44 "
Restricted Share Bonus
" means a grant of Ordinary Shares subject to the provisions of Section 7.1 of the Plan.
2.45
"
Restricted Share Bonus Agreement
" means a written agreement between the Company and a
Participant setting forth the terms and conditions of a Restricted Share Bonus grant. Each Restricted Share Bonus Agreement shall be subject to the terms and conditions of the Plan.
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2.46
"
Restricted Share Unit
" means the right to receive the value of one (1) Ordinary
Share at the time the Restricted Share Unit vests, subject to the provisions of Section 7.4 of the Plan.
2.47
"
Restricted Share Unit Agreement
" means a written agreement between the Company and a
holder of a Restricted Share Unit setting forth the terms and conditions of a Restricted Share Unit grant. Each Restricted Share Unit Agreement shall be subject to the terms and conditions of the
Plan.
2.48
"
Rule 16b-3
" means Rule 16b-3 promulgated under the Exchange Act or any
successor to Rule 16b-3, as in effect from time to time.
2.49
"
Section 162(m)
" means Section 162(m) of the Code.
2.50
"
Securities Act
" means the U.S. Securities Act of 1933, as amended.
2.51
"
Share Appreciation Right
" or "
SAR
" means
the right to receive an amount equal to the Fair Market Value of one (1) Ordinary Share on the day the Share Appreciation Right is redeemed, reduced by the deemed exercise price or base price
of such right, subject to the provisions of Section 7.2 of the Plan.
2.52
"
Share Appreciation Right Agreement
" means a written agreement between the Company and a
holder of a Share Appreciation Right setting forth the terms and conditions of a Share Appreciation Right grant. Each Share Appreciation Right Agreement shall be subject to the terms and conditions of
the Plan.
2.53
"
Share Award
" means any Option, Restricted Share Bonus, Share Appreciation Right, Phantom
Share Unit, Restricted Share Unit, Performance Share Bonus, Performance Share Unit, Deferred Share Unit, or Other Share-Based Award.
2.54
"
Share Award Agreement
" means a written agreement between the Company and a holder of a
Share Award setting forth the terms and conditions of a Share Award grant. Each Share Award Agreement shall be subject to the terms and conditions of the Plan.
2.55
"
Ten Percent Shareholder
" means a person who owns (or is deemed to own pursuant to
Section 424(d) of the Code) shares possessing more than ten percent (10%) of the total combined voting power of all classes of shares of the Company or of any of its Affiliates.
III. ADMINISTRATION.
3.1
Administration by Board
. The Board shall administer the Plan unless and until the Board delegates
administration to a Committee, as provided in Section 3.3.
3.2
Powers of Board
. The Board shall have the power, subject to, and within the limitations of, the express
provisions of the Plan:
(i) to
determine (a) which Eligible Individuals shall be granted Share Awards; (b) when each Share Award shall be granted; (c) the type or types of
Share Awards to be granted; and (d) the number of Share Awards to be granted and the number of Shares to which a Share Award shall relate;
(ii) to
determine the terms and conditions of any Share Award granted pursuant to the Plan, including, but not limited to, (a) the purchase price (if any) of Shares
to be issued pursuant to any Share Award, (b) any restrictions or limitations on any Share Award or Shares acquired pursuant to a Share Award, (c) any vesting schedule or conditions
applicable to a Share Award and accelerations or waivers thereof (including, but not limited to, upon a Change
in
of
Control), and
(d) any provisions related to recovery of gain on, or forfeiture of, a Share Award or Shares issued pursuant to a Share Award, based on such considerations as the Board in its sole discretion
determines;
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(iii) to
construe and interpret the Plan and Share Awards granted under it, and to establish, amend and revoke rules and regulations for its administration. The Board, in
the exercise of this power, may correct any defect, omission or inconsistency in the Plan or in any Share Award Agreement, in a manner and to the extent it shall deem necessary or expedient to make
the Plan fully effective;
(iv) to
amend the Plan or a Share Award as provided in Article XIII of the Plan;
(v) to
suspend or terminate the Plan at any time;
provided
, that suspension or termination of the Plan shall not materially
impair the rights and obligations under any Share Award granted while the Plan is in effect except with the written consent of the affected Participant;
(vi) to
settle all controversies regarding the Plan and Share Awards granted under it;
(vii) to
exercise such powers and to perform such acts as the Board deems necessary, desirable, convenient or expedient to promote the best interests of the Company that are
not in conflict with the provisions of the Plan; and
(viii) to
establish, adopt or revise any rules and regulations, including adopting sub-plans to the Plan or special terms for Share Award Agreements, for the purposes of
complying with non-U.S. laws and/or taking advantage of tax favorable treatment for Share Awards granted to Participants outside the United States (as further set forth in Section 5.3 of the
Plan) as it may deem necessary or advisable to administer the Plan.
3.3
Delegation to Committee
.
(i)
General.
The Board may delegate administration of the Plan to a Committee of one or more individuals, and
the term "Committee" shall apply to any person or persons to whom such authority has been delegated. If administration is delegated to a Committee, the Committee shall have, in connection with the
administration of the Plan, the powers theretofore possessed by the Board, including
, to the extent permitted by applicable law,
the power to delegate to a subcommittee
any of the administrative powers the Committee is authorized to exercise (and references in this Plan to the Board shall thereafter be to the Committee or subcommittee, as applicable), subject,
however, to such resolutions, not inconsistent with the provisions of the Plan, as may be adopted from time to time by the Board. The Board may abolish the Committee at any time and revest in the
Board the administration of the Plan.
(ii)
Committee Composition when Ordinary Shares are Publicly Traded.
So long as the Ordinary Shares are publicly
traded, in the discretion of the Board, a Committee may consist solely of two or more Outside Directors, in accordance with Section 162(m), and/or solely of two or more Non-Employee Directors,
in accordance with Rule 16b-3. Within the scope of such authority, the Board or the Committee may
, to the extent permitted by applicable law,
(a) delegate to
a committee of one or more individuals who are not Outside Directors the authority to grant Share Awards to Eligible Individuals who are either (1) not then Covered Employees and are not
expected to be Covered Employees at the time of recognition of income resulting from such Share Award or (2) not persons with respect to whom the Company wishes to comply with
Section 162(m) and/or (b) delegate to a committee of one or more individuals who are not Non-Employee Directors the authority to grant Share Awards to Eligible Individuals who are either
(1) not then subject to Section 16 of the Exchange Act or (2) receiving a Share Award as to which the Board or Committee elects not to comply with Rule 16b-3 by having two
or more Non-Employee Directors grant such Share Award.
3.4
Effect of Board's Decision
. All determinations, interpretations and constructions made by the Board in good
faith shall not be subject to review by any person and shall be final, binding and conclusive on all persons.
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IV. SHARES SUBJECT TO THE PLAN.
4.1
Share Reserve
. Subject to the provisions of Article XII of the Plan relating to adjustments upon
changes in Ordinary Shares, the maximum aggregate number of Shares that may be issued pursuant to Share Awards under the Plan shall not exceed fifty-two million (52,000,000) Shares, plus any Shares
remaining available for grant under the Predecessor Plan as of the Effective Date (as defined in Section 15.1) (the "
Share Reserve
"). Any Shares
that are subject to Options or SARs granted under the Plan shall be counted against the Share Reserve as one (1) Share for every one (1) Share granted, and any Shares that are subject to
Full-Value Share Awards granted under the Plan shall be counted against the Share Reserve as two and one-half (2.5) Shares for every one (1) Share granted;
provided
, that Full-Value Share Awards
granted under the Plan prior to October 22, 2014 shall be counted against the Share Reserve as two and
one-tenth (2.1) Shares for every one (1) Share granted. Notwithstanding the foregoing, and subject to the provisions of Article XII, the maximum aggregate number of Shares that may be
issued pursuant to Incentive Stock Options under the Plan shall not exceed twenty million (20,000,000) Shares.
4.2
Adjustments to the Share Reserve
. If (i) any Share Award or share award granted under the Predecessor
Plan shall for any reason expire, be cancelled or otherwise terminated, in whole or in part, without having been exercised or redeemed in full, or be settled in cash, or (ii) if any Shares
subject to Share Awards or share awards granted under the Predecessor Plan shall be reacquired by the Company prior to vesting, the Shares subject to such awards shall revert to the Share Reserve and
again become available for issuance under the Plan. Any Shares that again become available for grant pursuant to
this Section 4.2 shall be added back to the Share Reserve in the applicable ratio described in Section 4.1 of the Plan;
provided
, that,
any Shares that were outstanding under the Predecessor Plan that become available for grant shall be added back to the Share Reserve in the ratio set forth in the Predecessor Plan. Notwithstanding the
foregoing, the following shall not revert to the Share Reserve: (a) Shares tendered by a Participant or withheld by the Company in payment of the exercise price to the Company or to satisfy any
tax withholding obligation or other tax liability of the Participant,
and
(b) Shares repurchased by the Company on the open market or otherwise using cash
proceeds from the exercise of Options or the exercise of options granted under the Predecessor Plan
, and (c) Shares that are not issued or delivered as a result of the net
settlement of an outstanding Option or SAR
.
4.3
Source of Shares
. The Shares subject to the Plan may be unissued Shares or reacquired Shares, bought on the
market or otherwise.
V. ELIGIBILITY AND PARTICIPATION.
5.1
Eligibility
. Subject to the provisions of the Plan, each Eligible Individual shall be eligible to receive
Share Awards pursuant to the Plan, except that only Employees shall be eligible to receive Incentive Stock Options.
5.2
Participation
. Subject to the provisions of the Plan, the Board may, from time to time, select from among
Eligible Individuals those to whom Share Awards shall be granted, and shall determine the nature and amount of each Share Award. No Eligible Individual shall have any right to be granted a Share Award
pursuant to the Plan.
5.3
Non-U.S. Participants
. Notwithstanding any provision of the Plan to the contrary, to comply with the laws in
countries outside the United States in which the Company and its Affiliates operate or in which Eligible Individuals provide services to the Company or its Affiliates, the Board, in its sole
discretion,
shall have the power and authority to: (i) determine which Affiliates shall be covered by the Plan; (ii) determine which Eligible Individuals outside the United States shall be eligible
to participate in the Plan; (iii) modify the terms and conditions of any Share Award granted to Eligible Individuals outside the United States; (iv) establish sub-plans and modify
exercise procedures and other terms and procedures and rules, to the extent such actions may be necessary or advisable, including adoption of
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rules,
procedures or sub-plans applicable to particular Affiliates or Participants residing in particular locations;
provided,
that no such sub-plans
and/or modifications shall take precedence over Article IV of the Plan or otherwise require shareholder approval; and (v) take any action, before or after a Share Award is made, that it
deems advisable to obtain approval or comply with any necessary local governmental regulatory exemptions or approvals. Without limiting the generality of the foregoing, the Board is specifically
authorized to adopt rules, procedures and sub-plans with provisions that limit or modify rights on eligibility to receive a Share Award under the Plan or on death, disability, retirement or other
termination of Continuous Service, available methods of exercise or settlement of a Share Award, payment of income, social insurance contributions and payroll taxes, the shifting of employer tax
liability to the Participant, the withholding procedures and handling of any Share certificates or other indicia of ownership. Notwithstanding the foregoing, the Board may not take any actions
hereunder, and no Share Awards shall be granted, that would violate the Securities Act, the Exchange Act, any securities law or governing statute or any other applicable law.
VI. OPTION PROVISIONS.
Each
Option shall be evidenced by an Option Agreement which shall be in such form and shall contain such terms and conditions as the Board shall deem
appropriate. All Options shall be designated Incentive Stock Options or Nonstatutory Share Options at the time of grant. The terms and conditions of Option Agreements may change from time to time and
the terms and conditions of separate Option Agreements need not be identical, but each Option shall include (through incorporation of provisions hereof by reference in the Option Agreement or
otherwise) the substance of each of the following provisions:
6.1
Incentive Stock Option $100,000 Limitation
. To the extent that the aggregate Fair Market Value (determined
at the time of grant) of the Ordinary Shares with respect to which Incentive Stock Options are exercisable for the first time by any Optionholder during any calendar year (under all plans of the
Company and its Affiliates) exceeds one hundred thousand dollars ($100,000), the Options or portions
thereof which exceed such limit (according to the order in which they were granted) shall be treated as Nonstatutory Share Options.
6.2
Term
. No Option shall be exercisable after the expiration of seven (7) years from the date it was
granted. Notwithstanding the foregoing, no Incentive Stock Option granted to a Ten Percent Shareholder shall be exercisable after the expiration of five (5) years from the date it was granted.
6.3
Vesting
. The Board shall determine the criteria under which Options may vest and become exercisable; the
criteria may include Continuous Service and/or the achievement of Performance Goals and in any event such criteria shall be set forth in the Option Agreement.
6.4
Exercise Price of an Option
. The exercise price of each Option shall be not less than one hundred percent
(100%) of the Fair Market Value of the Ordinary Shares on the date the Option is granted;
provided
, that an Option may be granted with an exercise price
lower than that set forth above if such Option is granted pursuant to an assumption or substitution for another option in a manner satisfying the provisions of Section 409A of the Code and
Section 424(a) of the Code. Notwithstanding the foregoing, the exercise price of each Incentive Stock Option granted to a Ten Percent Shareholder shall be at least one hundred ten percent
(110%) of the Fair Market Value of the Ordinary Shares on the date the Option is granted.
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6.5
Consideration
. The purchase price of Ordinary Shares acquired pursuant to an Option
shall be paid, to the extent permitted by applicable statutes and regulations, either (i) in cash or by check at the time the Option is exercised or (ii) at the discretion of the Board
at the time of the grant of the Option (or subsequently in the case of a Nonstatutory Share Option) and pursuant to procedures established by the Company from time to time: (a) by delivery to
the Company of other Shares, (b) according to a deferred payment or other similar arrangement with the Optionholder, including use of a promissory note, (c) pursuant to a "same day sale"
program, or (d) by some combination of the foregoing.
6.6
Termination of Continuous Service
. In the event an Optionholder's Continuous Service terminates (other than
upon the Optionholder's death or Disability), the Optionholder may exercise his or her Option (to the extent that the Optionholder was entitled to exercise such Option as of the date of
termination
or as otherwise set forth in the Option Agreement
) but only within such period of time ending on the earlier of (i) the date three (3) months
following the termination of the Optionholder's
Continuous Service (or such longer or shorter period specified in the Option Agreement), or (ii) the expiration of the term of the Option as set forth in the Option Agreement. If, after
termination, the Optionholder does not exercise his or her Option within the time specified in the Option Agreement, the Option shall terminate.
6.7
Extension of Option Termination Date
. An Optionholder's Option Agreement may also provide that if the
exercise of the Option following the termination of the Optionholder's Continuous Service (other than upon the Optionholder's death or Disability) would be prohibited at any time because the issuance
of Shares would violate either the registration requirements under the Securities Act (or other applicable securities law) or the Company's insider trading policy, then the Option shall terminate on
the earlier of (i) the expiration of the term of the Option set forth in the Option Agreement or (ii) the expiration of a period of three (3) months after the termination of the
Optionholder's Continuous Service during which the exercise of the Option would not be in violation of either such registration requirements (or other applicable securities law) or the Company's
insider trading policy.
6.8
Disability of Optionholder
. In the event that an Optionholder's Continuous Service terminates as a result of
the Optionholder's Disability, the Optionholder may exercise his or her Option (to the extent that the Optionholder was entitled to exercise such Option as of the date of termination), but only within
such period of time ending on the earlier of (i) the date twelve (12) months following such termination (or such longer or shorter period specified in the Option Agreement) or
(ii) the expiration of the term of the Option as set forth in the Option Agreement. If after termination, the Optionholder does not exercise his or her Option within the time specified herein,
the Option shall terminate.
6.9
Death of Optionholder
. In the event (i) an Optionholder's Continuous Service terminates as a result
of the Optionholder's death or (ii) the Optionholder dies within the period (if any) specified in the Option Agreement after the termination of the Optionholder's Continuous Service for a
reason other than death, then the Option may be exercised (to the extent the Optionholder was entitled to exercise such Option as of the date of death) by the Optionholder's estate, by a person who
acquired the right to exercise the Option by bequest or inheritance or by a person designated to exercise the Option upon the Optionholder's death pursuant to Section 6.10 or 6.11 of the Plan,
but only within the period ending on the earlier of (a) the date twelve (12) months following the date of death (or such longer or shorter period specified in the Option Agreement) or
(b) the expiration of the term of such Option as set forth in the Option Agreement. If, after death, the Option is not exercised within the time specified herein, the Option shall terminate.
6.10
Transferability of an Incentive Stock Option
. An Incentive Stock Option shall not be transferable except by
will or by the laws of descent and distribution and shall be exercisable during the
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lifetime
of the Optionholder only by the Optionholder. Notwithstanding the foregoing, if provided in the Option Agreement, the Optionholder may, by delivering written notice to the Company, in a form
satisfactory to the Company, designate a third party who, in the event of the death of the Optionholder, shall thereafter be entitled to exercise the Option.
6.11
Transferability of a Nonstatutory Share Option
. Unless otherwise provided by the Board, a Nonstatutory
Share Option shall not be transferable except by will or by the laws of descent and distribution and shall be exercisable during the lifetime of the Optionholder only by the Optionholder.
Notwithstanding the foregoing, if provided in the Option Agreement, the Optionholder may, by delivering written notice to the Company, in a form satisfactory to the Company, designate a third party
who, in the event of the death of the Optionholder, shall thereafter be entitled to exercise the Option.
VII. SHARE AWARDS PROVISIONS OTHER THAN OPTIONS.
7.1
Restricted Share Bonus Awards
. Each Restricted Share Bonus shall be evidenced by a Restricted Share Bonus
Agreement which shall be in such form and shall contain such terms and conditions as the Board shall deem appropriate. Restricted Share Bonuses shall be paid by the Company in Ordinary Shares. Should
Shares be issued pursuant to a Restricted Share Bonus award in circumstances where they are not otherwise fully paid up, the Board may require the Participant to pay the aggregate Nominal Value of the
Shares on the basis that such Shares underlying the Restricted Share Bonus award shall then be allotted as fully paid to the Participant. The terms and conditions of Restricted Share Bonus Agreements
may change from time to time, and the terms and conditions of separate Restricted Share Bonus Agreements need not be identical, but each Restricted Share Bonus Agreement
shall include (through incorporation of provisions hereof by reference in the agreement or otherwise) the substance of each of the following provisions:
(i)
Vesting.
Restricted Share Bonus awards shall be subject to a vesting schedule and vesting shall generally be
based on the Participant's Continuous Service. Upon failure to meet the vesting conditions, Shares awarded under the Restricted Share Bonus Agreement shall be subject to a share reacquisition right in
favor of the Company in accordance with the vesting schedule;
provided
, that any such Shares shall be reacquired without the payment of any
consideration to the Participant.
(ii)
Termination of Participant's Continuous
Service.
In
Except as may otherwise be provided in the Restricted Share Bonus Agreement, in
the
event a Participant's Continuous Service terminates, the Company shall reacquire (without the payment of any consideration) any of the Shares held by the Participant that have not vested as of the
date of termination under the terms of the Restricted Share Bonus Agreement.
(iii)
Transferability.
Rights to acquire Shares under the Restricted Share Bonus Agreement shall be transferable
by the Participant only upon such terms and conditions as are set forth in the Restricted Share Bonus Agreement, as the Board shall determine in its discretion, so long as Ordinary Shares awarded
under the Restricted Share Bonus Agreement remain subject to the terms of the Restricted Share Bonus Agreement.
(iv)
Dividends.
Any dividends payable with respect to the Ordinary Shares underlying a Restricted Share Bonus
award shall be subject to the same vesting conditions as such Shares; dividends, if any, that may become payable upon the vesting of such Shares shall be distributed to the Participant, at the
discretion of the Board, in cash or in Ordinary Shares having a Fair Market Value equal to the amount of such dividends;
provided
, that, if such Shares
are forfeited, the Participant shall have no right to such dividends (except as otherwise set forth in the applicable Restricted Share Bonus Agreement).
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7.2
Share Appreciation Rights
. Two types of Share Appreciation Rights (or SARs) shall be authorized for issuance
under the Plan: (1) stand-alone SARs and (2) stapled SARs. Each SAR shall be evidenced by a Share Appreciation Right Agreement (or, if applicable, the underlying Option Agreement) which
shall be in such form and shall contain such additional terms and conditions as the Board shall deem
appropriate. Should Shares be issued pursuant to a SAR in circumstances where they are not otherwise fully paid up, the Board may require the Participant to pay the aggregate Nominal Value of the
Shares on the basis that such Shares underlying the SAR shall then be allotted as fully paid to the Participant. The additional terms and conditions of Share Appreciation Right Agreements (and/or
underlying Option Agreements, as applicable) may change from time to time, and the additional terms and conditions of separate Share Appreciation Right Agreements (and/or underlying Option Agreements)
need not be identical.
(i)
Stand-Alone SARs.
The following terms and conditions shall govern the grant and redeemability of stand-alone
SARs:
(a) The
stand-alone SAR shall cover a specified number of underlying Shares and shall be redeemable upon such terms and conditions as the Board may establish. Upon
redemption of the stand-alone SAR, the holder shall be entitled to receive a distribution from the Company in an amount equal to the excess of (i) the aggregate Fair Market Value (on the
redemption date) of the Shares underlying the redeemed right over (ii) the aggregate base price in effect for those Shares.
(b) The
number of Shares underlying each stand-alone SAR and the base price in effect for those Shares shall be determined by the Board in its sole discretion at the time
the stand-alone SAR is granted. In no event, however, may the base price per Share be less than one hundred percent (100%) of the Fair Market Value per underlying Share on the grant date.
(c) The
distribution with respect to any redeemed stand-alone SAR may be made in Shares valued at Fair Market Value on the redemption date, in cash, or partly in Shares and
partly in cash, as the Board shall in its sole discretion deem appropriate.
(ii)
Stapled SARs.
The following terms and conditions shall govern the grant and redemption of stapled SARs:
(a) Stapled
SARs may only be granted concurrently with an Option to acquire the same number of Shares as the number of such Shares underlying the stapled SARs.
(b) Stapled
SARs shall be redeemable upon such terms and conditions as the Board may establish and shall grant a holder the right to elect among (1) the exercise of
the concurrently granted Option for Shares, whereupon the number of Shares subject to the stapled SARs shall be reduced by an equivalent number, (2) the redemption of such stapled SARs in
exchange for a distribution from the Company in an amount equal to the excess of the Fair Market Value (on the redemption date) of the number of vested Shares which the holder redeems over the
aggregate base price for such vested Shares, whereupon the number of Shares subject to the concurrently granted Option shall be reduced by any equivalent number, or (3) a combination of
(1) and (2).
(c) The
distribution to which the holder of stapled SARs shall become entitled under this Section 7.2 upon the redemption of stapled SARs as described in
Section 7.2(ii)(B) above may be made in Shares valued at Fair Market Value on the redemption date, in cash, or partly in Shares and partly in cash, as the Board shall in its sole discretion
deem appropriate.
7.3
Phantom Share Units
. Each Phantom Share Unit shall be evidenced by a Phantom Share Unit Agreement which
shall be in such form and shall contain such additional terms and conditions as
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the
Board shall deem appropriate. Should Shares be issued pursuant to a Phantom Share Unit award in circumstances where they are not otherwise fully paid up, the Board may require the Participant to
pay the aggregate Nominal Value of the Shares on the basis that such Shares underlying the Phantom Share Unit award shall then be allotted as fully paid to the Participant. The additional terms and
conditions of Phantom Share Unit Agreements may change from time to time, and the additional terms and conditions of separate Phantom Share Unit Agreements need not be identical. The following terms
and conditions shall govern the grant and redeemability of Phantom Share Units:
(i) Phantom
Share Unit awards shall be redeemable by the Participant to the Company upon such terms and conditions as the Board may establish. The value of a single Phantom
Share Unit shall be equal to the Fair Market Value of a Share, unless the Board otherwise provides in the terms of the Phantom Share Unit Agreement.
(ii) The
distribution with respect to any Phantom Share Unit award may be made in Shares valued at Fair Market Value on the redemption date, in cash, or partly in Shares and
partly in cash, as the Board shall in its sole discretion deem appropriate.
(iii) Dividend
Equivalents may be credited in respect of Shares covered by Phantom Share Units, as determined by the Board and set forth in the Phantom Share Unit Agreement.
At the sole discretion of the Board, such Dividend Equivalents may be paid in cash or converted into additional Shares covered by the Phantom Share Units in such manner as determined by the Board. Any
cash payment or additional Shares covered by the Phantom Share Units credited by reason of such Dividend Equivalents will be subject to all the terms and conditions, including vesting, of the Phantom
Share Units to which they relate.
7.4
Restricted Share Units
. Each Restricted Share Unit shall be evidenced by a Restricted Share Unit Agreement
which shall be in such form and shall contain such terms and conditions as the Board shall deem appropriate. A Restricted Share Unit is the right to receive the value of one (1) Ordinary
Share at the time the Restricted Share Unit vests. Should Shares be issued pursuant to a Restricted Share Unit award in circumstances where they are not otherwise fully paid up, the Board may require
the Participant to pay the aggregate Nominal Value of the Shares on the basis that such Shares underlying the Restricted Share Unit award shall then be allotted as fully paid to the Participant.
To
the extent permitted by the Board in the terms of his or her Restricted Share Unit agreement, a Participant may elect to defer receipt of the value of the Shares otherwise deliverable
upon the vesting of Restricted Share Units, so long as such deferral election complies with applicable law, including Section 409A of the Code. Such deferred Restricted Share Units will be
treated as Deferred Share Units hereunder. When the Participant vests in such Restricted Share Units, the Participant will be credited with a number of Deferred Share Units equal to the number of
Shares for which delivery is deferred.
Restricted
Share Units and Deferred Share Units may be paid by the Company by delivery of Shares, in cash, or a combination thereof, as the Board shall in its sole discretion deem
appropriate, in accordance with the timing and manner of payment elected by the Participant on his or her election form, or if no deferral election is made, as soon as administratively practicable
following the vesting of the Restricted Share Units.
The
terms and conditions of Restricted Share Unit Agreements may change from time to time, and the terms and conditions of separate Restricted Share Unit Agreements need not be
identical, but each Restricted Share Unit Agreement shall include (through incorporation of provisions hereof by reference in the agreement or otherwise) the substance of each of the following
provisions:
(i)
Vesting.
Restricted Share Units shall be subject to a vesting schedule and vesting shall generally be based
on the Participant's Continuous Service.
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(ii)
Termination of Participant's Continuous
Service.
In
Except as may otherwise be provided in the Restricted Share Unit Agreement, in
the
event a Participant's Continuous Service terminates, any of
the Restricted Share Units held by the Participant that have not vested as of the date of termination under the terms of the Restricted Share Unit agreement shall be forfeited.
(iii)
Transferability.
Rights to acquire the value of Shares under the Restricted Share Unit Agreement shall be
transferable by the Participant only upon such terms and conditions as are set forth in the Restricted Share Unit Agreement, as the Board shall determine in its discretion, so long as any Ordinary
Shares awarded under the Restricted Share Unit Agreement remain subject to the terms of the Restricted Share Unit Agreement.
(iv)
Dividend Equivalents.
Dividend Equivalents may be credited in respect of Shares covered by Restricted Share
Units, as determined by the Board and set forth in the Restricted Share Unit Agreement. At the sole discretion of the Board, such Dividend Equivalents may be paid in cash or converted into additional
Shares covered by the Restricted Share Units in such manner as determined by the Board. Any cash payment or additional Shares covered by the Restricted Share Units credited by reason of such Dividend
Equivalents will be subject to all the terms and conditions, including vesting, of the Restricted Share Units to which they relate.
7.5
Performance Share Bonus Awards
. Each Performance Share Bonus shall be evidenced by a Performance Share Bonus
Agreement which shall be in such form and shall contain such terms and conditions as the Board shall deem appropriate. Performance Share Bonuses shall be paid by the Company in Ordinary Shares. Should
Shares be issued pursuant to a Performance Share Bonus award in circumstances where they are not otherwise fully paid up, the Board may require the Participant to pay the aggregate Nominal Value of
the Shares on the basis that such Shares underlying the Performance Share Bonus award shall then be allotted as fully paid to the Participant. The terms and conditions of Performance Share Bonus
Agreements may change from time to time, and the terms and conditions of separate Performance Share Bonus Agreements need not be identical, but each Performance Share Bonus Agreement shall include
(through incorporation of provisions hereof by reference in the agreement or otherwise) the substance of each of the following provisions:
(i)
Vesting.
Performance Share Bonus awards shall be subject to a vesting schedule and vesting shall be based on
the achievement of certain Performance Goals or on a combination of the achievement of certain Performance Goals and the Participant's Continuous Service, as set forth in the Performance Share Bonus
Agreement. Upon failure to meet Performance Goals or other vesting conditions, Shares awarded under the Performance Share Bonus Agreement shall be subject to a share reacquisition right in favor of
the Company in accordance with the vesting schedule;
provided
, that any such Shares shall be reacquired without the payment of any consideration to the
Participant.
(ii)
Termination of Participant's Continuous
Service.
In
Except as may otherwise be provided in the Performance Share Bonus Agreement, in
the
event a Participant's Continuous Service terminates, the Company may reacquire (without the payment of any consideration) any of the Shares held by the
Participant that have not vested as of the date of termination under the terms of the Performance Share Bonus Agreement.
(iii)
Transferability.
Rights to acquire Shares under the Performance Share Bonus Agreement shall be
transferable by the Participant only upon such terms and conditions as are set forth in the Performance Share Bonus Agreement, as the Board shall determine in its discretion, so long as Ordinary
Shares awarded under the Performance Share Bonus Agreement remain subject to the terms of the Performance Share Bonus Agreement.
(iv)
Dividends.
Any dividends payable with respect to the Ordinary Shares underlying a Performance Share Bonus
award shall be subject to the same vesting conditions as such Shares;
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dividends,
if any, that may become payable upon vesting of such Shares shall be distributed to the Participant, at the discretion of the Board, in cash or in Ordinary Shares having a Fair Market Value
equal to the amount of such dividends;
provided
, that, if such Shares are forfeited, the Participant shall have no right to such dividends (except as
otherwise set forth in the applicable Performance Share Bonus Agreement).
7.6
Performance Share Units
. Each Performance Share Unit shall be evidenced by a Performance Share Unit
Agreement which shall be in such form and shall contain such terms and conditions as the Board shall deem appropriate. A Performance Share Unit is the right to receive the value of one
(1) Ordinary Share at the time the Performance Share Unit vests. Should Shares be issued pursuant to a Performance Share Unit award in circumstances where they are not otherwise fully paid up,
the Board may require the Participant to pay the aggregate Nominal Value of the Shares on the basis that such Shares underlying the Performance Share Unit award shall then be allotted as fully paid to
the Participant.
To
the extent permitted by the Board in the terms of his or her Performance Unit Share Agreement, a Participant may elect to defer receipt of the value of Shares otherwise deliverable
upon the vesting of an award of Performance Share Units, so long as such deferral election complies with applicable law, including Section 409A of the Code. Such deferred Performance Share
Units will be treated as Deferred
Share Units hereunder. When the Participant vests in such Performance Share Units, the Participant will be credited with a number of Deferred Share Units equal to the number of Shares for which
delivery is deferred. Performance Share Units and Deferred Share Units may be paid by the Company by delivery of Shares, in cash, or a combination thereof, as the Board shall in its sole discretion
deem appropriate, in accordance with the timing and manner of payment elected by the Participant on his or her election form, or if no deferral election is made, as soon as administratively
practicable following the vesting of the Performance Share Units.
The
terms and conditions of Performance Share Unit Agreements may change from time to time, and the terms and conditions of separate Performance Share Unit Agreements need not be
identical, but each Performance Share Unit Agreement shall include (through incorporation of provisions hereof by reference in the agreement or otherwise) the substance of each of the following
provisions:
(i)
Vesting.
Performance Share Units shall be subject to a vesting schedule and vesting shall be based on the
achievement of certain Performance Goals or on a combination of the achievement of certain Performance Goals and the Participant's Continuous Service, as set forth in the Performance Share Unit
Agreement.
(ii)
Termination of Participant's Continuous
Service.
In
Except as may otherwise be provided in the Performance Share Unit Agreement, in
the
event a Participant's Continuous Service terminates, any of the Performance Share Units held by the Participant that have not vested as of the date of termination under the terms of the Performance
Share Unit Agreement will be forfeited.
(iii)
Transferability.
Rights to acquire the value of Shares under the Performance Share Unit Agreement shall be
transferable by the Participant only upon such terms and conditions as are set forth in the Performance Share Unit Agreement, as the Board shall determine in its discretion, so long as Ordinary Shares
awarded under the Performance Share Unit Agreement remain subject to the terms of the Performance Share Unit Agreement.
(iv)
Dividend Equivalents.
Dividend Equivalents may be credited in respect of Shares covered by Performance
Share Units, as determined by the Board and set forth in the Performance Share Unit Agreement. At the sole discretion of the Board, such Dividend Equivalents may be paid in cash or converted into
additional Shares covered by the Performance Share Units in such manner as determined by the Board. Any cash payment or additional Shares covered by the Performance Share Units credited by reason of
such Dividend Equivalents will be subject to all the terms and conditions, including vesting, of the Performance Share Units to which they relate.
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7.7
Other Share-Based Awards
. The Board is authorized under the Plan to grant Other
Share-Based Awards to Participants subject to the terms and conditions set forth in the applicable Share Award Agreement and such other terms and conditions as may be specified by the Board that are
not inconsistent with the provisions of the Plan, and that by their terms involve or might involve the issuance of, consist of, or are denominated in, payable in, valued in whole or in part by
reference to, or otherwise relate to, Shares. The Board may establish one or more separate programs under the Plan for the purpose of issuing particular forms of Other Share-Based Awards to one or
more classes of Participants on such terms and conditions as determined by the Board from time to time.
VIII. QUALIFYING PERFORMANCE-BASED COMPENSATION.
8.1
General
.
The Board
As used in this Article VIII,
"Committee" shall mean a Committee constituted in accordance with Section 162(m) as described in Section 3.3(ii) hereof to the extent the Share Award is intended to be "performance-based
compensation" under Section 162(m). The Committee
may establish Performance Goals and the level of achievement versus such Performance Goals that shall determine the number of
Shares to be granted, retained, vested, issued or issuable under or in settlement of or the amount payable pursuant to a Share Award (including a Restricted Share Bonus, Restricted Share Unit,
Performance Share Bonus or Performance Share Unit), which criteria may be based on Qualifying Performance Criteria or other standards of financial performance and/or personal performance evaluations.
In addition, the
Board
Committee
may specify that a Share Award or a portion of a Share Award is intended to satisfy the requirements
for "performance-based compensation" under Section 162(m);
provided
, that the Performance Goals for such Award or portion of a Share Award that
is intended by the
Board
Committee
to satisfy the requirements under Section 162(m) shall be a measure based only on one or
more Qualifying Performance Criteria selected by the
Board
Committee
and specified at the time the Award is granted, or no later than
the earlier of (i) the date that is ninety (90) days after the commencement of the applicable Performance Period or (ii) the date on which twenty-five percent (25%) of the
Performance Period has elapsed, and, in any event, at a time when the outcome of the Qualifying Performance Criteria remains substantially uncertain.
The
Board
The Committee, as constituted in accordance with Section 162(m) and described in Section 3.3(ii) hereof,
shall certify the extent to
which any Qualifying Performance Criteria has been satisfied and the amount payable as a result thereof, prior to payment, settlement or vesting of any Share Award that is intended to satisfy the
requirements for "performance-based compensation" under Section 162(m).
8.2
Adjustments
. To the extent consistent with Section 162(m), the
Board
Committee
may determine to adjust Qualifying Performance Criteria
as determined in writing at the time the
Performance Goal(s) is established, including the following adjustments:
as follows:
(i) to
exclude restructuring and/or other nonrecurring charges;
(ii) to
exclude exchange rate effects, as applicable, for non-U.S. dollar denominated net sales and operating earnings;
(iii) to
exclude the effects of changes to generally accepted accounting principles required by the U.S. Financial Accounting Standards Board, as well as changes in
accounting standards promulgated by other accounting standards setters to the extent applicable (for example, resulting from future potential voluntary or mandatory adoption of International Financial
Reporting Standards);
(iv) to
exclude the effects of any statutory adjustments to corporate tax rates;
(v) to
exclude the effects of any "
extraordinary
unusual or nonrecurring
items" as determined under
generally accepted accounting principles;
(vi) to
exclude any other unusual, non-recurring gain or loss or other extraordinary item;
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(vii) to
respond to any unusual or extraordinary transaction, event or development;
(viii) to
respond to changes in applicable laws, regulations, and/or accounting principles;
(ix) to
exclude the dilutive or accretive effects of dispositions, acquisitions or joint ventures;
(x) to
exclude the effect of any change in the outstanding shares by reason of any share dividend or split, share repurchase, reorganization, recapitalization, merger,
consolidation, spin-off, combination or exchange of shares or other similar corporate change, or any distributions to shareholders other than regular cash dividends;
(xi) to
reflect the effect of a corporate transaction, such as a merger, consolidation, separation (including a spinoff or other distribution of stock or property by a
corporation), or reorganization (whether or not such reorganization comes within the definition of such terms of Section 368 of the Code); and (l) to reflect the effect of any partial or
completed corporate liquidation.
8.3
Discretionary Adjustments and Limits
. Subject to the limits imposed under Section 162(m) for Share
Awards that are intended to qualify as "performance-based compensation," notwithstanding the satisfaction of any Performance Goals, the number of Shares granted, issued, retainable and/or vested under
a Performance Share Bonus award or Performance Share Unit may, to the extent specified in the
Share Award Agreement, be reduced, but not increased, by the
Board
Committee
on the basis of such further considerations as the
Board
Committee
shall determine.
8.4
Annual Section 162(m) Limitation
.
The following limits shall apply to the grant of any
Share Award if, at the time of grant, the company is a "publicly held corporation" within the meaning of Section 162(m).
(i)
Full-Value
Share Awards.
Subject to the provisions of Article XII of the Plan relating to adjustments
upon changes in Ordinary Shares, no Employee shall be eligible to be granted
Full-Value
Share Awards covering more than ten million (10,000,000) Shares during any fiscal
year
or Options and/or SARs covering more than eight million (8,000,000) Shares during any fiscal year
of the Company
.
(ii)
Options
and SARs. Subject to the provisions of Article XII of the Plan relating to adjustments upon changes in
Ordinary Shares, no employee shall be eligible to be granted Options and/or SARs covering more than eight million (8,000,000) Shares during any fiscal year of the Company.
IX. USE OF PROCEEDS FROM SHARES.
Proceeds
from the sale of Ordinary Shares pursuant to Share Awards shall constitute general funds of the Company.
X. CANCELLATION AND RE-GRANT OF OPTIONS AND STOCK APPRECIATION RIGHTS.
10.1 Subject
to the provisions of the Plan, the Board shall have the authority to effect, at any time and from time to time, (i) the repricing of any outstanding
Options and SARs under the Plan and/or (ii) with the consent of the affected Participants, the cancellation of any outstanding Options and SARs under the Plan in exchange for a cash payment
and/or the grant in substitution therefor of new Options and SARs under the Plan covering the same or different number of Shares, but having an exercise or redemption price per Share not less than one
hundred percent (100%) of the Fair Market Value (or, in the case of an Incentive Stock Option granted to a Ten Percent Shareholder, not less than one hundred ten percent (110%) of the Fair Market
Value) per Share on the new grant date. Notwithstanding the foregoing, the Board may grant a Share Award with an exercise or redemption price lower than that set forth above if such Share Award is
granted pursuant to an assumption or substitution for another
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award
in a manner satisfying the provisions of Section 409A of the Code and/or Section 424(a) of the Code, as applicable.
10.2 Prior
to the implementation of any such repricing or cancellation of one or more outstanding Options or SARs, the Board shall obtain the approval of the shareholders of
the Company.
10.3 Shares
subject to an Option or SAR canceled under this Article X shall continue to be counted against the Share Reserve described in Section 4.2 of the
Plan. The repricing of an Option or SAR under this Article X, resulting in a reduction of the exercise or redemption price, as applicable, shall be deemed to be a cancellation of the original
Option or SAR and the grant of a substitute Option or SAR; in the event of such repricing, both the original and the substituted Options or SARs shall be counted against the Share Reserve described in
Section 4.2 of the Plan. The provisions of this Section 10.3 shall be applicable only to the extent required by Section 162(m).
XI. MISCELLANEOUS.
11.1
Shareholder Rights
. No Participant shall be deemed to be the holder of, or to have any of the rights of a
holder with respect to, any Shares subject to a Share Award except to the extent that the Company has issued the Shares relating to such Share Award.
11.2
No Employment or other Service Rights
. Nothing in the Plan or any instrument executed or Share Award
granted pursuant thereto shall confer upon any Participant any right to continue to serve the Company or an Affiliate in the capacity in effect at the time the Share Award was granted or shall affect
the right of the Company or an Affiliate to terminate (i) the employment of an Employee with or without notice and with or without cause to the extent permitted under local law, (ii) the
service of a Consultant pursuant to the terms of such Consultant's agreement with the Company or an Affiliate or (iii) the service of a Director pursuant to the Bylaws of the Company, and any
applicable provisions of the corporate law of the state or other jurisdiction in which the Company is domiciled, as the case may be.
11.3
Investment Assurances
. The Company may require a Participant, as a condition of exercising or redeeming a
Share Award or acquiring Shares under any Share Award, (i) to give written assurances satisfactory to the Company as to the Participant's knowledge and experience in financial and business
matters and/or to employ a purchaser representative reasonably satisfactory to the Company who is knowledgeable and experienced in financial and business matters and that he or she is capable of
evaluating, alone or together with the purchaser representative, the merits and risks of acquiring the Shares; (ii) to give written assurances satisfactory to the Company stating that the
Participant is acquiring the Shares subject to the Share Award for the Participant's own account and not with any present intention of selling or otherwise distributing the Shares; and (iii) to
give such other written assurances as the Company may determine are reasonable in order to comply with applicable law. The foregoing requirements, and any assurances given pursuant to such
requirements, shall be inoperative if (1) the issuance of the Shares under the Share Award has been registered under a then currently effective registration statement under the Securities Act
or (2) as to any particular requirement, a determination is made by counsel for the Company that such requirement need not be met in the circumstances under the then applicable securities laws,
and in either case otherwise complies with applicable law. The Company may, upon advice of counsel to the Company, place legends on Share certificates issued under the Plan as such counsel deems
necessary or appropriate in order to comply with applicable laws, including, but not limited to, legends restricting the transfer of the Shares.
11.4
Withholding Obligations
. To the extent provided by the terms of a Share Award Agreement, the Participant
may satisfy any federal, state, local, or foreign tax withholding obligation or employer tax liability assumed by the Participant in connection with a Share Award or the acquisition, vesting,
distribution or transfer of Ordinary Shares under a Share Award by any of the following means
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(in
addition to the Company's right to withhold from any compensation paid to the Participant by the Company or an Affiliate) or by a combination of such means: (i) tendering a cash payment;
(ii) subject to approval from the Board, authorizing the Company to withhold Shares from the Shares otherwise issuable to the Participant; or (iii) subject to approval from the Board,
delivering to the Company owned and unencumbered Shares. The Participant may also satisfy such tax withholding obligation or employer tax liability assumed by the Participant by any other means set
forth in the applicable Share Award Agreement.
11.5
Forfeiture
and Recoupment
Provisions
. Pursuant to its general authority to
determine terms and conditions of Share Awards under the Plan, the Board may specify in a Share Award Agreement that the Participant's rights, payments and/or benefits with respect to the Share Award
shall be subject to reduction, cancellation, forfeiture or recoupment upon the occurrence of certain events, in addition to any otherwise applicable vesting or performance conditions of such Share
Award. Such events shall include, but shall not be limited to, termination of employment for cause, violation of any applicable Company policy or code of conduct (including without limitation,
engaging in "Fraud" or "Misconduct" within the meaning of the Company's Compensation Recovery for Fraud or Misconduct Policy), breach of any agreement between the Participant and the Company or any
Affiliate, or any other conduct by the Participant that is detrimental to the business interests or reputation of the Company or any Affiliate.
Furthermore, all Share Awards (including
Share Awards that have vested in accordance with the Share Award Agreement) shall be subject to any recoupment requirement imposed under applicable laws, rules, regulations or stock exchange listing
standards, including, without limitation, recoupment requirements imposed pursuant to Section 954 of the U.S. Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, or any
regulations promulgated thereunder, or recoupment requirements under the laws of any other jurisdiction, as well as to the terms and conditions of any recoupment policy adopted by the Company from
time to time to implement such requirements or to facilitate corporate governance, or for such other purpose as may be set forth in a Share Award Agreement.
11.6
Compliance with Laws
. The Plan, the granting and vesting of Share Awards under the Plan and the issuance
and delivery of Shares and the payment of money under the Plan or under Share Awards granted or awarded hereunder are subject to compliance with all applicable Irish, U.S. (federal, state and local)
and foreign laws, rules and regulations and to such approvals by any listing, regulatory or governmental authority as may, in the opinion of counsel for the Company, be necessary or advisable in
connection therewith. The Company shall have no obligation to issue or deliver Shares prior to obtaining any approvals from listing, regulatory or governmental authority that the Company determines
are necessary or advisable. The Company shall be under no obligation to register pursuant to the Securities Act, as amended, any of the Shares paid pursuant to the Plan. To the extent permitted by
applicable law, the Plan and Share Awards granted or awarded hereunder shall be deemed amended to the extent necessary to conform to such laws, rules and regulations.
11.7
Section 409A.
Except as
provided in Section 11.8 hereof, to the extent that the Board determines that any Share Award granted under the Plan is subject to Section 409A of the Code, the Share Award Agreement
evidencing such Share Award shall incorporate the terms and conditions required by Section 409A of the Code. To the extent applicable, the Plan and Share Award Agreements shall be interpreted
in accordance with Section 409A of the Code and U.S. Department of Treasury regulations and other interpretive guidance issued thereunder, including without limitation any such regulations or
other guidance that may be issued after the date the Plan became effective. Notwithstanding any provision of the Plan to the contrary, in the event that following the date a Share Award is granted the
Board determines that the Share Award may be subject to Section 409A of the Code and related Department of Treasury guidance (including such Department of Treasury guidance as may be issued
after the date the Plan became effective), the Board may adopt such amendments to the Plan and the applicable Share Award Agreement or adopt other policies and procedures (including
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amendments,
policies and procedures with retroactive effect), or take any other actions, including amendments or actions that would result in a reduction to the benefits payable under a
Share Award, in each case, without the consent of the Participant, that the Board determines are necessary or appropriate to (i) exempt the Share Award from Section 409A of the Code
and/or preserve the intended tax treatment of the benefits provided with respect to the Share Award, or (ii) comply with the requirements of Section 409A of the Code and related
Department of Treasury guidance and thereby avoid the application of any penalty taxes under such Section or mitigate any additional tax, interest and/or penalties or other adverse tax consequences
that may apply under Section 409A of the Code if compliance is not practical.
11.8
No Representations or Covenants with respect to Tax
Qualification.
Although the Company may endeavor to (i) qualify a Share Award for favorable or specific tax treatment under the
laws of the United States or jurisdictions outside of the United States or (ii) avoid adverse tax treatment (e.g., under Section 409A of the Code), the Company makes no
representation to that effect and expressly disavows any covenant to maintain favorable or avoid unfavorable tax treatment, notwithstanding anything to the contrary in this Plan, including
Section 11.7 hereof. The Company shall be unconstrained in its corporate activities without regard to the potential negative tax impact on holders of Share Awards under the Plan. Nothing in
this Plan or in a Share Award Agreement shall provide a basis for any person to take any action against the Company or any Affiliate based on matters covered by Section 409A of the Code,
including the tax treatment of any Share Awards, and neither the Company
nor any Affiliate will have any liability under any circumstances to the Participant or any other party if a Share Award that is intended to be exempt from, or compliant with, Section 409A of
the Code, is not so exempt or compliant or for any action taken by the Board with respect thereto.
XII. ADJUSTMENTS UPON CHANGES IN SHARES.
12.1
Capitalization Adjustments
. If any change is made in the Ordinary Shares subject to the Plan, or subject to
any Share Award, without the receipt of consideration by the Company (through merger, consolidation, reorganization, recapitalization, reincorporation, share dividend, spinoff, dividend in property
other than cash, share split, liquidating dividend, extraordinary dividends or distributions, combination of shares, exchange of shares, change in corporate structure or other transaction not
involving the receipt of consideration by the Company), the Plan shall be appropriately adjusted in the class(es
)
), kind
and maximum
number of securities subject to the Plan
or
and
the maximum number of securities
that may be made
subject to award to any person pursuant to Section 8.4 above, and the outstanding Share Awards shall be appropriately adjusted in the
class(es
)
), kind
and number of securities and price per share of the securities subject to such outstanding Share
Awards
, and the
. The
Board's determination regarding such adjustments shall be final, binding and conclusive. (The conversion of any
convertible securities of the Company shall not be treated as a transaction "without receipt of consideration" by the Company.)
An
adjustment under this provision may have the effect of reducing the price at which Ordinary Shares may be acquired to less than their Nominal Value (the
"
Shortfall
"), but only if and to the extent that the Board shall be authorized to capitalize from the reserves of the Company a sum equal to the
Shortfall and to apply that sum in paying up that amount on the Ordinary Shares.
12.2
Adjustments Upon a Change of Control
.
(i) In
the event of a Change of Control as defined in Sections 2.4(i) through 2.4(iv) hereof, then any surviving entity or acquiring entity shall assume or continue
any Share Awards outstanding under the Plan or shall substitute similar share awards (including an award to acquire substantially the same consideration paid to the shareholders in the transaction by
which the Change of Control occurs) for those outstanding under the Plan. In the event any surviving entity
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or
acquiring entity refuses to assume or continue such Share Awards or to substitute similar share awards for those outstanding under the Plan, then with respect to any or all outstanding Share Awards
held by Participants, the Board in its sole discretion and without liability to any person may (a) provide for the payment of a cash amount in exchange for the cancellation of a Share Award
which, in the case of Options and SARs, may be equal to the product of (x) the excess, if any, of the Fair Market Value per Share at such time over the exercise or redemption price, if any,
times (y) the total number of Shares then subject to such Share Award (and otherwise, the Board may cancel such Share Awards for no consideration if the aggregate Fair Market Value of the
Shares subject to the Share Awards is less than or equal to the aggregate exercise or redemption price of such Share Awards), (b) continue the Share Awards, or (c) notify Participants
holding an Option, Share Appreciation Right or Phantom Share Unit that they must exercise or redeem any portion of such Share Award (including, at the discretion of the Board, any unvested portion of
such Share Award) at or prior to the closing of the transaction by which the Change of Control occurs, and that the Share Awards shall terminate if not so exercised or redeemed at or prior to the
closing of the transaction by which the Change of Control occurs. With respect to any other Share Awards outstanding under the Plan, such Share Awards shall terminate if not exercised or redeemed
prior to the closing of the transaction by which the Change of Control occurs. The Board shall not be obligated to treat all Share Awards, even those that are of the same type, in the same manner.
(ii) In
the event of a Change of Control as defined in Section 2.4(v) hereof, all outstanding Share Awards shall terminate immediately prior to such event.
XIII. AMENDMENT OF THE PLAN AND SHARE AWARDS.
13.1
Amendment of Plan
. The Board at any time, and from time to time, may amend the Plan. However, except as
provided in Article XII of the Plan relating to adjustments upon changes in the Ordinary Shares, no amendment shall be effective unless approved by the shareholders of the Company to the extent
shareholder approval is necessary to satisfy the requirements of Section 422 of the Code, any New York Stock Exchange, NASDAQ Global Select Market or other securities exchange listing
requirements, or other applicable law or regulation;
provided
, that
unless otherwise required or advisable under applicable law (as
determined by the Board),
rights under any Share Award granted before an amendment to the Plan shall not be materially impaired by any such amendment unless (i) the Company
requests the consent of the Participant and (ii) the Participant consents in writing.
13.2
Shareholder Approval
. The Board may, in its sole discretion, submit any other amendment to the Plan for
shareholder approval, including, but not limited to, amendments to the Plan intended to satisfy the requirements of Section 162(m) and the regulations thereunder regarding the exclusion of
performance-based compensation from the limit on corporate deductibility of compensation paid to certain executive officers.
13.3
Contemplated Amendments
. It is expressly contemplated that the Board may amend the Plan in any respect the
Board deems necessary or advisable to provide eligible Employees with the maximum benefits provided or to be provided under the provisions of the Code and the regulations promulgated thereunder
relating to Incentive Stock Options and/or to bring the Plan and/or Incentive Stock Options granted under it into compliance therewith.
13.4
Amendment of Share Awards
. The Board at any time, and from time to time, may amend the terms of any one or
more Share Awards;
provided
, that
, unless otherwise required or advisable under applicable law (as determined by the
Board),
the rights under any Share Award shall not be materially impaired by any such amendment unless (i) the Company requests the consent of the Participant and (ii) the
Participant consents in writing.
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XIV. TERMINATION OR SUSPENSION OF THE PLAN.
14.1
Termination or Suspension
. The Board may suspend or terminate the Plan at any time. No Share Awards may be
granted under the Plan while the Plan is suspended or after it is terminated.
14.2
No Material Impairment of Rights
.
Suspension
Unless
otherwise required or advisable under applicable law (as determined by the Board), suspension
or termination of the Plan shall not materially impair rights and obligations under any
Share Award granted while the Plan is in effect except with the written consent of the Participant.
XV. EFFECTIVE AND EXPIRATION DATE OF PLAN.
15.1
Effective Date.
The Plan shall become effective on the date that it is approved by the shareholders of the
Company (the "
Effective Date
"), which approval shall be within twelve (12) months before or after the date the Plan is adopted by the Board. No
Share Awards may be granted under the Plan prior to the time that the shareholders have approved the Plan. The approval or disapproval of the Plan by the shareholders of the Company shall have no
effect on any other equity compensation plan, program or arrangement sponsored by the Company or any of its Affiliates;
provided
, that upon shareholder
approval of this Plan, no new awards may be granted under the Predecessor Plan. Awards granted under the Predecessor Plan shall continue to be governed by the terms of the Predecessor Plan in effect
on the date of grant of such award.
15.2
Expiration Date.
The Plan shall expire, and no Share Awards shall be granted under the Plan after the tenth
(10
th
) anniversary of the Effective Date, except that no Incentive Stock Option shall be granted under the Plan after the earlier of the tenth (10
th
) anniversary of
(i) the date the Plan is approved by the Board or (ii) the Effective Date. Any Shares Awards that are outstanding on the tenth (10
th
) anniversary of the Effective Date
shall remain in force according to the terms of the Plan and the applicable Share Award Agreement.
XVI. CHOICE OF LAW.
The
law of the State of California shall govern all questions concerning the construction, validity and interpretation of this Plan, without regard to such
state's conflict of laws rules.
If any provision of the Plan or the application of any provision hereof to any person or circumstance is held to be invalid or unenforceable, the
remainder of the Plan and the application of such provision to any other person or circumstance shall not be affected, and the provisions so held to be unenforceable shall be reformed to the extent
(and only to the extent) necessary to make it enforceable and valid.
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Appendix C
RULES OF THE
SEAGATE TECHNOLOGY PUBLIC LIMITED COMPANY
2012 EQUITY INCENTIVE PLAN
FOR SHARE AWARDS GRANTED TO PARTICIPANTS IN FRANCE
I.
GENERAL.
1.
Introduction
.
The
Board of Directors (the "Board") of Seagate Technology plc (the "Company") has established the 2012 Equity Incentive Plan (the "U.S. Plan") for the benefit of certain eligible
persons, including employees of the Company and its Affiliates, including its Affiliates in France (each, a "French Entity"), of which the Company holds directly or indirectly at least 10% of the
share capital.
Sections 3.2(viii)
and 3.2(vii) of the U.S. Plan specifically authorize the Board to adopt sub-plans and/or special terms applicable to Share Awards granted to participants
outside the United States and to exercise such powers and to perform such acts as the Board deems necessary, desirable, convenient or expedient to promote the best interests of the Company that are
not in conflict with the provisions of the U.S. Plan. Pursuant to Section 3.3(i) of the U.S. Plan, the Board has delegated administration of the U.S. Plan to a committee (the "Committee") which
has delegated certain of its administrative powers to a subcommittee (the Benefits Administrative Committee or the "Committee's Delegate"), including the power to adopt sub-plans for the purpose of
taking advantage of certain tax treatment available to participants outside the U.S. The Committee's Delegate has determined that it is appropriate and desirable to establish a sub-plan for the
purposes of permitting share options, restricted share units and performance share units granted to qualifying participants of a French Entity that qualify for specific tax and social security
treatment in France. The Committee's Delegate, therefore, intends to establish a sub-plan to the U.S. Plan for the purpose of granting Options (as defined in Section I.2(f) below) that qualify
for the specific tax and social security treatment in France applicable to stock options granted under Sections L. 225-177 to L. 225-186-1 of the French Commercial Code, as amended
("French-qualified Options"), and Restricted Share Units (as defined in Section I.2(g) below) and Performance Share Units (as defined in Section I.2(h) below) that qualify for the
specific tax and social security treatment in France applicable to shares granted for no consideration under Sections L. 225-197-1 to L. 225-197-6 of the French Commercial Code, as amended
(such Restricted Stock Units and Performance Share Units collectively referred to herein as "French-qualified RSUs"), to qualifying participants of a French Entity who are resident in France for
French tax purposes and/or subject to the French social security regime (the "French Participants").
The
terms of the U.S. Plan applicable to Nonstatutory Share Options (as defined in the U.S. Plan), Restricted Share Units (as defined in the U.S. Plan) and Performance Share Units (as
defined in the U.S. Plan), as set out in Appendix 1 hereto, subject to the limitations set forth herein, shall constitute the Rules of the Seagate Technology Public Limited Company 2012 Equity
Incentive Plan for Share Awards Granted to Participants in France (the "French Sub-Plan").
Under
the French Sub-Plan, qualifying participants selected at the Committee's discretion will be granted Options, Restricted Share Units and Performance Share Units only as such terms
are defined in Section I.2 hereunder. The provisions of the U.S. Plan permitting the grant of Restricted Share Bonus awards, Share Appreciation Right awards, Phantom Share Unit awards,
Performance Share Bonus awards, Deferred Share Unit awards and Other Share-Based Awards and all other provisions related exclusively to these types of awards are not applicable to grants made under
this French
Sub-Plan. The Options, Restricted Share Units and Performance Share Units granted under this French Sub-Plan will be granted solely with respect to ordinary shares of the Company.
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The
provisions under Parts I and IV of this French Sub-Plan shall apply both to French-qualified Options and to French-qualified RSUs. The provisions under Part II of this
French Sub-Plan apply only to the grant of French-qualified Options, and the provisions under Part III of this French Sub-Plan apply only to French-qualified RSUs.
2.
Definitions.
Capitalized terms not otherwise defined herein shall have the same meanings as set forth in the
U.S. Plan. The terms set out below will have the following meanings:
(a) For
French-qualified Options, the term "Closed Period" shall mean, as set forth in Section L. 225-177 of the French Commercial Code: (i) ten quotation days
preceding and following the disclosure to the public of the consolidated financial statements or the annual statements of the Company, or (ii) the period as from the date the corporate
management of the Company possesses confidential information which, if disclosed to the public, could significantly impact the quotation price of the Ordinary Shares, until ten quotation days after
the day such information is disclosed to the public, or (iii) twenty quotation days following a distribution of a dividend (
i.e
., the ex-dividend
date) or of a general right to subscribe to Ordinary Shares (
i.e
., a rights offering).
For
French-qualified RSUs, the term "Closed Period" shall mean, as set forth in Section L. 225-197-1 of the French Commercial Code: (i) ten quotation days preceding
and following the disclosure to the public of the consolidated financial statements or the annual statements of the Company, or (ii) the period as from the date the corporate management of the
Company possesses confidential information which, if disclosed to the public, could significantly impact the quotation price of the Ordinary Shares, until ten quotation days after the day such
information is disclosed to the public.
If
French law or regulations are amended after adoption of this French Sub-Plan to modify the definition and/or applicability of the Closed Period to French-qualified Options and/or
French-qualified RSUs, such amendment shall become applicable to any French-qualified Options and French-qualified RSUs granted under this French Sub-Plan, to the extent permitted or required by
French law.
(b) The
term "Disability" shall mean disability as determined in categories 2 and 3 under Section L. 341-4 of the French Social Security Code, as amended, and
subject to the fulfillment of related conditions.
(c) The
term "Effective Grant Date" shall mean the date on which the Option is effectively granted (
i.e.
, the date on which
the condition precedent of the expiration of a Closed Period applicable to the Option, if any, is satisfied, which is the first day following any Closed Period). Such condition precedent shall be
satisfied when the Board, Committee or other authorized corporate body shall determine that the grant of Options is no longer prevented because of the existence of a Closed Period. If the Grant Date
does not occur within a Closed Period, the "Effective Grant Date" shall be the same day as the "Grant Date."
(d) The
term "Forced Retirement" shall mean forced retirement as determined under Section L. 1237-5 of the French Labor Code, as amended, and subject to the
fulfillment of related conditions.
(e) The
term "Grant Date" shall be the date on which the Committee both (i) designates the French Participants, and (ii) specifies the material terms and
conditions of the French-qualified Options or French-qualified RSUs, including the number of Shares subject to the French-qualified Options or French-qualified RSUs, the conditions for vesting of the
French-qualified Options or French-qualified RSUs, the conditions for exercising the French-qualified Options and any restrictions on the sale of the Shares subject to the French-qualified Options or
French-qualified RSUs.
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(f) The
term "Option" shall mean a Nonstatutory Share Option (as defined in the U.S. Plan) that includes both:
(i) purchase
share options (rights to acquire Shares repurchased by the Company prior to the date on which the Options become exercisable); and
(ii) subscription
share options (rights to subscribe for newly-issued Shares).
(g) The
term "Restricted Share Unit" shall mean an award, pursuant to which the Company will deliver one Share for each Restricted Share Unit granted to a French Participant
for no consideration (excepting a Nominal Value payment for such Share where required by Irish corporate law which shall be within the limits set forth by French tax regulations applicable to
French-qualified RSUs), provided that any conditions established by the Committee for the lapse of restrictions with respect to such Restricted Share Unit have been satisfied, and for which any
dividend and voting rights attach only upon the issuance of Shares.
(h) The
term "Performance Share Unit" shall mean an award, pursuant to which the Company will deliver a number of Shares to a French Participant for no consideration
(excepting a Nominal Value payment for such Share where required by Irish corporate law which shall be within the limits set forth by French tax regulations applicable to French-qualified RSUs),
provided that any conditions established by the Committee for the lapse of restrictions with respect to such Performance Share Unit have been satisfied, and for which any dividend and voting rights
attach only upon the issuance of Shares.
(i) The
term "Vesting Date" shall mean the date on which the Shares subject to the French-qualified RSUs become non-forfeitable.
3.
Eligibility to Participate
.
(a) Subject
to Section I.3(c) below, any individual who, on the Grant Date of the French-qualified Option or the French-qualified RSU, as applicable, and to the
extent required under French law, is a current salaried employee employed under the terms and conditions of an employment contract ("
contrat de
travail
") by a French Entity or who is a corporate officer of a French Entity (subject to Section I.3(b) below) shall be eligible to receive, at the discretion of the
Committee, French-qualified Options and/or French-qualified RSUs under this French Sub-Plan, provided he or she also satisfies the eligibility conditions of Article V of the U.S. Plan.
(b) Neither
French-qualified Options nor French-qualified RSUs may be issued to an officer of a French Entity, other than the managing corporate officers
("
mandataires sociaux
,"
i.e.
,
Président du Conseil
d'Administration
,
Directeur Général
,
Directeur
Général Délégué
,
Membre du Directoire
,
Gérant de Sociétés par actions
),
unless the officer is employed under the terms and conditions of an
employment contract ("
contrat de travail
") with a French Entity, as defined by French law. The Committee, in its discretion, may impose additional
restrictions upon the exercise of the French-qualified Options and upon the holding and sale of Shares issued upon the vesting of the French-qualified RSUs or the exercise of the French-qualified
Options granted to a French Participant who qualifies as a managing corporate officer of the Company as defined under French law (
i.e.
,
"
mandataires sociaux
" as set forth above).
(c) French-qualified
Options and French-qualified RSUs may not be issued under the French Sub-Plan to French Participants who own more than ten percent (10%) of the
Company's share capital or to individuals other than employees and corporate officers of a French Entity. Grants of French-qualified Options and French-qualified RSUs under this French Sub-Plan may
not result in any French Participant's owning more than ten percent (10%) of the Company's share capital.
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4.
Delivery of Shares Only.
Only Shares, and not the cash equivalent in lieu of such Shares, may be delivered to
any French Participant pursuant to the French-qualified Options and French-qualified RSUs granted under this French Sub-Plan.
5.
Non-Transferability.
Except in the case of death, neither French-qualified Options nor French-qualified RSUs
may be sold, assigned, transferred, pledged or otherwise encumbered to a party other than the French Participant to whom the Award is granted. The French-qualified Options are exercisable only by the
French Participant during his or her lifetime, subject to Sections II.3(c) and II.4 below. The Shares underlying the French-qualified RSUs shall be issued only to the French Participant during
his or her lifetime, subject to Sections III.1(a) and III.3 below.
6.
Disqualification of French-Qualified Options and French-Qualified RSUs.
If, following the grant, changes are
made to the terms and conditions of the French-qualified Options and/or French-qualified RSUs due to any applicable legal requirements or a decision of the Company's shareholders, the Board or the
Committee, the Options, Restricted Share Units and/or Performance Share Units may no longer qualify as French-qualified Options and French-qualified RSUs. If the Options, Restricted Share Units and/or
Performance Share Units no longer qualify as French-qualified Options and/or French-qualified RSUs, the Committee may determine, in its sole discretion, to lift, shorten or terminate certain
restrictions applicable to the vesting or exercisability of the Options, the vesting of the Restricted Share Units or Performance Share Units or to the sale of the Shares underlying the Options,
Restricted Share Units and/or Performance Share Units, which restrictions have been imposed under this French Sub-Plan or in the applicable Share Award Agreement delivered to the French Participant.
7.
Employment Rights.
The adoption of this French Sub-Plan (a) shall not confer any employment rights
upon the French Participants or any employees of a French Entity, and (b) shall not be construed as a part of any employment contracts that a French Entity has with its employees.
8.
Amendments.
Subject to the terms of the U.S. Plan, the Committee reserves the right to amend or terminate
this French Sub-Plan at any time in accordance with applicable French law.
II.
FRENCH-QUALIFIED OPTIONS
.
1.
Closed Period.
French-qualified Options may not be granted during a Closed Period to the extent that such
Closed Periods are applicable to French-qualified Options granted by the Company. If the Grant
Date were to occur during an applicable Closed Period, the Effective Grant Date shall be the first date following the expiration of a Closed Period on which the Company would not be prohibited from
granting French-qualified Options under the rules of the U.S. Plan and the French Sub-Plan and the exercise price per Share shall be set as of the Effective Grant Date.
2. Conditions of French-Qualified Options
.
(a) The
exercise price and number of underlying Shares shall not be modified after the Grant Date, except as provided in Sections II.5 of this French Sub-Plan, or as
otherwise authorized by French law. Any other modification permitted under the U.S. Plan may result in the Option no longer qualifying as a French-qualified Option.
(b) The
French-qualified Options will vest and become exercisable pursuant to the terms and conditions set forth in the U.S. Plan, this French Sub-Plan, and the applicable
Share Award Agreement delivered to each French Participant.
(c) The
exercise price per Share payable pursuant to French-qualified Options granted under this French Sub-Plan shall be fixed by the Committee on the Grant Date (or the
Effective Grant Date). In no event shall the exercise price per Share be less than the greatest of the following:
(i) with
respect to purchase share options, the higher of either 95% of the average of the quotation price of the Shares during the 20 trading days immediately preceding
the Grant
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Date
(or the Effective Grant Date) or 95% of the average purchase price paid for such Shares by the Company;
(ii) with
respect to subscription share options, 95% of the average of the quotation price of such Shares during the 20 trading days immediately preceding the Grant Date (or
the Effective Grant Date); and
(iii) the
minimum exercise price permitted under the U.S. Plan.
3.
Exercise of French-Qualified Options
.
(a)
Exercisability.
When a French-qualified Option is granted, the Committee shall fix the period within which
the Option vests and may be exercised and shall determine any conditions that must be satisfied before the Option may be exercised. Specifically, the Committee, in order to obtain the specific tax and
social security treatment pursuant to the relevant Section of the French Tax Code, as amended, or the relevant Section of the French Social Security Code, as amended, may provide for a holding period
measured from the Effective Grant Date for the vesting or exercise of a French-qualified Option or for the sale of Shares acquired pursuant to such exercise. Such holding period for the vesting or
exercise of a French-qualified Option or the sale of Shares, if any required, shall be set forth in the applicable Share Award Agreement. The holding period restricting the sale of Shares shall not
exceed three years from the exercise date of a French-qualified Option.
(b)
Payment of Exercise Price and Withholding.
Upon exercise of a French-qualified Option, the full exercise
price and any required withholding tax and/or social security contributions shall be paid by the French Participant as set forth in the applicable Share Award Agreement. Under a "same day sale"
program, the French Participant may give irrevocable instructions to a broker to sell the Shares otherwise deliverable upon the exercise of the Option and to deliver promptly to the Company an amount
equal to the aggregate exercise price. No delivery of other Shares already owned by the French Participant may be used to pay the exercise price.
(c)
Death.
In the event of the death of a French Participant, his or her French-qualified Options thereafter
shall be immediately vested and exercisable in full under the conditions set forth by Section II.4 of this French Sub-Plan.
(d)
Termination (Other than Disability or Forced Retirement).
If a French Participant is terminated or ceases to
be employed by the Company or a French Entity, his or her French-qualified Options will be exercisable in accordance with the provisions of the applicable Share Award Agreement.
(e)
Account for Shares.
The Shares acquired upon exercise of a French-qualified Option will be recorded in an
account in the name of the French Participant with the Company or a broker or in such manner as the Company otherwise may determine in order to ensure compliance with applicable laws, including any
requisite holding periods.
4.
Death.
Upon the death of a French Participant during active employment, all French-qualified Options shall
become immediately vested and exercisable and may be exercised in full by the French Participant's heirs or the legal representative of his or her estate for the six (6)-month period following
the date of the French Participant's death. Upon the death of a French Participant after termination of active employment, the treatment of French-qualified Options will be as set forth in the
applicable Share Award Agreement and, to the extent vested at the time of the French Participant's death, the French-qualified Options may be exercised in full by the French Participant's heirs or the
legal representative of his or her estate for the six (6)-month period following the date of the French Participant's death. In any case, any French-qualified Option that remains unexercised shall
expire six (6) months after the French Participant's date of death. The six (6)-month exercise period shall apply
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Table of Contents
without
regard to the term of the French-qualified Options as described in Section II.6 of this French Sub-Plan.
5.
Adjustments and Change of Control.
Adjustments of the French-qualified Options granted hereunder may be made
to preclude the dilution or enlargement of benefits under the French-qualified Options in the event of a transaction by the Company as set forth in Section L. 225-181 of the French Commercial
Code, as amended, and in case of a repurchase of Shares by the Company at a price higher than the share quotation price in the open market, and according to the provisions of
Section L. 228-99 of the French Commercial Code, as amended, as well as according to specific decrees. Should adjustments be made in the case of a transaction for which adjustments are
not recognized under such French laws, the Options may no longer qualify as French-qualified Options.
In
the event of capitalization adjustments or adjustments upon a Change of Control as set forth in Article XII of the U.S. Plan, the Options may no longer qualify as
French-qualified Options unless the adjustments are recognized under applicable French legal and tax rules. The Board or Committee, at its discretion, may make adjustments to the Options,
notwithstanding that the adjustment is not recognized under French law; however, in such case, the Options may no longer qualify as French-qualified Options. Finally, if the French-qualified Options
are assumed or substituted or if vesting or exercisability is accelerated due to a Change of Control, the Options may no longer be considered as French-qualified Options.
6.
Term of French-Qualified Options.
French-qualified Options granted pursuant to this French Sub-Plan will
expire no later than six (6) years and six (6) months after the Grant Date (or Effective Grant Date), unless otherwise specified in the applicable Share Award Agreement. The Option term
will be extended only upon the death of a French Participant, but in no event will any French-qualified Option be exercisable beyond six (6) months following the French Participant's date of
death.
7.
Interpretation.
The Options granted under this French Sub-Plan are intended to qualify for the specific tax
and social security treatment applicable to stock options granted under Sections L. 225-177 to L. 225-186-1 of the French Commercial Code, as amended, and in accordance with the relevant
provisions
set forth by French tax law and the French tax administration, but the Company does not undertake to maintain this status. The terms of this French Sub-Plan shall be interpreted accordingly and in
accordance with the relevant provisions set forth by French tax and social security laws and relevant guidelines published by French tax and social security administrations and subject to the
fulfillment of legal, tax, and reporting obligations, to the extent applicable. In the event of any conflict between the provisions of this French Sub-Plan and the U.S. Plan, the provisions of this
French Sub-Plan shall control for any grants of Options made hereunder to French Participants.
III.
FRENCH-QUALIFIED RESTRICTED SHARE UNITS
.
1.
Conditions of the French-Qualified RSUs
.
(a)
Vesting of French-Qualified RSUs.
French-qualified RSUs shall not vest and the Shares underlying the
French-qualified RSUs shall not be delivered to the French Participants prior to the expiration of the specific period calculated from the Grant Date as may be required to comply with the minimum
mandatory vesting period applicable to French-qualified RSUs under Section L. 225-197-1 of the French Commercial Code, as amended, or under the relevant sections of the French Tax Code
or the French Social Security Code, as amended, to benefit from the specific tax and social security treatment in France. However, notwithstanding the vesting requirements described above, upon the
death of a French Participant, all of his or her outstanding French-qualified RSUs shall become transferable under the conditions set forth in Section III.3 of this French Sub-Plan. In the
event of Disability (as defined in this French Sub-Plan), the French Participant's outstanding French-qualified RSUs may become vested without regard to the
C-6
Table of Contents
minimum
mandatory vesting period described above, if so determined by the Company and set forth in the applicable Share Award Agreement.
(b)
Holding of Shares.
The sale or transfer of Shares issued pursuant to the French-qualified RSUs may not occur
prior to the relevant anniversary of the Vesting Date specified by the Committee as may be required to comply with the minimum mandatory holding period applicable to French-qualified RSUs under
Section L. 225-197-1 of the French Commercial Code, as amended, or the relevant sections of the French Tax Code or the French Social Security Code, as amended, to benefit from the specific tax
and social security regime, even if the French Participant is no longer an employee or corporate officer of a French Entity. In addition, the Shares issued pursuant to the French-qualified RSUs may
not be sold or
transferred during a Closed Period, so long as those Closed Periods are applicable to Shares underlying French-qualified RSUs.
(c)
French Participant's Account.
Shares issued pursuant to the French-qualified RSUs shall be recorded and held
in an account in the name of the French Participant with the Company or a broker or in such other manner as the Company may determine in order to ensure compliance with applicable laws, including any
required holding periods.
2.
Adjustments and Change of Control.
In the event of capitalization adjustments or adjustments upon a Change of
Control as set forth in Article XII of the U.S. Plan, the Restricted Share Units and Performance Share Units may no longer qualify as French-qualified RSUs unless the adjustments are recognized
under applicable French legal and tax rules. The Board or Committee, at its discretion, may make adjustments to the Restricted Share Units and/or Performance Share Units, notwithstanding that the
adjustments are not recognized under French law, in which case the Restricted Share Units and/or Performance Share Units may no longer qualify as French-qualified RSUs. Finally, if the
French-qualified RSUs are assumed or substituted or if vesting or the holding period is accelerated due to a Change of Control, the Restricted Share Units and/or Performance Share Units may no longer
be considered as French-qualified RSUs.
3.
Death and Disability.
Upon the death of a French Participant, any French-qualified RSUs held by the French
Participant at the time of death shall become immediately transferable to the French Participant's heirs. The Company shall issue the Shares to the French Participant's heirs, at their request,
provided the heirs contact the Company and request such transfer of the shares within six (6) months following the death of the French Participant. If the French Participant's heirs do
not request the issuance of the Shares underlying the French-qualified RSUs within six (6) months after the French Participant's death, the French-qualified RSUs will be forfeited. The French
participant's heirs shall not be subject to the restrictions on the transfer of Shares set forth in Section III.1(b) of this French Sub-Plan. If a French Participant ceases to be employed by
the Company or a French Entity by reason of his or her Disability (as defined in this French Sub-Plan), the French Participant shall not be subject to the restrictions on the transfer of Shares set
forth in Section III.1(b) of this French Sub-Plan.
4.
Interpretation.
The Restricted Share Units and Performance Share Units granted under this French Sub-Plan are
intended to qualify for the specific tax and social security treatment applicable to shares granted for no consideration under Sections L. 225-197-1 to L. 225-197-6 of the French Commercial
Code, as amended, and in accordance with the relevant provisions set forth by French tax and social security laws, but the Company does not undertake to maintain this status. The terms of this French
Sub-Plan shall be interpreted accordingly and in accordance with the relevant provisions set forth by French tax and social security laws and relevant guidelines published by French tax and social
security administrations and subject to the fulfilment of certain legal, tax, and reporting obligations, to the extent applicable. In the event of any conflict between the provisions of this French
Sub-Plan and the U.S. Plan, the provisions of this French Sub-Plan shall control for any grants of Restricted Share Units and Performance Share Units made hereunder to French Participants.
IV.
ADOPTION
.
The
French Sub-Plan, in its entirety, was adopted by the Committee's Delegate and became effective July 25, 2016.
C-7
Table of Contents
Appendix D
Note: the amendments set out in this Appendix D are reflected as a comparison to the Memorandum and Articles of Association of the Company as of the date of this proxy
statement. Additional amendments will be made to the provisions of the Articles of Association included in this Appendix D if shareholders approve Proposal 7.
Companies Acts
1963 to 2012
2014
A PUBLIC COMPANY LIMITED BY SHARES
MEMORANDUM AND ARTICLES OF ASSOCIATION
CONSTITUTION
of
SEAGATE TECHNOLOGY
PUBLIC LIMITED COMPANY
(
A
as a
mended
and restated by Special
by all
R
r
esolution
s
dated 1 July
2010
passed up to and
including
19 October
2016
)
Incorporated the 22
nd
day of January 2010
DUBLIN
Table of Contents
Cert. No. 480010
Companies Act
s 1963 to 2012
2014
A PUBLIC COMPANY LIMITED BY SHARES
MEMORANDUM OF ASSOCIATION
of
Seagate
Technology Public Limited Company
SEAGATE TECHNOLOGY
PUBLIC LIMITED COMPANY
As
amended
and restated
by
all
Special
R
r
esolution
s
dated 1 July 2010
passed up to and including
19 October 2016
-
1.
-
The
name of the Company is
Seagate Technology public limited company
.
-
2.
-
The
registered office of the Company shall be at
Arthur Cox Building, Earlsfort Centre, Earlsfort
Terrace,
38/39 Fitzwilliam Square West,
Dublin 2 or at such other place as the Board may from time to time decide.
-
3.
-
The
Company is to be a public limited company
deemed to be a PLC to which Part 17 of the Companies Act 2014
applies
.
-
4.
-
The
objects for which the Company is established are:
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(1)
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(a)
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To carry on the business of a provider of hard disk drives, to design, manufacture, market and sell hard disk drives and all devices that store digitally encoded data.
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(b)
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To carry on the business of designing, manufacturing, marketing and selling media for storing electronic data in systems ranging from desktop and notebook computers, and consumer electronics devices to data centers
delivering electronic data over corporate networks and the internet.
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(c)
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To carry on the business of producing a broad range of disk drive products and other data storage products addressing enterprise applications, mainframes and workstations, desktop applications, mobile computing
applications, and consumer electronics applications and to provide data storage services for small to medium sized businesses, including online backup, data protection and recovery solutions.
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(d)
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To carry on the business of a holding company and to co-ordinate the administration, finances and activities of any subsidiary companies or associated companies, to do all lawful acts and things whatever that are
necessary or convenient in carrying on the business of such a holding company and in particular to carry on in all its branches the business of a management services company, to act as managers and to direct or coordinate the management of other
companies or of the business, property and estates of any company or person and to undertake and carry out all such services in connection therewith as may be deemed expedient by the Company's Board and to exercise its powers as a shareholder of
other companies.
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(e)
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To acquire the entire issued share capital of Seagate Technology, a Cayman Island registered company.
1
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D-1
Table of Contents
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(2)
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To acquire and hold shares, stocks, debenture stock, bonds, mortgages, obligations and securities and interests of any kind issued or guaranteed by any company, corporation or undertaking of whatever nature and wherever
constituted or carrying on business, whether in Ireland or elsewhere, and to vary, transpose, dispose of or otherwise deal with, from time to time as may be considered expedient, any of the Company's investments for the time being.
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(3)
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To acquire any such shares and other securities as are mentioned in the preceding paragraph by subscription, syndicate participation, tender, purchase, exchange or otherwise and to subscribe for the same, either
conditionally or otherwise, and to guarantee the subscription thereof and to exercise and enforce all rights and powers conferred by or incident to the ownership thereof.
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(4)
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To lease, acquire by purchase or otherwise and hold, sell, dispose of and deal in real property and in personal property of all kinds wheresoever situated.
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(5)
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To enter into any guarantee, contract of indemnity or suretyship and to assure, support or secure with or without consideration or benefit the performance of any obligations of any person or persons and to guarantee the
fidelity of individuals filling or about to fill situations of trust or confidence.
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(6)
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To acquire or undertake the whole or any part of the business, property and liabilities of any person carrying on any business that the Company is authorized to carry on.
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(7)
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To apply for, register, purchase, lease, acquire, hold, use, control, licence, sell, assign or dispose of patents, patent rights, copyrights, trade marks, formulae, licences, inventions, processes, distinctive marks and
similar rights.
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(8)
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To enter into partnership or into any arrangement for sharing of profits, union of interests, co-operation, joint venture, reciprocal concession or otherwise with any person carrying on or engaged in or about to carry
on or engage in any business or transaction that the Company is authorized to carry on or engage in or any business or transaction capable of being conducted so as to benefit the Company.
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(9)
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To take or otherwise acquire and hold securities in any other body corporate having objects altogether or in part similar to those of the Company or carrying on any business capable of being conducted so as to benefit
the Company.
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(10)
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To lend money to any employee or to any person having dealings with the Company or with whom the Company proposes to have dealings or to any other body corporate any of whose shares are held by the Company.
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(11)
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To apply for, secure or acquire by grant, legislative enactment, assignment, transfer, purchase or otherwise and to exercise, carry out and enjoy any charter, licence, power, authority, franchise, concession, right or
privilege, that any government or authority or any body corporate or other public body may be empowered to grant, and to pay for, aid in and contribute toward carrying it into effect and to assume any liabilities or obligations incidental thereto and
to enter into any arrangements with any governments or authorities, supreme, municipal, local or otherwise, that may seem conducive to the Company's objects or any of them.
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(12)
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To perform any duty or duties imposed on the Company by or under any enactment and to exercise any power conferred on the Company by or under any enactment.
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D-2
Table of Contents
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(13)
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To incorporate or cause to be incorporated any one or more subsidiaries of the Company (within the meaning of
section 155 of
the
1963
Companies
Act
s
) for the purpose of
carrying on any business.
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(14)
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To establish and support or aid in the establishment and support of associations, institutions, funds or trusts for the benefit of employees, directors and/or consultants or former employees, directors and/ or
consultants of the Company or its predecessors or any of its subsidiary or associated companies, or the dependants or connections of such employees, directors and/or consultants or former employees, directors and/or consultants and grant gratuities,
pensions and allowances, including the establishment of share option schemes, enabling employees, directors and/or consultants of the Company or other persons aforesaid to become shareholders in the Company, or otherwise to participate in the profits
of the Company upon such terms and in such manner as the Company thinks fit, and to make payments towards insurance or for any object similar to those set forth in this paragraph.
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(15)
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To establish and contribute to any scheme for the purchase by trustees of Shares in the Company to be held for the benefit of the Company's employees or the employees of any of its subsidiary or associated companies and
to lend or otherwise provide money to the trustees of such schemes or the Company's employees or the employees of any of its subsidiary or associated companies to enable them to purchase Shares of the Company.
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(16)
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To grant bonuses to any person or persons who are or have been in the employment of the Company or any of its subsidiary or associated companies or any person or persons who are or have been directors of, or consultants
to, the Company or any of its subsidiary or associated companies.
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(17)
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To establish any scheme or otherwise to provide for the purchase by or on behalf of customers of the Company of Shares in the Company.
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(18)
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To subscribe or guarantee money for charitable, benevolent, educational or religious objects or for any exhibition or for any public, general or useful objects.
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(19)
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To promote any company for the purpose of acquiring or taking over any of the property and liabilities of the Company or for any other purpose that may benefit the Company.
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(20)
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To purchase, lease, take in exchange, hire or otherwise acquire any personal property and any rights or privileges that the Company considers necessary or convenient for the purposes of its business.
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(21)
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To construct, maintain, alter, renovate and demolish any buildings or works necessary or convenient for its objects.
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(22)
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To construct, improve, maintain, work, manage, carry out or control any roads, ways, tramways, branches or sidings, bridges, reservoirs, watercourses, wharves, factories, warehouses, electric works, shops, stores and
other works and conveniences that may advance the interests of the Company and contribute to, subsidize or otherwise assist or take part in the construction, improvement, maintenance, working, management and carrying out of control
thereof.
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(23)
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To raise and assist in raising money for, and aid by way of bonus, loan, promise, endorsement, guarantee or otherwise, any person and guarantee the performance or fulfilment of any contracts or obligations of any person,
and in particular guarantee the payment of the principal of and interest on the debt obligations of any such person.
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D-3
Table of Contents
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(24)
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To borrow or raise or secure the payment of money (including money in a currency other than the currency of Ireland) in such manner as the Company shall think fit and in particular by the issue of debentures or any other
securities, perpetual or otherwise, charged upon all or any of the Company's property, both present and future, including its uncalled capital and to purchase, redeem or pay off any such securities.
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(25)
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To engage in currency exchange, interest rate and/or commodity or index linked transactions (whether in connection with or incidental to any other contract, undertaking or business entered into or carried on by the
Company or whether as an independent object or activity) including, but not limited to, dealings in foreign currency, spot and forward rate exchange contracts, futures, options, forward rate agreements, swaps, caps, floors, collars, commodity or
index linked swaps and any other foreign exchange, interest rate or commodity or index linked arrangements and such other instruments as are similar to or derive from any of the foregoing whether for the purpose of making a profit or avoiding a loss
or managing a currency or interest rate exposure or any other purpose and to enter into any contract for and to exercise and enforce all rights and powers conferred by or incidental, directly or indirectly, to such transactions or termination of any
such transactions.
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(26)
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To remunerate any person or company for services rendered or to be rendered in placing or assisting to place or guaranteeing the placing of any of the Shares of the Company's capital or any debentures, debenture stock
or other securities of the Company or in or about the formation or promotion of the Company or the conduct of its business.
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(27)
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To draw, make, accept, endorse, discount, execute and issue bills of exchange, promissory notes, bills of lading, warrants and other negotiable or transferable instruments.
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(28)
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To sell, lease, exchange or otherwise dispose of the undertaking of the Company or any part thereof as an entirety or substantially as an entirety for such consideration as the Company thinks fit.
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(29)
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To sell, improve, manage, develop, exchange, lease, dispose of, turn to account or otherwise deal with the property of the Company in the ordinary course of its business.
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(30)
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To adopt such means of making known the products of the Company as may seem expedient, and in particular by advertising, by purchase and exhibition of works of art or interest, by publication of books and periodicals
and by granting prizes and rewards and making donations.
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(31)
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To cause the Company to be registered and recognized in any foreign jurisdiction, and designate persons therein according to the laws of that foreign jurisdiction or to represent the Company and to accept service for
and on behalf of the Company of any process or suit.
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(32)
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To allot and issue fully-paid Shares of the Company in payment or part payment of any property purchased or otherwise acquired by the Company or for any past services performed for the Company.
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(33)
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To distribute among the Members of the Company in cash, kind, specie or otherwise as may be resolved, by way of dividend, bonus or in any other manner considered advisable, any property of the Company, but not so as to
decrease the capital of the Company unless the distribution is made for the purpose of enabling the Company to be dissolved or the distribution, apart from this paragraph, would be otherwise lawful.
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D-4
Table of Contents
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(34)
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To promote freedom of contract, and to resist, insure against, counteract and discourage interference therewith, to join any lawful federation, union or association or do any other lawful act or thing with a view to
preventing or resisting directly or indirectly any interruption of or interference with the Company's or any other trade or business or providing or safeguarding against the same, or resisting strike, movement or organisation, which may be thought
detrimental to the interests or opposing any of the Company or its employees and to subscribe to any association or fund for any such purposes.
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(35)
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To make or receive gifts by way of capital contribution or otherwise.
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(36)
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To establish agencies and branches.
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(37)
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To take or hold mortgages, hypothecations, liens and charges to secure payment of the purchase price, or of any unpaid balance of the purchase price, of any part of the property of the Company of whatsoever kind sold by
the Company, or for any money due to the Company from purchasers and others and to sell or otherwise dispose of any such mortgage, hypothec, lien or charge.
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(38)
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To pay all costs and expenses of or incidental to the incorporation and organization of the Company.
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(39)
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To invest and deal with the moneys of the Company not immediately required for the objects of the Company in such manner as may be determined.
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(40)
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To do any of the things authorized by this memorandum as principals, agents, contractors, trustees or otherwise, and either alone or in conjunction with others.
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(41)
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To do all such other things as are incidental or conductive to the attainment of the objects and the exercise of the powers of the Company.
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-
5.
-
The
liability of each Member is limited to the amount from time to time unpaid on such Member's Shares.
-
6.
-
The
authorized share capital of the Company is €40,000 and US$13,500 and consists of (a) 40,000 deferred shares of
€1.00 each (the "
Deferred Shares
"), (b) 1,250,000,000 ordinary shares with a nominal value of US $0.00001 per share and having
the rights and privileges attached thereto as provided in the Company's Articles of Association (the "
Ordinary Shares
") and (c) 100,000,000
undesignated preferred shares with a nominal value of US $0.00001 per share and having the rights and preferences attached thereto as provided in the Company's Articles of Association (the
"
Preferred Shares
").
-
7.
-
The
shares forming the capital, increased or reduced, may be increased or reduced and be divided into such classes and issued with any special rights,
privileges and conditions or with such qualifications as regards preference, dividend, capital, voting or other special incidents, and be held upon such terms as may be attached thereto or as may from
time to time be provided by the original or any substituted or amended articles of association and regulations of the Company for the time being, but so that where shares are issued with any
preferential or special rights attached thereto such rights shall not be alterable otherwise than pursuant to the provisions of the Company's articles of association for the time being.
-
8.
-
Capitalised
terms that are not defined in this memorandum of association bear the same meaning as those given in the articles of association of the Company.
D-5
Table of Contents
WE,
the several persons whose names, addresses and descriptions are subscribed, wish to be formed into a Company in pursuance of this memorandum of association, and we
agree to take the number of Shares in the capital of the Company set opposite our respective names.
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Names, addresses and descriptions of subscribers
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Number of Shares taken
by each subscriber
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For and on behalf of
|
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Seagate Technology
|
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P.O. Box 309, Ugland House,
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Grand Cayman KY1-1104
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Cayman Island Thirty nine thousand nine hundred and ninety four Ordinary Shares
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Corporate Body
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Stephen J. Luczo
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Address kept with the Company's records.
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Chairman, President and CEO
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One Ordinary Share
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Patrick J. O'Malley III
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Address kept with the Company's records.
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Executive Vice President and CFO
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One Ordinary Share
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Robert W. Whitmore
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Address kept with the Company's records.
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Executive Vice President and CTO
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One Ordinary Share
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Kenneth M. Massaroni
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Address kept with the Company's records.
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Senior Vice President, Corporate Secretary and
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General Counsel
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One Ordinary Share
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Stephen P. Sedler
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Address kept with the Company's records.
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Senior Vice President and Assistant Secretary
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One Ordinary Share
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David H. Morton Jr.
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Address kept with the Company's records.
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Vice President, Treasurer and Principal
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Accounting Officer
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One Ordinary Share
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Dated the 21 day of January 2010
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Witnesses to the above signatures:
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Georgia Brint
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Saralyn D. Brown
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Robert Wenner
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920 Disc Drive, Scotts Valley
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920 Disc Drive, Scotts Valley
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1280 Dis Drive, Shakopee,
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CA 95066, USA
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CA 95066, USA
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MN 55379, USA
|
Demetrios N. Mavrikis
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Jenny Wood
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Kevin Cope
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920 Disc Drive, Scotts Valley
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920 Disc Drive, Scotts Valley
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920 Disc Drive,
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CA 95066, USA
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CA 95066, USA
|
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Scotts Valley, CA 95066
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USA
|
D-6
Table of Contents
Cert. No. 480010
Companies Acts
1963 to
201
2
4
A PUBLIC COMPANY LIMITED BY SHARES
ARTICLES OF ASSOCIATION
of
Seagate Technology Public
Limited Company
SEAGATE TECHNOLOGY
PUBLIC LIMITED COMPANY
(
A
as
a
mended
and restated by Special
by all
R
r
esolution
s
dated 30 October 2013
passed up
to and
including 19 October
·
2016
)
PRELIMINARY
-
1.
-
The provisions set out in these articles of association shall constitute the whole of the
regulations applicable to the Company and no "optional provision" as defined by section 1007(2) of the Companies Act (with the exception of sections 83 and 84) shall apply to the
Company.
-
1.
-
The
regulations contained in Table A in the First Schedule to the 1963 Act shall not apply
to the Company.
-
2.
-
(1) In
these Articles:
|
|
|
"
1963 Act
"
|
|
means the Companies Act 1963.
|
"
1983 Act
"
|
|
means the Companies (Amendment) Act 1983.
|
"
1990 Act
"
|
|
means the Companies Act 1990.
|
"
address
"
|
|
includes, without limitation, any number or address used for the purposes of communication by way of electronic mail or other electronic
communication.
|
"
Articles
" or "
Articles of Association
"
|
|
means these articles of association of the Company, as amended from time to time by Special Resolution.
|
"
Assistant Secretary
"
|
|
means any person appointed by the Secretary from time to time to assist the Secretary.
|
"
Auditors
"
|
|
means the persons for the time being performing the duties of
statutory
auditors of the Company.
|
"
Beneficial Owner
"
|
|
means a person who is the beneficial owner of Shares held in a voting trust or by a Member on such beneficial owner's behalf.
|
"
Board
"
|
|
means the board of directors for the time being of the Company.
|
D-7
Table of Contents
|
|
|
"
clear days
"
|
|
means in relation to a period of notice, that period excluding the day when the notice is given or deemed to be given and the day for which it is given or
on which it is to take effect.
|
"
Companies Acts
"
|
|
means the
Companies Acts 1963-2012
Companies Act 2014, all statutory instruments which are to be read as one with, or
construed or read together as one with the Companies Acts and every statutory modification and re-enactment thereof for the time being in force
.
|
"
Company
"
|
|
means the above-named company.
|
"
Covered Person
"
|
|
shall have the meaning given to such term in Article
182
183
183
.
|
"
Court
"
|
|
means the Irish High Court.
|
"
Deferred Shares
"
|
|
has the meaning given in the Company's Memorandum of Association.
|
"
Delaware-Based Courts
"
|
|
shall have the meaning given to such term in Article
191
190
.
|
"
Directors
"
|
|
means the directors for the time being of the Company.
|
"
dividend
"
|
|
includes interim dividends and bonus dividends.
|
"
Dividend Periods
"
|
|
shall have the meaning given to such term in Article
15
15
16
.
|
"
electronic communication
"
|
|
shall have the meaning given to those words in the Electronic Commerce Act 2000.
|
"
electronic signature
"
|
|
shall have the meaning given to those words in the Electronic Commerce Act 2000.
|
"
Exchange
"
|
|
means any securities exchange or other system on which the Shares of the Company may be listed or otherwise authorised for trading from time
to time.
|
"
Exchange Act
"
|
|
means the Securities Exchange Act of 1934, of the United States of America.
|
"IAS Regulation"
|
|
means Regulation (EC) No. 1606/2002 of the European Parliament and of the Council of 19 July 2002 on the application of
international accounting standards.
|
D-8
Table of Contents
|
|
|
"
Independent Director
"
|
|
means a person recognised as such by the relevant code, rules and regulations applicable to the listing of the Shares on the Exchange
or the Companies
Acts
.
|
"
Member
"
|
|
means a person who has agreed to become a member of the Company and whose name is entered in the Register of Members as a registered holder
of Shares.
|
"
Memorandum
"
|
|
means the memorandum of association of the Company as amended from time to time by Special Resolution.
|
"
month
"
|
|
means a calendar month.
|
"
officer
"
|
|
means any executive of the Company that has been designated by the Company the title "officer" and for the avoidance of doubt does not have
the meaning given to such term under the
1963
Companies
Act
s
.
|
"
Ordinary Resolution
"
|
|
means an ordinary resolution of the Company's Members within the meaning of
section 141 of
the
1963
Companies
Act
s
.
|
"
Ordinary Shares
"
|
|
has the meaning given in the Company's Memorandum of Association.
|
"
paid-up
"
|
|
means paid-up as to the nominal value and any premium payable in respect of the issue of any Shares and includes credited as
paid-up.
|
"
Preferred Shares
"
|
|
has the meaning given in the Company's Memorandum of Association.
|
"
proceeding
"
|
|
shall have the meaning given to such term in Article
182
183
3
.
|
"
Redeemable Shares
"
|
|
means redeemable shares in accordance with
section 206 of
the
1990
Companies
Act
s
.
|
"
Register of Members
"
|
|
means the register of members of the Company maintained by or on behalf of the Company, in accordance with the Companies Acts and includes
(except where otherwise stated) any duplicate Register of Members.
|
"
registered office
"
|
|
means the registered office for the time being of the Company.
|
D-9
Table of Contents
|
|
|
"
Remote Communication
"
|
|
shall have the meaning given to such term in Article
72
72
733
.
|
"
Seal
"
|
|
means the seal of the Company, if any, and includes every duplicate seal.
|
"
Secretary
"
|
|
means the person appointed by the Board to perform any or all of the duties of secretary of the Company and includes an Assistant Secretary
and any person appointed by the Board to perform the duties of secretary of the Company.
|
"
Share
" and "
Shares
"
|
|
means a share or shares in the capital of the Company.
|
"
Special Resolution
"
|
|
means a special resolution of the Company's Members within the meaning of
section 141 of
the
1963
Companies
Act
s
.
|
-
(2)
-
In
the Articles:
-
(a)
-
words
importing the singular number include the plural number and vice-versa;
-
(b)
-
words
importing the masculine gender include the feminine gender;
-
(c)
-
words
importing persons include corporations;
-
(d)
-
"written"
and "in writing" include all modes of representing or reproducing words in visible form, including electronic communication;
-
(e)
-
references
to provisions of any law or regulation shall be construed as references to those provisions as amended, modified, re-enacted or replaced from
time to time;
-
(f)
-
any
phrase introduced by the terms "including", "include", "in particular" or any similar expression shall be construed as illustrative and shall not limit
the sense of the words preceding those terms;
-
(g)
-
reference
to "officer" or "officers" in these Articles means any executive that has
been designated by the Company as an "officer" and, for the avoidance of doubt, shall not have the meaning given to such term in the 1963 Act and any such officers shall not constitute officers of the
Company within the meaning of Section 2(1) of the 1963 Act.
-
(h)
(g)
-
headings
are inserted for reference only and shall be
ignored in construing these Articles; and
-
(i)
(h)
-
references
to US$, USD, or dollars shall mean United
States dollars, the lawful currency of the United States of America and references to €, euro, or EUR shall mean the euro, the lawful currency of Ireland.
SHARE CAPITAL; ISSUE OF SHARES
-
3.
-
The
authorised share capital of the Company is €40,000 and US$13,500 and consists of (a) 40,000 Deferred Shares of
€1.00 each, (b) 1,250,000,000 Ordinary Shares of US $0.00001 each and (c) 100,000,000 undesignated Preferred Shares of US $0.00001 each.
D-10
Table of Contents
-
4.
-
Subject
to the Companies Acts and the provisions, if any, in the Memorandum and these Articles and to any direction that may be given by the Company in a
general meeting and without prejudice to any rights attached to any existing Shares, the Board may allot, issue, grant options, rights or warrants over or otherwise dispose of any Shares with or
without preferred, deferred, qualified or other rights or restrictions, whether in regard to dividend, voting, return of capital or otherwise, and to such persons at such times and on such other terms
as they think proper. Notwithstanding and without prejudice to the generality of the foregoing, the Board is expressly authorised and empowered to implement or effect at its sole discretion the
issuance of a preferred share purchase right to be issued on a pro rata basis to each holder of an Ordinary Share with such terms and for such purposes, including the influencing of takeovers, as may
be described in a rights agreement between the Company and a rights agent.
-
5.
-
Upon
approval of the Board, such number of Ordinary Shares, or other Shares or securities of the Company, as may be required for such purposes shall be
reserved for issuance in connection with an option, right, warrant or other security of the Company or any other person that is exercisable for, convertible into, exchangeable for or otherwise
issuable in respect of such Ordinary Shares or other Shares or securities of the Company.
-
6.
-
All
Shares shall be issued fully paid as to their nominal value and any premium determined by the Board at the time of issue, save in accordance with
sections 26(5) and 28 of the 1983
the Companies
Act
s
, and so that, in the case of Shares offered
to the public for subscription, the amount payable on each Share shall not be less than one-quarter of the nominal amount of the Share and the whole of any premium thereon, and shall be
non-assessable.
-
7.
-
Subject
to the provisions of
Part XI of
the
1990
Companies
Act
s
and the other provisions of this Article 7, the Company
may:
-
(a)
-
pursuant
to
section 207 of
the
Companies
1990
Act
s
, issue any Shares of the Company which are to be redeemed or are liable to be redeemed at the option of the Company or the Member on such
terms and in such manner as may be determined by the Company in general meeting (by Special Resolution) on the recommendation of the Directors;
-
(b)
-
redeem
Shares of the Company on such terms as may be contained in, or be determined pursuant to the provisions of, these Articles. Subject as aforesaid, the
Company may cancel any Shares so redeemed or may hold them as treasury shares and re-issue such treasury shares as Shares of any class or classes or cancel them; or
-
(c)
-
pursuant
to
section 210 of
the
1990
Companies
Act
s
, convert any of its Shares into Redeemable Shares provided that the total number of
Shares which shall be redeemable pursuant to this authority shall not exceed the limit in
section 210(4) of
the
1990
Companies
Act
s
.
The
Directors are, for the purposes of section 20 of the 1983
Companies
Act
s
, generally and unconditionally
authorised to exercise all powers of the Company to allot and issue relevant securities (as defined by the said section 20
Companies Acts
) up to the amount of
Company's authorised share capital as at the date of adoption of these Articles and to allot and issue any Shares purchased by the Company pursuant to the provisions of Part XI of the
1990
Companies
Act
s
and held as treasury shares and this authority shall expire five years from the date of adoption of these
Articles.
-
8.
-
In
addition to the Directors, relevant securities may be allotted also by a
committee of the Directors or by any other person where such committee or person is so authorised by the Directors.
D-11
Table of Contents
-
9.
-
The
Directors are hereby empowered pursuant to sections 23 and 24(1) of the
1983
Companies
Act
s
to allot equity securities within the meaning of the said section 23
Companies Acts
for
cash pursuant to the authority conferred by Article as if section 23(1) of the said 1983
Companies
Act
s
did not apply to any such
allotment. The Company may before the expiry of such authority 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 such an offer or agreement as if the power conferred by Article had not expired.
-
10.
8.
-
10
9A.
The Company
shall not give, whether directly or indirectly and whether by means of a loan, guarantee, the provision of security or otherwise, any financial assistance for the purpose of
or in
connection with
a purchase or subscription made or to be made by any person of or for any shares in the Company or in its holding company, except as permitted by
section 60 of
the
1963
Companies
Act
s
.
ORDINARY SHARES
-
11.
9.
-
The
holders of the Ordinary Shares shall be:
-
(a)
-
entitled
to dividends on a pro rata basis in accordance with the relevant provisions of these Articles;
-
(b)
-
entitled
to participate pro rata in the total assets of the Company in the event of the Company's winding up; and
-
(c)
-
entitled,
subject to the right of the Company to set record dates for the purpose of determining the identity of Members entitled to notice of and/or vote
at a general meeting, to attend general meetings of the Company and shall be entitled to one vote for each Ordinary Share registered in his name in the Register of Members, both in accordance with the
relevant provisions of these Articles.
-
12.
10.
-
An
Unless the Board specifically
elects to treat such acquisition as a purchase for the purposes of the Companies Acts, an
Ordinary Share shall be deemed to be a Redeemable Share on, and from the time of, the existence
or creation of an agreement, transaction or trade between the Company and any third party pursuant to which the Company acquires or will acquire Ordinary Shares, or an interest in Ordinary Shares,
from such third party. In these circumstances, the acquisition of such Shares or interest in Shares by the Company shall constitute the redemption of a Redeemable Share in accordance with
Part XI of
the
1990
Companies
Act
s
.
-
13.
11.
-
The
holders of the Ordinary Shares shall not be entitled
, unless
the Board resolves otherwise (either generally or in any particular case or cases),
to receive a share certificate in respect of any Ordinary Shares
, unless so
requested in accordance with the Companies Acts
.
-
14.
12.
-
All
Ordinary Shares shall rank
pari
passu
with each other in all respects.
DEFERRED SHARES
-
15.
13.
-
13A.
The Deferred Shares (i) do not
convey on the holder the right to be paid a dividend or to receive notice of or to attend, vote and speak at any meeting of the members of the Company in respect of those shares, and
(ii) confer the right on a return of capital, on a winding up or otherwise, only to repayment of the nominal amount paid up on the Deferred Shares but only after repayment of the Ordinary
Shares and any Preferred Shares of the Company in full.
D-12
Table of Contents
PREFERRED SHARES
-
16.
14.
-
Preferred
Shares may be issued from time to time in one or more series, each of such
series to have such voting powers (full or limited or without voting powers), designations, preferences and relative, participating, optional or other special rights and qualifications, limitations or
restrictions thereof as are stated and expressed, or in any resolution or resolutions providing for the issue of such series adopted by the Board as hereinafter provided.
-
17.
15.
-
Authority
is hereby granted to the Board, subject to the provisions of the
Memorandum, these Articles and applicable law to issue all or any of the authorized unissued Preferred Shares, to create one or more series of Preferred Shares and, with respect to each such series,
to fix by resolution or resolutions, without any further vote or action by the Members providing for the issue of such series:
-
(a)
-
the
number of Preferred Shares to constitute such series and the distinctive designation thereof;
-
(b)
-
the
dividend rate on the Preferred Shares of such series, the dividend payment dates, the periods in respect of which dividends are payable
("
Dividend Periods
"), whether such dividends shall be cumulative and, if cumulative, the date or dates from which dividends shall accumulate;
-
(c)
-
whether
the Preferred Shares of such series shall be convertible into, or exchangeable for, Shares of any other class or classes or any other series of the
same or any other class or classes of Shares and the conversion price or prices or rate or rates, or the rate or rates at which such exchange may be made, with such adjustments, if any, as shall be
stated and expressed or provided in such resolution or resolutions;
-
(d)
-
the
preferences, if any, and the amounts thereof, which the Preferred Shares of such series shall be entitled to receive upon the winding up of the Company;
-
(e)
-
the
voting power, if any, of the Preferred Shares of such series;
-
(f)
-
transfer
restrictions and rights of first refusal with respect to the Preferred Shares of such series; and
-
(g)
-
such
other terms, conditions, special rights and provisions as may seem advisable to the Board.
Notwithstanding
the fixing of the number of Preferred Shares constituting a particular series upon the issuance thereof, the Board at any time thereafter may authorise the issuance of additional
Preferred Shares of the same series subject always to the Companies Acts, the Memorandum and these Articles.
-
18.
16.
-
No
dividend shall be declared and set apart for payment on any series of Preferred
Shares in respect of any Dividend Period unless there shall likewise be or have been paid, or declared and set apart for payment, on all Preferred Shares of each other series entitled to cumulative
dividends at the time outstanding that rank senior or equally as to dividends with the series in question, dividends ratably in accordance with the sums which would be payable on the said Preferred
Shares through the end of the last preceding Dividend Period if all dividends were declared and paid in full.
-
19.
17.
-
If,
upon the winding up of the Company, the assets of the Company distributable among
the holders of any one or more series of Preferred Shares which (i) are entitled to a preference over the holders of the Ordinary Shares upon such winding up, and (ii) rank equally in
connection with any such distribution, shall be insufficient to pay in full the preferential amount to which the holders of such Preferred Shares shall be entitled, then such assets, or
D-13
Table of Contents
the
proceeds thereof, shall be distributed among the holders of each such series of the Preferred Shares ratably in accordance with the sums which would be payable on such distribution if all sums
payable were discharged in full.
ISSUE OF WARRANTS
-
20.
18.
-
The
Board may issue warrants to subscribe for any class of Shares or other securities
of the Company on such terms as it may from time to time determine.
CERTIFICATES FOR SHARES
-
21.
19.
-
Unless
otherwise provided for by the Board or the rights attaching to or by the terms
of issue of any particular Shares, or to the extent required by any stock exchange, depository, or any operator of any clearance or settlement system
, or unless so requested in
accordance with the Companies Acts
, no person whose name is entered as a Member in the Register of Members shall be entitled to receive a share certificate for all his Shares of each
class held by him (nor on transferring a part of holding, to a certificate for the balance).
-
22.
20.
-
Any
share certificate, if issued, shall specify the number of Shares in respect of
which it is issued and the amount paid thereon or the fact that they are fully paid, as the case may be, and may otherwise be in such form as shall be determined by the Board. Such certificates may be
under Seal. All certificates for Shares shall be consecutively numbered or otherwise identified and shall specify the Shares to which they relate. The name and address of the person to whom the Shares
represented thereby are issued, with the number of Shares and date of issue, shall be entered in the Register of Members of the Company. All certificates surrendered to the Company for transfer shall
be cancelled and no new certificate shall be issued until the former certificate for a like number of Shares shall have been surrendered and cancelled. The Board may authorise certificates to be
issued with the seal and authorised signature(s) affixed by some method or system of mechanical process. In respect of a Share or Shares held jointly by several persons, the Company shall not be bound
to issue a certificate or certificates to each such person, and the issue and delivery of a certificate or certificates to one of several joint holders shall be sufficient delivery to all such
holders.
-
23.
21.
-
If
a share certificate is defaced, worn out, lost or destroyed, it may be renewed on
such terms (if any) as to evidence and indemnity and on the payment of such expenses reasonably incurred by the Company in investigating such evidence, as the Board may prescribe, and, in the case of
defacement or wearing out, upon delivery of the old certificate.
REGISTER OF MEMBERS
-
24.
22.
-
The
Company shall maintain or caused to be maintained a Register of its Members in
accordance with the Companies Acts.
-
25.
23.
-
If
the Board considers it necessary or appropriate, the Company may establish and
maintain a duplicate Register or Registers of Members at such location or locations within or outside Ireland as the Board thinks fit. The original Register of Members shall be treated as the Register
of Members for the purposes of these Articles and the Companies Acts.
-
26.
24.
-
The
Company, or any agent(s) appointed by it to maintain the duplicate Register of
Members in accordance with these Articles, shall as soon as practicable and on a regular basis record or procure the recording in the original Register of Members all transfers of Shares effected on
any duplicate Register of Members and shall at all times maintain the original Register of Members in such manner as to show at all times the Members for the time being and the Shares respectively
held by them, in all respects in accordance with the Companies Acts.
D-14
Table of Contents
-
27.
25.
-
The
Company shall not be bound to register more than four persons as joint holders of
any Share. If any Share shall stand in the names of two or more persons, the person first named in the Register of Members shall be deemed the sole holder thereof as regards service of notices and,
subject to the provisions of these Articles, all or any other matters connected with the Company.
TRANSFER OF SHARES
-
28.
-
All
transfers of Shares may be effected by an instrument of transfer in the usual common form or
in such other form as the Board may approve. All instruments of transfer must be left at the registered office of the Company or at such other place as the Board may appoint and all such instruments
of transfer shall be retained by the Company.
-
29.
-
The
instrument of transfer shall be executed by or on behalf of the transferor. The instrument of
transfer of any Share shall be in writing and shall be executed with a manual signature or facsimile signature (which may be machine imprinted or otherwise) by or on behalf of the transferor provided
that in the case of execution by facsimile signature by or on behalf of a transferor, the Board shall have previously been provided with a list of specimen signatures of the authorised signatories of
such transferor and the Board shall be reasonably satisfied that such facsimile signature corresponds to one of those specimen signatures.
-
26.
-
-
(2)
-
(1)
The instrument of
transfer
, which shall be in such form as the Board may approve,
of any Share may be executed for and on behalf of the transferor by the
Secretary
,
or
an Assistant Secretary,
and
or any such person that
the Secretary or Assistant Secretary
nominates for that purpose (whether in respect of specific transfers or pursuant to a general standing authorisation), and the
Secretary, Assistant Secretary or the relevant nominee
shall be deemed to have been irrevocably appointed agent for the transferor of such Share or Shares with full power to execute,
complete and deliver in the name of and on behalf of the transferor of such Share or Shares all such transfers of Shares held by the Members in the share capital of the Company. Any document which
records the name of the transferor, the name of the transferee, the class and number of Shares agreed to be transferred, the date of the agreement to transfer Shares, shall, once executed by the
transferor or the Secretary
,
or
Assistant Secretary
or the relevant nominee
as agent for the
transferor, be deemed to be a proper instrument of transfer for the purposes of
section 81 of
the
1963
Companies
Act
s
. The transferor shall be deemed to remain the holder of the Share until the name of
the transferee is entered on the Register in respect thereof, and neither the title of the transferee nor the title of the transferor shall be affected by any irregularity or invalidity in the
proceedings in reference to the sale should the Directors so determine.
-
(1)
-
-
(3)
(2)
-
(2)
The Company, at its absolute discretion, may, or may procure that a subsidiary of the Company shall, pay Irish stamp duty arising on a transfer of Shares on behalf of the transferee of such Shares of
the Company. If stamp duty resulting from the transfer of Shares in the Company which would otherwise be payable by the transferee is paid by the Company or any subsidiary of the Company on behalf of
the transferee, then in those circumstances, the Company shall, on its behalf or on behalf of its subsidiary (as the case may be), be entitled to (i) seek reimbursement of the stamp duty from
the transferee, (ii) set-off the stamp duty against any dividends payable to the transferee of those Shares and (iii) to claim a first and permanent lien
D-15
Table of Contents
-
30.
27.
-
The
Board may, in its absolute discretion, and without assigning any reason, refuse
to register a transfer of any Share
which is not fully paid. The Board may also, in its absolute discretion, and without assigning any reason for its decision, refuse to register a
transfer of any Share
unless:
-
(a)
-
the
instrument of transfer is
duly stamped (if required by law) and
lodged with the Company accompanied by the certificate for
the Shares (if any) to which it relates
(which shall upon registration of the transfer be cancelled)
and such other evidence as the Board may reasonably require
to show the right of the transferor to make the transfer;
-
(b)
-
the
instrument of transfer is in respect of only one class of Shares;
-
(c)
-
the
instrument of transfer is properly stamped (in circumstances where stamping is
required);
-
(d)
(c)
-
in
the case of a transfer to joint holders, the number
of joint holders to which the Share is to be transferred does not exceed four; and
-
(e)
(d)
-
a
fee of such maximum amount as the
Exchange (if any) may from time to time determine to be payable (or such lesser sum as the Board may from time to time require) is paid to the Company in respect
thereof
it is satisfied that all applicable consents, authorisations, permissions, or approvals required to be obtained pursuant to any applicable law or agreement
prior to such transfer have been obtained or that no such consents, authorisations, permissions or approvals are required
.
-
31.
28.
-
If
the Board shall refuse to register a transfer of any Share, it shall, within two
(2) months after the date on which the transfer was lodged with the Company, send to each of the transferor and the transferee notice of such refusal.
-
32.
29.
-
The
Company shall not be obligated to make any transfer to an infant or to a person
in respect of whom an order has been made by a competent court or official on the grounds that he is or may be suffering from mental disorder or is otherwise incapable of managing his affairs or under
other legal disability.
D-16
Table of Contents
-
33.
30.
-
Upon
every transfer of Shares the certificate (if any) held by the transferor shall
be given up to be cancelled, and shall forthwith be cancelled accordingly, and a new certificate may be issued without charge to the transferee in respect of the Shares transferred to him, and if any
of the Shares included in the certificate so given up shall be retained by the transferor, a new certificate in respect thereof may be issued to him without charge. The Company shall also retain the
instrument(s) of transfer.
REDEMPTION AND REPURCHASE OF SHARES
-
34.
31.
-
Subject
to the provisions of the Companies Act and these Articles, the Company may
issue Redeemable Shares that are to be redeemed or are liable to be redeemed at the option of the Member or the Company. The redemption of Ordinary Shares shall be effected in accordance with Article
10
121212
11
and in such manner as the Company may, by Special
Resolution, determine before the issue of the Ordinary Shares and the redemption of Preferred Shares shall be effected in such manner as the Board may, by resolution, determine before the issue of the
Preferred Shares.
-
35.
32.
-
Subject
to the Companies Acts, the Company may, without prejudice to any relevant
special rights attached to any class of Shares pursuant to
section 211, of
the
1990
Companies
Act
s
, purchase any of its own Shares whether in the market, by tender or by private
agreement, at such prices (whether at nominal value or above or below nominal value) and otherwise on such terms and conditions as the Board may from time to time determine including any Redeemable
Shares and without any obligation to purchase on any pro rata basis as between Members or Members of the same class (the whole or any part of the amount payable on any such purchase may be paid or
satisfied otherwise than in cash, to the extent permitted by the Companies Acts) and may cancel any Shares so purchased or hold them as treasury shares (as defined in
section 209 of
the
1990
Companies
Act
s
) and may reissue
any such Shares as Shares of any class or classes.
-
36.
33.
-
The
Company may make a payment in respect of the redemption or purchase of its own
Shares in any manner permitted by the Companies Acts.
-
37.
34.
-
The
holder of the Shares being purchased shall be bound to deliver up to the Company
at its registered office or such other place as the Board shall specify, the certificate(s) (if any) thereof for cancellation and thereupon the Company shall pay to him the purchase or redemption
monies or consideration in respect thereof.
VARIATION OF RIGHTS OF SHARES
-
38.
35.
-
If
at any time the share capital of the Company is divided into different classes of
Shares, the rights attached to any class (unless otherwise provided by the terms of issue of the Shares of that class) may be varied or abrogated with the consent in writing of the holders of
three-fourths of the issued Shares of that class, or with the sanction of a Special Resolution passed at a general meeting of the holders of the Shares of that class.
-
39.
36.
-
The
provisions of these Articles relating to general meetings shall apply mutatis
mutandis to every such general meeting of the holders of one class of Shares except that the necessary quorum shall be one person holding or representing by proxy at least one-third of the issued
Shares of the class.
-
40.
37.
-
The
rights conferred upon the holders of the Shares of any class issued with
preferred or other rights shall not, unless otherwise expressly provided by the terms of issue of the Shares of that class, be deemed to be varied by the creation or issue of further Shares ranking
pari passu
therewith or be deemed to be varied by a purchase or redemption by the Company of its own
D-17
Table of Contents
Shares.
The rights of holders of Ordinary Shares shall not be deemed to be varied by the creation or issue of Shares with preferred or other rights which may be effected by the Board as provided in
these Articles without any vote or consent of the holders of Ordinary Shares.
LIEN ON SHARES
-
41.
38.
-
The
Company shall have a first and paramount lien on every Share (not being a fully
paid Share) for all moneys (whether presently payable or not) payable at a fixed time or called in respect of that Share. The Directors, at any time, may declare any Share to be wholly or in part
exempt from the provisions of this Article. The Company's lien on a Share shall extend to all moneys payable in respect of it.
-
42.
39.
-
The
Company may sell in such manner as the Directors determine any Share on which the
Company has a lien if a sum in respect of which the lien exists is presently payable and is not paid within fourteen clear days after notice demanding payment, and stating that if the notice is not
complied with the Share may be sold, has been given to the holder of the Share or to the person entitled to it by reason of the death or bankruptcy of the holder.
-
43.
40.
-
To
give effect to a sale, the Directors may authorise some person to execute an
instrument of transfer of the Share sold to, or in accordance with the directions of, the purchaser. The transferee shall be entered in the Register as the holder of the Share comprised in any such
transfer and he shall not be bound to see to the application of the purchase moneys nor shall his title to the Share be affected by any irregularity in or invalidity of the proceedings in reference to
the sale, and after the name of the transferee has been entered in the Register, the remedy of any person aggrieved by the sale shall be in damages only and against the Company exclusively.
-
44.
41.
-
The
net proceeds of the sale, after payment of the costs, shall be applied in payment
of so much of the sum for which the lien exists as is presently payable and any residue (upon surrender to the Company for cancellation of the certificate for the Shares sold and subject to a like
lien for any moneys not presently payable as existed upon the Shares before the sale) shall be paid to the person entitled to the Shares at the date of the sale.
CALLS ON SHARES
-
45.
42.
-
Subject
to the terms of allotment, the Directors may make calls upon the Members in
respect of any moneys unpaid on their Shares and each Member (subject to receiving at least fourteen clear days' notice specifying when and where payment is to be made) shall pay to the Company as
required by the notice the amount called on his Shares. A call may be required to be paid by instalments. A call may be revoked before receipt by the Company of a sum due thereunder, in whole or in
part and payment of a call may be postponed in whole or in part. A person upon whom a call is made shall remain liable for calls made upon him notwithstanding the subsequent transfer of the Shares in
respect of which the call was made.
-
46.
43.
-
A
call shall be deemed to have been made at the time when the resolution of the
Directors authorising the call was passed.
-
47.
44.
-
The
joint holders of a Share shall be jointly and severally liable to pay all calls
in respect thereof.
-
48.
45.
-
If
a call remains unpaid after it has become due and payable the person from whom it
is due and payable shall pay interest on the amount unpaid from the day it became due until it is paid at the rate fixed by the terms of allotment of the Share or in the notice of the call or, if no
rate is fixed, at the appropriate rate (as defined by the Companies Acts) but the Directors may waive payment of the interest wholly or in part.
D-18
Table of Contents
-
49.
46.
-
An
amount payable in respect of a Share on allotment or at any fixed date, whether in
respect of nominal value or as an instalment of a call, shall be deemed to be a call and if it is not paid the provisions of these Articles shall apply as if that amount had become due and payable by
virtue of a call.
-
50.
47.
-
Subject
to the terms of allotment, the Directors may make arrangements on the issue
of Shares for a difference between the holders in the amounts and times of payment of calls on their Shares.
-
51.
48.
-
The
Directors, if they think fit, may receive from any Member willing to advance the
same all or any part of the moneys uncalled and unpaid upon any Shares held by him, and upon all or any of the moneys so advanced may pay (until the same would, but for such advance, become payable)
interest at such rate, not exceeding (unless the Company in general meeting otherwise directs) fifteen per cent. per annum, as may be agreed upon between the Directors and the Member paying such sum
in advance.
FORFEITURE
-
52.
49.
-
If
a Member fails to pay any call or instalment of a call on the day appointed for
payment thereof, the Directors, at any time thereafter during such times as any part of the call or instalment remains unpaid, may serve a notice on him requiring payment of so much of the call or
instalment as is unpaid together with any interest which may have accrued.
-
53.
50.
-
The
notice shall name a further day (not earlier than the expiration of fourteen
clear days from the date of service of the notice) on or before which the payment required by the notice is to be made, and shall state that in the event of non-payment at or before the time appointed
the Shares in respect of which the call was made will be liable to be forfeited.
-
54.
51.
-
If
the requirements of any such notice as aforesaid are not complied with then, at
any time thereafter before the payment required by the notice has been made, any Shares in respect of which the notice has been given may be forfeited by a resolution of the Directors to that effect.
The forfeiture shall include all dividends or other moneys payable in respect of the forfeited Shares and not paid before forfeiture. The Directors may accept a surrender of any Share liable to be
forfeited hereunder.
-
55.
52.
-
On
the trial or hearing of any action for the recovery of any money due for any call
it shall be sufficient to prove that the name of the Member sued is entered in the Register as the holder, or one of the holders, of the Shares in respect of which such debt accrued, that the
resolution making the call is duly recorded in the minute book and that notice of such call was duly given to the Member sued, in pursuance of these Articles, and it shall not be necessary to prove
the appointment of the Directors who made such call nor any other matters whatsoever, but the proof of the matters aforesaid shall be conclusive evidence of the debt.
-
56.
53.
-
A
forfeited Share may be sold or otherwise disposed of on such terms and in such
manner as the Directors think fit and at any time before a sale or disposition the forfeiture may be cancelled on such terms as the Directors think fit. Where for the purposes of its disposal such a
Share is to be transferred to any person, the Directors may authorise some person to execute an instrument of transfer of the Share to that person. The Company may receive the consideration, if any,
given for the Share on any sale or disposition thereof and may execute a transfer of the Share in favour of the person to whom the Share is sold or disposed of and thereupon he shall be registered as
the holder of the Share and shall not be bound to see to the application of the purchase money, if any, nor shall his title to the Share be affected by any irregularity or invalidity in the
proceedings in reference to the forfeiture, sale or disposal of the Share.
D-19
Table of Contents
-
57.
54.
-
A
person whose Shares have been forfeited shall cease to be a Member in respect of
the forfeited Shares, but nevertheless shall remain liable to pay to the Company all moneys which, at the date of forfeiture, were payable by him to the Company in respect of the Shares, without any
deduction or allowance for the value of the Shares at the time of forfeiture but his liability shall cease if and when the Company shall have received payment in full of all such moneys in respect of
the Shares.
-
58.
55.
-
A
statutory declaration that the declarant is a Director or the Secretary of the
Company, and that a Share in the Company has been duly forfeited on the date stated in the declaration, shall be conclusive evidence of the facts therein stated as against all persons claiming to be
entitled to the Share.
-
59.
56.
-
The
provisions of these Articles as to forfeiture shall apply in the case of
non-payment of any sum which, by the terms of issue of a Share, becomes payable at a fixed time, whether on account of the nominal value of the Share or by way of premium, as if the same had been
payable by virtue of a call duly made and notified.
-
60.
57.
-
The
Directors may accept the surrender of any Share which the Directors have resolved
to have been forfeited upon such terms and conditions as may be agreed and, subject to any such terms and conditions, a surrendered Share shall be treated as if it has been forfeited.
COMMISSION ON SALE OF SHARES
-
61.
58.
-
The
Company may exercise the powers of paying commissions to any person in
consideration of his subscribing or agreeing to subscribe whether absolutely or conditionally for any Shares of the Company. Subject to the provisions of the Companies Acts, such commissions may be
satisfied by the payment of cash or the lodgement of fully or partly paid-up Shares or partly in one way and partly in the other. The Company may also on any issue of Shares pay such brokerage as may
be lawful.
NON-RECOGNITION OF TRUSTS
-
62.
59.
-
The
Company shall not be obligated to recognise any person as holding any Share upon
any trust (except as is otherwise provided in these Articles or to the extent required by law) and the Company shall not be bound by or be compelled in any way to recognise (even when having notice
thereof) any equitable, contingent, future, or partial interest in any Share, or any interest in any fractional part of a Share, or (except only as is otherwise provided by these Articles or the
Companies Acts) any other rights in respect of any Share except an absolute right to the entirety thereof in the registered holder. This shall not preclude the Company from requiring the Members or a
transferee of Shares to furnish to the Company with information as to the beneficial ownership of any Share when such information is reasonably required by the Company.
TRANSMISSION OF SHARES
-
63.
60.
-
In
case of the death of a Member, the survivor or survivors where the deceased was a
joint holder, and the legal personal representatives of the deceased where he was a sole holder, shall be the only persons recognised by the Company as having any title to his interest in the Shares,
but nothing herein contained shall release the estate of any such deceased holder from any liability in respect of any Shares which had been held by him solely or jointly with other persons.
-
64.
61.
-
Any
person becoming entitled to a Share in consequence of the death or bankruptcy or
liquidation or dissolution of a Member (or in any other way than by transfer) may, upon such evidence being produced as may from time to time be required by the Board and subject as
D-20
Table of Contents
hereinafter
provided, elect either to be registered himself as holder of the Share or to make such transfer of the Share to such other person nominated by him and to have such person registered as the
transferee thereof, but the Board shall, in either case, have the same right to decline or suspend
registration as they would have had in the case of a transfer of the Share by that Member before his death or bankruptcy as the case may be.
-
65.
62.
-
If
the person so becoming entitled shall elect to be registered himself as holder he
shall deliver or send to the Company a notice in writing signed by him stating that he so elects.
-
66.
63.
-
A
person becoming entitled to a Share by reason of the death or bankruptcy or
liquidation or dissolution of the holder (or in any other case than by transfer) shall be entitled to the same dividends and other advantages to which he would be entitled if he were the registered
holder of the Share, except that he shall not, before being registered as a Member in respect of the Share, be entitled in respect of it to exercise any right conferred by membership in relation to
meetings of the Company provided however that the Board may at any time give notice requiring any such person to elect either to be registered himself or to transfer the Share and if the notice is not
complied with within ninety days the Board may thereafter withhold payment of all dividends, bonuses or other monies payable in respect of the Share until the requirements of the notice have been
complied with.
AMENDMENT OF MEMORANDUM OF ASSOCIATION;
CHANGE OF LOCATION OF REGISTERED OFFICE; AND
ALTERATION OF CAPITAL
-
67.
64.
-
The
Company may by Ordinary Resolution:
-
(a)
-
increase
the share capital by such sum and with such rights, priorities and privileges annexed thereto, as such Ordinary Resolution shall prescribe;
-
(b)
-
consolidate
and divide all or any of its share capital into Shares of larger amount than its existing Shares;
-
(c)
-
by
subdivision of its existing Shares or any of them divide the whole or any part of its share capital into Shares of smaller nominal value than is fixed by
the Memorandum subject to
section 68(1)(d) of
the
1963
Companies
Act
s
, so, however, that in the sub-division the proportion between the amount paid and the amount, if any, unpaid on each reduced Share shall be the same as it was in the
case of the Share from which the reduced Share is derived;
-
(d)
-
cancel
any Shares that at the date of the passing of the relevant Ordinary Resolution have not been taken or agreed to be taken by any person; and
-
(e)
-
subject
to applicable law, change the currency denomination of its share capital.
-
68.
65.
-
Subject
to the provisions of the Companies Acts, the Company may
-
(a)
-
by
Special Resolution change its name, alter or add to the Memorandum with respect to any objects, powers or other matters specified therein or alter or add
to these Articles.
-
(b)
-
by
Special Resolution reduce its issued share capital and any capital redemption reserve fund or any share premium account.
-
(c)
-
by
resolution of the Directors change the location of its registered office.
D-21
Table of Contents
CLOSING REGISTER OF MEMBERS OR FIXING RECORD DATE
-
69.
66.
-
For
the purpose of determining Members entitled to notice of or to vote at any
meeting of Members or any adjournment thereof, or Members entitled to receive payment of any dividend, or in order to make a determination of Members for any other proper purpose, the Board may
provide, subject to the requirements of
section 121 of
the
1963
Companies
Act
s
, that the Register of Members shall be closed for transfers at such times and for such periods, not exceeding in the whole 30 days in each year. If the
Register of Members shall be so closed for the purpose of determining Members entitled to notice of or to vote at a meeting of Members such Register of Members shall be so closed for at least five
(5) days immediately preceding such meeting and the record date for such determination shall be the date of the closure of the Register of Members.
-
70.
67.
-
In
lieu of, or apart from, closing the Register of Members, the Board may fix in
advance a date as the record date (a) for any such determination of Members entitled to notice of or to vote at a meeting of the Members, which record date shall not be more than sixty
(60) days nor less than ten (10) days before the date of such meeting, and (b) for the purpose of determining the Members entitled to receive payment of any dividend, or in order
to make a determination of Members for any other proper purpose, which record date shall not be more than sixty (60) days prior to the date of payment of such dividend or the taking of any
action to which such determination of Members is relevant. The record date shall not precede the date upon which the resolution fixing the record date is adopted by the Directors
-
71.
68.
-
If
the Register of Members is not so closed and no record date is fixed for the
determination of Members entitled to notice of or to vote at a meeting of Members or Members entitled to receive payment of a dividend, the date immediately preceding the date on which notice of the
meeting is deemed given under these Articles or the date on which the resolution of the Directors declaring such dividend is adopted, as the case may be, shall be the record date for such
determination of Members. When a determination of Members entitled to vote at any meeting of Members has been made as provided in these Articles, such determination shall apply to any adjournment
thereof; provided, however, that the Directors may fix a new record date of the adjourned meeting, if they think fit.
GENERAL MEETINGS
-
72.
69.
-
The
Company, in accordance with requirements of the Companies Acts, shall in each
calendar year hold a general meeting as its annual general meeting, and shall specify the meeting as such in the notices calling it. The annual general meeting shall be held at such time and place as
the Directors shall appoint, provided that the period between the date of one annual general meeting of the Company and that of the next shall not be longer than such period as applicable law or the
relevant code, rules and regulations applicable to the listing of the Shares on the Exchange permits. At these meetings the report of the Directors (if any) shall be presented.
-
70.
-
The
Board may whenever it thinks fit, and shall, on the requisition in writing of Members holding such number of Shares as is
prescribed by, and made in accordance with the Companies Acts, proceed to convene a general meeting of the Company. All general meetings other than annual general meetings shall be called
extraordinary general meetings. Subject always to
section 140 of
the
1963
Companies
Act
s
and the necessary Member approvals, all general meetings of the Company may be held at such place, either inside or outside of Ireland, as determined by the Board.
-
71.
-
The
Board may postpone any general meeting
that it has
convened
of the Members (other than a meeting requisitioned under
Article 71 of these Articles
section 178(3) of the Companies
Acts or the postponement of which would be contrary to the Companies Acts or any enactment or order
D-22
Table of Contents
-
-
of
the court) after it has been convened, where the Board in its absolute discretion considers that the reasons for convening the
meeting no longer exist or it is, for any reason, not in the company'
'
s interests to hold the meeting and such postponement may be expressed to be for a
particular period of time or indefinitely.
-
(a)
-
Where
the Board postpones a general meeting
in
accordance with Article 74
:
-
(i)
-
the
Company shall cause notice of the postponement to be given in accordance with the Articles to
every person who was
all Members entitled to
receive
notice of the meeting before the date for which the meeting was
convened;
-
(ii)
-
no
meeting shall be held and no business may be transacted on the date and at the time on which
the meeting was originally convened; and
-
(iii)
-
if
and when it is decided to hold the meeting, it shall be convened in accordance with the
provisions of these Articles and the Companies Acts.
-
72.
-
-
(1)
-
The
Board may, in its sole discretion, determine that any general meeting shall be held outside of
Ireland provided that the Company makes, at its expense, all necessary arrangements to ensure that members can by technological means participate in any such meeting without leaving Ireland. If an
annual general meeting of the Company is held outside of the United States, the Company will provide Members and proxies with the ability to access the meeting by Remote Communication (as defined
below) for so long as the Shares are registered pursuant to Section 12(b) or 12(g) of the Exchange Act and the Company is subject to the reporting requirements of the Exchange
Act.
-
(1)
(2)
-
The
Subject to paragraph (1) above, the
Board may, in its sole discretion,
but subject always to the approval of Members as to
the holding of general meeting outside of Ireland as described in Article 71,
determine that a general meeting
shall not be held at any place, but
may
instead
be held solely by means of remote communication that enables Members and proxies entitled to attend the meeting to listen to the
meeting, watch the meeting or both and send questions to the Chairman of the meeting, to be addressed at the meeting, if deemed proper ("
Remote
Communication
") as follows:
-
(a)
-
if
authorized by the Board in its sole discretion, and subject to such guidelines and procedures as the Board may adopt, Members and proxies entitled to
attend and vote but not physically present at a meeting of Members may, by means of Remote Communication:
-
(i)
-
participate
in a meeting of Members; and
-
(ii)
-
be
deemed present in person and vote at a meeting of Members whether such meeting is to be held at a designated place or solely by means of Remote
Communication.
-
-
if
authorised by the Board, any vote taken by written ballot may be satisfied by a ballot submitted by electronic transmission, provided that
any such electronic transmission must either set forth or be submitted with information from which it can be determined that the electronic transmission was authorized by the Member or proxy. Any such
general meeting shall be deemed to have taken place at the location of the majority of the Board.
For
as long as Shares are registered pursuant to Section 12(b) or 12(g) of the Exchange Act and the Company is subject to the reporting requirements of the Exchange Act, in
the event that any annual general meeting is held outside of the United States of America, the Board shall provide Members and proxies entitled to attend such meeting with access to such meeting by
way of Remote Communication.
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Table of Contents
NOTICE OF GENERAL MEETINGS
-
73.
-
Subject
to the provisions of the Companies Acts allowing a general meeting to be called by shorter notice, an annual general meeting, and an extraordinary
general meeting called for the passing of a Special Resolution, shall be called by at least twenty-one (21) clear days notice and all other extraordinary general meetings shall be called by at
least fourteen (14) clear days notice. Such notice shall state the date, time, place and purposes of the general meeting to which it relates. Every notice shall be exclusive of the day on which
it is given or deemed to be given and of the day for which it is given and shall specify such other details as are required by applicable law or the relevant code, rules and regulations applicable to
the listing of the Shares on the Exchange.
-
74.
-
A
general meeting of the Company shall, whether or not the notice specified in this regulation has been given and whether or not the provisions of the
Articles regarding general meetings have been complied with, be deemed to have been duly convened if applicable law so permits and it is so agreed by the Auditors and by all the Members entitled to
attend and vote thereat or their proxies.
-
75.
-
The
notice convening an annual general meeting shall specify the meeting as such, and the notice convening a meeting to pass a Special Resolution shall
specify the intention to propose the resolution as a Special Resolution. Notice of every general meeting shall be given to all Members other than such as, under the provisions hereof or the terms of
issue of the Shares they hold, are not entitled to receive such notice from the Company.
-
76.
-
There
shall appear with reasonable prominence in every notice of general meetings of the Company a statement that a Member entitled to attend and vote is
entitled to appoint one or more proxies to attend and vote instead of him and that any proxy need not be a Member of the Company.
-
77.
-
The
accidental omission to give notice of a general meeting to, or the non-receipt of notice of a meeting by any person entitled to receive notice shall not
invalidate the proceedings of that meeting.
-
78.
-
In
cases where instruments of proxy are sent out with notices, the accidental omission to send such instrument of proxy to, or the non-receipt of such
instrument of proxy by, any person entitled to receive notice shall not invalidate any resolution passed or any proceeding at any such meeting. A Member present, either in person or by proxy, at any
general meeting of the Company or of the holders of any class of Shares in the Company, will be deemed to have received notice of that meeting and, where required, of the purpose for which it was
called.
PROCEEDINGS AT GENERAL MEETINGS
-
79.
-
All
business shall be deemed special that is transacted at an extraordinary general meeting, and also
all
that is transacted at an annual general meeting, with the exception of
declaring a dividend, the consideration of the accounts, balance sheets and the reports of
the Directors and Auditors, the election of Directors, the re-appointment of the retiring Auditors and the fixing of the remuneration of the
Auditors.
:
-
(a)
-
the
consideration of the Company's statutory financial statements and the report of the directors
and the report of the
statutory a
Auditors on those statements and that report;
-
(b)
-
the
review by the members of the Company's affairs;
-
(c)
-
the
declaration of a dividend (if any) of an amount not exceeding the amount recommended by the
directors;
D-24
Table of Contents
-
(d)
-
the
authorisation of the directors to approve the remuneration of the
statutory
A
a
uditors; and
-
(a)
(e)
-
the
election and re-election of
directors.
-
79.
80.
-
No
business shall be transacted at any general meeting unless a quorum is present.
One or more Members present in person or by proxy holding not less than a majority of the issued and outstanding Shares of the Company entitled to vote at the meeting in question shall be a quorum.
-
80.
81.
-
If
within one hour from the time appointed for the meeting a quorum is not present,
the meeting, if convened upon the requisition of Members, shall be dissolved and in any other case it shall stand adjourned to the same day in the next week at the same time and place or to such other
time or such other place as the Board may determine and if at the adjourned meeting a quorum is not present within one hour from the time appointed for the meeting the Members present shall be a
quorum.
-
81.
82.
-
The
Chairman, if any, of the Board shall preside as Chairman at every general meeting
of the Company, or if there is no such Chairman, or if he shall not be present within one hour after the time appointed for the holding of the meeting, or is unwilling to act, the Directors present
shall elect one of their number to be Chairman of the meeting or if all of the Directors present decline to take the chair, then the Members present shall choose one of their own number to be Chairman
of the meeting.
-
82.
83.
-
The
Chairman may, with the consent of any general meeting duly constituted hereunder,
and shall if so directed by the meeting, adjourn the meeting from time to time and from place to place, but no business shall be transacted at any adjourned meeting other than the business left
unfinished at the meeting from which the adjournment took place. When a general meeting is adjourned for thirty days or more, notice of the adjourned meeting shall be given as in the case of an
original meeting; save as aforesaid it shall not be necessary to give any notice of an adjournment or of the business to be transacted at an adjourned general meeting. No business shall be transacted
at any adjourned meeting other than the business which might have been transacted at the meeting from which the adjournment took place.
-
83.
84.
-
(1)
Subject to the Companies Acts, a resolution may only be put to a vote at a
general meeting of the Company or of any class of Members if:
-
(i)
-
it
is proposed by or at the direction of the Board; or
-
(ii)
-
it
is proposed at the direction of the Court; or
-
(iii)
-
it
is proposed on the requisition in writing of such number of Members as is prescribed by, and is made in accordance with
section 132 of
the
1963
Companies
Act
s
;
-
(iv)
-
it
is proposed pursuant to, and in accordance with the procedures and requirements of, Articles
93
92
93
or
94
93
94
; or
-
(v)
-
the
Chairman of the meeting in his absolute discretion decides that the resolution may properly be regarded as within the scope of the meeting.
-
(2)
-
No
amendment may be made to a resolution, at or before the time when it is put to a vote, unless the Chairman of the meeting in his absolute discretion
decides that the amendment or the amended resolution may properly be put to a vote at that meeting.
-
(3)
-
If
the Chairman of the meeting rules a resolution or an amendment to a resolution admissible or out of order (as the case may be), the proceedings of
the meeting or on the resolution in question shall not be invalidated by any error in his ruling. Any ruling by the Chairman of the meeting in relation to a resolution or an amendment to a resolution
shall be final and conclusive.
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Table of Contents
-
84.
85.
-
Except
where a greater majority is required by the Companies Acts or these Articles,
any question proposed for consideration at any general meeting of the Company or of any class of Members shall be decided by an Ordinary Resolution.
-
85.
86.
-
At
any general meeting a resolution put to the vote of the meeting shall be decided
on a show of hands unless a poll is (before or on the declaration of the result of the show of hands) demanded by:
-
(a)
-
the
Chairman; or
-
(b)
-
by
at least
five
three
Members present in person or by proxy; or
-
(c)
-
by
any 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; or
-
(d)
-
by
a Member or Members holding shares in the Company conferring the 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.
Unless
a poll is so demanded, a declaration by the Chairman that a resolution has, on a show of hands, been carried or carried unanimously, or by a particular majority, or lost, and an entry to that
effect in the book containing the minutes of the proceedings of the Company, shall be conclusive evidence of the fact without proof of the number or proportion of the votes recorded in favour of or
against such resolution. The demand for a poll may be withdrawn.
-
86.
87.
-
Except
as provided in Article
89
88
89
, if a poll is duly demanded it shall be taken in such manner as the Chairman directs, and the result of the
poll shall be deemed to be the resolution of the meeting at which the poll was demanded.
-
87.
88.
-
A
poll demanded on the election of the Chairman or on a question of adjournment shall
be taken forthwith. A poll demanded on any other question shall be taken at such time, not being not being more than ten days from the date of the meeting or adjourned meeting at which the vote was
taken, as the Chairman of the meeting directs, and any business other than that on which a poll has been demanded may be proceeded with pending the taking of the poll.
-
88.
89.
-
No
notice need be given of a poll not taken immediately. The result of the poll shall
be deemed to be the resolution of the general meeting at which the poll was demanded. On a poll a Member entitled to more than one vote need not use all his votes or cast all the votes he uses in the
same way.
-
89.
90.
-
In
the case of an equality of votes the Chairman of the general meeting at which the
poll is taken shall not be entitled to a second or casting vote.
NOMINATIONS OF DIRECTORS
-
90.
91.
-
Nominations
of persons for election to the Board (other than directors to be
nominated by any series of Preferred Shares, voting separately as a class) at a general meeting may only be made (a) pursuant to the Company's notice of meeting pursuant to Article
74
73
74
at the recommendation of the Board, (b) by or at
the direction of the Board or any authorised committee thereof or (c) by any Member who (i) complies with the notice procedures set forth in Articles
93
92
93
or
94
93
94
, as applicable, (ii) was a Member at the time such
notice is delivered to the Secretary and on the record date for the determination of Members entitled to vote at such general meeting and (iii) is present at the relevant general meeting,
either in person or by proxy, to present his nomination, provided, however, that Members shall only be
D-26
Table of Contents
entitled
to nominate persons for election to the Board at annual general meetings or at general meetings called specifically for the purpose of electing directors.
-
91.
92.
-
For
nominations of persons for election to the Board (other than directors to be
nominated by any series of Preferred Shares, voting separately as a class) to be properly brought before an annual general meeting by a Member, such annual general meeting must have been called for
the purpose of, among other things, electing directors and such Member must have given timely notice thereof in writing to the Secretary. To be timely, a Member's notice shall be delivered to the
Secretary at the registered office of the Company, or such other address as the Secretary may designate, not less than 120 days nor more than 150 days prior to the first anniversary of
the date the Company's proxy statement was first released to Members in connection with the prior year's annual general meeting; provided, however, that in the event the date of the annual general
meeting is changed by more than 30 days from the first anniversary date of the prior year's annual general meeting, notice by the Member of Shares to be timely must be so delivered not earlier
than the 150th day prior to such annual general meeting and not later than the later of the 120th day prior to such annual general meeting or the 10th day following the day on
which public announcement of the date of such meeting is first made. Such Member's notice shall set forth (a) as to each person whom the Member proposes to nominate for election or re-election
as a director, all information relating to such person that is required to be disclosed in solicitations of proxies for election of directors in an election contest, or is otherwise required, in each
case pursuant to Regulation 14A under the Securities Exchange Act of 1934, of the United States of America, as amended, or any successor provisions thereto, including such person's written
consent to being named in the proxy statement as a nominee and to serving as a director if elected and (b) as to the Member giving the notice (i) the name and address of such Member, as
they appear on the Register of Members, (ii) the class and number of Shares that are owned beneficially and/or of record by such Member, (iii) a representation that the Member is a
registered holder of Shares entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to propose such nomination and (iv) a statement as to whether the Member
intends or is part of a group that intends (x) to deliver a proxy statement and/or form of proxy to holders of at least the percentage of the Company's outstanding share capital required to
approve or elect the nominee and/or (xi) otherwise to solicit proxies from Members in support of such nomination. The Board may require any proposed nominee to furnish such other information as
it may reasonably require to determine the eligibility of such proposed nominee to serve as a director of the Company, including such evidence satisfactory to the Board that such nominee has no
interests that would limit such nominee's ability to fulfil his duties as a director.
-
92.
93.
-
For
nominations of persons for election to the Board (other than directors to be
nominated by any series of Preferred Shares, voting separately as a class) to be properly brought before a general meeting other than an annual general meeting by a Member, such Member must have given
timely notice thereof in writing to the Secretary. To be timely, a Member's notice shall be delivered to the Secretary at the registered office of the Company or such other address as the Secretary
may designate, not earlier than the 150
th
day prior to such general meeting and not later than the 120
th
day prior to such general meeting or the
10th day following the day on which public announcement is first made of the date of the general meeting and of the nominees proposed by the Board to be elected at such meeting. Such Member's
notice shall set forth the same information as is required by provisions (a) and (b) of Article
93
9292
93
.
-
93.
94.
-
Unless
otherwise provided by the terms of any series of Preferred Shares or any
agreement among Members or other agreement approved by the Board, only persons who are nominated
D-27
Table of Contents
in
accordance with the procedures set forth in Articles
93
9292
93
and
94
9393
94
shall be eligible to serve as directors of the
Company. If the Chairman of a general meeting determines that a proposed nomination was not made in compliance with Articles
93
9292
93
and
94
9393
94
, he shall declare to the meeting that nomination is
defective and such defective nomination shall be disregarded. Notwithstanding the foregoing provisions of these Articles, if the Member (or a qualified representative of the Member) does not appear at
the general meeting to present his nomination, such nomination shall be disregarded.
VOTES OF MEMBERS
-
94.
95.
-
Subject
to any rights or restrictions for the time being attached to any class or
classes of Shares, every Member of record present in person or by proxy shall have one vote for each Share registered in his name in the Register of Members.
-
95.
96.
-
In
the case of joint holders of record the vote of the senior holder 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
stand in the Register of Members.
-
96.
97.
-
A
Member of unsound mind, or in respect of whom an order has been made by any court,
having jurisdiction in lunacy, may vote by his committee, receiver,
curator bonis
, or other person in the nature of a committee, receiver or
curator bonis
appointed by that court, and any such committee, receiver, curator bonis or other persons may vote by proxy.
-
97.
98.
-
No
Member shall be entitled to vote at any general meeting unless he is registered as
a Member on the record date for such meeting.
-
98.
99.
-
No
objection shall be raised to the qualification of any voter except at the general
meeting or adjourned general meeting at which the vote objected to is given or tendered and every vote not disallowed at such general meeting shall be valid for all purposes. Any such objection made
in due time shall be referred to the Chairman of the general meeting whose decision shall be final and conclusive.
-
99.
100.
-
Votes
may be given either personally or by proxy. A Member may appoint more than one
proxy or the same proxy under one or more instruments to attend and vote at a meeting and may appoint one proxy to vote both in favour of and against the same resolution in such proportion as
specified in the instrument appointing the proxy. Where a Member appoints more than one proxy the instrument of proxy shall state which proxy is entitled to vote on a show of hands.
PROXIES
-
100.
101.
-
The
rules and procedures relating to the form or a proxy, the depositing or filing
of proxies and voting pursuant to a proxy and any other matter incidental thereto shall be approved by the Board, subject to such rules and procedures as required by applicable law or the relevant
code, rules and regulations applicable to the listing of the Shares on the Exchange and as provided in the following Articles under this heading of
"
PROXIES
".
-
101.
102.
-
(1) Every
Member
or Beneficial Owner
entitled to attend and vote at a general meeting may appoint a proxy to attend, speak and vote on his behalf and may appoint more than one proxy to attend, speak and vote at the
same meeting. The appointment of a proxy shall be in any form
consistent with the Companies Acts
which the Directors may approve and, if required by the Company, shall be
signed by or on behalf of the appointor. In relation to written proxies, a body corporate may sign a form of proxy under its common seal or under the hand of a duly authorised officer thereof or in
such other manner as the Directors may
D-28
Table of Contents
approve.
A proxy need not be a member of the Company. The appointment of a proxy in electronic or other form shall only be effective in such manner as the Directors may approve.
-
(2)
-
Without
limiting the foregoing, the Directors may from time to time permit appointments of a proxy to be made by means of an electronic or internet
communication or facility and may in a similar manner permit supplements to, or amendments or revocations of, any such electronic or internet communication or facility to be made. The Directors may in
addition prescribe the method of determining the time at which any such electronic or internet communication or facility is to be treated as received by the Company. The Directors may treat any such
electronic or internet communication or facility which purports to be or is expressed to be sent on behalf of a of a Member as sufficient evidence of the authority of the person sending that
instruction to send it on behalf of that Member. A proxy need not be a Member of the Company.
An instrument or other form of communication appointing or evidencing the appointment of a
proxy or a corporate representative (other than a standing proxy or representative) together with such evidence as to its due execution as the Board may from time to time require, may be returned to
the address or addresses stated in the notice of meeting or adjourned meeting or any other information or communication by such time or times as may be specified in the notice of meeting or adjourned
meeting or in any other such information or communication (which times may differ when more than one place is so specified) or, if not such time is specified, at any time prior to the holding of the
relevant meeting or adjourned meeting at which the appointee proposes to vote, and, subject to the Companies Acts, if not so delivered the appointment shall not be treated as
valid.
-
102.
103.
-
The
instrument appointing a proxy
may
shall
be in
any usual or common
the
form
prescribed by the Companies
Acts
and may be expressed to be for a particular meeting or any adjournment thereof or generally until revoked. An instrument appointing a proxy shall be deemed to include the power to
demand or join or concur in demanding a poll.
-
103.
104.
-
Subject
to the foregoing, a Member may appoint a proxy by means of an "omnibus" or
"enduring" proxy with or without a power of substitution. Such "omnibus" or "enduring" proxy may provide that all persons who appear in a specified register maintained by the Depositary Trust Company
("
DTC
") (each a "
specified holder
") may act as proxy for so long as the name of the specified holder
appears in the specified DTC register in respect of the relevant number of shares which appear opposite the name of the specified holder in the DTC register from time to time in respect of all
meetings of the Company, and if any specified holder does not attend a meeting of the Company, the relevant Member may appoint such other persons as may be nominated by the specified holder from time
to time in accordance with the proxy registration system for specified holders as the Member's proxy in respect of all meetings of the Company.
CORPORATE MEMBERS
-
104.
105.
-
Any
corporation or other non-natural person which is a Member may in accordance
with its constitutional documents, or in the absence of such provision by resolution of its directors or other governing body, authorise such person as it thinks fit to act as its representative at
any meeting of the Company or of any class of Members, and the person so authorised shall be entitled to exercise the same powers on behalf of the corporation which he represents as the corporation
could exercise if it were an individual Member.
D-29
Table of Contents
DIRECTORS
-
105.
106.
-
(1) There
shall be a Board consisting of not less than two or more
than twelve persons, provided however that the Company may from time to time by Ordinary Resolution increase or reduce the upper limit. So long as Shares of the Company are listed on an Exchange, the
Board shall include such number of Independent Directors as the relevant code, rules or regulations applicable to the listing of any Shares on the Exchange require. The continuing Directors may act
notwithstanding any vacancy in their body, provided that if the number of the Directors is reduced below the prescribed minimum the remaining Director or Directors shall appoint forthwith an
additional Director or additional Directors to make up such minimum or shall convene a general meeting of the Company for the purpose of making such appointment, but for no other purpose.
|
|
|
(2)
|
|
If, at any annual general meeting of the Company, the number of Directors is reduced below the prescribed minimum due to the failure of any Directors to be re-elected, then in those circumstances, the two
Directors
which
who
receive the highest number of votes in favour of re-election shall be re-elected and shall remain Directors until such time as additional Directors have been appointed to replace them as Directors. lf, at
any annual general meeting of the Company, the number of Directors is reduced below the prescribed minimum in any circumstances where one Director is re-elected, then that Director shall hold office until the next annual general meeting and the
Director which (excluding the re-elected Director) receives the highest number of votes in favour of re-election shall be re-elected and shall remain a Director until such time as one or more additional Directors have been appointed to replace him or
her. If there be no Director or Directors able or willing to act then any two Members may summon a general meeting for the purpose of appointing Directors. Any additional Director so appointed shall hold office (subject to the provisions of the
Companies Acts and these Articles) only until the conclusion of the annual general meeting of the Company next following such appointment unless he is re-elected during such meeting.
|
REMUNERATION OF DIRECTORS
-
106.
107.
-
The
remuneration to be paid to the Directors shall be such remuneration as the
Directors shall determine. Such remuneration shall be deemed to accrue from day to day. The Directors shall also be entitled to be paid their travelling, hotel and other expenses properly incurred by
them in going to, attending and returning from meetings of the Directors, or any committee of the Directors, or general meetings of the Company, or otherwise in connection with the business of the
Company, or to receive a fixed allowance in respect thereof as may be determined by the Board from time to time, or a combination partly of one such method and partly the other.
-
107.
108.
-
The
Board may approve additional remuneration to any Director undertaking any
special work or services for, or undertaking any special mission on behalf of, the Company other than his ordinary routine work as a Director. Any fees paid to a Director who is also counsel or
solicitor to the Company, or otherwise serves it in a professional capacity shall be in addition to his remuneration as a Director.
-
108.
109.
-
The
Board may approve additional remuneration to any Director for any services
other than his ordinary routine work as a Director. Any fees paid to a Director who is also legal counsel to the Company, or otherwise serves it in a professional capacity shall be in addition to his
remuneration as a Director.
D-30
Table of Contents
NO MINIMUM SHAREHOLDING
-
109.
110.
-
No
shareholding qualification is required to be held by a Director.
DIRECTORS'
AND OFFICERS'
INTERESTS
-
110.
111.
-
A
Director
or an officer
of the Company who
is in any way, whether directly or indirectly, interested in a contract, transaction or arrangement or proposed contract, transaction or arrangement with the Company shall, in accordance with
section 194 of
the
1963
Companies
Act
s
, declare the nature
of his interest at the first opportunity either (a) at a meeting of the Board at which the question of entering into the contract, transaction or arrangement is first taken into consideration,
if the Director
or officer
of the Company knows this interest then exists, or in any other case, at the first meeting of the Board after learning that he is or
has become so interested or (b) by providing a general notice to the Directors declaring that he is a director
or an officer
of, or has an interest in, a
person and is to be regarded as interested in any transaction or arrangement made with that person, and after giving such general notice it shall not be necessary to give special notice relating to
any particular transaction.
-
112.
-
A
Director may hold any other office or place of profit under the Company (other than the office of its Auditor) in
conjunction with his office of Director for such period and on such terms as to remuneration and otherwise as the Board may determine.
-
113.
-
A
Director is expressly permitted (for the purposes section 228(1)(d) of the Companies Acts) to use the
property of the Company pursuant to or in connection with the exercise or performance of his or her duties, functions and powers as Director or employee; the terms of any contract of service or
employment or letter of appointment; and, or in the alternative, any other usage authorised by the Directors (or a person authorised by the Directors) from time to time; and including in each case for
a Director's own benefit or for the benefit of another person.
-
111.
114.
-
As
recognised by section 228(1)(e) of the Companies Acts, the
directors may agree to restrict their power to exercise an independent judgment but only where this has been expressly approved by a resolution of the board of directors of the
Company.
-
112.
115.
-
A
Director may act by himself or his firm in a professional capacity for the
Company (other than as its Auditor) and he or his firm shall be entitled to remuneration for professional services as if he were not a Director.
-
113.
116.
-
A
Director may be or become a director, managing director, joint managing director,
deputy managing director, executive director, manager or
other officer or
member of any other company or otherwise interested in any company promoted by the
Company or in which the Company may be interested as shareholder or otherwise, and no such Director shall be accountable to the Company for any remuneration or other benefits received by him as a
director, managing director, joint managing director, deputy managing director, executive director, manager
or other officer
or member of such other company;
provided that he has declared the nature of his position with, or interest in, such company to the Board in accordance with Article
112
111111
112
.
-
114.
117.
-
No
person shall be disqualified from the office of Director
or
from being an officer
of the Company or prevented by such office from contracting with the Company, either as vendor, purchaser or otherwise, nor shall any such contract or any
contract or transaction entered into by or on behalf of the Company in which any Director
or officer
of the Company shall be in any way interested be or be
liable to be avoided, nor shall any Director or officer of the Company so contracting or being so interested be liable to account to the Company for any
D-31
Table of Contents
profit
realised by any such contract or transaction by reason of such Director
or officer
of the Company holding office or of the fiduciary relation thereby
established; provided that:
-
(a)
-
he
has declared the nature of his interest in such contract or transaction to the Board in accordance with Article
112
111
112
; and
-
(b)
-
the
contract or transaction is approved by a majority of the disinterested Directors, notwithstanding the fact that the disinterested Directors may
represent less than a quorum.
-
115.
118.
-
A
Director may be counted in determining the presence of a quorum at a meeting of
the Board which authorises or approves the contract, transaction or arrangement in which he is interested and he shall be at liberty to vote in respect of any contract, transaction or arrangement in
which he is interested, provided that the nature of the interest of any Director in any such contract or transaction shall be disclosed by him in accordance with Article
112
111
112
, at or prior to its consideration and any vote
thereon.
-
116.
119.
-
For
the purposes of Article
112
111
112
:
-
-
(a)
-
a
general notice given to the Directors that a Director is to be regarded as having an interest of the nature and extent specified in the notice in any
transaction or arrangement in which a specified person or class of persons is interested shall be deemed to be a disclosure that the Director has an interest in any such transaction of the nature and
extent so specified;
-
(b)
-
an
interest of which a Director has no knowledge and of which it is unreasonable to expect him to have knowledge shall not be treated as an interest of his;
and
-
(c)
-
a
copy of every declaration made and notice given under Article
112
111
112
shall be entered within three days after the making or
giving thereof in a book kept for this purpose. Such book shall be open for inspection without charge by any Director, Secretary, Auditor or Member of the Company at the Registered Office and shall be
produced at every general meeting of the Company and at any meeting of the Directors if any Director so requests in sufficient time to enable the book to be available at the meeting.
POWERS AND DUTIES OF DIRECTORS
-
117.
120.
-
Subject
to the provisions of the Companies Act, the Memorandum and the Articles and
to any directions given by Special Resolution, the business of the Company shall be managed by the Board, which may exercise all the powers of the Company. No alteration of the Memorandum or Articles
and no such direction shall invalidate any prior act of the Directors which would have been valid if that alteration had not been made or that direction had not been given. A duly convened meeting of
Directors at which a quorum is present may exercise all powers exercisable by the Board.
-
118.
121.
-
In
addition to any other duties the Directors may owe to the Company or the Members
under applicable law, the Directors shall owe a fiduciary duty to the Company and to the Members as a whole and, in discharging such fiduciary duties, they will act in good faith, in a manner that
they believe to be in the best interests of the Company and the Members as a whole, in a manner consistent with the standards of care required by the courts of Ireland and the state of Delaware, in
the United States of America. A Director, by agreeing to serve, or to continue to serve, on the Board, will be deemed to have agreed to owe the duties to the Company and the Members specified in this
Article
120
122
2
.
D-32
Table of Contents
-
119.
122.
-
All
cheques, promissory notes, drafts, bills of exchange and other negotiable
instruments and all receipts for monies paid to the Company shall be signed, drawn, accepted, endorsed or otherwise executed as the case may be in such manner as the Board shall determine.
-
120.
123.
-
The
Board on behalf of the Company may pay a gratuity or pension or allowance on
retirement to any Director who has held any other salaried office or place of profit with the Company or to his widow or dependants and may make contributions to any fund and pay premiums for the
purchase or provision of any such gratuity, pension or allowance.
-
121.
124.
-
The
Board may exercise all the powers of the Company to borrow money and to
mortgage or charge its undertaking, property and uncalled capital or any part thereof and to issue debentures, debenture stock, mortgages, bonds and other such securities whether outright or as
security for any debt, liability or obligation of the Company or of any third party.
-
122
-
The
Company may exercise the powers conferred by section 41 of the 1963 Act with regard to
having an official seal for use abroad and such powers shall be vested in the Directors
have for use in any place abroad, an official
seal
.
MINUTES
-
123.
125.
-
The
Board shall cause
written
minutes
(whether in electronic form or otherwise)
to be made in books kept for the purpose of all appointments of officers made by the Board, all resolutions and proceedings at
meetings of the Company or the holders of any class of Shares, of the Directors and of committees of Directors, including the names of the Directors present at each meeting.
DELEGATION OF THE BOARD'S POWERS
-
124.
126.
-
The
Board may delegate any of its powers (with power to sub-delegate) to any
committee consisting of one or more Directors. The Board may also delegate to any Director such of its powers as it considers desirable to be exercised by him. Any such delegation may be made subject
to any conditions the Board may impose, and either collaterally with or to the exclusion of its own powers and may be revoked or altered. Subject to any such conditions, the proceedings of a committee
of the Board shall be governed by the Articles regulating the proceedings of Directors, so far as they are capable of applying.
-
125.
127.
-
The
Board may by power of attorney or otherwise appoint any person to be the agent
of the Company on such conditions as the Board may determine, provided that the delegation is not to the exclusion of its own powers and may be revoked by the Board at any time.
-
126.
128.
-
The
Board may by power of attorney or otherwise appoint any company, firm, person
or body of persons, whether nominated directly or indirectly by the Board, to be the attorney or authorised signatory of the Company for such purpose and with such powers, authorities and discretions
(not exceeding those vested in or exercisable by the Board under these Articles) and for such period and subject to such conditions as they may think fit, and any such powers of attorney or other
appointment may contain such provisions for the protection and convenience of persons dealing with any such attorneys or authorised signatories as the Board may think fit and may also authorise any
such attorney or authorised signatory to delegate all or any of the powers, authorities and discretions vested in him.
EXECUTIVE OFFICERS; DUTIES OF OFFICERS
-
127.
129.
-
The
Board may from time to time appoint one or more Chairman of the Board,
President, Chief Executive Officer, Chief Financial Officer and such other officers as it considers necessary in the management of the business of the Company and as it may decide for such
D-33
Table of Contents
period
and upon such terms as it thinks fit and upon such terms as to remuneration as it may decide in accordance with these Articles. Such officers need not also be a Director.
-
128.
130.
-
Every
person appointed to an office under Article
129
130
1311
shall, without prejudice to any claim for damages
that such person may have against the Company (or the Company may have against such person for any breach of any contract of service between him and the Company) be liable to be dismissed or removed
at any time from such executive office by the Board. A Director appointed to an office under the above Article
129
130
1311
shall
ipso
facto
and immediately cease to hold such executive office if he shall cease to hold the office of Director for any cause.
-
129.
131.
-
The
Company agrees to require any person who serves as an officer of the Company to
agree that, in addition to any other duties such officer may owe to the Company or the Members under applicable law, such officer shall owe a fiduciary duty to the Company and to the Members as a
whole and, in discharging such fiduciary duties, he will act in good faith, in a manner that he believes to be in the best interests of the Company and the Members as a whole, in a manner consistent
with the standards of care required by the courts of the Ireland and the state of Delaware, in the United States of America.
PROCEEDINGS OF DIRECTORS
-
130.
132.
-
Except
as otherwise provided by these Articles, the Directors shall meet together
for the despatch of business, convening, adjourning and otherwise regulating their meetings and procedures as they think fit. Questions arising at any meeting shall be decided by a majority of votes
of the Directors present at a meeting at which there is a quorum. Each Director shall have one vote. In case of an equality of votes, the Chairman shall have a second or casting vote.
-
131.
133.
-
Regular
meetings of the Board may be held at such times and places as may be
provided for in resolutions adopted by the Board. No additional notice of a regularly scheduled meeting of the Board shall be required.
-
132.
134.
-
A
Director may, and the Secretary on the requisition of a Director shall, at any
time summon a meeting of the Directors by at least two days' notice in writing to every Director which notice shall set forth the general nature of the business to be considered unless notice is
waived by all the Directors either at, before or after the meeting is held and provided further if notice is given in person, by telephone, cable, telex, telecopy or email the same shall be deemed to
have been given on the day it is delivered to the Directors or transmitting organisation as the case may be. The accidental omission to give notice of a meeting of the Directors to, or the non-receipt
of notice of a meeting by any person entitled to receive notice shall not invalidate the proceedings of that meeting.
-
133.
135.
-
The
quorum necessary for the transaction of the business of the Board may be fixed
by the Board and unless so fixed shall be a majority of the Directors in office. In no event shall the Board fix a quorum that is less than one-third (1/3) of the total number of Directors or that is
less than two Directors.
-
134.
136.
-
The
continuing Directors may act notwithstanding any vacancy in their body, but if
and so long as their number is reduced below the number fixed by or pursuant to these Articles as the necessary quorum of Directors the continuing Directors or Director may act for the purpose of
increasing the number of Directors to that number, or of summoning a general meeting of the Company, but for no other purpose.
-
135.
137.
-
The
Directors may elect a Chairman of their Board and determine the period for
which he is to hold office; but if no such Chairman is elected, or if at any meeting the Chairman is not
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present
within five (5) minutes after the time appointed for holding the same, the Directors present may choose one of their number to be a Chairman of the meeting.
-
136.
138.
-
All
acts done by any meeting of the Directors or of a committee of Directors shall,
notwithstanding that it be afterwards discovered that there was some defect in the appointment of any Director, or that they or any of them were disqualified, be as valid as if every such person had
been duly appointed and qualified to be a Director.
-
137.
139.
-
Members
of the Board or of any committee thereof may participate in a meeting of
the Board or of such committee by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other and participation in
a meeting pursuant to this provision shall constitute presence in person at such meeting. Unless otherwise determined by the Directors the meeting shall be deemed to be held at the place where the
Chairman is at the start of the meeting.
-
138.
140.
-
A
resolution in writing (in one or more counterparts), signed by all the Directors
for the time being or all the members of a committee of Directors shall be as valid and effectual as if it had been passed at a meeting of the Directors or committee as the case may be duly convened
and held.
VACATION OF OFFICE OF DIRECTOR
-
139.
141.
-
The
office of a Director shall be vacated:
-
(a)
-
if
he gives notice in writing to the Company that he resigns the office of Director;
-
(b)
-
if
he absents himself from three consecutive meetings of the Board without special leave of absence from the Directors, and they pass a resolution that he
has by reason of such absence vacated office;
-
(c)
-
if
he dies, becomes bankrupt or makes any arrangement or composition with his creditors generally;
-
(d)
-
if
he is found a lunatic or becomes of unsound mind; or
-
(e)
-
on
his being prohibited, restricted or disqualified by any applicable law, or the relevant code, rules and regulations applicable to the listing of the
Shares on the Exchange, from being a Director.
APPOINTMENT AND REMOVAL OF DIRECTORS
-
140.
142.
-
The
Company may by Ordinary Resolution appoint any person to be a Director and may
by Ordinary Resolution,
of which extended notice has been given
in accordance with
section 142 of
the
1963
Companies
Act
s
, remove any Director before the expiration of his period of office notwithstanding
anything in these Articles or in any agreement between the Company and such Director. Such removal shall be without prejudice to any claim such Director may have for damages for breach of any contract
of service between him and the Company.
-
141.
143.
-
The
Directors shall have power at any time and from time to time to appoint any
person to be a Director, either to fill a casual vacancy or as an addition to the existing Directors, provided that the total amount of Directors shall not at any time exceed the number fixed in
accordance with these Articles and provided further, that any such Director so appointed shall be approved or removed by a resolution of the Members at the next annual general meeting.
-
142.
144.
-
Directors
shall hold office for such term as the Members may determine by Ordinary
Resolution or, in the absence of such determination, until the next annual general meeting and until their successors are elected and qualified, or until their office is otherwise earlier vacated.
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Table of Contents
-
143.
145.
-
(1) At
every annual general meeting of the Company, all of the
Directors shall retire from office unless re-elected by Ordinary Resolution at the annual general meeting. A Director retiring at a meeting shall retain office until the close or adjournment of the
meeting.
-
(2)
-
Every
Director shall be eligible to stand for re-election at an annual general meeting.
-
(3)
-
If
a Director offers himself for re-election, he shall be deemed to have been re-elected, unless at such meeting the Ordinary Resolution or plurality vote
in accordance with Article 106 for the re-election of such Director has been defeated.
PRESUMPTION OF ASSENT
-
144.
146.
-
A
Director who is present at a meeting of the Board at which action on any Company
matter is taken shall be presumed to have assented to the action taken unless his dissent shall be entered in the Minutes of the meeting or unless he shall file his written dissent from such action
with the person acting as the Secretary of the meeting before the adjournment thereof or shall forward such dissent by registered mail to such person immediately after the adjournment of the meeting.
Such right to dissent shall not apply to a Director who voted in favour of such action.
SEAL
-
145.
147.
-
The
Company may, if the Board so determines, have a Seal which shall only be used
by the authority of the Board or of a committee of the Board authorized by the Board in that behalf and every instrument to which the Seal has been affixed shall be signed by any person who shall be
either a Director or the Secretary or Assistant Secretary or some other person authorised by the Board, either generally or specifically, for the purpose.
-
146.
148.
-
The
Company may have for use in any place or places outside Ireland, a duplicate
Seal or Seals each of which shall be a duplicate of the Seal of the Company except, in the case of a Seal for use in sealing documents creating or evidencing securities issued by the Company, for the
addition on its face of the word "Securities" and if the Board so determines, with the addition on its face of the name of every place where it is to be used.
-
149.
-
A
Director, Secretary, Assistant Secretary or other officer or representative or attorney may without further authority of
the Directors affix the Seal of the Company over his signature alone to any document of the Company required to be authenticated by him under Seal or to be filed with the Companies Registration Office
in Ireland or elsewhere wheresoever.
-
147.
150.
-
The
Company may have an official seal for use in any place
abroad.
DIVIDENDS, DISTRIBUTIONS AND RESERVE
-
148.
151.
-
The
Company in general meeting may declare dividends, but no dividends shall exceed
the amount recommended by the Directors.
-
149.
152.
-
Subject
to the Companies Acts, the Board may from time to time declare dividends
(including interim dividends) and distributions on Shares of the Company outstanding and authorise payment of the same out of the funds of the Company lawfully available therefor.
-
150.
153.
-
The
Board may, before declaring any dividends or distributions, set aside such sums
as they think proper as a reserve or reserves which shall at the discretion of the Directors, be applicable for any purpose of the Company and pending such application may, at the like discretion, be
employed in the business of the Company. The Directors may also, without placing the same to reserve, carry forward any profits which they may think it prudent not to divide.
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Table of Contents
-
151.
154.
-
No
dividend, interim dividend or distribution shall be paid otherwise than in
accordance with the provisions of
Part IV of
the
1983
Companies
Act
s
.
-
152.
155.
-
Subject
to the rights of persons, if any, entitled to Shares with special rights as
to dividends or distributions, if dividends or distributions are to be declared on a class of Shares they shall be declared and paid according to the amounts paid or credited as paid on the Shares of
such class outstanding on the record date for such dividend or distribution as determined in accordance with these Articles.
-
153.
156.
-
The
Directors may deduct from any dividend payable to any Member all sums of money
(if any) immediately payable by him to the Company in relation to the Shares of the Company.
-
154.
157.
-
The
Board or any general meeting declaring a dividend (upon the recommendation of
the Board), may direct that any dividend or distribution be paid wholly or partly by the distribution of specific assets and in particular of paid up Shares, debentures, or debenture stock of any
other company or in any one or more of such ways and where any difficulty arises in regard to such distribution, the Board may settle the same as they think expedient and in particular may issue
fractional certificates and fix the value for distribution of such specific assets or any part thereof and may determine that cash payments shall be made to any Members upon the footing of the value
so fixed in order to adjust the rights of all Members and may vest any such specific assets in trustees as may seem expedient to the Board.
-
155.
158.
-
Any
dividend, distribution, interest or other monies payable in cash in respect of
Shares may be paid by cheque or warrant sent through the post, or sent by any electronic or other means of payment, directed to the registered address of the holder or, in the case of joint holders,
to the holder who is first named on the Register of Members or to such person and to such address as such holder or joint holders may in writing direct. Every such cheque or warrant, electronic or
other payment shall be made payable to the order of the person to whom it is sent and payment of the cheque or warrant shall be a good discharge to the Company. Any one of two or more joint holders
may give effectual receipts for any dividends, bonuses, or other monies payable in respect of the Share held by them as joint holders. Any such dividend or other distribution may also be paid by any
other method (including payment in a currency other than US$, electronic funds transfer, direct debit, bank transfer or by means of a relevant system) which the Directors consider appropriate and any
Member who elects for such method of payment shall be deemed to have accepted all of the risks inherent therein. The debiting of the Company's account in respect of the relevant amount shall be
evidence of good discharge of the Company's obligations in respect of any payment made by any such methods.
-
156.
159.
-
No
dividend or distribution shall bear interest against the Company.
-
157.
160.
-
If
the Directors so resolve, any dividend which has remained unclaimed for twelve
years from the date of its declaration shall be forfeited and cease to remain owing by the Company. The payment by the Directors of any unclaimed dividend or other moneys payable in respect of a Share
into a separate account shall not constitute the Company a trustee in respect thereof.
CAPITALISATION
-
158.
161.
-
The
Company may, upon the recommendation of the Board, by
Ordinary Resolution authorise the Board
Board may, at any time and from time to time, resolve that it is desirable
to capitalise
all or
any
part of any
sum standing to the credit of any of the Company's reserve accounts (including
, but not limited to, the
s
S
hare premium account
,
and
the
capital
redemption reserve
and
fund
the capital conversion reserve
) or any sum standing to the credit of profit
and loss account or otherwise available for distribution and to appropriate such sum
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to
Members in the proportions in which such sum would have been divisible amongst them had the same been a distribution of profits by way of dividend and to apply such sum on their behalf in paying up
in full unissued Shares for allotment and distribution credited as fully paid up to and amongst them in the proportion aforesaid. In such event the Board shall do all acts and things required to give
effect to such capitalisation, with full power to the Board to make such provisions as they think fit for the case of Shares becoming distributable in fractions (including provisions whereby the
benefit of fractional entitlements accrue to the Company rather than to the Members concerned). The Board may authorise any person to enter on behalf of all of the Members interested into an agreement
with the Company providing for such capitalisation and matters incidental thereto and any agreement made under such authority shall be effective and binding on all concerned.
BOOKS OF ACCOUNT; RIGHTS OF INSPECTION
-
159.
162.
-
The
Directors shall cause
the Company
to
be kept
keep
proper books of
adequate
account
ing
records, which are sufficient to
, whether in the form of documents, electronic form or otherwise, that
:
-
(a)
-
correctly
record and explain the transactions of the Company;
-
(b)
-
will
enable
at any time
enable the
the assets, liabilities,
financial position
and profit or loss
of the Company to be determined with reasonable accuracy;
-
(c)
-
will
enable the Directors to ensure that any
balance sheet, profit and loss account or income and
expenditure account
financial statements
of the Company
and any directors' report, required to be prepared under the Companies Acts,
compl
y
ies
with the requirements of the Companies Acts
and, where applicable, Article 4 of the
IAS Regulation
;
and
-
(d)
-
will
record all sums of money received and expended by the Company and the matters
in respect of which the receipt or expenditure takes place, all sales and purchases of goods by the Company and the assets and liabilities of the Company; and
-
(e)
(d)
-
will
enable
the accounts
those financial statements
of the Company to be
readily and properly
audited.
-
160.
163.
-
Books
of account
Accounting
records
shall be kept on a continuous and consistent basis and entries therein shall be made in a timely manner and be consistent from year to year
in accordance with the
Companies Acts
. The Company may send
by post, electronic mail or any other means of electronic communication
a summary financial statement to its
Members or persons nominated by any Member
. T
and t
he Company may meet, but shall be under no obligation to meet, any request from
any of its Members to be sent additional copies
of its full report and accounts or
the documents required to be sent to Members by the Companies
Acts or any
summary financial statement or other communications with its Members.
-
161.
164.
-
The
books of
account
ing
records
shall be kept at the registered office of the Company or, subject to the provisions of the Companies Acts, at such other place as the Directors think fit and shall be open at
all reasonable times to the inspection of the Directors.
-
162.
165.
-
Proper
books
Accounting
records
shall not be deemed to be kept, if there are not kept such books of account as are necessary to give a true and fair view of the state of the Company's affairs and to explain
its transactions.
-
163.
166.
-
In
accordance with the provisions of the Companies Acts, the Board may from time to
time cause to be prepared and to be laid before the Company in general meeting profit and loss
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Table of Contents
accounts,
balance sheets, group accounts (if any) and such other reports and accounts as may be required by law.
-
167.
-
A
copy of every balance sheet (including every document required by law to be annexed thereto) which is to
be laid before the annual general meeting of the Company together with a copy of the Directors' report and Auditors' report shall be sent by post, electronic mail or any other means of communication
(electronic or otherwise), not less than twenty-one clear days before the date of the annual general meeting, to every person entitled under the provisions of the Companies Acts to receive them;
provided that in the case of those documents sent by electronic mail or any other means of electronic communication, such documents shall be sent with the consent of the recipient, to the address of
the recipient notified to the Company by the recipient for such purposes.
-
(1)
-
The
Company may send by post, electronic mail or any other means of electronic
communication:
-
(a)
-
the
Company's statutory financial statements,
-
(b)
-
the
directors' report, and
-
(c)
-
the
statutory
A
a
uditors' report
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Table of Contents
AUDIT
-
164.
168.
-
Auditors
shall be appointed and their duties regulated in accordance with the
Companies Acts, the relevant code, rules and regulations applicable to the listing of the Shares on the Exchange.
-
165.
169.
-
Subject
always to the provisions of the Companies Acts, in the event that no such
code, rules and regulations referred to in the above Article
167
169
69
apply, the appointment
of and provisions relating to Auditors shall be in accordance with the following provisions:
-
(1)
-
The
Board may appoint the Auditor of the Company, who shall hold office until removed from office by the Company, and the Board may fix his or their
remuneration.
-
(2)
-
The
Board may appoint an Auditor who shall hold office until removed from office by a resolution of the Directors, and may fix his or their remuneration.
-
(3)
-
Every
Auditor shall have a right of access at all times to the books and accounts and vouchers of the Company and shall be entitled to require from the
Board and officers of the Company such information and explanation as may be necessary for the performance of the duties of the Auditor.
-
(4)
-
Auditors
shall, if so required by the Directors, make a report on the accounts of the Company during their tenure of office at the next extraordinary
general meeting following their appointment and at any other time during their term of office, upon request of the Directors or any general meeting of the Members.
NOTICES
-
166.
170.
-
Notices
shall be in writing (whether in electronic form or otherwise) and shall be
given by the Company in accordance with applicable law, the relevant code, rules and regulations applicable to the listing of the Shares on the Exchange and these Articles.
-
167.
171.
-
Except
to the extent inconsistent with such company law, code, rules and
regulations referred to in the above Article
169
171
1
, notice shall be given in accordance
with the following provisions:
-
(a)
-
notices
to any Member shall be given either personally or by sending it by post, cable, telex, fax or e-mail to him or to his address as shown in the
Register of Members (where the notice is given by e-mail by sending it to the e-mail address provided by such Member subject to each Members' individual consent to electronic communications being sent
to them by the Company), or by publication of an electronic record of it on a website and notification of such publication by post, cable, telex, fax or email as permitted by these Articles.
-
(b)
-
where
a notice is sent by post, service of the notice shall be deemed to be effected by properly addressing, pre-paying and posting a letter containing the
notice, and shall be deemed to have been received on the fifth (5th) day (not including Saturdays or Sundays or public holidays) following the day on which the notice was posted. Where a notice is
sent by cable, telex or fax, service of the notice shall be deemed to be effected by properly addressing and sending such notice and shall be deemed to have been received
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on
the same day that it was transmitted. Where a notice is given by e-mail service shall be deemed to be effected by transmitting the e-mail to the e-mail address provided by the intended recipient
and shall be deemed to have been received on the same day that it was sent, and it shall not be necessary for the receipt of the e-mail to be acknowledged by the recipient. Where a notice was
published as an electronic record on a website, at the time that the notification of such publication shall be deemed to have been delivered to such Member, and in proving such service or delivery, it
shall be sufficient to prove that the notice or document was properly published on a website in accordance with and provisions of these Articles.
-
(c)
-
for
the purposes of these Articles and the Companies Acts, any document or notice shall be deemed to have been sent to a Member if a notice is given,
served, sent or delivered to the Member and the notice specifies the website or hotlink or other electronic link at or through which the member may obtain a copy of the relevant document or notice.
-
(d)
-
a
notice may be given by the Company to the person or persons which the Company has been advised are entitled to a Share or Shares in consequence of the
death or bankruptcy of a Member in the same manner as other notices which are required to be given under these Articles and shall be addressed to them by name, or by the title of representatives of
the deceased, or trustee of the bankrupt, or by any like description at the address supplied for that purpose by the persons claiming to be so entitled, or at the option of the Company by giving the
notice in any manner in which the same might have been given if the death or bankruptcy had not occurred.
-
168.
172.
-
Any
requirement in these Articles for the consent of a Member in regard to the
receipt of such Member of electronic mail or other means of electronic communications approved by the Board, including the receipt of the Company's audited accounts and the Directors' and Auditor's
reports thereon shall be deemed to have been satisfied where the Company has written to the Member informing him of its intention to use electronic communication for such purposes and the Member has
not within four weeks of the issue of such notice, served an objection in writing on the Company to such proposal. Where a Member has given, or is deemed to have given, his consent to the receipt of
such Member of electronic mail or other means of electronic communications approved by the Board, he may revoke such consent at any time by requesting the Company to communicate with him in documented
form; provided however, that such revocation shall not take effect until five days after written notice of the revocation is received by the Company.
-
169.
-
The
signature (whether electronic signature, an advanced electronic signature or otherwise) to
any notice to be given by the Company may be written (in electronic form or otherwise) or printed.
WINDING UP
-
170.
173.
-
If
the Company shall be wound up the liquidator may, subject to any sanction
required by applicable law, divide amongst the Members in kind the whole or any part of the assets of the Company (whether they shall consist of property of the same kind or not) and may for that
purpose value any assets and determine how the division shall be carried out as between the Members or different classes of Members. The liquidator may, with the like sanction, vest the whole or any
part of such assets in trustees upon such trusts for the benefit of the Members as the liquidator, with the like sanction, shall think fit, but so that no Member shall be compelled to accept any asset
upon which there is a liability.
-
171.
174.
-
If
the Company shall be wound up, and the assets available for distribution amongst
the Members shall be insufficient to repay the whole of the share capital, such assets shall be
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distributed
so that, as nearly as may be, the losses shall be borne by the Members in proportion to the nominal value of the Shares held by them. If in a winding up the assets available for
distribution amongst the Members shall be more than sufficient to repay the whole of the share capital at the commencement of the winding up, the surplus shall be distributed amongst the Members in
proportion to the nominal value of the Shares held by them at the commencement of the winding up. This Article is without prejudice to the rights of the holders of Shares issued upon special terms and
conditions.
-
172.
175.
-
(1) In
case of a sale by the liquidator
under
section
2
60
1
of the
1963
Companies
Act, the
liquidator may by the contract of sale agree so as to bind all the Members for the allotment to the Members directly of the proceeds of sale in proportion to their respective interests in the Company
and may further by the contract limit a time at the expiration of which obligations or Shares not accepted or required to be sold shall be deemed to have been irrevocably refused and be at the
disposal of the Company, but so that nothing herein contained shall be taken to diminish, prejudice or affect the rights of dissenting Members conferred by the said section.
-
(2)
-
The
power of sale of the liquidator shall include a power to sell wholly or partially for debentures, debenture stock, or other obligations of another
company, either then already constituted or about to be constituted for the purpose of carrying out the sale.
UNTRACED SHAREHOLDERS
-
173.
176.
-
The
Company shall be entitled to sell at the best price reasonably obtainable any
Share or stock of a Member or any Share or stock to which a person is entitled by transmission if and provided that;
-
(1)
-
for
a period of twelve years (not less than three dividends having been declared and paid) no cheque or warrant sent by the Company through the post in a
prepaid letter addressed to the Member or to the person entitled by transmission to the Share or stock at his address on the Register or other last known address entitled by transmission to which
cheques and warrants are to be sent has been cashed and no communication has been received by the Company from the Member or the person entitled by transmission; and
-
(2)
-
on
or after expiry of that period of twelve years the Company has given notice by advertisement in a leading Dublin newspaper and a newspaper circulating in
the area in which the address referred to in paragraph (1) of Article
176
177
7
is located of its intention to sell such Share or stock;
and
-
(3)
-
the
Company has not during the further period of three months after the date of the advertisement and prior to the exercise of the power of sale received
any communication from the Member or person entitled by transmission; and
-
(4)
-
if
so required by the roles of any securities exchange upon which the Shares in question are listed for the time being, notice has been given to that
exchange of the Company's intention to make such sale.
-
174.
177.
-
To
give effect to any such sale the Company may appoint any person to execute as
transferor an instrument of transfer of such Share or stock and such instrument of transfer shall be as effective as if it had been executed by the registered holder of or person entitled by
transmission to such Share or stock. The Company shall account to the Member or other person entitled to such Share or stock for the net proceeds of such sale by carrying all monies in respect thereof
to a separate account which shall be a permanent debt of the Company and the Company shall be deemed to be a debtor and not a trustee in respect thereof for such Member or other person. Monies carried
to such separate account may either be employed in
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Table of Contents
the
business of the Company or invested in such investments (other than Shares of the Company or its holding company if any) as the Directors may from time to time think fit.
-
175.
178.
-
To
the extent necessary in order to comply with any laws or regulations to which
the Company is subject in relation to escheatment, abandonment of property or other similar or analogous laws or regulations ("
Applicable Escheatment
Laws
"), the Company may deal with any Share of any Member and any unclaimed cash payments relating to such Share in any manner which it sees fit, including (but not limited to)
transferring or selling such Share and transferring to third parties any unclaimed cash payments relating to such Share.
-
176.
179.
-
The
Company may only exercise the powers granted to it in Article
177177
176
177
above in circumstances where it has complied with, or procured compliance with, the
required procedures (as set out in the Applicable Escheatment Laws) with respect to attempting to identify and locate the relevant Member of the Company.
-
177.
180.
-
Any
stock transfer form to be executed by the Company in order to sell or transfer
a Share pursuant to Article
177
177
176
may be executed in
accordance with Article
27(2)
26
27
(1)
.
INDEMNITY
-
178.
181.
-
Subject
to the provisions of and so far as may be admitted by the Companies Acts,
every Director and the Secretary of the Company shall be entitled to be indemnified by the Company against all costs, charges, losses, expenses and liabilities incurred by him in the execution and
discharge of his duties or in relation thereto including any liability incurred by him in defending any proceedings, civil or criminal, which relate to anything done or omitted or alleged to have been
done or omitted by him as a Director, Secretary or employee of the Company and in which judgement is given in his favour (or the proceedings are otherwise disposed of without any finding or admission
of any material breach of duty on his part) or in which he is acquitted or in connection with any application under any statute for relief from liability in respect of any such act or omission in
which relief is granted to him by the Court.
-
179.
182.
-
To
the fullest extent permitted by law, the Company shall indemnify any current or
former officer of the Company, or any person who is serving or has served at the request of the Company as an officer and any trustee acting in relation to any of the affairs of the Company and their
respective heirs, executors, administrators and personal representatives (other than any Director and the Secretary of the Company) (each individually, a "
Covered
Person
"), against any expenses, including attorneys' fees, judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with any
threatened, pending, or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than a proceeding by, or in the name or on behalf of, the Company), to
which he was, is, or is threatened to be made, a party or in which he is otherwise involved, (a "
proceeding
") by reason of the fact that he is or was a
Covered Person; provided, however, that this provision shall not indemnify any Covered Person against any liability arising out of (a) any fraud or dishonesty in the performance of such Covered
Person's duty to the Company, or (b) such Covered Person's conscious, intentional or wilful breach of his obligation to act honestly, lawfully and in good faith with a view to the best
interests of the Company. Notwithstanding the preceding sentence, this section shall not extend to any matter which would render it void pursuant to the Companies Acts or to any person holding the
office of auditor in relation to the Company.
-
180.
183.
-
In
the case of any threatened, pending or completed proceeding by, or in the name
or on behalf of, the Company, to the fullest extent permitted by law, the Company shall indemnify each Covered Person against expenses, including attorneys' fees, but excluding judgments, fines and
amounts paid in settlement, actually and reasonably incurred by him in connection
D-43
Table of Contents
with
the defense or settlement thereof, except that no indemnification for expenses shall be made in respect of any claim, issue or matter as to which such Covered Person shall have been finally
adjudged to be liable for fraud or dishonesty in the performance of his duty to the Company, or for conscious, intentional or wilful breach of his obligation to act honestly, lawfully and in good
faith with a view to the best interests of the Company, unless and only to the extent that the Court or the court in which such proceeding was brought shall determine upon application that despite the
adjudication of liability, but in view of all the circumstances of the case, such Covered Person is fairly and reasonably entitled to indemnity for such expenses as the court shall deem proper.
Notwithstanding the preceding sentence, this section shall not extend to any matter that would render it void pursuant to the Companies Acts or to any person holding the office of auditor in relation
to the Company.
-
181.
184.
-
To
the fullest extent permitted by law, expenses, including attorneys' fees,
incurred by a Covered Person in defending any proceeding for which indemnification is permitted pursuant to
Articles
183
183
182
and
184
184
183
shall be paid by the Company in advance of the final
disposition of such proceeding upon receipt by the Board of an undertaking by or on behalf of such Covered Person to repay such amount if it shall ultimately be determined that he is not entitled to
be indemnified by the Company pursuant to these Articles.
-
182.
185.
-
Any
indemnification under Articles
183
183
182
to and including
185
185
184
(unless ordered by a court of competent jurisdiction)
shall be made by the Company only as authorized in the specific case upon a determination that indemnification of the Covered Person is proper in the circumstances because such person has met the
applicable standard of conduct set forth in Articles
183
183
182
or
184
184
183
, as the case may be. Such determination shall be
made, with respect to a Covered Person who is a Director or officer of the Company at the time of such determination, (a) by a majority vote of the Directors who are not parties to such
proceeding, even though less than a quorum; (b) by a committee of such Directors designated by a majority vote of such Directors, even though less than a quorum; (c) if there are no such
Directors, or if such Directors so direct, by independent legal counsel in a written opinion; or (d) by the Members by Ordinary Resolution. Such determination shall be made, with respect to any
other Covered Person, by any person or persons having the authority to act on the matter on behalf of the Company. To the extent, however, that any Covered Person has been successful on the merits or
otherwise in defense of any proceeding, or in defense of any claim, issue or matter therein, such Covered Person shall be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection therewith, without the necessity of authorization in the specific case. Notwithstanding the provisions of Articles
183
183
182
to and including
185
185
184
, the Company shall be required to indemnify or advance
expenses to a Covered Person in connection a proceeding commenced by such Covered Person only if the commencement of such proceeding by such person was authorized by the Board.
-
183.
186.
-
It
being the policy of the Company that indemnification of the persons specified in
Articles
183
183
182
and
184
184
183
shall be made to the fullest extent permitted by law,
the indemnification and advancement of expenses provided for by Articles
183
183
182
to and including
185
185
184
shall not be deemed exclusive (a) of any other
rights to which those seeking indemnification or advancement of expenses may be entitled under these Articles, any agreement, any insurance purchased by the Company, vote of Members or disinterested
Directors, or pursuant to the direction (however embodied) of any court of competent jurisdiction, or otherwise, both as to action in his official capacity and as to action in another capacity while
holding such office, or (b) of the power of the Company to indemnify any person who is or was an employee or agent of the Company or of another corporation, joint venture, trust or other
enterprise which he is serving or has served at the request of the
D-44
Table of Contents
Company,
to the same extent and in the same situations and subject to the same determinations as are hereinabove set forth with respect to a Covered Person.
-
184.
187.
-
The
Board may, notwithstanding any interest of the Covered Persons in such action,
authorize the Company to purchase and maintain insurance on behalf of any Covered Person, against any liability asserted against him and incurred by him in any such capacity, or arising out of his
status as such, whether or not the Company would have the power to indemnify him against such liability under the provisions of these Articles. As used in Articles
182
182
181
to and including
188
188
187
, references to the "Company" include all constituent
corporations in an amalgamation, consolidation or merger or similar arrangement in which the Company or a predecessor to the Company by amalgamation, consolidation or merger or similar arrangement was
involved.
FINANCIAL YEAR
-
185.
188.
-
The
financial year of the Company shall be as prescribed by the Board from time to
time.
SALE, LEASE OR EXCHANGE OF ASSETS
-
186.
189.
-
(1) The
Board may authorise and direct the Company to sell, lease or
exchange all or substantially all of its property and assets, including the Company's goodwill and its corporate franchises, upon such terms and conditions and for such consideration, which may
consist in whole or in part of money or other property, including shares of stock in, and/or other securities of, any other corporation or corporations, as the Board in its discretion thinks fit,
provided that the Members shall have approved such sale, lease or exchange by Ordinary Resolution, in addition to any other resolution or sanction required by applicable law.
-
(2)
-
Notwithstanding
such resolution or consent to a proposed sale, lease or exchange of the Company's property and assets by the Members, the Board may abandon
such proposed sale, lease or exchange without further action by the Members, subject to the rights, if any, of third parties under any contract relating thereto.
-
(3)
-
For
purposes of this Article
190
190
189
, the property and assets of the Company include the
property and assets of any subsidiary of the Company and "subsidiary" means any entity wholly-owned and controlled, directly or indirectly, by the Company and includes, without limitation,
corporations, partnerships, limited partnerships, limited liability partnerships, limited liability companies, and/or statutory trusts.
-
(4)
-
Notwithstanding
subsection (1) of this Article
190
190
189
no resolution by the Members shall be required for a
sale, lease or exchange of property and assets of the Company to a subsidiary.
CONSENT TO JURISDICTION; CHOICE OF LAW
-
187.
190.
-
For
as long as Shares are registered pursuant to Section 12(b) or 12(g) of
the Exchange Act and the Company is subject to the reporting requirements of the Exchange Act, the Company hereby submits to the jurisdiction of the courts of the state of Delaware, in the United
States of America and to the jurisdiction of the United States District Court for the District of Delaware in the United States of America and the appellate courts having jurisdiction thereover (each,
a "
Delaware-Based Court
"), for the purposes of any action, suit or proceeding brought by or on behalf of any Member or Beneficial Owner with respect to
his rights as a Member or Beneficial Owner, or in relation to claims brought derivatively by a Member or Beneficial Owner in the name, or on behalf of, the Company. The Company waives any right to
challenge personal jurisdiction when sued in these courts. The Company
D-45
Table of Contents
further
agrees that if sued in these jurisdictions, it will agree to the application of that court's rules of procedure and will not argue, under choice of law principles, that procedural rights
granted by the laws of Ireland should be applied in these fora.
-
188.
191.
-
For
as long as Shares are registered pursuant to Section 12(b) or 12(g) of
the Exchange Act and the Company is subject to the reporting requirements of the Exchange Act, the Company shall appoint and maintain an authorised agent in the state of Delaware, in the United States
of America, to receive for and on its behalf service of any and all legal process, summons, notices and documents that may be served in any action, suit or proceeding brought against the Company in
the state of Delaware.
-
189.
192.
-
For
as long as Shares are registered pursuant to Section 12(b) or 12(g) of
the Exchange Act and the Company is subject to the reporting requirements of the Exchange Act, the Company shall:
-
(a)
-
maintain
unencumbered assets in the United States of America, which assets may include equity or debt investments in U.S. companies, with a book value in
excess of fifty million U.S. dollars ($50,000,000), and will deliver, or cause to be delivered, to the Secretary of State of the State of Delaware an opinion of an attorney licensed in the United
States of America that judgments rendered against the Company may be satisfied by using these assets;
-
(b)
-
post
a bond or similar security with a DelawareBased court in an amount of at least fifty million U.S. dollars ($50,000,000); or
-
(c)
-
purchase
and maintain insurance on behalf of its Directors and officers of the Company, against any liability asserted against them and incurred by them in
any such capacity, in an amount of at least fifty million U.S. dollars ($50,000,000),
and
in the event that any action, suit or proceeding of the type described in Article
191
190
191
is brought against the Company in any Delaware-Based
Court, the Company will provide a notice to such court specifying with which of the three foregoing provisions of this Article
193
192
193
the Company has complied.
-
193.
-
For
as long as Shares are registered pursuant to Section 12(b) or 12(g) of the Exchange Act and the Company is subject
to the reporting requirements of the Exchange Act, in relation to any action, suit or proceeding against the Company brought derivatively by a Member or Beneficial Owner in the name, or on behalf of,
the Company in any Delaware-Based Court, the Company hereby agrees that the law of the forum in which such action, suit or proceeding is brought, not the law of Ireland, will govern the sufficiency of
the pleadings and such Member's or Beneficial Owner's standing to bring such action, suit or proceeding.
D-46
Table of Contents
WE,
the several persons whose names, addresses and descriptions are subscribed, wish to be formed into a Company in pursuance of this memorandum of association, and we agree to take the
number of Shares in the capital of the Company set opposite our respective names.
|
|
|
Names, addresses and
descriptions of subscribers
|
|
Number of Shares
taken by each subscriber
|
For and on behalf of Seagate Technology
P.O. Box 309, Ugland House,
Grand Cayman KY1-1104
Cayman Island
|
|
Thirty nine thousand nine hundred and ninety four Ordinary Shares
|
Corporate Body
|
|
|
Stephen J. Luczo
Address kept with the Company's records.
Chairman, President and CEO
|
|
One Ordinary Share
|
Patrick J. O'Malley III
Address kept with the Company's records.
Executive Vice President and CFO
|
|
One Ordinary Share
|
Robert W. Whitmore
Address kept with the Company's records.
Executive Vice President and CTO
|
|
One Ordinary Share
|
Kenneth M. Massaroni
Address kept with the Company's records.
Senior Vice President, Corporate Secretary and
General Counsel
|
|
One Ordinary Share
|
Stephen P. Sedler
Address kept with the Company's records.
Senior Vice President and Assistant Secretary
|
|
One Ordinary Share
|
David H. Morton Jr.
Address kept with the Company's records.
Vice President, Treasurer and Principal
Accounting Officer
|
|
One Ordinary Share
|
Dated the 21 day of January 2010
Witnesses
to the above signatures:
|
|
|
|
|
|
|
|
|
|
Georgia Brint
920 Disc Drive, Scotts Valley
CA 95066, USA
|
|
Saralyn D. Brown
920 Disc Drive, Scotts Valley
CA 95066, USA
|
|
Robert Wenner
1280 Dis Drive, Shakopee,
MN 55379, USA
|
Demetrios N. Mavrikis
920 Disc Drive, Scotts Valley
CA 95066, USA
|
|
Jenny Wood
920 Disc Drive, Scotts Valley
CA 95066, USA
|
|
Kevin Cope
920 Disc Drive,
Scotts Valley, CA 95066
USA
|
D-47
Table of Contents
Companies Acts, 1963 to 201
4
2
MEMORANDUM AND ARTICLES OF
ASSOCIATION
OF
SEAGATE TECHNOLOGY
PUBLIC LIMITED COMPANY
D-48
Appendix E
APPENDIX E
Part I
Summary of Optional Provisions in the Companies Act 2014 from which the Company Proposes to Opt-Out
|
|
|
|
|
Sections of the Companies Act
2014 from which the Company
proposes to opt-out
|
|
Relevant section of current
Articles of Association
|
|
Company's reason for opting-out of the section
|
43(2) and 43(3)
|
|
126 and 149 to 151
|
|
Sections 43(2) and (3) deal with the use of the common seal of a company. We propose to opt-out of these sections as equivalent provisions for the use of the Company's common seal are set out in Article 149
to 151 and in Article 126, which is being amended accordingly and moved to a new Article 150.
|
65(2) to 65(7)
|
|
N/A
|
|
Sections 65(2) to 65(7) deal with the power of a company to convert shares into stock and reconvert stock into shares. We propose to opt-out of these sections as they are not contemplated in the Company's
existing Articles of Association and the intention is to preserve the status quo.
|
66(4)
|
|
7 and 32
|
|
Section 66(4) deals with the allotment of redeemable shares. We propose to opt-out of this section as such matter is already provided for in Article 7 and Article 32.
|
77 to 81
|
|
39 to 58
|
|
Sections 77 to 81 deal with the making of calls in respect of unpaid amounts due on shares issued by a company, liens on shares and forfeiture of shares. We propose to opt-out of these sections as such matters
are already provided for in Articles 39 to 58.
|
94(8)
|
|
27
|
|
Section 94(8) deals with the instrument of transfer for shares and the regulation of such instruments under the Stock Transfer Act 1963. We propose to opt-out of this section as such matter is already provided
for in Article 27.
|
95(1)
|
|
28 to 31
|
|
Section 95(1) deals with restrictions on the transfer of shares. We propose to opt-out of this section as such matter is already provided for in Articles 28 to 31.
|
E-1
|
|
|
|
|
Sections of the Companies Act
2014 from which the Company
proposes to opt-out
|
|
Relevant section of current
Articles of Association
|
|
Company's reason for opting-out of the section
|
96(2) to 96(11) and 97(3)
|
|
61 to 64
|
|
Sections 96(2) to 96(11) and 97(3) deal with transmission of shares in a company. We propose to opt-out of these sections as such matter is already provided for in Articles 61 to 64.
|
124 and 125
|
|
152 to 161
|
|
Sections 124 and 125 deal with the declaration and payment of dividends by a company. We propose to opt-out of these sections as such matters are already provided for in Articles 150 to 159.
|
126
|
|
162
|
|
Section 126 deals with the capitalisation of a company's reserves for the purposes of making bonus issues of shares. We propose to opt-out of this section and Article 160 is being amended
accordingly.
|
144(3)
|
|
107 and 144 to 147
|
|
Section 144(3) deals with the appointment of directors. We propose to opt-out of this section as such matter is already provided for in Article 107 and Articles 144 to 147.
|
148(2)
|
|
143
|
|
Section 148(2) deals with how the office of a director may be vacated before the end of the appointed term. We propose to opt-out of this section as such matter is already provided for in
Article 143.
|
157 to 165 (excluding 161(7) which is not applicable to the Company)
|
|
121 to 126 and 128 to 142
|
|
Sections 157 to 165 deal with a board's power of management and delegation, the appointment of a managing director, the establishment of board committees, matters relating to board procedure and the appointment
of alternate directors. We propose to opt-out of these sections as such matters are already provided for in Articles 121 to 126 and Articles 128 to 142.
|
178(1) and (2)
|
|
N/A
|
|
Section 178(1) and (2) deal with the convening of extraordinary general meetings by shareholders. We propose to opt-out of these sections as such matter is not contemplated in the Company's existing Articles
of Association and the intention is to preserve the status quo.
|
E-2
|
|
|
|
|
Sections of the Companies Act
2014 from which the Company
proposes to opt-out
|
|
Relevant section of current
Articles of Association
|
|
Company's reason for opting-out of the section
|
180(5), 181(1) and 181(6)
|
|
74 to 79
|
|
Sections 180(5), 181(1) and 181(6) deal with how notices of general meetings are given, the timing of such notices and who is entitled to receive such notices. We propose to opt-out of these sections as such matter
is already provided for in Articles 74 to 79.
|
182(2), (4) and (5)
|
|
81 and 82
|
|
Sections 182(2), (4) and (5) deal with the quorum requirements for a general meeting of a company. We propose to opt-out of these sections as such matters are already provided for in Articles 81
and 82.
|
183(3)
|
|
102
|
|
We propose to opt-out of Section 183(3) as the appointment of multiple proxies is already provided for in Article 102.
|
183(6)
|
|
103(2)
|
|
Article 103(2) is being amended to cater for changes introduced by sections 183 and 184 of the Companies Act 2014 relating to the time and place for delivery of proxies. Article 103(2) is being amended
to provide that an instrument or other form of communication appointing a proxy may be returned to the address or addresses stated in the notice of meeting by such time as may be specified in the notice of meeting, or (if no such time is specified)
at any time prior to the holding of the relevant meeting at which the appointee proposes to vote, and subject to the Companies Act 2014, if not so delivered the appointment shall not be treated as valid.
|
186(c)
|
|
80
|
|
Section 186(c) deals with certain aspects of the business of the annual general meeting. We propose to opt-out of this section and Article 80 is being amended accordingly.
|
187 and 188
|
|
81 to 91
|
|
Sections 187 and 188 deal with the conduct of general meetings and voting at such meetings. We propose to opt-out of these sections as provision for such matters are already provided for in Articles 81 to
91.
|
218(1), 218(3), 218(4) and 218(5)
|
|
171 to 173
|
|
Sections 218(1), (3), (4) and (5) deal with the service of notice on members of a company. We propose to opt-out of these sections as such matter is already provided for in Articles 171 to
173.
|
E-3
|
|
|
|
|
Sections of the Companies Act
2014 from which the Company
proposes to opt-out
|
|
Relevant section of current
Articles of Association
|
|
Company's reason for opting-out of the section
|
229(1), 230 and 1113
|
|
112 to 120
|
|
Sections 229(1), 230 and 1113 deal with potential conflicting interests of directors. We propose to opt-out of these sections such matters are provided for in Articles 112 to 120.
|
338(5), 338(6) and 339(7)
|
|
New Article 168
|
|
Sections 338(5) and (6) and 339(7) deal with delivery of financial statements via the website of a company. We propose to opt-out of these sections and such matter will be provided for in a new
Article 168.
|
618(1)(b)
|
|
174 to 176
|
|
Section 618(1)(b) deals with the distribution of property on a winding up of a company. We propose to opt-out of this section as such matter is already provided for in Articles 174 to 176.
|
620(8)
|
|
161
|
|
Section 620(8) stipulates the timeframe for claiming dividends. We propose to opt-out of this section as such matter is already provided for in Article 161.
|
1090
|
|
107 and 144 to 147
|
|
Section 1090 deals with the rotation of directors. We propose to opt-out of this section as such matter is provided for in Article 107 and Articles 144 to 147.
|
1092
|
|
108 to 110
|
|
Sections 1092 deals with the remuneration of directors. We propose to opt-out of this section as this matter is already provided for in Articles 108 to 110.
|
E-4
Part II
Summary of Optional Provisions in the Companies Act 2014 From Which the Company Does Not Propose to Opt-Out
|
|
|
Sections of the Companies Act 2014 from
which the Company does not propose to
opt-out
|
|
Reason the Company does not propose to opt-out of the section
|
83 and 84
|
|
Sections 83 and 84 are being retained as they contain the powers necessary for a company to implement capital reductions and capital variations under the Companies Act 2014.
|
E-5
Part III
Summary of other amendments being made relating to the passing of the Companies Act 2014 or for administrative or housekeeping reasons
|
|
|
Amendment
|
|
Reason for amendment
|
All references to the old Irish company law statutes, which were repealed when the Companies Act 2014 became effective on June 1, 2015 are replaced by references to the Companies Act 2014
|
|
To ensure that our Memorandum and Articles of Association are consistent with the statutory references in the Companies Act 2014.
|
Moving the subscription clause from the end of our memorandum of association to the end of our articles of association
|
|
As provided for in Schedule 9 of the Companies Act 2014, the subscription clause is being moved from the end of our memorandum of association to the end of our articles of association.
|
Deletion of clause 4(1)(e) of the memorandum of association
|
|
Clause 4(1)(e) is being deleted as it is an historic power and no longer required by the Company.
|
Amendment to Article 2(1)
|
|
The definition of "Auditors" in Article 2(1) is being amended to refer to "statutory auditor" to ensure consistency with the terminology of the Companies Act 2014.
|
Deletion of Article 8 and Article 9
|
|
Articles 8 and 9 are being deleted as they concern the authority of our Board to allot shares and the disapplication of statutory pre-emption rights as the renewal of those authorities is now sought on a regular
basis outside of our Articles of Association at our annual general meetings.
|
Amendment to Article 9A
|
|
Article 9A is being amended to ensure consistency with the provisions of the Companies Act 2014.
|
Amendment to Article 12
|
|
Article 12 is being updated to ensure the Company can effect acquisitions of its own shares in accordance with the provisions of the Companies Act 2014.
|
Amendments to Article 12 and Article 19
|
|
Articles 12 and 19 are being amended to reflect the provisions of section 99(7) of the Companies Act 2014 which provides that a shareholder shall be entitled to request a share certificate.
|
Amendment to Article 27 and Article 28
|
|
Articles 27 and 28 are being amended to allow other persons nominated by the Secretary or Assistant Secretary to prepare, execute and deliver instruments of transfer on behalf of a transferor, as provided by the
Companies Act 2014.
|
New Article 71
|
|
The proposed new Article 72 will allow the Board to postpone any general meeting of the Company (which has been called by the Board) for a particular period or indefinitely before the meeting actually takes
place.
|
E-6
|
|
|
Amendment
|
|
Reason for amendment
|
Amendment to Article 72 and Deletion of Article 73
|
|
Article 72 is being amended to reflect the position under the Companies Act 2014 in respect of holding general meetings outside Ireland. Article 73 has been deleted and its provisions in respect of meetings held
outside of the United States are being included in Article 72.
|
Amendment to Article 80
|
|
Article 80 is being updated in order to ensure that it is consistent with section 186 of the Companies Act 2014 (which codifies and updates the common law position as to what constitutes the ordinary
business of an annual general meeting) while still reflecting what the Company usually regards as ordinary business.
|
Amendment to Article 87
|
|
The Companies Act 2014 introduces a mandatory provision which provides that a demand for a poll may be made by "at least three members present in person or by proxy" and Article 87 is being amended
accordingly.
|
Amendment to Article 103(1) and Article 104
|
|
The Companies Act 2014 now specifies a form of instrument of proxy, therefore this Article now states that the form of instrument of the proxy as being "consistent with the Companies Acts".
|
Amendments to Articles 112, 117 and 118
|
|
Articles 112 to 120 apply to directors and officers (being any executive of the Company that is being designated by the Company the title "officer" and for the avoidance of doubt does not have the meaning given
to such term under the Companies Act). Only the directors of a company are required to declare their interest in contracts made by the Company. Articles 112, 117 and 118 have therefore been amended to reflect the current position under the
Companies Act 2014.
|
New Article 114
|
|
Section 228(1)(d) of the Companies Act 2014 codifies the common law restriction on the use of company property by directors save to the extent permitted by a company's constitution. A new Article 114 is
being adopted so that our directors may continue to use Company property pursuant to or in connection with the exercise of performance of their duties, functions and powers as directors or employees; the terms of any contract of service or employment
or letter of appointment; and, or in the alternative, any other usage authorized by our Board from time to time.
|
E-7
|
|
|
Amendment
|
|
Reason for amendment
|
New Article 115
|
|
Sections 228(1)(e) and 228(2) of the Companies Act 2014 codify the common law rules on directors fettering their independent judgement and the new Article 115 makes it clear that section 228(1)(e) will not
restrict anything which may be done by our directors in accordance with the prior authorization of our Board.
|
Amendment to Article 125
|
|
Article 125 is being amended to provide that written minutes of the Board in respect of the matters set out may be in electronic form or otherwise.
|
Amendment to Article 144
|
|
The words "of which extended notice has been given" is being removed in Article 144 as "extended" notice is not a term used in the Companies Act 2014 in relation to the removal of directors (it was a term used in
the statute replaced by the Companies Act 2014).
|
Amendments to Articles 163 to 167 in addition to a new Article 168 and deletion of Article 172
|
|
Articles 163 to 167 are being amended and an additional Article 168 is being added to take account of the new requirements regarding the maintenance of accounting records set out in the Companies Act
2014.
|
E-8
Table of Contents
Appendix F
Plurality Voting in Contested Elections and Board Size Amendments to Articles of Association
Note: the amendments set out in this Appendix F are reflected as a comparison to the Articles of Association of the Company as of the date of this proxy statement. Additional
amendments will be
made to the provisions of the Articles of Association included in this Appendix if shareholders approve Proposals 5A and 5B.
Part APlurality Voting in Contested Election Amendments
-
106.
-
-
(1)
-
There
shall be a Board consisting of not less than two or more than twelve persons, provided however that the Company may from time to time by Ordinary
Resolution increase or reduce the upper limit. So long as Shares of the Company are listed on an Exchange, the Board shall include such number of Independent Directors as the relevant code, rules or
regulations applicable to the listing of any Shares on the Exchange require. The continuing Directors may act notwithstanding any vacancy in their body, provided that if the number of the Directors is
reduced below the prescribed minimum the remaining Director or Directors shall appoint forthwith an additional Director or additional Directors to make up such minimum or shall convene a general
meeting of the Company for the purpose of making such appointment, but for no other purpose.
-
(2)
-
If,
at any annual general meeting of the Company, the number of Directors is reduced below the prescribed
minimum due to the failure of any Directors to be re-elected, then in those circumstances, the two Directors which receive the highest number of votes in favour of re-election shall be re-elected and
shall remain Directors until such time as additional Directors have been appointed to replace them as Directors. lf, at any annual general meeting of the Company, the number of Directors is reduced
below the prescribed minimum in any circumstances where one Director is re-elected, then that Director shall hold office until the next annual general meeting and the Director which (excluding the
re-elected Director) receives the highest number of votes in favour of re-election shall be re-elected and shall remain a Director until such time as one or more additional Directors have been
appointed to replace him or her. If there be no Director or Directors able or willing to act then any two Members may summon a general meeting for the purpose of appointing Directors. Any additional
Director so appointed shall hold office (subject to the provisions of the Companies Acts and these Articles) only until the conclusion of the annual general meeting of the Company next following such
appointment unless he is re-elected during such meeting.
-
(3)
-
The
Company at the annual general meeting in each year or the Company at any extraordinary general
meeting called for the purpose may appoint any eligible person as a Director. Each Director shall be elected by an Ordinary Resolution at such meeting, provided that if, as of, or at any time prior
to, 120 days in advance of the anniversary of the immediately preceding annual general meeting (or, if the annual general meeting is changed by more than 30 days from the anniversary of
the immediately preceding annual general meeting, as of, or at any time prior to the later of the 120th day prior to such annual general meeting or the 10th day following the day on
which public announcement of the date of such meeting is first made) the number of Director nominees exceeds the number of Directors determined by the Board in accordance with this article (a
"contested election"), each of those nominees shall be voted upon as a separate resolution and the Directors shall be elected by a plurality of the votes of the shares present in person or represented
by proxy at any such meeting and entitled to vote on the election of Directors.
F-1
Table of Contents
-
(2)
(4)
-
For
the purposes of this
article 106(3), "elected by a plurality" means the election of those Director nominees, equal in number to the number of positions to be filled at the relevant general meeting that received the
highest number of votes in the contested election.
-
145.
-
-
(1)
-
At
every annual general meeting of the Company, all of the Directors shall retire from office unless re-elected by Ordinary Resolution
or
plurality vote in accordance with article 106
at the annual general meeting. A Director retiring at a meeting shall retain office until the close or adjournment of the meeting.
-
(2)
-
Every
Director shall be eligible to stand for re-election at an annual general meeting.
-
(3)
-
If
a Director offers himself for re-election, he shall be deemed to have been re-elected, unless at such meeting the Ordinary Resolution
or
plurality vote in accordance with article 106
for the re-election of such Director has been defeated.
Part BBoard Size Amendments
-
106.
-
-
(1)
-
There
shall be a Board consisting of not less than two or more than twelve persons
and the number of directors shall be determined by the
Board
, provided however that the Company may from time to time by Ordinary Resolution increase or reduce the upper limit. So long as Shares of the Company are listed on an Exchange, the
Board shall include such number of Independent Directors as the relevant code, rules or regulations applicable to the listing of any Shares on the Exchange require. The continuing Directors may act
notwithstanding any vacancy in their body, provided that if the number of the Directors is reduced below the prescribed minimum the remaining Director or Directors shall appoint forthwith an
additional Director or additional Directors to make up such minimum or shall convene a general meeting of the Company for the purpose of making such appointment, but for no other purpose.
-
(2)
-
If,
at any annual general meeting of the Company, the number of Directors is reduced below the prescribed minimum due to the failure of any Directors to be
re-elected, then in those circumstances, the two Directors which receive the highest number of votes in favour of re-election shall be re-elected and shall remain Directors until such time as
additional Directors have been appointed to replace them as Directors. lf, at any annual general meeting of the Company, the number of Directors is reduced below the prescribed minimum in any
circumstances where one Director is re-elected, then that Director shall hold office until the next annual general meeting and the Director which (excluding the re-elected Director) receives the
highest number of votes in favour of re-election shall be re-elected and shall remain a Director until such time as one or more additional Directors have been appointed to replace him or her. If there
be no Director or Directors able or willing to act then any two Members may summon a general meeting for the purpose of appointing Directors. Any additional Director so appointed shall hold office
(subject to the provisions of the Companies Acts and these Articles) only until the conclusion of the annual general meeting of the Company next following such appointment unless he is re-elected
during such meeting.
F-2
VOTE BY INTERNET - www.proxyvote.com Use the Internet to transmit your voting instructions and for electronic delivery of information up until 11:59 PM Eastern Time on October 16, 2016. Have your proxy card in hand when you access the web site and follow the instructions to obtain your records and to create an electronic voting instruction form. SEAGATE TECHNOLOGY PLC 38/39 FITZWILLIAM SQUARE DUBLIN 2, IRELAND ELECTRONIC DELIVERY OF FUTURE PROXY MATERIALS If you would like to reduce the costs incurred by our company in mailing proxy materials, you can consent to receiving all future proxy statements, proxy cards and annual reports electronically via e-mail or the Internet. To sign up for electronic delivery, please follow the instructions above to vote using the Internet and, when prompted, indicate that you agree to receive or access proxy materials, including notices of shareholder meetings, electronically in future years. SUBMIT YOUR PROXY BY PHONE - 1-800-690-6903 Use any touch-tone telephone to transmit your voting instructions up until 11:59 PM Eastern Time on October 16, 2016. Have your proxy card in hand when you call and then follow the instructions. VOTE BY MAIL Mark, sign and date your proxy card and return it in the postage-paid envelope we have provided or return it to Vote Processing, c/o Broadridge, 51 Mercedes Way, Edgewood, NY 11717, which must be received by October 16, 2016. TO VOTE, MARK BLOCKS BELOW IN BLUE OR BLACK INK AS FOLLOWS: E13293-P81659 KEEP THIS PORTION FOR YOUR RECORDS DETACH AND RETURN THIS PORTION ONLY THIS PROXY CARD IS VALID ONLY WHEN SIGNED AND DATED. SEAGATE TECHNOLOGY PLC (the "Company") The Board of Directors recommends you vote FOR the following proposals: Any shareholder entitled to attend and vote at the Annual General Meeting of Shareholders may appoint one or more proxies, who need not be a shareholder(s) of the Company. A proxy is required to vote in accordance with any instructions given to him. Completion of a form of proxy will not preclude a member from attending and voting at the meeting in person. 1. Election of Directors Nominees: For ! ! ! ! ! ! ! ! ! ! ! ! ! Against ! ! ! ! ! ! ! ! ! ! ! ! ! Abstain ! ! ! ! ! ! ! ! ! ! ! ! ! 1a. Stephen J. Luczo For ! ! ! ! ! ! ! ! Against ! ! ! ! ! ! ! ! Abstain ! ! ! ! ! ! ! ! 5. To ratify, in an advisory, non-binding vote, the appointment of Ernst & Young LLP as the independent auditors of the Company and to authorize, in a binding vote, the Audit Committee of the Board of Directors to set the auditors' remuneration. To amend the Companys Articles of Association to make certain administrative amendments. (Special Resolution) To amend the Companys Memorandum of Association to make certain administrative amendments. (Special Resolution) To amend the Companys Articles of Association to provide for a plurality voting standard in the event of a contested director election. (Special Resolution) To amend the Companys Articles of Association to grant the Board sole authority to determine its size. (Special Resolution) To grant the Board the authority to issue shares under Irish law. 1b. Frank J. Biondi, Jr. 6A. 1c. Michael R. Cannon 6B. 1d. Mei-Wei Cheng 7A. 1e. William T. Coleman 7B. 1f. Jay L. Geldmacher 8. 1g. Dr. Dambisa F. Moyo 9. To grant the Board the authority to opt-out of statutory pre-emption rights under Irish law. (Special Resolution) 1h. Dr. Chong Sup Park 10. To determine the price range at which the Company can re-allot shares that it holds as treasury shares. (Special Resolution) 1i. Stephanie Tilenius You can instruct your proxy not to vote on a resolution by inserting an "x" in the box under "Abstain". Please note that an abstention is not a vote in law and will not be counted in the calculation of the proportion of the votes for and against a resolution. 1j. Edward J. Zander 2. To approve, in an advisory, non-binding vote, the compensation of the Company's named executive officers. To approve an amendment and restatement of the Seagate Technology plc 2012 Equity Incentive Plan to increase the number of shares available for issuance. To approve the Rules of the Seagate Technology Public Limited Company 2012 Equity Incentive Plan for Share Awards Granted to Participants in France. In their discretion, the proxies are authorized to vote on such other business as may properly come before the meeting and any adjournment or postponement of the meeting. 3. Yes ! No ! 4. Please indicate if you plan to attend this meeting. Please sign exactly as your name(s) appear(s) hereon. When signing as attorney, executor, administrator, or other fiduciary, please give full title as such. Joint owners should each sign personally. All holders must sign. If a corporation or partnership, please sign in full corporate or partnership name by authorized officer. Signature [PLEASE SIGN WITHIN BOX] Date Signature (Joint Owners) Date V.1.1
Important Notice Regarding the Availability of Proxy Materials for the Annual General Meeting of Shareholders: The Notice and Proxy Statement, Form 10-K and Irish Statutory Financial Statements for Fiscal Year 2016 are available at www.proxyvote.com. E13294-P81659 SEAGATE TECHNOLOGY PLC Annual General Meeting of Shareholders October 19, 2016 9:30 AM Local Time This proxy is solicited by the Board of Directors The shareholder(s) hereby appoint(s) C.S. Park and Regan J. MacPherson, or each of them, as proxies, each with the power to appoint his or her substitute, and hereby authorize(s) them to represent and to vote, as designated on the reverse side of this ballot, all of the ordinary shares of Seagate Technology plc that the shareholder(s) is/are entitled to vote at the 2016 Annual General Meeting of Shareholders, and any adjournment or postponement thereof. The undersigned hereby further authorizes such proxies to vote in their discretion upon such other matters as may properly come before such Annual General Meeting of Shareholders and at any adjournment or postponement thereof. In the event of a vote on a show of hands on any proposal or other matter properly coming before the 2016 Annual General Meeting of Shareholders, C.S. Park and Regan J. MacPherson, or each of them, shall be entitled to vote the undersigned's shares, as designated on the reverse side hereof. THIS PROXY, WHEN PROPERLY EXECUTED AND DELIVERED, WILL BE VOTED AS DIRECTED BY THE UNDERSIGNED SHAREHOLDER. IF THIS PROXY IS DULY EXECUTED AND RETURNED, BUT NO VOTING DIRECTIONS ARE GIVEN HEREIN, THEN THIS PROXY WILL BE VOTED "FOR" THE ELECTION OF EACH OF THE NOMINEES FOR DIRECTOR NAMED IN PROPOSAL 1 AND "FOR" PROPOSALS 2, 3, 4, 5, 6A, 6B, 7A, 7B, 8, 9 AND 10, AND IN THE DISCRETION OF THE PROXIES, UPON SUCH OTHER MATTERS AS MAY PROPERLY COME BEFORE THE 2016 ANNUAL GENERAL MEETING OF SHAREHOLDERS. PLEASE MARK, SIGN, DATE AND RETURN THIS PROXY CARD PROMPTLY USING THE ENCLOSED REPLY ENVELOPE The signer(s) hereby acknowledge(s) receipt of the Notice of the 2016 Annual General Meeting of Shareholders and accompanying proxy statement. Continued and to be signed on reverse side V.1.1