TIDMBME
RNS Number : 3700D
B&M European Value Retail S.A.
28 October 2020
28 October 2020
B&M European Value Retail S.A.
("B&M" or the "Company")
Notice of Extraordinary General Meeting
("EGM")
B&M has posted to shareholders today a notice of an EGM to
be held to on 03 December 2020 to amend the Company's Articles of
Association, to address changes to the regulatory regime applicable
to the Company following the expiry of the transitional period in
relation to UK's exit from the EU on 31 December 2020 ("Exit-Day").
The Board of B&M recommends that sharehoders vote in favour of
all the resolutions.
A key element of this process is that the current shares in the
Company will be digitalised, which means those shares in paper
certificated form will be dematerialised and the share register
will be replaced by the shares being registered in an account with
a central securities depository. Shareholders rights and
entitlements (including dividend and voting rights) will not be
affected by these changes.
The other changes are to preserve as far as practicable the
legal and regulatory provisions in relation to takeovers and
transparency disclosures which currently apply to the Company, by
including them in our Articles of Association. These provisions
will continue to apply after Exit-Day without any uncertainty
impacting the Company whatever the outcome of the final Brexit
negotiations may be at a UK governmental level.
A summary of each of the changes are set out as follows
below.
Firstly, as a result of changes to the securities settlement
regime applicable to the Company as a consequence of Brexit, and to
ensure that settlements in the trading in B&M's shares continue
to be made in the London market without any disruption after the
Exit-Day, it will be necessary for B&M's shares to be
registered with an EU member state central securities depository
("CSD"). The Board therefore proposes that LuxCSD, the central
securities depository in Luxembourg, be appointed as the relevant
EU member state CSD. This will require shareholders to approve a
resolution to dematerialise B&M's shares so that they can be
held in book entry form in LuxCSD. The necessary arrangements will
be implemented through Euroclear Bank, acting as the account holder
of B&M's shares with LuxCSD. On the approval of the
dematerialisation process the depository interests ("DI")
programme, which is currently in place in relation to B&M's
shares, will be substituted with a CREST depository interests
("CDI") programme in which the shares in B&M will be held
indirectly in dematerialised form, and notice to terminate the DI
programme will be given by the depository to all DI holders. It is
envisaged that the dematerialisation of shares will commence,
following the expiry of the period specified in the notice of
termination, on or about 10 December 2020. Subject to the
resolutions being passed at the EGM, DI holders will not need to
take any further action in relation to this process, and the
Company will be writing to each holder of certificated ordinary
shares with the form which they will then need to complete with
their broker.
Secondly, the current shared jurisdiction of the UK Panel on
Takeovers and Mergers (the "UK Takeover Panel") and the Commission
de Surveillance du Secteur Financier (the "CSSF") in Luxembourg in
relation to any takeover offer for the Company will cease to apply
to the Company after the Exit-Day. The Board therefore proposes
that the Articles of Association of the Company be amended to
include provisions requiring shareholders and the Company to adhere
to the City Code on Takeovers and Mergers as far as practicable in
relation to any bid for the Company after the Exit-Day. In relation
to mandatory takeover offer, squeeze-out and sell-out thresholds
they are proposed to remain the same as those which have applied to
the Company since the IPO.
Thirdly, the Luxembourg law of 11 January 2008 (the "Luxembourg
Transparency Law") which implemented the EU Transparency Directive
2004/109/EC will also cease to apply to the Company following the
Exit-Day. The Board therefore proposes that the Articles of
Association of the Company be amended to include so far as
practicable similar obligations on shareholders who acquire or
dispose of voting rights in B&M to those under the Luxembourg
Transparency Law in relation to the disclosures of relevant
interests as if such law continued to apply. The actual percentage
thresholds requiring disclosure are proposed to remain the same as
those which have applied to the Company since the IPO under the
Luxembourg Transparency Law.
B&M has therefore posted to shareholders today a Notice of
EGM. The purpose of the EGM is to propose the necessary resolutions
for shareholders to approve a decision to dematerialise the shares
in the Company, to make changes to the Articles of Association of
the Company to implement the dematerialisation process, and to
adopt the takeover, squeeze-out, sell-out and transparency
provisions (each as referred to above and in the Appendix 1 to this
announcement below, and set out in more detail in the Notice of
EGM).
A copy of the Notice of EGM will shortly be available for
inspection at
https://data.fca.org.uk/#/nsm/nationalstoragemechanism . A copy of
the Notice of EGM along with a copy of the Articles of Association
of the Company which has been marked-up to show the proposed
amendments, are available on the Company's website at
www.bandmretail.com/investors/egm.aspx A summary form of the Notice
of EGM is also set out in Appendix 1 to this announcement.
As many shareholders will not be able to attend the EGM and also
in view of the Covid-19 impacts on travel, we encourage
shareholders to cast their votes by proxy as soon as possible. The
quorum for the EGM requires that at least 50% of the issued share
capital of the Company is represented in person or by proxy. We
therefore strongly encourage all our shareholders to vote. The EGM
will be held at 9, Allée Scheffer, L-2520 Luxembourg on Thursday 03
December 2020, commencing at 12:00 noon (CET).
Enquiries
B&M European Value Retail S.A.
For further information please contact +44 (0) 151 728 5400
Simon Arora, Chief Executive
Paul McDonald, Chief Financial Officer
investor.relations@bandmretail.com
Media
For media please contact +44 (0) 207 379 5151
Maitland
Jonathan Cook
bmstores-maitland@maitland.co.uk
APPIX 1
B&M European Value Retail S.A.
Société Anonyme
Registered office: 9, Allée Scheffer, L-2520 Luxembourg
Grand-Duchy of Luxembourg
R.C.S. Luxembourg: B 187275
Notice of the Extraordinary General Meeting of B&M European
Value Retail S.A. to be held at 12:00 noon (CET) on Thursday 03
December 2020 at 9, Allée Scheffer, L-2520 Luxembourg before a
Luxembourg notary.
AGA
Extraordinary resolutions
1. To approve the amendments set out below to the Articles of
Association of the Company, with immediate effect and without
amending the corporate object of the Company:
(i) By amending article 5.1 (Issued share capital) to no longer
permit fractional shares in the share capital of the Company by
deleting the words " Shares may be divided in fractions, an
appropriate number thereof conferring the same rights as a share. "
at the end of the first paragraph of that article and inserting in
place of them the words " Shares may not be divided in
fractions."
(ii) By amending articles 5.2(2) and 9 to read as follows to
reflect that there will no longer be fractional shares in the share
capital of the Company:
" (2) in connection with such arrangements as the Board of
Directors considers necessary or appropriate, in the context of
otherwise pre-emptive issues of shares, to deal with treasury
shares, fractional entitlements, record dates and legal, regulatory
or practical problems in, or under the laws of, any territory or
any other matter. In the case of fractional entitlements, the Board
of Directors shall round these up or down to the nearest whole
number of shares as it sees fit in its absolute discretion; or"
"9. Several owners.
9.1 If there are several owners of a share, the Company is
entitled to suspend the exercise of the rights attaching thereto
until one person is designated as being the owner, vis-à-vis the
Company, of the share. If there are several owners of a share, and
unless otherwise notified to the Company by those holders, the
person whose name first stands in the share register or who is
recorded in the relevant book-entry in case of dematerialised
shares shall be considered as being the designated owner for these
purposes towards the Company.
9.2 If, as the result of consolidation and division or
sub-division of shares, holders of shares would become entitled to
fractions of a share, the shareholders' meeting of the Company may
decide on how such fractions shall be dealt with including by way
of rounding up or down the holding."
(iii) By replacing article 6 with the following amended version
in order to provide for the possibility of the Company issuing
dematerialised shares, as well as the voluntary and compulsory
dematerialisation of the existing shares in the share capital of
the Company:
"6. Form of the shares, Dematerialisation and Transfer of
shares.
6.1 Form of the Shares
6.1.1 Until the Voluntary Effective Date (as defined in article
6.4 below), all new shares shall be issued in registered form.
Registered shares may not be converted into bearer shares.
6.1.2 Upon the Voluntary Effective Date (inclusive), all new
shares shall be issued in dematerialised form in accordance with
article 430-7 of the 1915 Law and the Luxembourg law on
dematerialised securities of 6 April 2013 (the "2013 Law").
6.2 Registered shares - Share register
6.2.1 This article 6.2 shall apply to the extent that the shares
are in registered form.
6.2.2 A register of the registered shares shall be maintained at
the registered office of the Company and every shareholder may
examine it. The register shall specify:
(a) the precise designation of each shareholder and the number
of shares held by him;
(b) the payments made on the shares; and
(c) transfers and the dates thereof or the date of conversion of
the registered shares into dematerialised form.
Subject to the provisions of article 6.6, ownership of
registered shares shall be established by an entry in the share
register.
6.2.3 Share certificates and replacement share certificates
6.2.3.1 Shares may be provided at the owner's request and at the
owner's option, in certificates representing single shares or in
certificates representing two or more shares.
6.2.3.2 Replacement share certificates may be issued in the
following circumstances:
(a) Where a holder holds two or more certificates for shares,
the Board of Directors may at his request, on surrender of the
original certificates and without charge, cancel the certificates
and issue a single replacement certificate.
(b) At the request of a holder of shares, the Board of Directors
may cancel a certificate and issue two or more in its place
(representing shares in such proportions as the holder may
specify), on surrender of the original certificate and on payment
of such reasonable sum as the Board of Directors may decide.
(c) Where a certificate is worn out or defaced the Board of
Directors may require the certificate to be delivered to it before
issuing a replacement and cancelling the original.
(d) If a certificate is lost or destroyed, the Board of
Directors may cancel it and issue a replacement certificate on such
terms as to provision of evidence and indemnity and to payment of
any exceptional out of pocket expenses incurred by the Company in
the investigation of that evidence and the preparation of that
indemnity as the Board of Directors may decide.
6.3 Dematerialised shares
6.3.1 All the shares in the Company shall be dematerialised, in
accordance with the provisions of this article 6.
6.3.2 All dematerialised shares are registered in a single
issuance account opened with the following clearing institution:
LuxCSD, with its registered address at 42, Avenue J.F. Kennedy,
L-1855 Luxembourg.
6.3.3 The dematerialised shares are not in registered or bearer
form and are only represented, and the property rights of the
Shareholder on the dematerialised shares are only established, by
book-entry with the clearing institution in Luxembourg.
6.3.4 For the purpose of identifying the Shareholder, the
Company may, at its own cost, request from the clearing
institution, the name or corporate name, the nationality, date of
birth or date of incorporation and the address of the holders in
its books which immediately confers or may confer in the future
voting rights at the Company's shareholders' meeting, as well as
the number of shares held by each of them and, if applicable, the
restrictions the shares may have. The clearing institution provides
to the Company the identification data it holds on the holders of
securities accounts in its books and the number of shares held by
each of them.
The same information concerning the holders of shares on own
account are gathered by the Company through the securities
depositary or other persons, which directly or indirectly keep a
securities account with the clearing institution at the credit of
which appear the relevant shares.
The Company as issuer may request confirmation from the persons
appearing on the lists so provided that they hold the shares for
their own account.
When a person has not provided the information requested by the
Company in accordance with this article 6.3.4 within two (2) months
following the request or if it has provided incomplete or erroneous
information in respect of its quality, or the quality of the shares
it holds, the Company may, until such time that the information has
been provided, suspend the voting rights of such holder of shares
pro rata to the proportion of shares for which the requested
information has not been obtained.
6.3.5 The Company shall make all dividend and other payments
with respect to the dematerialised shares, whether in cash, shares
or other assets, to LuxCSD or in accordance with the instructions
of LuxCSD, and such payment shall release the Company from any
further obligations with respect to such dividend or other
payment.
6.4 Voluntary dematerialisation
As from (i) the next calendar day immediately following the date
of the expiry of any notice of termination given to any person by
or on behalf of any professional depository of securities (or its
nominee or agent) in relation to any depository interest program
that has been established at any time with respect to the Company
(a "DI Program") or (ii) such later date as may otherwise be
determined by the Board, the holders of any shares in the Company
(including without limitation any professional depository of
securities (or its nominee or agent) being the holder of any shares
in the Company relating to such a DI Program) may proceed with the
voluntary dematerialisation of their shares (the "Voluntary
Effective Date").
6.5 Compulsory dematerialisation
6.5.1 Either of the general shareholders' meeting or the Board
is authorised to (i) proceed with a compulsory dematerialisation of
the shares of the Company in accordance with this article 6.5 and
the 2013 Law as of the Compulsory Commencement Date (as defined in
article 6.5.2 below) and (ii) following the compulsory
dematerialisation of all shares and, to the extent applicable, the
transfer of shares by the Company in accordance with article 6.5.6,
amend the articles of association in order to remove those
provisions relating to the shares being in registered form
(including, but not limited to, articles 5.1, 6.1.1, 6.2, 6.6(i),
second paragraph of 6.6, 6.7.1.1, 9.1 and 24.3.5) and reference to
the Voluntary Effective Date in article 6.1.2.
6.5.2 The compulsory dematerialisation of the existing shares
will be effective three (3) months after the date of publication of
the decision of the extraordinary general shareholders' meeting
approving the compulsory dematerialisation and these Articles in
the Recueil électronique des sociétés et associations (the "RESA")
(the "Compulsory Commencement Date").
6.5.3 As from the Compulsory Commencement Date, shares held via
book entry through any securities settlement system may no longer
be directly registered in the register of shareholders of the
Company and all such shares will be dematerialised and registered
in the issuance account kept at LuxCSD.
6.5.4 Holders directly recorded in the register of shareholders
shall provide the Company with the required data allowing their
shares to be credited to their securities account, no later than
the date which is two (2) years after the Compulsory Commencement
Date (the "Compulsory Conversion Date"). Upon each such conversion,
the register of shareholders shall be updated.
6.5.5 Voting rights attached to shares which have not been
dematerialised by the Compulsory Conversion Date shall thereafter
be automatically suspended until their dematerialisation. Any
distributions on such shares after the Compulsory Conversion Date
shall be held in escrow by the Company and, subject to
prescription, shall be paid (without interest) after such
dematerialisation has occurred. Such shares for which the voting
rights have been suspended in accordance with this article 6.5.5
shall not be taken into account for the calculation of the quorum
and of the majorities during the general meetings of shareholders.
The holders of such shares in relation to which the voting rights
are suspended shall not be admitted to such general meetings.
6.5.6 Shares which have not been converted into dematerialised
form within two (2) years as from the Compulsory Commencement Date
may be converted by the Company into dematerialised shares and
recorded by the Company in a securities account under its name.
Shares converted in this manner shall be recorded in the name of
the Company until the holder comes forward and has such shares
recorded in its name. The costs for opening and holding the account
shall be incurred by the Company. Article 6.5.5 and the two
preceding sentences of this article shall continue to apply until
the day when the shares are recorded in an account in the name of
the holder. The record of the shares in the securities account in
the name of the Company made pursuant to this article 6.5.6 does
not make the Company the holder of rights in relation to these
shares.
6.5.7 To the extent that any shares of holders directly
registered in the register of shareholders have not been
dematerialised within eight (8) years as from the Compulsory
Commencement Date, they may be sold by the Company with at least
three (3) months prior notice published in the same way as the
convening notices for the shareholders' meeting.
6.6 Indirect holdings of shares
Where shares are either (i) recorded in the register of
shareholders on behalf of one or more persons or (ii) held in
dematerialised form on behalf of one or more persons (the "Indirect
Holders") in the name of a securities settlement system or the
operator of such a system or in the name of a professional
depository of securities or any other depository (such systems,
professionals or other depositories being referred to hereinafter
as "Depositories" and each a "Depository") or of a sub-depository
designated by one or more Depositories, the Company will permit the
Indirect Holders to exercise the rights attaching to those shares,
including admission to and voting at or in relation to
shareholders' meetings in accordance with any rules or arrangements
established from time to time by or in relation to any central
securities depository or otherwise in accordance with any
procedures which may otherwise be established by the Company
(subject always to producing such evidence of their identity and
interests in any such securities to the satisfaction of the
Company), and shall consider those persons to be the shareholders
for the purposes of article 8. The Board of Directors may determine
the formal requirements with
which such certificates must comply.
Notwithstanding the foregoing, in the case of registered shares,
the Company will make payments, by way of dividends or otherwise,
in cash, shares or other assets only into the hands of the
Depository or sub-depository recorded in the share register of the
Company or in accordance with their instructions, and that payment
shall release the Company from any and all obligations for such
payment.
6.7 Transfer of shares
6.7.1 General
The shares of the Company are free from restrictions on transfer
subject to the provisions below.
6.7.1.1 To the extent that the shares are in registered form
prior to the Voluntary Effective Date, transfers shall be carried
out by means of a declaration of transfer entered in the share
register of the Company, dated and signed by the transferor and the
transferee or by their duly authorised representatives, and in
accordance with the rules on the assignment of claims laid down in
article 1690 of the Civil Code. The Company may accept and enter in
the register a transfer on the basis of correspondence or other
documents recording the agreement between the transferor and the
transferee.
The above is without prejudice to the transfers by Indirect
Holders, in the case provided for in article 6.6, in accordance
with the applicable rules and procedures applicable to such
transfers.
6.7.1.2 All dematerialised shares are freely transferable.
Transfers of dematerialised shares are realised by
account-to-account transfers.
6.7.2 On death
Transmission, in the case of death, shall be validly established
vis-à-vis the Company, provided that no objection is lodged, on
production of a death certificate, the certificate of registration
and an affidavit (acte de notoriété) attested by a juge de paix or
a notary.
The Company shall recognise only the personal representative or
representatives of a deceased holder as having title to a share
held by that holder alone or to which he alone was entitled. In the
case of a share held jointly by more than one person, the Company
may recognise only the survivor or survivors as being entitled to
it.
Nothing in the Articles releases the estate of a deceased holder
from liability in respect of a share which has been solely or
jointly held by him."
(iv) By amending article 24.3.4 to read as follows in light of
the intended dematerialisation of the shares:
"24.3.4 The Convening Notice is sent within the thirty (30) day,
or seventeen (17) day period, as applicable, referred to in Article
24.3.1, to the shareholders, the members of the Board of Directors
and the approved independent auditors (réviseurs d'entreprises
agréés) (the "Addressees"). This communication shall be sent by
letter to the Addressees, unless the Addressees (or any one of
them) have expressly and in writing agreed to receive communication
by other means, in which case such Addressee(s) may receive the
convening notice by such other means of communication."
(v) By amending articles 24.3.5 and 24.6.10 to read as follows
in light of the intended dematerialisation of the shares:
"24.3.5 Until the Voluntary Effective Date and to the extent
that all the shares are in registered form and represent the entire
share capital, the Convening Notice needs to be sent only by
registered letters to the Addressees, unless the Addressees (or any
one of them) have expressly and in writing agreed to receive
communication by other means, in which case such Addressee(s) may
receive the convening notice by such other means of
communication."
"24.6.10 The rights of a shareholder to sell or otherwise
transfer his shares during the period between the Record Date (as
defined in Article 24.6.11) and the shareholders' meeting to which
it applies are not subject to any restriction to which they are not
subject to at other times."
(vi) By removing article 24.6.11 and renumbering the subsequent
articles accordingly.
(vii) By amending the last paragraph of article 28.2 to read as
follows in light of the intended dematerialisation of the
shares:
"In addition to any applicable laws relating to the public
disclosure of annual accounts, the annual accounts, as well as the
report of the statutory auditors or of the independent auditors
réviseur(s) d'entreprises agréé(s), the annual report and the
observations of the Board of Directors shall be made available to
the shareholders at the same time as the convening notice. Every
shareholder shall be entitled to obtain free of charge, upon
production of his title, fifteen (15) days before the meeting, a
copy of the documents referred to in the foregoing paragraph."
2. To approve:
(i) that all new shares issued in the share capital of the
Company shall be in dematerialised form as from the Voluntary
Effective Date (as defined in article 6 as amended by the
resolution 1 (the " Amended Article 6 ") );
(ii) that the holder of any shares in the Company, including
without limitation any professional depository of securities (or
its nominee or agent) being the holder of any shares in the Company
relating to such a DI Program (as defined in the Amended Article 6
), may proceed with the voluntary dematerialisation of their shares
as of the Voluntary Effective Date (as defined in the Amended
Article 6); and
(iii) the compulsory dematerialisation of any shares in the
Company as from the Compulsory Commencement Date and no later than
the Compulsory Conversion Date (as such terms are defined in the
Amended Article 6) pursuant to the terms for such compulsory
dematerialisation set forth in the Amended Article 6.
3. To approve the following amendments to article 8 (Rights and
Obligations of shareholders) of the Articles of Association of the
Company as set out below with immediate effect:
(i) by deleting the first sentence of Article 8.1.1 and
inserting in place of it the following sentence:
" For so long as the shares (or transferable securities carrying
voting rights) of the Company are admitted to trading on either (i)
a regulated market as defined in the markets in financial
instruments law dated 30 May 2018, as amended, and/ or (ii) the
main market for listed securities of the London Stock Exchange plc,
the Company will comply with the provisions of the law of 11
January 2008, as amended (the "Transparency Law") to the fullest
extent possible as if the Company met the criteria set forth in
article 2 (Scope) of the Transparency Law."
(ii) by deleting the last sentence of Article 8.1.1 and
inserting in place of it the following sentence:
"Any notification to the Company of Important Participations
Thresholds shall be made as soon as possible on a basis consistent
with the disclosure requirements and within the time limits of the
Transparency Law, mutatis mutandis."
(iii) by deleting in Article 8.1.3 the words "in accordance with
the requirements of the Transparency Law." and inserting in place
of them the words "on a basis consistent with the requirements of
the Transparency Law, mutatis mutandis."
(iv) by deleting in Article 8.1.6 the words "In addition to the
reporting requirements imposed by the Transparency Law," and
inserting in place of them the words "In addition to the reporting
requirements imposed by the foregoing paragraphs of this Article
8,"
4. To approve amending the articles of association of the
Company by including a new Chapter X (Takeover provisions,
squeeze-out and sell-out) as set out below with immediate
effect:
"Chapter X - Takeover provisions, squeeze-out and sell-out
35.1 Definitions
For the purposes of this article 35.1 and articles 35.2 to 35.12
(inclusive) of these Articles:
"acting in concert" shall have the meaning given to that term in
the City Code;
"City Code" means The City Code on Takeovers and Mergers and as
amended or replaced from time to time (which for the avoidance of
any doubt includes the introduction, the General Principles, the
definitions, the rules and the related notes and appendices which
are all contained in the City Code) issued by or on behalf of the
Panel, as supplemented by guidance published by the Panel from time
to time, save that for the purposes of articles 35.1 to 35.10
(inclusive):
(i) references to thirty per cent (30%) in the City Code
(including in the definition of "control" therein) shall be read
and construed to mean thirty-three and one-third per cent (33 1/3%)
and, unless the context requires otherwise, references to "control"
in the City Code shall be read and construed accordingly mutatis
mutandis;
(ii) references to "voting rights" in the City Code shall be
interpreted in a manner consistent with the Luxembourg Takeover Law
as if the Luxembourg Takeover Law applied to the Company; and
(iii) disclosure forms for the purposes of compliance with Rule
8 of the City Code in so far as they relate to the Company shall be
such forms as are approved for such purpose by the Board of
Directors;
"City Code Transaction" means a transaction falling within the
scope of paragraph 3(b) (Transactions) of the introduction section
of the City Code in respect of which (had the Company been subject
to the full jurisdiction of the City Code, subject always to the
provisions of these Articles) the Company would be an offeree;
"Depository" shall have the meaning given to that term as
defined in article 6.6 of these Articles;
"Effective Time" shall have the meaning given to "exit day" in
section 20 of the European Union (Withdrawal) Act 2018 of the
United Kingdom, and as amended, replaced or substituted from time
to time;
"General Principles" means the General Principles set out in the
City Code (and as the same may be amended or replaced from time to
time);
"interest in Shares" or similar expressions shall have the
meaning given to "interest in securities" in the City Code and, for
purposes of articles 35.1 to 35.10 (inclusive), shall include where
a person has received an irrevocable commitment in respect of the
relevant Shares to accept or not to accept (or to vote or not to
vote in favour of) an offer for the Company;
"Luxembourg Takeover Law" means Law of 19 May 2006 transposing
Directive 2004/25/EC of the European Parliament and of the Council
of 21 April 2004 on takeover bids, as amended;
"Panel" means the Panel on Takeovers and Mergers in the United
Kingdom (and any immediate or remoter successor to that body from
time to time);
"Permitted Acquisition" means an acquisition of an interest in
Shares where any of the following apply:
(i) the Board of Directors consents to the acquisition (even if,
in the absence of such consent, the acquisition of such interest
would be a Prohibited Acquisition);
(ii) the acquisition arises from repayment of a stock-borrowing
arrangement (on arm's length normal commercial terms);
(iii) the acquisition is made in circumstances in which, had the
Company been subject to the full jurisdiction of the City Code
(subject always to the provisions of these Articles), the City Code
would have required an offer to be made as a consequence and such
offer is made in accordance with Rule 9 of the City Code (subject
always to the provisions of these Articles), as if it had so
applied; or
(iv) a person breaches a Limit (as such term is defined in
article 35.6(b) of these Articles) only as a result of the
circumstances referred to in article 35.10 of these Articles;
"Practice Statements" means the practice statements issued by
the Executive body of the Panel from time to time;
"Prohibited Acquisition" means an acquisition, other than a
Permitted Acquisition, where Rules 4, 5, 6, 7.1, 8 or 11 of the
City Code would in whole or part have applied to it if the Company
were subject to the full jurisdiction of the City Code (subject
always to the provisions of these Articles) and the acquisition was
made (or, if not yet made, would if and when made be) in breach of
or otherwise would not comply with Rules 4, 5, 6, 7.1, 8 or 11 of
the City Code (subject always to the provisions of these
Articles);
"Shares" means transferable shares carrying voting rights in the
Company including depository receipts in respect of any shares in
the Company carrying the possibility to give voting instructions;
and
"voting rights" shall be interpreted in a manner consistent with
the Luxembourg Takeover Law as if the Luxembourg Takeover Law
applied to the Company.
Reference to a "person" in this article 35.1 and any of the
provisions of articles 35.2 to 35.12 (inclusive) shall mean any
natural or legal person, partnership, corporate or unincorporated
body whatsoever which existing in any jurisdiction in the world,
and any such person's personal representatives, successors or
assigns.
35.2 Applicability of the City Code
On and from the Effective Time and for so long as, and to the
extent that, the Company shall not be subject to the jurisdiction
of either the City Code or the Luxembourg Takeover Law or a
combination thereof, the provisions of articles 35.2 to 35.10 shall
apply subject to the 1915 Law or any other applicable law. In
managing and conducting the business of the Company and in
exercising or refraining from exercising any and all powers, rights
and privileges from time to time vested in it, the Board of
Directors shall use its reasonable endeavours:
(a) to apply and to have the Company abide by the General
Principles mutatis mutandis as though the Company were subject to
the full jurisdiction of the City Code subject always to the
provisions of these Articles;
(b) in respect of any City Code Transaction (including where the
Company is the subject of an approach or the subject of a third
party's statement of possible or firm intention to make an offer),
to comply with and to procure that the Company complies with the
provisions of the City Code applicable to an offeree company and
the board of directors of an offeree company mutatis mutandis as
though the Company were subject to the full jurisdiction of the
City Code subject always to the provisions of these Articles;
and
(c) in the event that (and in any case for so long as) the Board
of Directors intends to recommend to the shareholders of the
Company or any class thereof any City Code Transaction from time to
time, to obtain the undertaking of the offeror(s) to comply with
the provisions of the City Code in the conduct and execution of the
relevant offer(s) mutatis mutandis as though the Company were
subject to the full jurisdiction of the City Code subject always to
the provisions of these Articles,
but recognising that the Panel would not have jurisdiction (if
and for so long as such may be the case) and provided that nothing
in these Articles shall prohibit any third party from making a
takeover offer for any Shares which is or may not be recommended by
the Board of Directors to shareholders of the Company.
35.3 The Board of Directors has full authority to determine the
application of any of the provisions of articles 35.1 to 35.10
(inclusive) of the Articles, including as to the deemed application
of the whole or any part of the City Code. Such authority shall
include all discretion vested in the Panel as if the whole or any
part of the City Code applied including, without limitation, the
determination of conditions and consents, the consideration to be
offered and any restrictions on the exercise of control. Any
resolution or determination of, or decision or exercise of any
discretion or power by, the Board of Directors or any Director or
by the chairman of any meeting acting in good faith (and having
received advice from an appropriate professional adviser
experienced in such matters) under or pursuant to any of the
provisions of articles 35.1 to 35.10 (inclusive) of the Articles
shall be final and conclusive; and anything done by, or on behalf
of, or on the authority of, the Board of Directors or any Director
acting in good faith (and having received advice from an
appropriate professional adviser experienced in such matters)
pursuant to any of the provisions of articles 35.1 to 35.10
(inclusive) of the Articles shall be conclusive, and in each case
(to the extent capable of being so in accordance with applicable
law and regulation) binding on all persons concerned and shall not
be open to challenge, whether as to its validity or otherwise on
any ground whatsoever, and, in the absence of fraud, neither the
Board of Directors nor any Director nor any person acting on their
behalf shall owe any duty of care to or have any liability to any
shareholder or person in respect of any cost, loss or expense
suffered directly or indirectly as a result of any such resolution
or determination, decision or exercise of discretion or power;
provided always that, for these purposes, any Director who is (or
may be) an offeror or who is (or is deemed or determined to be)
acting in concert with any person who is (or may be) an offeror or
who is otherwise deemed or determined by the Board of Directors to
be conflicted for such purposes shall not participate in or take
any decision or action relating to any of the foregoing
resolutions, determinations, decisions or actions and references to
the Board of Directors or to a Director in these articles 35.1 to
35.10 (inclusive) shall be read and construed accordingly. The
Board of Directors shall not be required to give any reasons for
any decision, determination or declaration taken or made in
accordance with any of the provisions of articles 35.1 to 35.10
(inclusive) of the Articles. Any notice which is required to be
given to the Panel under the City Code shall be given to the
Company at its registered office or as the Board of Directors
otherwise determines.
35.4 In applying articles 35.1 to 35.10 (inclusive), the Board
of Directors shall be entitled, without the consent of any
shareholder or offeror or potential offeror, to make all such
announcements as would be required or permitted under the City Code
(as if the full jurisdiction of the City Code applied to the
Company subject always to the provisions of these Articles)
notwithstanding that such announcement may make reference to, or
contain information about, shareholders, offerors, potential
offerors or persons acting (or deemed or determined by the Board of
Directors to be acting) in concert with them.
35.5 Shareholders and persons interested in or proposing to be
interested in any Shares of the Company shall comply with the
requirements of the City Code (as if the full jurisdiction of the
City Code applied to the Company, subject always to the provisions
of these Articles) in relation to any holdings or dealings in any
Shares or interests in Shares and in relation to their dealings
with the Company, including but not limited to compliance with the
disclosure obligations under Rule 8 (Disclosure of dealings and
positions) of the City Code during an offer period (as such term is
defined in the City Code) and the requirements of Rule 9 (The
mandatory offer and its terms) of the City Code.
35.6 A person must not (other than solely as a Depositary,
custodian or nominee of a Depository or custodian):
(a) effect or purport to effect a Prohibited Acquisition; or
(b) except as a result of a Permitted Acquisition:
(i) whether by themselves, or with persons determined by the
Board of Directors to be acting in concert with such person,
acquire after the Effective Time an interest in Shares which, taken
together with any interest in Shares held or acquired on or prior
to the Effective Time by persons determined by the Board of
Directors to be acting in concert with such person, carry
thirty-three and one-third per cent (33 1/3%) or more of the total
voting rights of the Company; or
(ii) whilst such person, together with persons determined by the
Board of Directors to be acting in concert with such person, holds
not less than thirty-three and one-third per cent (33 1/3%) but not
more than fifty per cent (50%) of the total voting rights of the
Company, acquires after the Effective Time, whether by themselves
or with persons determined by the Board of Directors to be acting
in concert with such person, additional interest in Shares which,
taken together with any interest in Shares held by persons
determined by the Board of Directors to be acting in concert with
such person, increases the percentage of their voting rights out of
the total voting rights of the Company,
(each of (i) and (ii) for the purpose of this article 35.6 being
a "Limit").
35.7 Where any person breaches any Limit, except as a result of
a Permitted Acquisition, or becomes interested in any Shares of the
Company as a result of a Prohibited Acquisition, that person is in
breach of these Articles, and no nominee of such person or persons
determined by the Board of Directors to be acting in concert with
such person may be appointed as a Director of the Company.
35.8 The Board of Directors may do all or any of the following
where it has reason to believe that any Limit is or may be breached
or any Prohibited Acquisition has been or may be effected:
(a) require, so far as it is reasonably able to do so, any
shareholder or person appearing or purporting to be interested in
any Shares of the Company to provide such information as the Board
of Directors considers appropriate to determine any of the matters
under any of the provisions of articles 35.1 to 35.10 (inclusive)
of the Articles;
(b) have regard to such public filings as it considers
appropriate to determine any of the matters under any of the
provisions of article 35.1 to 35.10 (inclusive) of the
Articles;
(c) make such determinations under any of the provisions of
article 35.1 to 35.10 (inclusive) of the Articles as it thinks fit,
either after calling for submissions from affected shareholders or
persons interested in any Shares of the Company or other persons or
without calling for such submissions;
(d) determine that the voting rights attached to such number of
Shares held by such persons as the Board of Directors may determine
are held, or in which such persons are or may be interested, in
breach of these Articles (for the purposes of this article 35.8
"Excess Shares") are from a particular time incapable of being
exercised for a definite or indefinite period;
(e) refuse to register such person or its nominee or custodian
or any person acting (or is deemed or determined by the Board of
Directors to be acting) in concert with such person as the holder
of the Excess Shares on the register of shareholders of the
Company;
(f) determine that some or all of the Excess Shares must be
sold; and
(g) take such other action as it thinks fit for the purposes of
any of the provisions of articles 35.1 to 35.10 (inclusive) of the
Articles including but not limited to:
(i) prescribing rules (not inconsistent with this article
35.8);
(ii) setting deadlines for the provision of information;
(iii) drawing adverse inferences where information requested is
not provided;
(iv) making determinations or interim determinations;
(v) executing documents on behalf of a shareholder or persons
interested in any Shares of the Company in relation to any Excess
Shares, including without limitation in relation to the sale and/or
transfer to any persons of any Excess Shares;
(vi) paying costs and expenses out of any proceeds of sale of
any Excess Shares; and
(vii) changing any decision or determination or rule previously
made.
35.9 Any one or more of the Directors may act as the attorney(s)
of any shareholder or persons interested in any Shares of the
Company in relation to the execution of documents and other actions
to be taken for the sale of Excess Shares determined by the Board
of Directors under any of the provisions of articles 35.1 to 35.10
(inclusive) of the Articles.
35.10 If as a consequence of the Company redeeming or purchasing
its own Shares, there is a resulting increase in the percentage of
the total voting rights attributable to the Shares in respect of
which a person or persons deemed or determined by the Board of
Directors to be acting in concert have an interest in and such an
increase would constitute a breach of any Limit, such an increase
shall be deemed a Permitted Acquisition.
35.11 From such time as the Law of 19 May 2006 transposing
Directive 2004/25/EC of the European Parliament and of the Council
of 21 April 2004 on takeover bids (as amended) ceases to apply to
the Company, the provisions of this article 35.11 and article 35.12
(and each of the sub-provision thereof) of the Articles shall be
effective and apply at all times thereafter.
35.12 Following a Takeover Offer being made on or at any time
after the date on which this article shall come into effect the
following provisions of this article shall then apply:
35.12.1 the offeror in relation to the Takeover Offer shall be
able to require the holders of (including persons with any interest
in) all the remaining Shares in the Company to which such offer
relates to sell to the offeror those Shares at a fair price per
Share (as defined in article 35.12.5 below) where the offeror holds
alone or together with persons acting in concert with the offeror
(which shall include by virtue of acceptances of the Takeover
Offer, having acquired or unconditionally contracted to acquire)
Shares representing not less than ninety-five per cent (95%) of the
capital carrying voting rights and not less than ninety-five per
cent (95%) of the voting rights in the Company (that right being
referred to in this article 35.12 as the "right of
squeeze-out");
35.12.2 where the Company has issued more than one class of
Shares, the right of squeeze-out can be exercised only in relation
to the class of Shares in which the threshold laid down in article
35.12.1 above has been reached;
35.12.3 if the offeror wishes to exercise the right of
squeeze-out under article 35.12.1 above, it shall do so by giving
notice in writing to any holder(s) of the Shares within three (3)
months of the end of the time allowed for acceptance of the offer
to which it relates under article 35.12.1 above.
35.12.4 the offeror's entitlement to give a notice exercising
its right of squeeze-out under the provisions of article 35.12.1
and 35.12.3 on any particular date shall be determined as if any
Shares allotted or ceasing to be held by the Company as treasury
shares had not been allotted or ceased to be held by the Company as
treasury shares at any time;
35.12.5 the "fair price per Share" shall be the same value per
Share as under the terms of the Takeover Offer. It shall take the
form of the consideration under the terms of the Takeover Offer and
cash shall be offered at least as an alternative;
35.12.6 any notice given to any holder(s) of Shares under
article 35.12.3 shall bind the offeror to acquire and the relevant
holder(s) to sell the Shares to it at the fair price per Share. The
consideration shall be deposited with the Company in trust for the
relevant holder(s) within six (6) weeks of the date of the notice
having been given and the Company will be bound to release the
consideration to the relevant holder(s) on the transfer of their
Shares to the offeror having been executed by the relevant
holder(s);
35.12.7 where an offeror, as a result of a Takeover Offer, holds
alone or together with persons acting in concert with the offeror,
Shares carrying more than ninety per cent (90%) of the voting
rights in the Company, any remaining holder of (including persons
with any interest in) Shares in the Company may require such
offeror to buy their Shares at a fair price per share (as defined
in article 35.12.5 above) payable in the form of the consideration
in the Takeover Offer but with the option for seller to require
that such price be settled in cash (that right being referred to in
this article 35.12.7 as the "right of sell-out"). The provisions of
articles 35.12.2 to 35.12.6 (inclusive) shall apply mutatis
mutandis also in relation to any right of sell-out under this
article 35.12.7; and
35.12.8 for the purposes of article 35.12 above (and each of the
sub-provisions thereof), reference to "Takeover Offer" shall mean
an offer:
(a) to acquire all the Shares in the Company (or where there is
more than one class of shares in the Company, all the shares of one
or more classes) other than the shares that at the date of the
offer are already held by the offeror;
(b) which is capable of acceptance by holders of Shares (or
persons with interests in them) and when so accepted would give
rise to a binding conditional or unconditional contract;
(c) where the terms of the offer are the same for all shares to
which the offer relates, or where there are separate classes of
shares the terms are the same for all the shares of the particular
class;
(d) whether or not the offer includes any of the following: (i)
all or any Shares that are allotted after the date of the offer but
before a specified date, (ii) all or any relevant treasury shares
that cease to be held as treasury shares before a specified date,
or (iii) all or any other relevant treasury shares. For the
purposes of this provision "specified date" means a date specified
in or determined in accordance with the terms of the offer, and,
"relevant treasury shares" means Shares that are held by the
Company as treasury shares at the date of the offer, or which
become shares held by the Company as treasury shares after that
date but before a specified date;
(e) whether or not the offer is extended to Shares that persons
acting in concert with the offeror hold or have contracted to
acquire;
(f) notwithstanding that (i) the offer may not have been
communicated to shareholders in certain countries or territories of
the world in order not to contravene the law of that country or
territory, provided that, the offer is published in the Recueil
Electronique des Sociétés et Associations, or (ii) there are
persons for whom by reason of the laws of certain countries or
territories of the world it is impossible to accept the offer, or
more difficult to do so than in other parts of the world;
35.12.9 if the terms of a Takeover Offer includes a provision
for the revision of the terms of the offer and for acceptances on
the previous terms to be treated as acceptances on the revised
terms, then, if the terms of the offer are revised in accordance
with that provision, the revision is not to be regarded as a new
offer for the purposes of this article 35 (and each of the
sub-provisions thereof)."
Explanation of Business to be considered at the Extraordinary
General Meeting
Extraordinary Resolution 1
In light of changes to the settlement system regime applicable
to the Company, it is intended that the shares of the Company will
be converted from registered form (i.e. their current form) to
dematerialised form evidenced by book-entry in a single issuance
account opened with the following clearing institution: LuxCSD. In
approving this first resolution, the shareholders will adopt
changes to the Articles of Association to (i) permit B&M's
shares to be in dematerialised form and reflect the provisions of
the Luxembourg law of 6 April 2013 on dematerialised securities,
(ii) provide for the voluntary dematerialisation of the shares
following the termination of the DI programme (or such later date
as otherwise decided by the Board), (iii) provide for compulsory
dematerialisation of those shares that have not been dematerialised
in connection with the voluntary dematerialisation, and (iv)
reflect throughout the Articles of Association that the shares
shall be in dematerialised form. For more information please refer
to the explanatory note to resolution 1 included in the Notice of
the EGM.
Extraordinary Resolution 2
In the second extraordinary resolution, the shareholders will
approve the dematerialisation of the shares in two phases: (i) a
first voluntary phase and (ii) a second compulsory phase. The first
voluntary phase will begin as from the next calendar day
immediately following the date of the expiry of any notice of
termination given in relation to any DI programme or such later
date as may otherwise be determined by the Board. The second
compulsory phase will begin three (3) months from the date of the
publication of the decision of the EGM of 3 December 2020 on the
Luxembourg electronic platform for official publications (Recueil
électronique des sociétés et associations) (the "Compulsory
Commencement Date") and will run until the second anniversary of
the Compulsory Commencement Date. For more information please refer
to the explanatory note to resolution 2 included in the Notice of
the EGM.
Extraordinary Resolution 3
Following the Exit-Day, the Luxembourg Transparency Law will
cease to apply to the Company. This third extraordinary resolution
proposes amendments to article 8 (Rights and Obligations of
shareholders) of the Articles of Association which will provide
that the Company and shareholders shall, to the fullest extent
possible, continue to comply with the provisions of the Luxembourg
Transparency Law which are currently applicable to it for so long
as the shares (or transferable securities carrying voting rights)
of the Company are admitted to trading on either (i) a regulated
market as defined in the Luxembourg markets in financial
instruments law dated 30 May 2018, as amended, and/or (ii) the main
market for listed securities of the London Stock Exchange plc. For
more information please refer to the explanatory note to resolution
3 included in the Notice of the EGM.
Extraordinary Resolution 4
As a consequent of Brexit, the current shared jurisdiction of
the UK Takeover Panel and the Luxembourg CSSF in relation to any
takeover offer for the Company will cease to apply to the Company
after the Exit-Day. The fourth resolution will amend the Articles
of Association by inserting a new Chapter X (Takeover provisions,
squeeze-out and sell-out) which will require that, the Company and
shareholders adhere to the City Code on Takeovers and Mergers in
relation to any takeover offer for the Company after the Exit-Day.
This new Chapter X will also provide that mandatory offer,
squeeze-out and sell-out thresholds under the Luxembourg takeover
law of 19 May 2006 which currently apply to the Company will be
similarly applied after the Exit-Day as if the Company was still
subject to that law. For more information please refer to the
explanatory note to resolution 4 included in the Notice of the
EGM.
Notes
Quorum and voting
The quorum for the EGM is shareholder(s) represented in person
or by proxy at the meeting who hold at least one half of the issued
share capital of the Company.
If this quorum condition is not satisfied a second meeting may
be convened, following notices being given of that second meeting
under the Articles of Association of the Company. At any second
meeting the quorum requirement of the original meeting does not
apply, and the quorum is at least one shareholder present in person
or represented by proxy.
In accordance with Article 24.6.3 of the Articles of Association
of the Company, all decisions taken at the EGM will be passed by at
least two thirds of the votes cast at the meeting on each
resolution.
Each holder of ordinary shares has one vote in respect of each
ordinary share held.
Total voting rights
As at 27 October 2020 (being the last business day prior to the
publication of this notice) the Company's issued ordinary share
capital consists of 1,000,733,147 (one billion seven hundred and
thirty-three thousand one hundred and forty-seven) ordinary shares,
carrying one vote each. The Company holds no treasury shares,
therefore the total voting rights in the Company as at 27 October
2020 is 1,000,733,147 (one billion seven hundred and thirty-three
thousand one hundred and forty-seven) .
Poll
All items in the Notice of the EGM will be decided by a poll of
shareholders.
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(END) Dow Jones Newswires
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