08/19/2024 | Press release | Distributed by Public on 08/19/2024 14:23
| Citigroup | | |
Goldman Sachs & Co. LLC
|
| | Jefferies | |
|
Morgan Stanley
|
| |
UBS Investment Bank
|
|
|
BMO Capital Markets
|
| |
Evercore ISI
|
| |
RBC Capital Markets
|
|
| BTIG | | |
Mizuho
|
| |
MUFG
|
| |
PJT Partners
|
| |
Santander
|
|
| | |
Page
|
| |||
Summary
|
| | | | S-1 | | |
Risk Factors
|
| | | | S-13 | | |
Forward-Looking Statements
|
| | | | S-14 | | |
Trademarks and Service Marks
|
| | | | S-15 | | |
Use of Proceeds
|
| | | | S-16 | | |
Selling Shareholders
|
| | | | S-17 | | |
Description of Share Capital
|
| | | | S-19 | | |
Taxation
|
| | | | S-28 | | |
Underwriting (Conflicts of Interest)
|
| | | | S-34 | | |
Legal Matters
|
| | | | S-42 | | |
Experts
|
| | | | S-43 | | |
Enforcement of Civil Liabilities
|
| | | | S-44 | | |
Where You Can Find More Information
|
| | | | S-45 | | |
Information Incorporated By Reference
|
| | | | S-46 | | |
| | |
Page
|
| |||
About This Prospectus
|
| | | | 1 | | |
Gates
|
| | | | 2 | | |
Risk Factors
|
| | | | 3 | | |
Forward-Looking Information
|
| | | | 4 | | |
Trademarks and Service Marks
|
| | | | 5 | | |
Use of Proceeds
|
| | | | 6 | | |
Selling Shareholders
|
| | | | 7 | | |
Description of Share Capital
|
| | | | 9 | | |
Description of Depositary Shares
|
| | | | 26 | | |
Description of Debt Securities
|
| | | | 27 | | |
Description of Guarantees
|
| | | | 37 | | |
Description of Warrants
|
| | | | 38 | | |
Description of Subscription Rights
|
| | | | 39 | | |
Description of Share Purchase Contracts
|
| | | | 40 | | |
Description of Units
|
| | | | 41 | | |
Book-Entry; Delivery and Form; Global Securities
|
| | | | 42 | | |
Plan of Distribution
|
| | | | 45 | | |
Legal Matters
|
| | | | 49 | | |
Experts
|
| | | | 49 | | |
Enforceability of Civil Liabilities
|
| | | | 49 | | |
Where You Can Find More Information
|
| | | | 50 | | |
Information Incorporated By Reference
|
| | | | 51 | | |
| | |
For the six months ended
|
| |
For the fiscal year ended
|
| ||||||||||||||||||||||||
(dollars in millions)
|
| |
June 29,
2024 |
| |
July 1,
2023 |
| |
December 30,
2023 |
| |
December 31,
2022 |
| |
January 1,
2022 |
| |||||||||||||||
Statement of operations data: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Net sales
|
| | | $ | 1,748.1 | | | | | $ | 1,834.0 | | | | | $ | 3,570.2 | | | | | $ | 3,554.2 | | | | | $ | 3,474.4 | | |
Cost of sales
|
| | | | 1,060.7 | | | | | | 1,156.2 | | | | | | 2,211.3 | | | | | | 2,303.6 | | | | | | 2,135.2 | | |
Gross profit
|
| | | | 687.4 | | | | | | 677.8 | | | | | | 1,358.9 | | | | | | 1,250.6 | | | | | | 1,339.2 | | |
Selling, general and administrative expenses
|
| | | | 430.0 | | | | | | 452.8 | | | | | | 882.2 | | | | | | 853.7 | | | | | | 852.7 | | |
Transaction-related expenses
|
| | | | 1.6 | | | | | | 0.8 | | | | | | 2.2 | | | | | | 2.1 | | | | | | 3.7 | | |
Asset impairments
|
| | | | - | | | | | | - | | | | | | 0.1 | | | | | | 1.1 | | | | | | 0.6 | | |
Restructuring expenses
|
| | | | 2.8 | | | | | | 7.7 | | | | | | 11.6 | | | | | | 9.5 | | | | | | 7.4 | | |
Other operating expenses (income)
|
| | | | 0.1 | | | | | | 0.1 | | | | | | 0.2 | | | | | | 0.2 | | | | | | (9.3) | | |
Operating income from continuing operations
|
| | | | 252.9 | | | | | | 216.4 | | | | | | 462.6 | | | | | | 384.0 | | | | | | 484.1 | | |
Interest expense
|
| | | | 86.6 | | | | | | 85.3 | | | | | | 163.2 | | | | | | 139.4 | | | | | | 133.5 | | |
Other (income) expense
|
| | | | (4.6) | | | | | | 4.0 | | | | | | 14.1 | | | | | | (13.2) | | | | | | 0.9 | | |
Income from continuing operations before taxes
|
| | | | 170.9 | | | | | | 127.1 | | | | | | 285.3 | | | | | | 257.8 | | | | | | 349.7 | | |
Income tax expense
|
| | | | 46.8 | | | | | | 24.9 | | | | | | 28.3 | | | | | | 14.9 | | | | | | 18.4 | | |
Net income from continuing operations
|
| | | | 124.1 | | | | | | 102.2 | | | | | | 257.0 | | | | | | 242.9 | | | | | | 331.3 | | |
Loss on disposal of discontinued operations, net of
tax |
| | | | 0.4 | | | | | | 0.4 | | | | | | 0.6 | | | | | | 0.4 | | | | | | - | | |
Net income
|
| | | | 123.7 | | | | | | 101.8 | | | | | | 256.4 | | | | | | 242.5 | | | | | | 331.3 | | |
Non-controlling interests
|
| | | | 13.0 | | | | | | 10.5 | | | | | | 23.5 | | | | | | 21.7 | | | | | | 34.2 | | |
Net income attributable to shareholders
|
| | | $ | 110.7 | | | | | $ | 91.3 | | | | | $ | 232.9 | | | | | $ | 220.8 | | | | | $ | 297.1 | | |
Balance Sheet Data (at period end): | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Cash and cash equivalents
|
| | | $ | 579.7 | | | | | $ | 565.0 | | | | | $ | 720.6 | | | | | $ | 578.4 | | | | | $ | 658.2 | | |
Property, plant and equipment, net
|
| | | | 599.6 | | | | | | 633.8 | | | | | | 630.0 | | | | | | 637.5 | | | | | | 670.3 | | |
Total assets
|
| | | | 7,034.8 | | | | | | 7,276.9 | | | | | | 7,254.5 | | | | | | 7,191.6 | | | | | | 7,533.0 | | |
Total liabilities
|
| | | | 3,540.5 | | | | | | 3,885.9 | | | | | | 3,710.6 | | | | | | 3,748.0 | | | | | | 4,051.6 | | |
Total shareholders' equity
|
| | | | 3,177.0 | | | | | | 3,070.4 | | | | | | 3,220.2 | | | | | | 3,110.0 | | | | | | 3,099.7 | | |
| | |
For the six months ended
|
| |
For the fiscal year ended
|
| ||||||||||||||||||||||||
(dollars in millions)
|
| |
June 29,
2024 |
| |
July 1,
2023 |
| |
December 30,
2023 |
| |
December 31,
2022 |
| |
January 1,
2022 |
| |||||||||||||||
Cash flow data: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Net cash provided by operating activities
|
| | | $ | 72.8 | | | | | $ | 183.9 | | | | | $ | 481.0 | | | | | $ | 265.8 | | | | | $ | 382.4 | | |
Net cash used in investing activities
|
| | | | (40.1) | | | | | | (41.1) | | | | | | (81.8) | | | | | | (90.7) | | | | | | (86.0) | | |
Net cash used in financing activities
|
| | | | (157.6) | | | | | | (160.4) | | | | | | (258.3) | | | | | | (253.1) | | | | | | (148.6) | | |
Other financial data (unaudited): | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Adjusted EBITDA(1)
|
| | | $ | 397.8 | | | | | $ | 371.8 | | | | | $ | 747.0 | | | | | $ | 680.6 | | | | | $ | 735.8 | | |
Adjusted EBITDA margin(2)
|
| | | | 22.8% | | | | | | 20.3% | | | | | | 20.9% | | | | | | 19.1% | | | | | | 21.2% | | |
| | |
For the six months ended
|
| |
For the fiscal year ended
|
| ||||||||||||||||||||||||
(dollars in millions)
|
| |
June 29,
2024 |
| |
July 1,
2023 |
| |
December 30,
2023 |
| |
December 31,
2022 |
| |
January 1,
2022 |
| |||||||||||||||
Net income from continuing operations
|
| | | $ | 124.1 | | | | | $ | 102.2 | | | | | $ | 257.0 | | | | | $ | 242.9 | | | | | $ | 331.3 | | |
Income tax expense
|
| | | | 46.8 | | | | | | 24.9 | | | | | | 28.3 | | | | | | 14.9 | | | | | | 18.4 | | |
Net interest and other expenses
|
| | | | 82.0 | | | | | | 89.3 | | | | | | 177.3 | | | | | | 126.2 | | | | | | 134.4 | | |
Depreciation and amortization
|
| | | | 109.1 | | | | | | 108.5 | | | | | | 217.5 | | | | | | 217.2 | | | | | | 222.6 | | |
EBITDA
|
| | | | 362.0 | | | | | | 324.9 | | | | | | 680.1 | | | | | | 601.2 | | | | | | 706.7 | | |
Transaction-related expenses(a)
|
| | | | 1.6 | | | | | | 0.8 | | | | | | 2.2 | | | | | | 2.1 | | | | | | 3.7 | | |
Asset impairments
|
| | | | - | | | | | | - | | | | | | 0.1 | | | | | | 1.1 | | | | | | 0.6 | | |
Restructuring expenses
|
| | | | 2.8 | | | | | | 7.7 | | | | | | 11.6 | | | | | | 9.5 | | | | | | 7.4 | | |
Share-based compensation expense
|
| | | | 13.8 | | | | | | 16.3 | | | | | | 27.4 | | | | | | 44.3 | | | | | | 24.6 | | |
Inventory impairments (included in cost of
sales)(b) |
| | | | 17.3 | | | | | | 4.1 | | | | | | 7.4 | | | | | | 20.9 | | | | | | 1.4 | | |
Severance expenses (included in cost of sales)
|
| | | | - | | | | | | 0.5 | | | | | | 0.4 | | | | | | 0.8 | | | | | | - | | |
Severance expenses (included in SG&A)
|
| | | | 0.1 | | | | | | 0.9 | | | | | | 1.0 | | | | | | 0.5 | | | | | | 0.7 | | |
Credit loss related to customer bankruptcy
(including in SG&A)(c) |
| | | | 0.1 | | | | | | 11.4 | | | | | | 11.4 | | | | | | - | | | | | | - | | |
Cybersecurity incidence expenses(d)
|
| | | | - | | | | | | 5.1 | | | | | | 5.2 | | | | | | - | | | | | | - | | |
Other items not directly related to current operations
|
| | | | 0.1 | | | | | | 0.1 | | | | | | 0.2 | | | | | | 0.2 | | | | | | (9.3) | | |
Adjusted EBITDA
|
| | | $ | 397.8 | | | | | $ | 371.8 | | | | | $ | 747.0 | | | | | $ | 680.6 | | | | | $ | 735.8 | | |
| | |
For the six months ended
|
| |
For the fiscal year ended
|
| ||||||||||||||||||||||||
(dollars in millions)
|
| |
June 29,
2024 |
| |
July 1,
2023 |
| |
December 30,
2023 |
| |
December 31,
2022 |
| |
January 1,
2022 |
| |||||||||||||||
Net sales
|
| | | $ | 1,748.1 | | | | | $ | 1,834.0 | | | | | $ | 3,570.2 | | | | | $ | 3,554.2 | | | | | $ | 3,474.4 | | |
Adjusted EBITDA
|
| | | $ | 397.8 | | | | | $ | 371.8 | | | | | $ | 747.0 | | | | | $ | 680.6 | | | | | $ | 735.8 | | |
Adjusted EBITDA margin
|
| | | | 22.8% | | | | | | 20.3% | | | | | | 20.9% | | | | | | 19.1% | | | | | | 21.2% | | |
| | | | | | | | | | | | | | |
Shares to be Sold in the
Offering Including |
| |
Shares Beneficially
Owned After the Offering and the Share Repurchase(1) |
| ||||||||||||||||||||||||||||||
| | |
Shares Beneficially
Owned Prior to the Offering and the Share Repurchase |
| |
Excluding
Exercise of Option to Purchase Additional Shares |
| |
Full
Exercise of Option to Purchase Additional Shares |
| |
Excluding Exercise of
Option to Purchase Additional Shares |
| |
Including Full
Exercise of Option to Purchase Additional Shares |
| |||||||||||||||||||||||||||||||||
| | |
Number
|
| |
Percent
|
| |
Number
|
| |
Percent
|
| |
Number
|
| |
Percent
|
| ||||||||||||||||||||||||||||||
Blackstone(2) | | | | | 51,876,857 | | | | | | 19.8% | | | | | | 20,000,000 | | | | | | 23,000,000 | | | | | | 24,337,654 | | | | | | 9.6% | | | | | | 21,337,654 | | | | | | 8.4% | | |
Underwriter
|
| |
Number of
ordinary shares |
| |||
Citigroup Global Markets Inc.
|
| | | | 5,020,000 | | |
Goldman Sachs & Co. LLC
|
| | | | 5,020,000 | | |
Jefferies LLC
|
| | | | 5,020,000 | | |
Morgan Stanley & Co. LLC
|
| | | | 980,000 | | |
UBS Securities L.L.C.
|
| | | | 980,000 | | |
BMO Capital Markets Corp.
|
| | | | 460,000 | | |
Evercore Group L.L.C
|
| | | | 460,000 | | |
RBC Capital Markets, LLC
|
| | | | 460,000 | | |
Banco Santander, S.A.
|
| | | | 320,000 | | |
BTIG, LLC
|
| | | | 320,000 | | |
Mizuho Securities USA LLC
|
| | | | 320,000 | | |
MUFG Securities Americas Inc.
|
| | | | 320,000 | | |
PJT Partners LP
|
| | | | 320,000 | | |
Total
|
| | | | 20,000,000 | | |
|
About This Prospectus
|
| | | | 1 | | |
|
Gates
|
| | | | 2 | | |
|
Risk Factors
|
| | | | 3 | | |
|
Forward-Looking Information
|
| | | | 4 | | |
|
Trademarks and Service Marks
|
| | | | 5 | | |
|
Use of Proceeds
|
| | | | 6 | | |
|
Selling Shareholders
|
| | | | 7 | | |
|
Description of Share Capital
|
| | | | 9 | | |
|
Description of Depositary Shares
|
| | | | 26 | | |
|
Description of Debt Securities
|
| | | | 27 | | |
|
Description of Guarantees
|
| | | | 37 | | |
|
Description of Warrants
|
| | | | 38 | | |
|
Description of Subscription Rights
|
| | | | 39 | | |
|
Description of Share Purchase Contracts
|
| | | | 40 | | |
|
Description of Units
|
| | | | 41 | | |
|
Book-Entry; Delivery and Form; Global Securities
|
| | | | 42 | | |
|
Plan of Distribution
|
| | | | 45 | | |
|
Legal Matters
|
| | | | 49 | | |
|
Experts
|
| | | | 49 | | |
|
Enforceability of Civil Liabilities
|
| | | | 49 | | |
|
Where You Can Find More Information
|
| | | | 50 | | |
|
Information Incorporated by Reference
|
| | | | 51 | | |
| | |
Ordinary Shares
Beneficially Owned |
| |
Ordinary
Shares that May be Offered for Resale |
| |
Shares of Ordinary Shares
Beneficially Owned After the Sale of the Maximum Number of Ordinary Shares |
| |||||||||||||||||||||
Name
|
| |
Number of
Shares |
| |
Percent of
Ordinary Shares Outstanding |
| |
Number of
Shares |
| |
Percent of
Ordinary Shares Outstanding |
| ||||||||||||||||||
Blackstone(1) | | | | | 178,587,591 | | | | | | 63% | | | | | | 178,587,591 | | | | | | - | | | | | | - | | |
| | |
Number
Issued |
| |
Nominal
Amount |
| ||||||
Ordinary shares of $0.01 par value per share
|
| | | | 282,286,432 | | | | | $ | 2,822,864.32 | | |
| | |
England and Wales
|
| |
Delaware
|
|
Number of Directors
|
| | Under the Companies Act, a public limited company must have at least two directors and at least one of the directors must be a natural person. Subject to the Companies Act, the number of directors may be fixed by or in the manner provided in a company's articles of association. | | | Under Delaware law, a corporation must have at least one director and the number of directors shall be fixed by or in the manner provided in the bylaws. | |
Removal of Directors
|
| | Under the Companies Act, shareholders may remove a director without cause by an ordinary resolution (which is passed by a simple majority of those voting in person or by proxy at a general meeting) irrespective of any provisions of any service contract the director has with the company, provided that 28 clear days' notice of the resolution is given to the company and its shareholders and certain other procedural requirements under the Companies Act are followed (such as allowing the director to make representations against his or her removal either at the meeting or in writing). | | | Under Delaware law, unless otherwise provided in the certificate of incorporation, directors may be removed from office, with or without cause, by the holders of a majority of the shares then entitled to vote, though in the case of a corporation whose board is classified, stockholders may typically effect such removal only for cause. | |
Vacancies on the Board of Directors
|
| | Under English law, the procedure by which directors (other than a company's initial directors) are appointed is generally set out in a company's articles of association, provided that where two or more persons are appointed as directors of a public limited company by ordinary resolution of the shareholders, resolutions appointing each director must be voted on individually unless a resolution that more than one director can be appointed has first been agreed to by the meeting without any vote being given against it. | | | Under Delaware law, vacancies on a corporation's board of directors, including those caused by an increase in the number of directors, may be filled as the bylaws provided. In the absence of such provision, the vacancy shall be filled by a majority of the board of directors. | |
Annual General Meeting
|
| | Under the Companies Act, a public limited company must hold an annual general meeting in each six-month period following the end of the company's fiscal year. | | | Under Delaware law, the annual meeting of stockholders shall be held at such place, on such date and at such time as may be designated by or in the manner provided in the certificate of | |
| | |
England and Wales
|
| |
Delaware
|
|
| | | | | | incorporation or bylaws, or if not so designated, as determined by a majority of the board of directors | |
General Meeting/Special Meeting
|
| |
Under the Companies Act, a general meeting of the shareholders of a public limited company may be called by:
(i)
the directors; or
(ii)
shareholders holding at least 5% of the paid-up capital of the company carrying voting rights at general meetings (excluding treasury shares).
|
| | Under Delaware law, special meetings of the stockholders may be called by the board of directors or by such person or persons as may be authorized by the certificate of incorporation or by the bylaws. | |
Notice of General Meetings
|
| | Under the Companies Act, 21 clear days' notice must be given for an annual general meeting and any resolutions to be proposed at the meeting. Subject to a company's articles of association providing for a longer period, at least 14 clear days' notice is required for any other general meeting. In addition, certain matters (such as the removal of directors or auditors) require special notice, which is 28 clear days' notice. The shareholders of a company may in all cases consent to a shorter notice period, the proportion of shareholders' consent required being 100% of those entitled to attend and vote in the case of an annual general meeting and, in the case of any other general meeting, a majority in number of the shareholders having a right to attend and vote at the meeting, being a majority who together hold not less than 95% in nominal value of the shares giving a right to attend and vote at the meeting. | | | Under Delaware law, unless otherwise provided in the certificate of incorporation or bylaws, written notice of any meeting to the stockholder entitled to vote at the meeting not less than ten nor more than 60 days before the date of the meeting and shall specify the place, date, hour and purpose or purposes of the meeting. | |
Proxy
|
| | Under the Companies Act, at any meeting of shareholders, a shareholder may designate another person to attend, speak and vote at the meeting on their behalf by proxy. | | | Under Delaware law, each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to corporate action in writing without a meeting may authorize another person or persons to act | |
| | |
England and Wales
|
| |
Delaware
|
|
| | | | | | for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. | |
Pre-emption Rights
|
| | Under the Companies Act, "equity securities" (being (i) shares in the company other than shares that, with respect to dividends and capital, carry a right to participate only up to a specified amount in a distribution ("ordinary shares") or (ii) rights to subscribe for, or to convert securities into, ordinary shares) must not be allotted unless: (i) offered first, on the same or more favorable terms, to the existing ordinary shareholders in the company in proportion as nearly as practicable to the respective nominal value of their holdings of ordinary shares and (ii) the period during which any such offer may be accepted has expired or the company has received notice of the acceptance or refusal of every offer so made. Such pre-emption provisions do not apply if: (i) the allotment is of bonus shares or (ii) the allotment is to be wholly or partly paid up otherwise than in cash or (iii) the allotment is pursuant to an employees' share scheme. Where the directors of a company are generally authorized to allot or grant equity securities in the company, they may be given power by the articles of association or by a special resolution of the company to allot equity securities as if the shareholders' rights of pre-emption did not apply to the allotment (or with such modifications as the directors may determine). | | | Under Delaware law, no stockholder shall have any pre-emption right to subscribe to an additional issue of stock or to any security convertible into such stock unless, and except to the extent that, such right is expressly granted to such stockholder in the certificate of incorporation. | |
Liability of Directors and Officers
|
| | Under the Companies Act, any provision (whether contained in a company's articles of association or any contract or otherwise) that purports to exempt a director of | | | Under Delaware law, the certificate of incorporation may include a provision eliminating or limiting the personal liability of a director to the corporation or its | |
| | |
England and Wales
|
| |
Delaware
|
|
| | |
a company (to any extent) from any liability that would otherwise attach to him in connection with any negligence, default, breach of duty or breach of trust in relation to the company is void.
Any provision by which a company directly or indirectly provides an indemnity (to any extent) for a director of the company or of an associated company against any liability attaching to him in connection with any negligence, default, breach of duty or breach of trust in relation to the company of which he is a director is also void except as permitted by the Companies Act, which provides exceptions for the company to (a) purchase and maintain insurance against such liability; (b) provide a "qualifying third party indemnity" (being an indemnity against liability incurred by the director to a person other than the company or an associated company as long as he is successful in defending the claim or criminal proceedings); and (c) provide a "qualifying pension scheme indemnity" (being an indemnity against liability incurred in connection with the company's activities as trustee of an occupational pension plan).
|
| | stockholders for monetary damages for breach of fiduciary duty as a director, provided that such provision shall not eliminate or limit the liability of a director: (i) For any breach of the director's duty of loyalty to the corporation or its stockholders; (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (iii) intentional or negligent payment of unlawful dividends or unlawful stock purchases or redemptions; or (iv) for any transaction from which the director derived an improper personal benefit. | |
Voting Rights
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| | Under English law, unless a poll is demanded by the shareholders of a company or is required by the chairman of the meeting or the company's articles of association, shareholders shall vote on all resolutions on a show of hands. Under the Companies Act, a poll may be demanded by (a) not fewer than five shareholders having the right to vote on the resolution; (b) any shareholder(s) representing at least 10% of the total voting rights of all the shareholders | | | Under Delaware law, unless otherwise provided in the certificate of incorporation, each stockholder shall be entitled to one vote for each share of capital stock held by such stockholder. | |
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England and Wales
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Delaware
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having the right to vote on the resolution (excluding any voting rights attached to treasury shares); or (c) any shareholder(s) holding shares in the company conferring a right to vote on the resolution being shares on which an aggregate sum has been paid up equal to not less than 10% of the total sum paid up on all the shares conferring that right. A company's articles of association may provide more extensive rights for shareholders to call a poll.
Under English law, an ordinary resolution is passed on a show of hands if it is approved by a simple majority (more than 50%) of the shareholders present (in person or by proxy) and entitled to vote and voting at a meeting. If a poll is demanded, an ordinary resolution is passed if it is approved by holders representing a simple majority of the total voting rights of the shareholders present (in person or by proxy) who (being entitled to vote) vote on the resolution.
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| | | A company's articles may contain provisions to the effect that on a vote on a resolution on a poll taken at a meeting, the votes may include votes cast in advance. Any such provision in relation to voting at a general meeting may be made subject only to such requirements and restrictions as are (a) necessary to ensure the identification of the person voting, and (b) proportionate to the achievement of that objective. Any provision of a company's articles is void in so far as it would have the effect of requiring any document casting a vote in advance to be received by the company or another person earlier than (a) in the case of a poll taken more than 48 hours after it was demanded, 24 hours before the time appointed for the | | | | |
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England and Wales
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Delaware
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taking of the poll; or (b) in the case of any other poll, 48 hours before the time for holding the meeting or adjourned meeting.
Special resolutions require the affirmative vote of not less than 75% of the votes cast by shareholders present (in person or by proxy) and entitled to vote at the meeting. If a poll is demanded, a special resolution is passed if it is approved by holders representing not less than 75% of the total voting rights of shareholders present (in person or by proxy) who (being entitled to vote) vote on the resolution.
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Shareholder Vote on Certain Transactions
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The Companies Act provides for schemes of arrangement, which are arrangements or compromises between a company and any class of shareholders or creditors and used in certain types of reconstructions, amalgamations, capital reorganisations or takeovers.
The court may order a meeting of the creditors, or class of creditors, or shareholders, or class of shareholders, on an application by (i) the company, (ii) any creditor or shareholder of the company or (iii) the liquidator or administrator of the company.
The court may sanction the compromise or arrangement if 75% in value of the creditors or class of creditors or shareholders or class of shareholders (as the case may be), present and voting either in person or by proxy at the meeting summoned, agree a compromise or arrangement.
The court's order has no effect until the delivery of the court order to the registrar.
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| | Generally, under Delaware law, unless the certificate of incorporation provides for the vote of a larger portion of the stock, completion of a merger, consolidation, sale, lease or exchange of all or substantially all of a corporation's assets or dissolution requires: (i) the approval of the board of directors; and (ii) approval by the vote of the holders of a majority of the outstanding stock or, if the certificate of incorporation provides for more or less than one vote per share, a majority of the votes of the outstanding stock of a corporation entitled to vote on the matter. | |
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England and Wales
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Delaware
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Standard of Conduct for Directors
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Under English law, a director owes various statutory and fiduciary duties to the company, including:
(i)
a duty to act in accordance with the company's constitution and only exercise his or her powers for which they are conferred;
(ii)
a duty to promote the success of the company for the benefit of its shareholders as a whole;
(iii)
a duty to exercise independent judgment;
(iv)
a duty to exercise reasonable care, skill and diligence;
(v)
a duty to avoid conflicts of interest;
(vi)
a duty not to accept benefits from third parties conferred by reason of his being a director or doing (or not doing) anything as a director; and
(vii)
a duty to declare any interest that he has, whether directly or indirectly, in a proposed or existing transaction or arrangement.
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| | Delaware law does not contain specific provisions setting forth the standard of conduct of a director. The scope of the fiduciary duties of directors is generally determined by the courts of the State of Delaware. In general, directors have two basic fiduciary duties, the duty of care and the duty of loyalty, owned to the corporation itself and the stockholders; that is, directors must (i) act in good faith, with the care of a prudent person, and in the best interest of the corporation; and (ii) refrain from self-dealing, usurping corporate opportunities and receiving improper personal benefits. Decisions made on an informed basis, in good faith and in the honest belief that the action was taken in the best interest of the corporation will generally be protected by the "business judgment rule." | |
Shareholder Suits
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| | Under English law, generally, the company, rather than its shareholders, is the proper claimant in an action in respect of a wrong done to the company or where there is an irregularity in the company's internal management. Notwithstanding this general position, the Companies Act provides that (i) a court may allow a shareholder to bring a derivative claim (that is, an action in respect of and on behalf of the company) in respect of a cause of action arising from a director's negligence, default, breach of duty or breach of trust and (ii) a shareholder of a company may apply to the court | | | Under Delaware law, a stockholder is eligible to bring a derivative action, that is a lawsuit brought by a stockholder, on behalf of the corporation, to enforce a claim belonging to the corporation, if the holder held stock at the time of the challenged wrongdoing and continues from that time to hold stock throughout the course of the litigation. Delaware law also requires the stockholder to first demand that the board of directors of the corporation asserts the claims or the stockholder must state in the derivative action particular reasons why making such a | |
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England and Wales
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Delaware
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| | | by petition for an order on the ground (a) that the company's affairs are being or have been conducted in a manner that is unfairly prejudicial to the interests of shareholders generally or of some part of its shareholders (including at least himself or herself), or (b) that an actual or proposed act or omission of the company (including an act or omission on its behalf) is or would be so prejudicial. | | | demand would be futile. | |