PART 2
THE SCHEME OF ARRANGEMENT 0.1 Recitals 1.1 In the 1990s a number of Jamaican financial institutions faced severe financial crisis. In order to protect the interest of the many customers in the institutions and the public at large, the Government of Jamaica through FINSAC intervened in these institutions. One such institution was NCB. 1.2 By the end of the 1990s, the Government had significant interest in the financial sector. The Government now wishes to divest itself of this interest. With respect to NCB, the Government through FINSAC wishes to be in a position to dispose of a direct controlling majority interest in NCB to an investor. In order to accomplish this, it is necessary that the Scheme of Arrangement be implemented. 1.3 Under
the Scheme of Arrangement, NCB Group Shareholders will receive shares in
NCB, the Preference Shares will be redeemed or converted into ordinary
shares in NCB and the New Core Subsidiaires will be transferred from NCB
Group to NCB.
0.2
Definitions In
this Scheme, unless the context otherwise requires or when otherwise
expressly provided, capitalised terms and expressions shall have the
meanings attributed to them in Section A, paragraph 1 of the Explanatory
Statement contained in Part 1 of this Scheme Document.
0.3 Interpretation In
this Scheme: 3.1
Clauses, headings and
the table of contents are for ease of reference only and shall not affect
the interpretation of the provisions hereof. 3.2
Definitions,
terms and conditions shall be interpreted as the definitions, terms and
conditions of the Scheme to the extent that it is approved by the
Shareholders and subsequently sanctioned by the Court. 3.3
Unless
inconsistent with the context or expressly otherwise provided: 3.3.1 References to any provision of legislation (including subordinate
legislation and regulation) shall include a reference to any modification,
substitution, replacement, re-enactment or extension thereof or
therefor whether made or effected before or after the Effective Date, and
shall include any
subordinate legislation made under such provisions; 3.3.2 The singular includes the plural and vice versa, references to
persons shall be construed as including individuals, partnerships, bodies
corporate,
unincorporated associations or any state or agency thereof, and
words
importing any gender include the other genders. The
present shareholding structure of the Companies and the New Core
Subsidiaries is as follows:
0.5
The Purpose of the Scheme
5.1
The purpose of the Scheme is to: 5.1.1
Result in the ordinary shares in NCB being held as follows: Non FINSAC Shareholders 24% 473,618,463 Atrium
Holdings 67% 1,322,184,876 Atrium
XS Holdings
9% 177,606,923
Total 100%
1,973,410,262 5.1.2 Effect a transfer of the shares in the New Core Subsidiaries from NCB Group to NCB 5.1.3
Cause a conversion or redemption of the Preference Shares. 5.1.4
Cause a transfer of Knutsford Branch from Noxid Limited to NCB. 5.1.5
Cause a transfer of the NCBI Properties from
N.C.B. (Investments) Limited to NCB Group. 5.1.6
Cause a transfer of the Eureka Properties from Computer Service and
Programming Limited to NCB.
5.1.7
Effect a transfer of
the shares in Epsom from NCB to NCB Group.
5.1.8
Cause and approve all necessary and ancillary matters.
B. OPERATION OF THE SCHEME 0.6
Parties
to the Scheme
The
parties to the Scheme are the Companies and their Shareholders. 0.7
Commencement
of the Scheme Subject
to the approval of the Bank of Jamaica and the Minister of Finance, the
Scheme shall become operative on the Effective Date. 0.8
Entitlement of NCB Group Shareholders
to shares in NCB NCB
Group Shareholders shall be entitled to one ordinary share in NCB for each
ordinary share held in NCB Group as at November 3, 2000.
At the Effective Date the total issued shares in NCB will be
1,973,410,262 shares, of which the Public Shareholders will hold
473,618,463 or 24%. 0.9 Entitlement of FINSAC to shares
in NCB Group As
at the Effective Date, all the issued ordinary shares in NCB Group shall
be transferred to and vest in FINSAC or its nominees.
Within thirty (30) days after the Effective Date the name of NCB
Group will be changed to effect the deletion of “NCB”. 0.10
Conversion
of Preference shares As
at the Effective Date: 10.1
The Preference Shares held by FINSAC shall be converted into
940,151,975 ordinary shares in
NCB held by Atrium Holdings. 10.2
The Preference Shares held by FIS shall be redeemed using the FIS
Promissory Note. Following this redemption an amount of $450 million will
be transferred from NCB’s retained earnings reserve to the capital
redemption reserve. 0.11
Shareholding
in NCB
As at the
Effective Date, there shall be 1,973,410,262
issued ordinary shares in NCB, which will be held as follows: Non
FINSAC Shareholders 24%
473,618,463 Atrium
Holdings
67% 1,322,184,876 Atrium
XS Holdings
9%
177,606,923 TOTAL 100% 1,973,410,262
0.12
Knutsford
Branch FINSAC
and NCB Group undertake to procure that
Knutsford Branch is transferred to NCB for
$1.00 within sixty (60) days of the Effective Date. 0.13
Epsom
Holdings Limited
As at the
Effective Date, the shares in Epsom shall be transferred to and vest in
NCB Grou 0.14
NCBI
Properties
NCB undertakes
to procure that the NCBI Properties are transferred to NCB Group at book
values within sixty (60) days of the Effective Date. 0.15
Eureka Properties
FINSAC and NCB Group undertake to procure that the Eureka Properties are
transferred to NCB sixty (60) days of the Effective Date. 0.16
New
Core Subsidiaries As
at the Effective Date the shares in the New Core Subsidiaries shall be
transferred to and vest in NCB. 0.17
Notice to Shareholders Shareholders
shall be entitled to notice of the Scheme Meetings and to notice of any
Court hearings to sanction the Scheme after the Scheme Meetings.
Notice shall be deemed to have been given to all Shareholders by
placing an advertisement in the Daily Gleaner newspaper, the Gleaner U.K.
Edition and the North
American Weekly Gleaner. 0.18
Termination
of the Scheme 18.1
Subject to the following provisions of this Clause 0.18, the Scheme
shall cease to have effect after the expiry of six (6) years from the
Effective Date or when all disputes under the Scheme have been settled,
whichever date is the later. 18.2
NCB shall have a discretion to extend the Scheme beyond the time
limit set out at Clause 18.1 if it
is of the opinion that the purposes of the Scheme have not been fulfilled. C.
DUTIES AND POWERS OF NCB AND DUTIES OF FINSAC 0.19
Duties of NCB 19.1
NCB will: 19.1.1 administer the Scheme in accordance with its terms and conditions
19.1.2
cooperate with, and respond within thirty (30) days to any request
in
writing by a Shareholder 0.20
Powers of NCB 20.1
NCB will have vested in it those powers set out in the Scheme, and
shall in addition have the power to do all such things as are necessary or
desirable for implementing the
Scheme.
20.2 NCB will be entitled without prejudice to the generality of the
foregoing to:
20.2.1
take possession of the Registers of Shareholders of the Companies
for the purposes of the
administration of the Scheme;
20.2.2
employ and remunerate any professional advisers or agents in
relation to the administration of the Scheme and/or to advise or assist it
in the exercise of its powers
and duties hereunder;
20.2.3
modify, amend, or otherwise alter the terms and conditions of the
Scheme in accordance with Clause 25.2; and
20.2.4
extend the Scheme in accordance
with Clause 18.2. 0.21
Duties of FINSAC
21.1 FINSAC will: 21.1.1
ensure, as far as possible, that the Companies and Atrium XS
Holdings honour and abide by the terms and conditions of the Scheme
insofar as they refer to matters to be carried out by those respective
parties; and 21.1.2
exercise its best endeavours to achieve the implementation of a
programme to monetise FINSAC notes as part of the
reorganization of
NCB.
All proceeds from the divestment of shares in NCB will be
deployed
to monetise FINSAC notes in NCB.
D.
MISCELLANEOUS 0.22
Share Offer to Staff Within
sixty days of the Effective Date, FINSAC shall cause Atrium XS Holdings to
offer 1% of the shares in NCB less one share
to the permanent full time staff of NCB
and the New Core Subsidiaries as at the Effective Date, on the
following terms: 22.1
Each member of staff will receive 500 shares free of cost; 22.2
Members of staff will be entitled to purchase the remaining
shares at $2.08 per share which is the price at which the last trade
in NCB Group shares occurred on the Stock Exchange prior to close of business
on September 4, 2000, (the date of FINSAC's proposal for reorganization of
NCB Group), that is to say ($2.60) less 20%; 22.3
Subject to FINSAC’s approval, the
Board of NCB will decide how and upon what terms the shares are to be
allocated among its staff and paid for, and will generally administer this
aspect of the transaction. In
consideration of these services FINSAC will pay to NCB a fee equivalent to
one half of any interest paid by members of staff on the balance
outstanding at a rate of 8% per annum; 0.23
Share Offer to Non FINSAC Shareholders If within 3 years of the Effective Date, FINSAC has not
entered into an agreement for the sale of at least 67% of the shares in
NCB, or alternatively, if within that time FINSAC has entered into an
agreement for the sale of less than 73% plus one of the shares in NCB,
FINSAC will if requested by the Board of NCB cause Atrium XS Holdings to
offer 2% of the shares in NCB to Non FINSAC Shareholders at the price at
which the shares are trading on the Stock Exchange or at a price to
be determined by an
independent arbiter appointed by the Court in the event that shares are
not then trading as aforesaid. At
that time FINSAC will also cause Atrium XS Holdings to offer to other Non
FINSAC Shareholders at the said price, any of the shares offered to staff
pursuant to clause 0.22 and not taken up by them. 0.24
Validity of Acts and Indemnity 24.1 No Shareholder or person claiming through a Shareholder shall be
entitled to challenge by legal proceedings or by any other means
the validity of any act done in pursuance of the Scheme or in the
exercise, performance or
purported exercise or performance of any power, duty or function for the
purposes of the Scheme.
24.2 No Shareholder or person claiming through a Shareholder shall be
entitled to seek by legal proceedings or otherwise to attribute any
responsibility to the Companies, NCB or FINSAC or to any of their
directors, agents or employees for
any act done or omitted to be done in good faith in pursuance of the
Scheme or the exercise or performance or purported exercise or performance
by any such person in good faith and with reasonable care of any power,
duty or function conferred upon or entrusted to such person for the
purposes of the Scheme and no such person shall be liable for any loss
unless such loss is attributable to his own negligence, wilful default,
breach of duty, breach of trust, or dishonesty. 0.25
Modification of the Scheme 25.1 The Companies may consent to any modification or addition to these provisions in order to comply with any change or changes which are necessary or which the Court requires to be made before it will agree to sanction the Scheme pursuant to section 192 of the Act 25.2 NCB shall have the power to correct any manifest error in the Scheme or to make any amendment to the Scheme of a minor or technical nature which does not materially affect the interests of the Shareholders 0.26 Cost and Expenses 26.1 The reasonable costs, charges and expenses of NCB and its agents in
the course of exercising or performing its functions, powers and duties
under the Scheme shall be borne by FINSAC. 26.2 NCB shall be entitled to charge any Shareholder or other person for
the reasonable costs and expenses incurred by NCB in obtaining, preparing
and sending any information to that person at his request or in complying
with any request of that
person. 0.27 Governing Law and Jurisdiction The
Scheme shall in all respects be governed and construed in accordance with
Jamaican law and all parties hereto hereby irrevocably submit to the
nonexclusive jurisdiction of the Jamaican Courts. Part 3 of the Scheme We value your feedback
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