UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 6-K
Report of Foreign Private Issuer
Pursuant to Rule 13a-16 or 15d-16
under the Securities Exchange Act of 1934
July 18, 2018
Commission File Number 001-37974
VivoPower International PLC
(Translation of registrant’s name into English)
91 Wimpole Street
London W1G
+44 20 3714 8881
(Address of principal executive office)
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Indicate by check mark whether the registrant files or will file annual reports under cover Form 20-F or Form 40-F: Form 20-F ☒ Form 40-F ☐
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1): ☐
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7): ☐
On July 18, 2018 VivoPower International PLC mailed to its shareholders a Notice of Annual General Meeting of Shareholders and Annual Report, copies of which are attached to this Form 6-K as Exhibit 99.1 and 99.2, respectively. The Company’s annual general meeting will be held on August 20, 2018, at 3:00pm (London time).
Signature
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: |
July 18, 2018 |
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VivoPower International PLC |
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/s/ Carl Weatherley-White |
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Carl Weatherley-White Chief Executive Officer |
EXHIBIT INDEX
Exhibit No. |
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Description |
99.1 |
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99.2 |
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99.3 |
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Exhibit 99.1
Notice of Annual General Meeting to be held on 20 August 2018 |
VIVOPOWER INTERNATIONAL PLC
(incorporated and registered in England and Wales under number 09978410)
NOTICE OF ANNUAL GENERAL MEETING 2018
to be held at 3:00 pm (London time) on 20 August 2018
at 91 Wimpole Street, London, England, W1G 0EF, United Kingdom
Notice of the annual general meeting of VivoPower International Plc to be held at 3:00 pm (London time) on 20 August 2018 at 91 Wimpole Street, London, England, W1G 0EF, United Kingdom is set out at Part 2 of this document.
It is important that your shares be represented and voted at the annual general meeting. If you cannot attend and you are a shareholder of record, please vote as soon as possible by completing and mailing the proxy card in accordance with the instructions included therein. We would appreciate if you could complete and return the proxy card before 16 August 2018, but in any event so as to arrive not later than 3.00 pm (London time) on 16 August 2018.
If you decide to attend the annual general meeting, you will be able to vote in person, even if you have previously submitted your proxy. If you hold shares through a depositary, bank or broker, or indirectly in a savings plan, please refer to the proxy statement set out in Part 4 of this document for further information about voting your shares.
Notice of Annual General Meeting to be held on 20 August 2018 |
Part 1
Chairman's Letter
VivoPower International Plc
(incorporated and registered in England and Wales under number 09978410)
18 July 2018
To the holders of VivoPower International Plc Shares
Notice of Annual General Meeting
Dear Shareholder
I am writing to you with details of our annual general meeting to be held at 3:00 pm (London time) on 20 August 2018 at 91 Wimpole Street, London, England, W1G 0EF, United Kingdom (the "AGM"). Detailed instructions on how to get to the venue are set out on page 13 of this document.
Resolutions
The formal notice of the AGM is set out on pages 4 to 6 of this document, which sets out the business to be considered at the meeting, together with explanatory notes to the resolutions on pages 6 to 8 of this document.
There are a number of items of business to which I would draw your attention.
A copy of the annual accounts and reports for the year ended 31 March 2018 is enclosed.
Voting at the meeting
At the meeting itself, all resolutions will be put to a vote on a poll. Further details on voting are set out in the notes to the notice of AGM on pages 9 to 15 of this document.
Voting by proxy
If you would like to vote on the resolutions but cannot come to the AGM, you can appoint a proxy to exercise all or any of your rights to attend, vote and speak at the AGM by using one of the methods set out in the notes to the notice of AGM on pages 9 to 15 of this document. A proxy or voting form is enclosed with this notice of the AGM to enable you to exercise your voting rights accordingly.
Recommendation
The Board considers the resolutions are in the best interests of the Company and its shareholders as a whole and are therefore likely to promote the success of the Company. The directors unanimously recommend that you vote in favour of the resolutions as they intend to do in respect of their own beneficial holdings which amount in aggregate to 1,591,576 shares representing approximately 11.7% of the existing issued ordinary share capital of the Company (excluding treasury shares).
Notice of Annual General Meeting to be held on 20 August 2018 |
On behalf of the Board, I look forward to seeing as many of you as possible at the AGM.
Yours faithfully,
Kevin Chin
Chairman of the Board of Directors of VivoPower International Plc
Notice of Annual General Meeting to be held on 20 August 2018 |
Part 2
Notice of Annual General Meeting
Notice is hereby given that the annual general meeting of VivoPower International Plc (the "Company") will be held at 3:00 pm (London time) on 20 August 2018 at 91 Wimpole Street, London, England, W1G 0EF, United Kingdom to consider and, if thought fit, to pass resolutions 1 to 6 (inclusive) as ordinary resolutions and resolution 7 as a special resolution.
The board of directors of the Company (the "Board") considers that the resolutions will promote the success of the Company and are in the best interests of the Company and its shareholders as a whole and, accordingly, the Board recommends voting "For" each of the resolutions.
Resolution 1 – Laying of annual accounts and reports (ordinary resolution)
To receive the accounts and the reports of the directors and the auditors for the financial year ended 31 March 2018 (the "Annual Report").
Resolution 2 – Directors' remuneration report (ordinary resolution)
To approve the directors’ remuneration report for the financial year ended 31 March 2018 as set out on pages 27 to 33 of the Annual Report (the "Directors' Remuneration Report").
Resolution 3 – Re-appointment of auditors (ordinary resolution)
To re-appoint PKF Littlejohn LLP as auditors of the Company, to hold office until the conclusion of the next annual general meeting of the Company.
Resolution 4 – Remuneration of auditors (ordinary resolution)
To authorise the Company's audit committee to determine the remuneration of the auditors.
Resolution 5 – Re-election of Edward Hyams as a director of the Company (ordinary resolution)
To re-elect Edward Hyams as a director of the Company, who retires by rotation, for a term expiring on the third succeeding annual general meeting of the Company following his election.
Resolution 6 – Re-election of Peter Sermol as a director of the Company (ordinary resolution)
To re-elect Peter Sermol as a director of the Company, who retires by rotation, for a term expiring on the third succeeding annual general meeting of the Company following his election.
Resolution 7 – B-Corporation (special resolution)
To consider and, if thought fit, pass the following as special resolutions
(A) |
THAT, for the purpose of qualifying the Company as a B Corporation, the Company’s Articles of Association be amended such that Article 91 of the Articles of Association as amended shall read as follows (and a full copy of which Articles of Association as amended is set forth at Appendix A hereto): |
Notice of Annual General Meeting to be held on 20 August 2018 |
General powers of the Company vested in the directors
91. | (1) | The purposes of the Company are to promote the success of the Company for the benefit of its members as a whole and, through its business and operations, to have a material positive impact on society and the environment, taken as a whole. |
(2) |
The business of the Company shall be managed by the directors who, subject to the provisions of these articles and to any directions given by special resolution of the Company to take, or refrain from taking, specified action, may exercise all the powers of the Company. No alteration of these articles and no such direction shall invalidate any prior act of the directors which would have been valid if that alteration had not been made or that direction had not been given. The general management powers given by this article shall not be limited by any special authority or power given to the directors by any other article. |
(3) |
In exercising the powers of the Company a Director shall have regard (amongst other matters) to: |
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a) the likely consequences of any decision in the long term; | ||
b) the interests of the Company's employees; | ||
c) the need to foster the Company's business relationships with suppliers, customers and others; | ||
d) the impact of the Company's operations on the community and the environment; | ||
e) the desirability of the Company maintaining a reputation for high standards of business conduct; and | ||
f) the need to act fairly as between members of the Company, together, the matters referred to above shall be defined for the purposes of this Article as the "Stakeholder Interests". |
(4) |
For the purposes of a Director's duty to act in the way he or she considers, in good faith, most likely to promote the success of the Company, a Director shall not be required to regard the benefit of any particular Stakeholder Interest or group of Stakeholder Interests as more important than any other. |
(5) |
Nothing in this Article express or implied, is intended to or shall create or grant any right or any cause of action to, by or for any person (other than the Company). |
(6) |
The Directors of the Company shall for each financial year of the Company prepare a strategic report as if sections 414A(1) and 414C of the Companies Act 2006 force at the date of adoption of these Articles) applies to the Company whether or not they would be required to do so otherwise than by this Article. |
(7) |
Notwithstanding the generality of (2) above, the directors may exercise all the powers of the Company to: (i) borrow money; (ii) mortgage or charge all or any part or parts of its undertaking, property and uncalled capital; and (iii) issue debentures and other securities, whether outright or as collateral security for any debt, liability or obligation of the Company or of any third party. |
(B) THAT the directors be and hereby are generally and unconditionally authorised in accordance with the Companies Act 2006 to exercise all powers of the Company to make or direct to be made such filings with Companies House as may be deemed necessary or appropriate to enable the Company to qualify as a B Corporation.
Notice of Annual General Meeting to be held on 20 August 2018 |
BY ORDER OF THE BOARD
Directors:
Kevin Chin
Shimi Shah
Gary Hui
Edward Hyams
Peter Sermol
First Names Secretaries (GB) Limited (Company Secretary):
London, 18 July 2018
Registered office:
91 Wimpole Street, London, England, W1G 0EF, United Kingdom
Registered in England and Wales No. 09978410
Part 3
Explanatory Notes to Resolutions
The following pages give an explanation of the proposed resolutions. Resolutions 1 to 6 (inclusive) will be proposed as ordinary resolutions and will be passed if more than 50% of the shareholders’ votes cast are in favour. Resolution 7 will be proposed as a special resolution. For resolution 7 to be passed, at least 75% of the shareholders’ votes cast must be in favour.
Notes to Resolution 1 - Annual Report
Resolution 1 is to receive the accounts and the reports of the directors and the auditors for the financial year ended 31 March 2018. The directors are required to present to the meeting the annual accounts and reports that are contained in the Annual Report, including the strategic report, the directors' report and the auditor's report.
Notes to Resolution 2 – Directors' Remuneration Report
In accordance with The Large and Medium-sized Companies and Groups (Accounts and Reports) Regulations 2008 of the United Kingdom, the Directors' Remuneration Report contains:
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a statement by Edward Hyams, chairman of the Company's remuneration committee (the "RemCom"); and |
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the annual report on director remuneration, which sets out payments made in the financial year ended 31 March 2018. |
Resolution 2 is an ordinary resolution to approve, by way of an advisory vote, the Directors' Remuneration Report. Resolution 2 is an advisory vote only and does not affect the actual remuneration paid to any director.
Notice of Annual General Meeting to be held on 20 August 2018 |
The Company's auditors, PKF Littlejohn LLP, have audited those parts of the Directors' Remuneration Report which are required to be audited and their report can be found in the Annual Report. The Directors' Remuneration Report has been approved by the Board based on the recommendation of the RemCom and signed on its behalf by the Chairman.
At the annual general meeting in 2017, the Directors' Remuneration Policy was approved by shareholders. The Directors' Remuneration Policy is not therefore required to be approved at this year's annual general meeting. The Directors’ Remuneration Policy will be put to shareholders again no later than the Company's annual general meeting in 2020.
Notes to Resolutions 3 and 4 – Re-appointment of auditors and auditors’ remuneration
Resolution 3 is to approve the re-appointment of PKF Littlejohn LLP as the auditors of the Company. The auditors will hold office until the conclusion of the next annual general meeting.
The audit committee has the direct and sole responsibility for the appointment, compensation, retention, oversight and replacement, if necessary, of the external, independent auditor of the Company. The audit committee also considers and makes recommendations to the Board, to be put to shareholders for approval at the AGM, in relation to the appointment, re-appointment and removal of the Company's external auditor and their remuneration, whether fees for audit or non-audit services, and that the level of fees is appropriate to enable an effective and high quality audit to be conducted.
The audit committee annually reviews the audit fee structure and terms of engagement. Fees paid for Company external auditor services for the year ended 31 March 2018 were US$427,011, which included $103,188 in respect of the prior year, $25,431 in respect of solar project audits, and $13,000 related to tax services. In addition, the audit committee considers at least once every ten years whether the audit services contract should be put out to tender to enable the audit committee to compare the quality and effectiveness of the services provided by the incumbent auditor with those of other audit firms. Resolution 4, which is recommended by the audit committee, is to confirm the re-appointment of PKF Littlejohn LLP as the auditors of the Company to hold office until the next annual general meeting.
Resolution 4 is to authorise the audit committee to determine the remuneration of the auditors of the Company and the audit fees.
Notes to Resolutions 5 and 6 – Re-election of directors
Resolutions 5 and 6 deal with the re-election of certain of the directors of the Company.
In accordance with article 81 of the Company's articles of association, all of the Class B directors are standing for re-election by the shareholders at the AGM. If re-elected, each of the Class B directors will stand elected as a director of the Company (unless otherwise removed) for a term expiring on the third annual general meeting following his election. Edward Hyams was appointed as a director of the Company on November 2, 2016 and he is proposed for re-election by the shareholders at the AGM. He is recommended by the Board for re-election. Peter Sermol was appointed as a director of the Company on December 21, 2016 and he is proposed for re-election by the shareholders at the AGM. He is recommended by the Board for re-election.
Biographies of each of the directors can be found on pages 18 to 20 of the Annual Report and on the Company's website. The Board has confirmed, following a performance review, that all directors standing for re-election continue to perform effectively and demonstrate commitment to their roles.
Notice of Annual General Meeting to be held on 20 August 2018 |
Notes to Resolution 7 – Amendment of Articles of Association
The purpose of Resolution 7 is to approve certain amendments to the Company’s Articles of Association necessary to enable the Company to qualify as a B Corporation. In particular, Resolution 7 would approve amendments to Article 91 of the Articles of Association including that:
(i) |
the purposes of the Company are to promote the success of the Company for the benefit of its members as a whole and, through its business and operations, to have a material positive impact on society and the environment, taken as a whole; |
(ii) |
in exercising the powers of the Company, a Director shall have regard to, among other matters, stakeholder interests such as |
a. |
the likely consequences of any decision in the long term; |
b. |
the interests of the Company's employees; |
c. |
the need to foster the Company's business relationships with suppliers, customers and others; |
d. |
the impact of the Company's operations on the community and the environment; |
e. |
the desirability of the Company maintaining a reputation for high standards of business conduct; and |
f. |
the need to act fairly as between members of the Company. |
(iii) |
that a Director shall not be required to regard the benefit of one or more of the aforementioned stakeholder interests as more important than another (for purposes of the Director’s duty to act in a way the Director considers in good faith most likely to promote the Company’s success); and |
(iv) |
that nothing in Article 91 is intended to create or grant any cause of action to, by or for any person other than the Company. |
Resolution 7 would also approve a provision in Article 91 that the Company’s Directors for each financial year shall prepare a strategic report as if sections 414A(1) and 414C of the Companies Act 2006 (as in force at the date of adoption of the Articles of Association) applies to the Company whether or not they would be required to do so otherwise than by Article 91. In addition, Resolution 7 would authorise the directors in accordance with the Companies Act 2006 to exercise the Company’s powers to make or direct any necessary or appropriate filings with Companies House to enable the Company to qualify as a B Corporation.
The foregoing amendments enable a meaningful framework by which the Company can differentiate itself as a B Corporation while operating within the Companies Act framework and allowing directors an appropriate degree of scope for interpretation and discretion.
Notice of Annual General Meeting to be held on 20 August 2018 |
Part 4
Proxy statement for the Annual General Meeting of shareholders to be held on 20 August 2018
Information concerning proxy solicitation and voting
We have sent you this proxy statement ("Proxy Statement") and enclosed the proxy card ("Proxy Card") because the board of directors of VivoPower International Plc (the "Company") (the "Board") is soliciting your proxy to vote at the first annual general meeting of shareholders to be held at 3:00 pm (London time) on 20 August 2018 at 91 Wimpole Street, London, England, W1G 0EF, United Kingdom (the "AGM").
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Proxy Statement: this Proxy Statement summarises information about the proposals to be considered at the AGM and other information you may find useful in determining how to vote. |
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Proxy Card: the Proxy Card is the means by which you actually authorise another person to vote your shares in accordance with your instructions. |
In addition to solicitations by mail, our directors, officers and regular employees, without additional remuneration, may solicit proxies by telephone, e-mail and personal interviews.
We are mailing the notice of the AGM, the Proxy Statement and the Proxy Card to our shareholders of record as at 18 July 2018 (the "Record Date"). In this mailing we are also including the accounts and the reports of the directors and the auditors of the Company for the financial year ended 31 March 2018 (the "Annual Report").
Important Notice Regarding Availability of Proxy Materials for the AGM to be held on 20 August 2018.
A copy of the Company's Notice of the AGM, Proxy Statement and Proxy Card are available at http://vivopower.com/shareholders
Notice of Annual General Meeting to be held on 20 August 2018 |
Questions and Answers about Voting
1. |
Why am I receiving these materials? |
We have sent you this Proxy Statement and the Proxy Card because our Board is soliciting your proxy to vote at the AGM, including at any adjournments or postponements of the AGM. You are invited to attend the AGM to vote on the proposals described in this Proxy Statement. However, you do not need to attend the AGM to vote your shares. Instead, you may simply complete, sign and return the enclosed Proxy Card.
We intend to mail this Proxy Statement and accompanying Proxy Card on or about 20 July 2018 to all shareholders of record entitled to vote at the AGM.
2. |
Who can vote at the AGM? |
Only shareholders of record at the close of business on 18 July 2018, ("Vote Record Date") will be entitled to vote at the AGM.
Shareholder of Record: Shares Registered in Your Name
If, on the Vote Record Date, your shares were registered directly in your name with the transfer agent, Computershare Investors Services ("Computershare"), then you are the shareholder of record. As a shareholder of record, you may vote in person at the AGM or vote by proxy. Whether or not you plan to attend the AGM, we urge you to fill out and return the enclosed Proxy Card to ensure your vote is counted.
Beneficial Owner: Shares Registered in the Name of a Depositary, Broker, Bank or Other Agent
If, on the Vote Record Date, your shares were held in an account at a depositary, brokerage firm, bank, dealer or other similar organization, then you are the beneficial owner of shares held in "street name" and these proxy materials are being forwarded to you by that organization. The organization holding your account is considered the shareholder of record for purposes of voting at the AGM. As a beneficial owner, you have the right to direct your broker or other agent on how to vote the shares in your account. You are also invited to attend the AGM. However, because you are not the shareholder of record, you may not vote your shares in person at the AGM unless you request and obtain a valid legal proxy card from your broker or agent.
3. |
What constitutes a quorum? |
For the purposes of the AGM, a quorum is present if at least two members are present.
4. |
How do I vote my shares? |
If you hold shares in “street name” – you should follow the directions provided by your broker, bank or other nominee. You may submit instructions by telephone or via the internet to your broker, bank or other nominee, or request and return a paper Proxy Card to your broker, bank or other nominee. We will distribute physical ballots to anyone who wants to vote in person at the AGM. If you hold shares in “street name” and wish to vote at the AGM, you must obtain a legal proxy from your depositary, broker, bank or other nominee and present it to the inspector of election of the AGM with your ballot.
Please note that voting on all resolutions will be conducted by way of poll rather than a show of hands. This is a more transparent method of voting as member votes are to be counted according to the number of shares held and is in accordance with the Company's articles of association.
Notice of Annual General Meeting to be held on 20 August 2018 |
If you are a "shareholder of record" – you may appoint a proxy to vote on your behalf using any of the following methods:
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mail - by marking, signing and dating the Proxy Card and returning it in the prepaid envelope provided or return it to Computershare, PO Box 505008, Louisville, KY 40233-9814; by 3:00 pm, (London time) on 16 August 2018; or |
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by physical ballot at the AGM. |
If you properly give instructions as to your proxy appointment by executing and returning a paper Proxy Card, and your proxy appointment is not subsequently revoked, your shares will be voted in accordance with your instructions.
5. |
Who can be appointed as proxy? |
A proxy does not need to be a member of the Company but must attend the AGM to represent you. Your proxy could be the Chairman, another director of the Company or another person who has agreed to attend to represent you.
A member of the Company which is a corporation may authorise a person or persons to act as its representative(s) at the AGM. In accordance with the provisions of the Companies Act 2006, each such representative may exercise (on behalf of the corporation) the same powers as the corporation could exercise if it were an individual member of the Company, provided that they do not do so in relation to the same shares.
6. |
How will my shares be voted if I do not specify how they should be voted? |
If you sign and send your Proxy Card but do not indicate how you want your shares to be voted, your shares will be voted by the persons appointed as proxies in accordance with the recommendations of the Board.
7. |
Can I change my vote or revoke a proxy? |
A shareholder of record can revoke his or her proxy before the time of voting at the AGM in several ways by:
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mailing a revised Proxy Card dated later than the prior Proxy Card; |
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voting in person at the AGM; or |
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notifying Julie-Anne Byrne in writing that you are revoking your proxy. Your revocation must be received before the AGM to be effective. |
If you hold shares in "street name" – you may change or revoke your voting instructions by contacting the depositary, broker, bank or other nominee holding the shares or by obtaining a legal proxy from such institution and voting in person at the AGM as described above under "How do I vote my shares?" See also "What if I plan to attend the AGM?"
8. |
Who counts the votes? |
Computershare has been engaged as our independent agent to tabulate shareholder votes. If you are a shareholder of record, your executed Proxy Card is returned directly to Computershare for tabulation. If you hold your shares through a broker, your broker will return one Proxy Card to Computershare on behalf of all of its clients.
Notice of Annual General Meeting to be held on 20 August 2018 |
9. |
How are votes counted? |
Votes will be counted by Computershare, who will separately count "for" and "against" votes and abstentions. In addition, with respect to the election of directors, Computershare will count the number of "withheld" votes received for the nominees. If your shares are held in "street name", you will need to obtain a proxy form from the institution that holds your shares and follow the instructions included on that form regarding how to instruct your broker to vote your shares.
10. |
How many votes do I have? |
On each matter to be voted upon, every member who is present in person or by proxy shall have one vote for each ordinary share as of the Vote Record Date.
11. |
What if I plan to attend the AGM? |
Attendance at the AGM will be limited to shareholders as of the Vote Record Date. Each shareholder may be asked to present valid picture identification, such as a driver’s license or passport. Shareholders holding shares in "street name" through brokerage accounts or by a bank or other nominee are required to show a brokerage statement or account statement reflecting share ownership as of the Vote Record Date in order to obtain admittance to the AGM. However, if you hold shares in "street name" you will not be allowed to vote at the AGM unless you obtain a legal proxy from your depositary, broker, bank or other nominee holding the shares.
12. |
What if I return a Proxy Card but do not make specific choices? |
If we receive a signed and dated Proxy Card and the Proxy Card does not specify how your shares are to be voted, your shares will be voted "for" the matters submitted for approval at the AGM.
13. |
How do you solicit proxies? |
The initial solicitation of proxies may be supplemented by additional mail communications and by telephone, fax, e-mail, internet and personal solicitation by our directors, officers or other employees. No additional compensation for soliciting proxies will be paid to our directors, officers or other employees for their proxy solicitation efforts.
14. |
What do I do if I receive more than one notice or Proxy Card? |
If you hold your shares in more than one account, you will receive a notice or Proxy Card for each account. To ensure that all of your shares are voted, please sign, date and return all Proxy Cards. Please be sure to vote all of your shares.
15. |
What if I have questions during the AGM? |
If you wish to ask a question please tell the Company Secretary on entry to the meeting. Please endeavour to keep your questions short and relevant to the resolution being discussed. In the interests of orderly conduct of the meeting, we will allocate a slot for shareholders' questions towards the end of the meeting and in light of time constraints would ask shareholders to limit questions to one question per shareholder. Of course, if shareholders have further questions the Chairman will endeavour to accommodate these.
Notice of Annual General Meeting to be held on 20 August 2018 |
16. |
May I bring a guest to the AGM? |
The AGM is a private meeting of shareholders and their representatives. Guests are not entitled to attend the meeting as of right but they may be permitted entry at the absolute discretion of the Company.
Shareholders wishing to bring a guest must notify us in advance. Any shareholders wishing to bring a guest should contact Computershare. Please see "Who is the transfer agent?" below for contact details. All guests must bring photographic proof of identity and enter the meeting at the same time as the shareholder.
17. |
As a shareholder, which materials can I require the Company to publish on its website? |
Shareholders satisfying the thresholds in section 527 of the Companies Act 2006 can require the Company to publish a statement on its website setting out any matter relating to (a) the audit of the Company's accounts (including the auditor's report and the conduct of the audit) that are to be laid before the AGM; or (b) any circumstances connected with an auditor of the Company ceasing to hold office, that the members propose to raise at the AGM. The Company cannot require the members requesting the publication to pay its expenses. Any statement placed on the website must also be sent to the Company's auditors no later than the time it makes its statement available on the website. The business which may be dealt with at the meeting includes any such statement that the Company has been required to publish on its website.
18. |
Who is the transfer agent? |
As noted above, our transfer agent is Computershare. All communications concerning shareholder of record accounts, including address changes, name changes, share transfer requirements and similar issues can be handled by contacting our transfer agent at Computershare.
19. |
How can I find out the results of the voting at the Meeting? |
Voting results will be announced by the filing of a current report on Form 6-K and on our website http://vivopower.com/shareholders
20. |
How do I get to the AGM venue? |
The meeting will be held at 91 Wimpole Street, London, W1G 0EF, United Kingdom.
Notice of Annual General Meeting to be held on 20 August 2018 |
21. |
How do I contact the Company if I have any queries? |
You may contact the Company at:
VivoPower International Plc
91 Wimpole Street, London
W1G 0EF
United Kingdom
Tel: +44 (0) 203 871 2800
e-mail: shareholders@vivopower.com
You may contact the Transfer Agent at:
Computershare Trust Company, N.A.
Telephone Toll Free (In the US/Canada)
1-866 242 3610
Foreign Shareholders (Outside the US)
+1 (732) 491 0655
By Mail:
Computershare
P.O. Box 505000
Louisville, KY 40233
By Overnight Delivery:
Computershare
462 South 4th Street, Suite 1600
Louisville, KY 40202
Notice of Annual General Meeting to be held on 20 August 2018 |
Appendix A
VivoPower International Plc Articles of Association
No. 09978410
VIVOPOWER INTERNATIONAL PLC
Incorporated on 1 February 2016
ARTICLES OF ASSOCIATION
(Adopted with effect from December 2016 by Special Resolution passed on 2 November 2016)
INDEX
Headings | Page |
PRELIMINARY |
1 |
SHARE CAPITAL |
3 |
VARIATION OF RIGHTS |
4 |
SHARE CERTIFICATES |
4 |
LIEN |
5 |
CALLS ON SHARES AND FORFEITURE |
6 |
TRANSFER OF SHARES |
8 |
TRANSMISSION OF SHARES |
9 |
DISCLOSURE OF INTERESTS |
9 |
UNTRACED MEMBERS |
12 |
ALTERATION OF CAPITAL |
13 |
NOTICE OF GENERAL MEETINGS |
14 |
PROCEEDINGS AT GENERAL MEETINGS |
14 |
AMENDMENTS TO RESOLUTIONS |
17 |
POLLS |
17 |
VOTES OF MEMBERS |
18 |
PROXIES AND CORPORATE REPRESENTATIVES |
20 |
APPOINTMENT AND RETIREMENT OF DIRECTORS |
22 |
DISQUALIFICATION OF DIRECTORS |
23 |
ALTERNATE DIRECTORS |
23 |
POWERS OF DIRECTORS |
24 |
DIRECTORS' REMUNERATION, GRATUITIES AND BENEFITS |
26 |
DIRECTORS' APPOINTMENTS AND INTERESTS |
27 |
PROCEEDINGS OF DIRECTORS |
28 |
DIVIDENDS |
31 |
CAPITALISATION OF PROFITS |
35 |
RECORD DATES FOR PAYMENTS AND ISSUE |
36 |
NOTICES AND OTHER COMMUNICATIONS |
37 |
ADMINISTRATION |
40 |
WINDING UP |
42 |
INDEMNITY |
42 |
DEPOSITARY INTERESTS OTHER THAN DTC |
43 |
ARTICLES OF ASSOCIATION
of
VIVOPOWER INTERNATIONAL PLC
(adopted with effect from December 2016 by special resolution passed
on 2 November 2016)
PRELIMINARY
Definitions
1. |
(1) |
In these articles the following words bear the following meanings: |
"Acts" means the Companies Acts (as defined in section 2 of the Companies Act 2006), in so far as they apply to the Company;
"articles" means the articles of association of the Company;
"board" or "board of directors" means the directors or any of them duly acting as the board of the Company;
"clear days" means in relation to the period of a notice, that period excluding the day when the notice is given or deemed to be given and the day for which it is given or on which it is to take effect;
"Depositary" means any depositary, clearing agency, custodian, nominee or similar entity appointed under arrangements entered into by the Company or otherwise approved by the board that holds, or is interested directly or indirectly, including through a nominee, in, shares, or rights or interests in respect thereof, and which issues certificates, instruments, securities or other documents of title, or maintains accounts, evidencing or recording the entitlement of the holders thereof, or account holders, to or to receive such shares, rights or interests;
"Depositary Interest" means any certificate, instrument, security, depositary receipt, or other document of title issued or created, or interest recorded in an account maintained, by a Depositary to evidence or record the entitlement of the holder, or account holder, to or to receive shares, or rights or interests in respect thereof;
"Depositary Interest Holder" means the holder of a Depositary Interest;
"director" means a director of the Company;
"DTC" means The Depository Trust Company and any Affiliate or nominee therefore, including Cede & Co., and any successors thereto;
"electronic address" means any number or address used for the purposes of sending or receiving notices, documents or information by electronic means;
"electronic form" has the same meaning as in the Acts;
"electronic means" has the same meaning as in the Acts;
"executed" means any mode of execution;
"holder" means in relation to shares, the member whose name is entered in the register of members as the holder of the shares;
"member" means an ordinary shareholder in the Company;
"Office" means the registered office of the Company;
"Operator" means the Operator of a relevant system (as defined in the Uncertificated Securities Regulations) or the transfer agent of the Company (as applicable);
"participating security" means a share or other security title to units of which is permitted to be transferred by means of a relevant system;
"relevant system" means any computer-based system, and procedures, permitted by the Uncertified Securities Regulations or other applicable regulations, which enable title to shares or other securities to be evidenced and transferred without a written instrument and which facilitate supplementary and incidental matters;
"seal" means the common seal (if any) of the Company and an official seal (if any) kept by the Company by virtue of section 50 of the Companies Act 2006, or either of them as the case may require;
"secretary" means the secretary of the Company or any other person appointed to perform the duties of the secretary of the Company, including a joint, assistant or deputy secretary;; and
"share" means ordinary shares in the Company;
"Uncertificated Securities Regulations" means the Uncertificated Securities Regulations 2001 (as amended).
(2) |
In these articles, references to a share being in uncertificated form are references to that share being an uncertificated unit of a security and references to a share being in certificated form are references to that share being a certificated unit of a security. |
(3) |
Save as aforesaid and unless the context otherwise requires, words or expressions contained in these articles have the same meaning as in the Companies Act 2006 or the Uncertificated Securities Regulations (as the case may be). |
(4) |
Except where otherwise expressly stated, a reference in these articles to any primary or delegated legislation or legislative provision includes a reference to any modification or re-enactment of it for the time being in force. |
(5) |
In these articles, unless the context otherwise requires: |
(a) |
words in the singular include the plural, and vice versa; |
(b) |
words importing any gender include all genders; and |
(c) |
a reference to a person includes a reference to a body corporate and to an unincorporated body of persons. |
(6) |
In these articles: |
(a) |
references to writing include references to typewriting, printing, lithography, photography and any other modes of representing or reproducing words in a legible and non-transitory form, whether sent or supplied in electronic form or made available on a website or otherwise; |
(b) |
the words and phrases "other", "otherwise", "including" and "in particular" shall not limit the generality of any preceding words or be construed as being limited to the same class as the preceding words where a wider construction is possible; and |
(c) |
references to a power are to a power of any kind, whether administrative, discretionary or otherwise. |
(7) |
The headings are inserted for convenience only and do not affect the construction of these articles. |
Exclusion of other regulations
2. |
No regulations or model articles contained in any statute or subordinate legislation including without prejudice to such generality, the regulations contained in the Companies (Model Articles) Regulations 2008 shall apply as the articles of the Company. |
SHARE CAPITAL
Liability of members
3. |
The liability of the members is limited to the amount, if any, unpaid on the shares held by them. |
Further issues and rights attaching to shares on issue
4. |
(1) |
Without prejudice to any rights attached to any existing shares, any share may be issued with such rights or restrictions as the Company may by ordinary resolution determine or, if the Company has not so determined, as the directors may determine. |
(2) |
In the event that rights and restrictions attaching to shares are determined by ordinary resolution or by the directors pursuant to this article, those rights and restrictions shall apply, in particular in place of any rights or restrictions that would otherwise apply by virtue of the Companies Act 2006 in the absence of any provisions in the articles of a company, as if those rights and restrictions were set out in the articles. |
Redeemable shares
5. |
(1) |
Any share may be issued which is or is to be liable to be redeemed at the option of the Company or the holder, and the directors may determine the terms, conditions and manner of redemption of any such share. |
(2) |
In the event that rights and restrictions attaching to shares are determined by the directors pursuant to this article, those rights and restrictions shall apply, in particular in place of any rights or restrictions that would otherwise apply by virtue of the Companies Act 2006 in the absence of any provisions in the articles of a company, as if those rights and restrictions were set out in the articles. |
Payment of commissions
6. |
The Company may exercise the powers of paying commissions conferred by the Acts. Any such commission may be satisfied by the payment of cash or by the allotment of fully or partly paid shares, or partly in one way and partly in the other and may be in respect of a conditional or an absolute subscription. |
Trusts not recognised
7. |
Except as required by law, no person shall be recognised by the Company as holding any share upon any trust. Except as otherwise provided by these articles or by law, the Company shall not be bound by or recognise (even if having notice of it) any equitable, contingent, future, partial or other claim or any interest in any share other than the holder's absolute ownership of it and all the rights attaching to it. |
Uncertificated shares
8. |
Without prejudice to any powers which the Company or the directors may have to issue, allot, dispose of, convert, or otherwise deal with or make arrangements in relation to shares and other securities in any form: |
(a) |
the holding of shares in uncertificated form and the transfer of title to such shares by means of a relevant system shall be permitted; and |
(b) |
the Company may issue shares in uncertificated form and may convert shares from certificated form to uncertificated form and vice versa. |
If and to the extent that any provision of these articles is inconsistent with such holding or transfer as is referred to in paragraph (a) of this article or with any provision of the Uncertificated Securities Regulations or other applicable regulations, it shall not apply to any share in uncertificated form.
Separate holdings of shares in certificated and uncertificated form
9. |
Notwithstanding anything else contained in these articles, where any class of shares is, for the time being, a participating security, unless the directors otherwise determine, shares of any such class held by the same holder or joint holder in certificated form and uncertificated form shall be treated as separate holdings. |
VARIATION OF RIGHTS
Variation of rights
10. |
If at any time the capital of the Company is divided into different classes of shares, the rights attached to any class may be varied, either while the Company is a going concern or during or in contemplation of a winding up: |
(a) |
in such manner (if any) as may be provided by those rights; or |
(b) |
in the absence of any such provision, with the consent in writing of the holders of three-quarters in nominal value of the issued shares of that class (excluding any shares of that class held as treasury shares), or with the sanction of a special resolution passed at a separate meeting of the holders of the shares of that class, |
but not otherwise. To every such separate meeting the provisions of these articles relating to general meetings shall apply, except that the necessary quorum shall be (i) at any such meeting other than an adjourned meeting, two persons together holding or representing by proxy at least one-third in nominal value of the issued shares of the class in question (excluding any shares of that class held as treasury shares); and (ii) at an adjourned meeting, one person holding shares of the class in question (other than treasury shares) or his proxy.
Rights deemed not varied
11. |
Unless otherwise expressly provided by the rights attached to any class of shares, those rights shall be deemed not to be varied by the purchase by the Company of any of its own shares or the holding of such shares as treasury shares. |
SHARE CERTIFICATES
Rights to share certificates
12. |
(1) |
On becoming the holder of any share other than a share in uncertificated form, every person (other than a financial institution in respect of whom the Company is not required by law to complete and have ready a certificate) shall be entitled, without payment, to have issued to him within two months after allotment or lodgement of a transfer (unless the terms of issue of the shares provide otherwise) one certificate for all the shares of each class registered in his name or, upon payment for every certificate after the first of such reasonable sum as the directors may determine, several certificates each for one or more of his shares. |
(2) |
Every certificate shall be issued under the seal or under such other form of authentication as the directors may determine (which may include manual or facsimile signatures by one or more directors), and shall specify the number, class and distinguishing numbers (if any) of the shares to which it relates and the amount or respective amounts paid up on them. |
(3) |
Where a member (other than a financial institution) has transferred part only of the shares comprised in a certificate, the member is entitled, without payment, to have issued to him a certificate in respect of the balance of shares held by him or, upon payment for every certificate after the first of such reasonable sum as the directors may determine, several certificates each for one or more of his shares. |
(4) |
When a member's (other than a financial institution's) holding of shares of a particular class increases, the Company may issue that member with a single, consolidated certificate in respect of all the shares of a particular class which that member holds or a separate certificate in respect of only those shares by which that member's holding has increased. |
(5) |
A member (other than a financial institution) may request the Company, in writing, to replace the member's separate certificates with a consolidated certificate or the member's consolidated certificate with two or more separate certificates representing such proportion of the shares as the member may specify, provided that any certificate(s) which it is (or they are) to replace has first been returned to the Company for cancellation. When the Company complies with such a request it may charge such reasonable sum as the directors may determine for doing so. |
(6) |
The Company shall not be bound to issue more than one certificate for shares held jointly by several persons and delivery of a certificate to whichever of the joint holders' names appears first on the register of members in respect of the joint holding shall be a sufficient delivery to all of them. |
(7) |
If a certificate issued in respect of a member's shares is damaged or defaced or said to be lost, stolen or destroyed, then that member is entitled to be issued with a replacement certificate in respect of the same shares. A member exercising the right to be issued with such a replacement certificate: |
(a) |
must return the certificate which is to be replaced to the Company if it is damaged or defaced; and |
(b) |
must comply with such conditions as to evidence, indemnity and the payment of a reasonable fee as the directors may determine. |
LIEN
Company's lien on shares not fully paid
13. |
The Company has a lien over every share which is partly paid for all amounts (whether presently payable or not) payable at a fixed time or called in respect of that share. The directors may declare any share to be wholly or in part exempt from the provisions of this article. The Company's lien over a share takes priority over any third party's interest in that share, and extends to any dividend or other money payable by the Company in respect of that share (and, if the lien is enforced and the share is sold by the Company, the proceeds of sale of that share). |
Enforcing lien by sale
14. |
The Company may sell, in such manner as the directors determine, any share on which the Company has a lien if an amount in respect of which the lien exists is presently payable and is not paid within 14 clear days after notice has been given to the holder of the share, or the person entitled to it in consequence of the death or bankruptcy of the holder or otherwise by operation of law, demanding payment and stating that if the notice is not complied with the shares may be sold. |
Giving effect to a sale
15. |
To give effect to the sale: |
(a) |
in the case of a share in certificated form, the directors may authorise any person to execute an instrument of transfer of the share to the purchaser or a person nominated by the purchaser; |
(b) |
in the case of a share in uncertificated form, the directors may: |
(i) |
to enable the Company to deal with the share in accordance with the provisions of this article, require or procure any relevant person or the Operator (as applicable) to convert the share into certificated form; and |
(ii) |
after such conversion, authorise any person to execute an instrument of transfer and take such other steps (including the giving of directions to or on behalf of the holder, who shall be bound by them) as they think fit to effect the transfer. |
The title of the transferee to the share shall not be affected by any irregularity in or invalidity of the proceedings in reference to the sale.
Application of proceeds of sale
16. |
The net proceeds of the sale, after payment of the costs, shall be applied in payment of so much of the amount for which the lien exists as is presently payable. Any residue shall (upon surrender to the Company for cancellation of the certificate for the share sold, in the case of a share in certificated form, and subject to a like lien for any amount not presently payable as existed upon the share before the sale) be paid to the person entitled to the share at the date of the sale. |
CALLS ON SHARES AND FORFEITURE
Calls
17. |
Subject to the terms of allotment, the directors may make calls upon the members in respect of any amounts unpaid on their shares (whether in respect of nominal value or premium) and each member shall (subject to receiving at least 14 clear days' notice specifying when and where payment is to be made) pay to the Company as required by the notice the amount called on his shares. A call may be required to be paid by instalments. A call may, before receipt by the Company of an amount due under it, be revoked in whole or in part and payment of a call may be postponed in whole or part. A person upon whom a call is made shall remain liable for calls made upon him notwithstanding the subsequent transfer of the shares in respect of which the call was made. |
18. |
A call shall be deemed to have been made at the time when the resolution of the directors authorising the call was passed. |
Joint and several liability in respect of calls
19. |
The joint holders of a share shall be jointly and severally liable to pay all calls in respect of it. |
Interest
20. |
If a call or an instalment of a call remains unpaid after it has become due and payable the person from whom it is due shall pay interest on the amount unpaid, from the day it became due and payable until it is paid at the rate fixed by the terms of allotment of the shares in question or fixed in the notice of the call or, if no rate is fixed, at the appropriate rate (as defined in the Acts). The directors may, however, waive payment of the interest wholly or in part. |
Sums treated as calls
21. |
An amount payable in respect of a share on allotment or at any fixed date, whether in respect of nominal value or premium or as an instalment of a call, shall be deemed to be a call and if it is not paid these articles shall apply as if that sum had become due and payable by virtue of a call. |
Power to differentiate
22. |
Subject to the terms of allotment, the directors may differentiate between the holders in the amounts and times of payment of calls on their shares. |
Payment of calls in advance
23. |
The directors may receive from any member willing to advance it all or any part of the amount unpaid on the shares held by him (beyond the sums actually called up) as a payment in advance of calls, and such payment shall, to the extent of it, extinguish the liability on the shares in respect of which it is advanced. The Company may pay interest on the amount so received, or so much of it as exceeds the sums called up on the shares in respect of which it has been received, at such rate (if any) as the member and the directors agree. |
Notice if call not paid and forfeiture
24. |
If a call or an instalment of a call remains unpaid after it has become due and payable the directors may give to the person from whom it is due not less than 14 clear days' notice requiring payment of the amount unpaid together with any interest which may have accrued. The notice shall name the place where payment is to be made and shall state that if the notice is not complied with the shares in respect of which the call was made will be liable to be forfeited. If the notice is not complied with, any shares in respect of which it was given may, before the payment required by the notice has been made, be forfeited by a resolution of the directors and the forfeiture shall include all dividends and other amounts payable in respect of the forfeited shares and not paid before the forfeiture. |
Sale of forfeited shares
25. |
A forfeited share may be sold, re-allotted or otherwise disposed of on such terms and in such manner as the directors determine either to the person who was before the forfeiture the holder (including a person who was entitled to the share in consequence of the death or bankruptcy of the holder or otherwise by operation of law) or to any other person and, at any time before the disposition, the forfeiture may be cancelled on such terms as the directors determine. Where for the purposes of its disposal a forfeited share is to be transferred to any person: |
(a) |
in the case of a share in certificated form, the directors may authorise any person to execute an instrument of transfer and take such other steps (including the giving of directions to or on behalf of the holder, who shall be bound by them) as they think fit to effect the transfer; and |
(b) |
in the case of a share in uncertificated form, the directors may: |
(i) |
to enable the Company to deal with the share in accordance with the provisions of this article, require or procure any relevant person or the Operator (as applicable) to convert the share into certificated form; and |
(ii) |
after such conversion, authorise any person to execute an instrument of transfer and take such other steps (including the giving of directions to or on behalf of the holder, who shall be bound by them) as they think fit to effect the transfer. |
Cessation of membership and continuing liability
26. |
A person whose shares have been forfeited shall cease to be a member in respect of the shares forfeited and shall surrender to the Company for cancellation any certificate for the shares forfeited. However, such person shall remain liable to the Company for all amounts which at the date of forfeiture were presently payable by him to the Company in respect of those shares with interest at the rate at which interest was payable on those amounts before the forfeiture or, if no interest was so payable, at the appropriate rate (as defined in the Acts) from the date of forfeiture until payment. The directors may waive payment wholly or in part or enforce payment without any allowance for the value of the shares at the time of forfeiture or for any consideration received on their disposal. |
Statutory declaration as to forfeiture
27. |
A statutory declaration by a director or the secretary that a share has been forfeited on a specified date shall be conclusive evidence of the facts stated in it as against all persons claiming to be entitled to the share and the declaration shall (subject to the execution of an instrument of transfer if necessary, in the case of a share in certificated form) constitute good title to the share and the person to whom the share is disposed of shall not be bound to see to the application of the consideration, if any, nor shall his title to the share be affected by any irregularity in or invalidity of the proceedings relating to the forfeiture or disposal of the share. |
TRANSFER OF SHARES
Transfer of shares in certificated form
28. |
The instrument of transfer of a share in certificated form may be in any usual form or in any other form which the directors approve and shall be executed by or on behalf of the transferor and, where the share is not fully paid, by or on behalf of the transferee. |
Transfer of shares in uncertificated form
29. |
Where any class of shares is, for the time being, a participating security, title to shares of that class which are recorded on an Operator register of members as being held in uncertificated form may be transferred by means of the relevant system concerned. The transfer may not be in favour of more than four transferees. |
Refusal to register transfers
30. |
(1) |
The directors may, in their absolute discretion, refuse to register the transfer of a share in certificated form which is not fully paid. They may also refuse to register a transfer of a share in certificated form (whether fully paid or not) unless the instrument of transfer: |
(a) |
is lodged, duly stamped, at the Office or at such other place as the directors may appoint and (except in the case of a transfer by a financial institution where a certificate has not been issued in respect of the share) is accompanied by the certificate for the share to which it relates and such other evidence as the directors may reasonably require to show the right of the transferor to make the transfer; |
(b) |
is in respect of only one class of share; and |
(c) |
is in favour of not more than four transferees. |
(2) |
The directors may refuse to register a transfer of a share in uncertificated form to a person who is to hold it thereafter in certificated form in any case where the Company is entitled to refuse (or is excepted from the requirement) under the Uncertificated Securities Regulations or other applicable regulations to register the transfer. |
Notice of and reasons for refusal
31. |
If the directors refuse to register a transfer of a share, they shall as soon as practicable and in any event within two months after the date on which the transfer was lodged with the Company (in the case of a transfer of a share in certificated form) or the date on which the transfer instructions were received by the Company or the Operator (in the case of a transfer of a share in uncertificated form to a person who is to hold it thereafter in certificated form) send to the transferee notice of the refusal together with reasons for the refusal. The directors shall send such further information about the reasons for the refusal to the transferee as the transferee may reasonably request. |
No fee for registration
32. |
No fee shall be charged for the registration of any instrument of transfer or other document or instruction relating to or affecting the title to any share. |
Retention or return of instrument of transfer
33. |
The Company shall be entitled to retain any instrument of transfer which is registered, but any instrument of transfer which the directors refuse to register shall (except in the case of fraud) be returned to the person lodging it when notice of the refusal is given. |
Recognition of renunciation
34. |
Nothing in these articles shall preclude the directors from recognising a renunciation of the allotment of any share by the allottee in favour of some other person. |
TRANSMISSION OF SHARES
Transmission on death
35. |
If a member dies the survivor or survivors where he was a joint holder, or his personal representatives where he was a sole holder or the only survivor of joint holders, shall be the only persons recognised by the Company as having any title to his interest. However, nothing in this article shall release the estate of a deceased member from any liability in respect of any share which had been solely or jointly held by him. |
Election of person entitled by transmission
36. |
A person becoming entitled to a share in consequence of the death or bankruptcy of a member or otherwise by operation of law may, upon such evidence being produced as the directors may properly require to show his title to the share, elect either to become the holder of the share or to have some person nominated by him registered as the transferee. If he elects to become the holder he shall give notice to the Company to that effect. If he elects to have another person registered he shall transfer title to the share to that person. All the provisions of these articles relating to the transfer of shares shall apply to the notice or instrument of transfer (if any) as if it were an instrument of transfer signed by the member and the death or bankruptcy of the member or other event giving rise to the entitlement to the share by operation of law had not occurred. |
Rights of person entitled by transmission
37. |
A person becoming entitled to a share by reason of the death or bankruptcy of a member or otherwise by operation of law shall, after giving notice to the Company of his entitlement to the share and upon such evidence being produced as the directors may properly require to show his title to the share, have the rights to which he would be entitled if he were the holder of the share, except that he shall not, before being registered as the holder of the share, be entitled in respect of it to attend or vote at any general meeting or at any separate meeting of the holders of any class of shares. A person entitled to a share who has elected for that share to be transferred to some other person pursuant to article 36 shall cease to be entitled to any rights in relation to such share upon that other person being registered as the holder of that share. |
DISCLOSURE OF INTERESTS
Disclosure of interests
38. |
(1) |
If a member, or any other person appearing to be interested in shares held by that member, has been given a notice under section 793 of the Companies Act 2006 and has failed in relation to any shares (the "default shares") to give the Company the information thereby required within 14 days from the date of giving the notice, the following sanctions shall apply, unless the directors otherwise determine in their absolute discretion, in relation to the default shares, including following any transfer of the default shares unless the transfer is an excepted transfer under this article: |
(a) |
the member shall not be entitled in respect of the default shares to be present or to vote (either in person or by representative or proxy) at any general meeting or at any separate meeting of the holders of any class of shares or on any poll; and |
(b) |
where the default shares represent at least 0.25 per cent of their class (calculated exclusive of treasury shares): |
(i) |
any dividend payable in respect of the default shares shall be withheld by the Company, which shall not have any obligation to pay interest on it, and the member shall not be entitled to elect, pursuant to these articles, to receive shares instead of that dividend; |
(ii) |
no transfer, other than an excepted transfer, of any default shares held by the member in certificated form shall be registered unless: |
(A) |
the member is not himself in default as regards supplying the information required; and |
(B) |
the member proves to the satisfaction of the directors that no person in default as regards supplying such information is interested in any of the shares the subject of the transfer; and |
(iii) |
for the purposes of sub paragraph (1)(b)(ii) of this article, in the case of a member holding default shares in uncertificated form or in the case of any other person who is interested in default shares which are represented by Depositary Interests, the directors may require the beneficial owner of such default shares: |
(A) |
to change his holding of such default shares from uncertificated form into certificated form in the name of the member or his holding of such default shares represented by Depositary Interests into certificated shares only in the name of the person who is interested in the Depositary Interests, as applicable, within a specified period; and |
(B) |
then to hold such default shares in certificated form for so long as the default subsists; and |
(C) |
to appoint any person to take any steps, by instruction by means of a relevant system or otherwise, in the name of the beneficial holder of default shares as may be required to change such default shares from uncertificated form into certificated form or where a person has an interests in default shares which are represented by Depositary Interests to change such default shares represented by Depositary Interests into certificated form only in the name of the interested person (and such steps shall be effective as if they had been taken by such holder). |
(2) |
Where the sanctions under paragraph (1) of this article apply in relation to any default shares, they shall cease to have effect at the end of the period of seven days (or such shorter period as the directors may determine) following the earlier of: |
(a) |
receipt by the Company of the information required by the notice mentioned in that paragraph; and |
(b) |
receipt by the Company of notice that the default shares have been transferred by means of an excepted transfer. |
The directors may suspend or cancel any of the sanctions at any time in relation to any default shares.
(3) |
Any new shares in the Company issued in right of default shares shall be subject to the same sanctions as apply to the default shares, and the directors may make any right to an allotment of the new shares subject to sanctions corresponding to those which will apply to those shares on issue, provided that: |
(a) |
any sanctions applying to, or to a right to, new shares by virtue of this paragraph shall cease to have effect when the sanctions applying to the related default shares cease to have effect (and shall be suspended or cancelled if and to the extent that the sanctions applying to the related default shares are suspended or cancelled); and |
(b) |
paragraph (1) of this article shall apply to the exclusion of this paragraph (3) if the Company gives a separate notice under section 793 of the Companies Act 2006 in relation to the new shares. |
(4) |
Where, on the basis of information obtained from a member in respect of any share held by him, the Company gives a notice under section 793 of the Companies Act 2006 (a "Section 793 Notice") to any other person, it shall at the same time send a copy of the notice to the member. The accidental omission to do so, or the non-receipt by the member of the copy, shall, however, not invalidate or otherwise affect the application of this article. |
(5) |
Where a Depositary Interest Holder receives a Section 793 Notice, that person is not considered for the purposes of this article to have an interest, or to be a person appearing to have an interest, in any shares held by the Depositary or in which the Depositary is otherwise interested other than those shares specified in the Section 793 Notice. |
(6) |
Where the member on whom a Section 793 Notice has been served is a Depositary acting in its capacity as such, the obligations of the Depositary shall be limited to disclosing to the Company such information requested in the Section 793 Notice relating to any person appearing to be interested in the shares held by it and specified in the Section 793 Notice as has been recorded by the Depositary in accordance with the arrangements entered into by the Company or approved by the board pursuant to which it was appointed as a Depositary. |
(7) |
For the purposes of this article: |
(a) |
a person, other than the member holding a share, shall be treated as appearing to be interested in that share if the member has informed the Company that the person is, or may be, so interested, or if the Company (after taking account of any information obtained from the member or, pursuant to a Section 793 Notice, from anyone else) knows or has reasonable cause to believe that the person is, or may be, so interested; |
(b) |
"interested" shall be construed in the same way as it is for the purpose of section 793 of the Companies Act 2006; |
(c) |
reference to a person having failed to give the Company the information required by a notice, includes (i) reference to his having failed or refused to give all or any part of it; (ii) reference to his having given any information which he knows to be false in a material particular or having recklessly given information which is false in a material particular; and (iii) reference to the Company knowing or having reasonable cause to believe that any of the information provided is false or materially incorrect or incomplete; and |
(d) |
an "excepted transfer" means, in relation to any shares held by a member: |
(i) |
a transfer pursuant to acceptance of a takeover offer (within the meaning of section 974 of the Companies Act 2006) in respect of shares in the Company; |
(ii) |
a transfer in consequence of a sale made through any stock exchange on which the Company's shares are normally traded; or |
(iii) |
a transfer which is shown to the satisfaction of the directors to be made in consequence of a sale of the whole of the beneficial interest in the shares to a person who is unconnected with the member and with any other person appearing to be interested in the shares. |
(6) |
Nothing in this article shall limit the powers of the Company under section 794 of the Companies Act 2006 or any other powers of the Company whatsoever. |
UNTRACED MEMBERS
Untraced members
39. |
(1) |
The Company shall be entitled to sell at the best price reasonably obtainable any share held by a member, or any share to which a person is entitled by transmission (including in consequence of the death or bankruptcy of the member or otherwise by operation of law), if: |
(a) |
for a period of 12 years no cheque or warrant or other method of payment for amounts payable in respect of the share sent and payable in a manner authorised by these articles has been cashed or effected and no communication has been received by the Company from the member or person concerned; |
(b) |
during that period the Company has paid at least three dividends (whether interim or final) and no such dividend has been claimed by the member or person concerned; |
(c) |
the Company has, after the expiration of that period, sent a notice to the registered address or last known address of the member or person concerned of its intention to sell such share and before sending such a notice to the member or other person concerned, the Company must have used reasonable efforts to trace the member or other person entitled, engaging, if considered appropriate, a professional asset reunification company or other tracing agent; and |
(d) |
the Company has not during the further period of three months following the sending of the notice referred to in sub-paragraph (c) above and prior to the sale of the share received any communication from the member or person concerned. |
(2) |
The Company shall also be entitled to sell at the best price reasonably obtainable any additional share issued during the said period of 12 years in right of any share to which paragraph (1) of this article applies (or in right of any share so issued), if the criteria in sub-paragraphs (a), (c) and (d) of that paragraph are satisfied in relation to the additional share (but as if the words "for a period of 12 years" were omitted from sub-paragraph (a) and the words ", after the expiration of that period," were omitted from sub-paragraph (c)). |
(3) |
To give effect to the sale of any share pursuant to this article: |
(a) |
in the case of a share in certificated form, the directors may authorise any person to execute an instrument of transfer of the share to the purchaser or a person nominated by the purchaser and take such other steps (including the giving of directions to or on behalf of the holder, who shall be bound by them) as it thinks fit to effect the transfer; and |
(b) |
in the case of a share in uncertificated form, the directors may: |
(i) |
to enable the Company to deal with the share in accordance with the provisions of this article, require or procure any relevant person or the Operator (as applicable) to convert the share into certificated form; and |
(ii) |
after any such conversion, authorise any person to execute an instrument of transfer of the shares to the purchaser or person nominated by the purchaser and take such other steps (including the giving of directions to or on behalf of the holder, who shall be bound by them) as it thinks fit to effect the transfer. |
(4) |
The purchaser shall not be bound to see to the application of the proceeds of sale, nor shall his title to the share be affected by any irregularity or invalidity in the proceedings relating to the sale. Unless otherwise determined by the directors the net proceeds of sale shall be forfeited and such former member or other person previously entitled to the share shall no longer be a creditor for the proceeds of sale and the Company will not be obliged to account to such persons for, or be liable to such persons in relation to, the proceeds of sale. |
ALTERATION OF CAPITAL
Consolidation and sub-division
40. |
(1) |
The Company may by ordinary resolution: |
(a) |
consolidate and divide all or any of its share capital into shares of larger amount than its existing shares; and |
(b) |
sub-divide its shares, or any of them, into shares of a smaller amount than its existing shares; and determine that, as between the shares resulting from the sub-division, any of them may have any preference or advantage as compared with the others. |
(2) |
Where any difficulty arises in regard to any consolidation or division, the directors may settle such difficulty as they see fit. In particular, without limitation, the directors may sell to any person (including the Company) the shares representing the fractions for the best price reasonably obtainable and distribute the net proceeds of sale in due proportion among those members or retain such net proceeds for the benefit of the Company and: |
(a) |
in the case of shares in certificated form, the directors may authorise any person to execute an instrument of transfer of the shares to the purchaser or a person nominated by the purchaser and take such other steps (including the giving of directions to or on behalf of the holder, who shall be bound by them) as they think fit to effect such transfer; and |
(b) |
in the case of shares in uncertificated form, the directors may: |
(i) |
to enable the Company to deal with the share in accordance with the provisions of this article, require or procure any relevant person or the Operator (as applicable) to convert the share into certificated form; and |
(ii) |
after such conversion, authorise any person to execute an instrument of transfer of the shares to the purchaser or a person nominated by the purchaser and take such other steps (including the giving of directions to or on behalf of the holder, who shall be bound by them) as they think fit to effect the transfer. |
(3) |
The transferee shall not be bound to see to the application of the purchase money nor shall his title to the shares be affected by any irregularity in or invalidity of the proceedings in reference to the sale. |
NOTICE OF GENERAL MEETINGS
Calling general meetings
41. |
A majority of directors, the chairman of the board of directors or the chief executive officer of the Company may call a general meeting. If there are no directors then serving on the board of directors, any member of the Company may call a general meeting. |
Notice of annual general meetings and other general meetings
42. |
An annual general meeting and all other general meetings of the Company shall be called by at least such minimum period of notice as is prescribed or permitted under the Acts. The notice shall specify the place, the date and the time of meeting and the general nature of the business to be transacted, and in the case of an annual general meeting shall specify the meeting as such. Where the Company has given an electronic address in any notice of meeting, any document or information relating to proceedings at the meeting may be sent by electronic means to that address, subject to any conditions or limitations specified in the relevant notice of meeting. Subject to the provisions of these articles and to any rights or restrictions attached to any shares, notices shall be given to all members, to all persons entitled to a share in consequence of the death or bankruptcy of a member or otherwise by operation of law and to the directors and auditors of the Company. |
Omission or failure to give notice and non-receipt of notice
43. |
The accidental omission to give notice of a meeting to, or the failure to give notice due to circumstances beyond the Company's control to, or the non-receipt of notice of a meeting by, any person entitled to receive notice shall not invalidate the proceedings at that meeting. |
Special General Meetings
44. |
The board of directors may postpone or reschedule any previously scheduled special general meeting of members. Only those matters set forth in the notice of the special general meeting may be considered or acted upon at a special general meeting of members of the Company. Nominations of persons for election to the board of directors of the Company and member proposals of other business shall not be brought before a special general meeting of members to be considered by the members. |
PROCEEDINGS AT GENERAL MEETINGS
Quorum
45. |
No business shall be transacted at any meeting unless a quorum is present. Two persons entitled to vote upon the business to be transacted, each being a member or a proxy for a member or a duly authorised representative of a corporation which is a member (including for this purpose two persons who are proxies or corporate representatives of the same member), shall be a quorum. |
Procedure if quorum not present
46. |
If a quorum is not present within half an hour after the time appointed for holding the meeting, or if during a meeting a quorum ceases to be present, the meeting shall stand adjourned in accordance with article 54(1). |
Chairing general meetings
47. |
The chairman (if any) of the board of directors, or in his absence the deputy chairman, or in the absence of both of them some other director nominated prior to the meeting by the directors, shall preside as chairman of the meeting. If neither the chairman nor the deputy chairman nor such other director (if any) is present within 15 minutes after the time appointed for holding the meeting and willing to act, the directors present shall elect one of their number present and willing to act to be chairman of the meeting, and if there is only one director present he shall be chairman of the meeting. |
48. |
If no director is present within 15 minutes after the time appointed for holding the meeting, the members present and entitled to vote shall choose one of their number to be chairman of the meeting. |
Security arrangements and orderly conduct
49. |
The directors or the chairman of the meeting may direct that any person wishing to attend any general meeting should submit to and comply with such searches or other security arrangements (including without limitation, requiring evidence of identity to be produced before entering the meeting and placing restrictions on the items of personal property which may be taken into the meeting) as they or he consider appropriate in the circumstances. The directors or the chairman of the meeting may in their or his absolute discretion refuse entry to, or eject from, any general meeting any person who refuses to submit to a search or otherwise comply with such security arrangements. |
50. |
The directors or the chairman of the meeting may take such action, give such direction or put in place such arrangements as they or he consider appropriate to secure the safety of the people attending the meeting and to promote the orderly conduct of the business of the meeting. Any decision of the chairman of the meeting on matters of procedure or matters arising incidentally from the business of the meeting, and any determination by the chairman of the meeting as to whether a matter is of such a nature, shall be final. |
Directors entitled to attend and speak
51. |
Directors may attend and speak at general meetings and at any separate meeting of the holders of any class of shares, whether or not they are members. The directors or the chairman of the meeting may permit other persons who are not members of the Company or otherwise entitled to exercise the rights of members in relation to general meetings to attend and, at the chairman of the meeting's absolute discretion, speak at a general meeting or at any separate class meeting. |
Attendance and participation at different places and by electronic means
52. |
In the case of any general meeting, the directors may, notwithstanding the specification in the notice convening the general meeting of the place at which the chairman of the meeting shall preside (the "Principal Place"), make arrangements for simultaneous attendance and participation by electronic means allowing persons not present together at the same place to attend, speak and vote at the meeting (including the use of satellite meeting places). The arrangements for simultaneous attendance and participation at any place at which persons are participating, using electronic means may include arrangements for controlling or regulating the level of attendance at any particular venue provided that such arrangements shall operate so that all members and proxies wishing to attend the meeting are able to attend at one or other of the venues. |
53. |
(1) |
The members or proxies at the place or places at which persons are participating via electronic means shall be counted in the quorum for, and be entitled to vote at, the general meeting in question, and that meeting shall be duly constituted and its proceedings valid if the chairman of the meeting is satisfied that adequate facilities are available throughout the meeting to ensure that the members or proxies attending at the places at which persons are participating via electronic means are able to: |
(a) |
participate in the business for which the meeting has been convened; and |
(b) |
see and hear all persons who speak (whether through the use of microphones, loud speakers, audiovisual communication equipment or otherwise) in the Principal Place (and any other place at which persons are participating via electronic means). |
(2) |
For the purposes of all other provisions of these articles (unless the context requires otherwise), the members shall be treated as meeting at the Principal Place. |
(3) |
If it appears to the chairman of the meeting that the facilities at the Principal Place or any place at which persons are participating via electronic means have become inadequate for the purposes set out in sub-paragraphs (a) and (b) above, the chairman of the meeting may, without the consent of the meeting, interrupt or adjourn the general meeting. All business conducted at the general meeting up to the point of the adjournment shall be valid. The provisions of article 54(3) shall apply to that adjournment. |
Adjournments
54. |
(1) |
If a quorum is not present within half an hour after the time appointed for holding the meeting, or if during a meeting a quorum ceases to be present, the meeting shall stand adjourned and (subject to the provisions of the Acts) the chairman of the meeting shall either specify the time and place to which it is adjourned or state that it is adjourned to such time and place as the directors may determine. If at the adjourned meeting a quorum is not present within 15 minutes after the time appointed for holding the meeting, the meeting shall be dissolved. |
(2) |
Without prejudice to any other power of adjournment he may have under these articles or at common law: |
(a) |
the chairman of the meeting may, with the consent of a meeting at which a quorum is present (and shall if so directed by the meeting), adjourn the meeting; |
(b) |
the chairman of the meeting may, without the consent of the meeting, adjourn the meeting before or after it has commenced, if the chairman of the meeting considers that: |
(i) |
there is not enough room for the number of members and proxies who wish to attend the meeting; |
(ii) |
the behaviour of anyone present prevents, or is likely to prevent, the orderly conduct of the business of the meeting; |
(iii) |
an adjournment is necessary to protect the safety of any person attending the meeting; or |
(iv) |
an adjournment is otherwise necessary in order for the business of the meeting to be properly carried out. |
If so adjourned, the chairman of the meeting shall either specify the time and place to which it is adjourned or state that it is adjourned to such time and place as the directors may determine.
(3) |
Subject to the provisions of the Acts, it shall not be necessary to give notice of an adjourned meeting except that when a meeting is adjourned for 14 days or more, at least seven clear days' notice shall be given specifying the time and place of the adjourned meeting and the general nature of the business to be transacted. No business shall be transacted at an adjourned meeting other than business which might properly have been transacted at the meeting had the adjournment not taken place. |
(4) |
Subject to paragraph (1) of this article, meetings can be adjourned more than once, in accordance with the procedures set out in this article. |
AMENDMENTS TO RESOLUTIONS
Amendments to special and ordinary resolutions
55. |
(1) |
A special resolution to be proposed at a general meeting may be amended by ordinary resolution if: |
(a) |
the chairman of the meeting proposes the amendment at the general meeting at which the resolution is to be proposed; and |
(b) |
the amendment does not go beyond what is necessary to correct a clear error in the resolution. |
(2) |
An ordinary resolution to be proposed at a general meeting may be amended by ordinary resolution if: |
(a) |
unless such amendment is proposed by the directors written notice of the terms of the proposed amendment and of the intention to move the amendment have been delivered to the Company at the Office at least 48 hours before the time for holding the meeting or the adjourned meeting at which the ordinary resolution in question is proposed and the proposed amendment does not, in the reasonable opinion of the chairman of the meeting, materially alter the scope of the resolution; and |
(b) |
the chairman of the meeting, in his absolute discretion, decides that the proposed amendment may be considered or voted on. |
Withdrawal and ruling amendments out of order
56. |
With the consent of the chairman of the meeting, an amendment may be withdrawn by its proposer before it is voted on. If an amendment proposed to any resolution under consideration is ruled out of order by the chairman of the meeting, the proceedings on the resolution shall not be invalidated by any error in the ruling. |
POLLS
Demand for a poll
57. |
(1) |
For so long as any shares are held in a settlement system operated by DTC, any resolution put to the vote of a general meeting must be decided on a poll (and for so long as any shares are held in a settlement system operated by DTC this provision may not be amended without the unanimous consent of all the members). If no shares are held in DTC, a resolution put to the vote of a general meeting must be decided on a show of hands unless a poll is validly demanded. A poll on a resolution may be demanded either before a vote on a show of hands on that resolution or immediately after the result of a show of hands on that resolution is declared. |
(2) |
A poll on a resolution may be demanded by: |
(a) |
the chairman of the meeting; |
(b) |
a majority of the directors present at the meeting; |
(c) |
not less than five members having the right to vote at the meeting; |
(d) |
a member or members representing not less than one-tenth of the total voting rights of all the members having the right to vote at the meeting (excluding any voting rights attached to any shares in the Company held as treasury shares); or |
(e) |
a member or members holding shares conferring a right to vote on the resolution on which an aggregate sum has been paid up equal to not less than one-tenth of the total sum paid up on all the shares conferring that right (excluding any shares in the Company conferring a right to vote at the meeting which are held as treasury shares). |
Chairman's declaration
58. |
Unless a poll is duly demanded and the demand is not subsequently withdrawn, a declaration by the chairman of the meeting that a resolution has been carried or carried unanimously, or by a particular majority, or lost, or not carried by a particular majority, and an entry in respect of such declaration in the minutes of the meeting, shall be conclusive evidence of the fact without proof of the number or proportion of the votes recorded in favour of or against the resolution. |
Withdrawal of demand for a poll
59. |
The demand for a poll may, before the poll is taken, be withdrawn but only with the consent of the chairman of the meeting, and a demand so withdrawn shall not be taken to have invalidated the result of a show of hands declared before the demand was made. |
Polls to be taken as chairman directs
60. |
Polls at general meetings shall, subject to articles 61 and 62 below, be taken when, where and in such manner as the chairman of the meeting directs. The chairman of the meeting may appoint scrutineers (who need not be members) and decide how and when the result of the poll is to be declared. The result of a poll shall be the decision of the meeting in respect of the resolution on which the poll was demanded. |
When poll to be taken
61. |
A poll on the election of the chairman of the meeting or on a question of adjournment must be taken immediately. Any other polls must be taken either during the meeting or within 30 days of the poll being demanded. A demand for a poll does not prevent a general meeting from continuing, except as regards the question on which the poll was demanded. If a poll is demanded before the declaration of the result of a show of hands and the demand is duly withdrawn, the meeting shall continue as if the demand had not been made. |
Notice of poll
62. |
No notice need be given of a poll not taken during the meeting if the time and place at which it is to be taken are announced at the meeting at which it is demanded. In any other case, at least seven clear days' notice must be given specifying the time and place at which the poll is to be taken. |
VOTES OF MEMBERS
Voting rights
63. |
Subject to any rights or restrictions attached to any shares: |
(a) |
on a show of hands: |
(i) |
every member who is present in person has one vote; |
(ii) |
every proxy present who has been duly appointed by one or more members entitled to vote on the resolution has one vote, except that if the proxy has been duly appointed by more than one member entitled to vote on the resolution and is instructed by one or more of those members to vote for the resolution and by one or more others to vote against it, or is instructed by one or more of those members to vote in one way and is given discretion as to how to vote by one or more others (and wishes to use that discretion to vote in the other way) he has one vote for and one vote against the resolution; and |
(iii) |
every corporate representative present who has been duly authorised by a corporation has the same voting rights as the corporation would be entitled to; |
(b) |
on a poll every member present in person or by duly appointed proxy or corporate representative has one vote for every share of which he is the holder or in respect or which his appointment as proxy or corporate representative has been made; and |
(c) |
a member, proxy or corporate representative entitled to more than one vote need not, if he votes, use all his votes or cast all the votes he uses the same way. |
Voting record date
64. |
In order that the Company may determine the members entitled to vote at any meeting of members or any adjournment thereof, and how many votes such person may cast, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the board of directors, and which record date shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting. If no record date is fixed the record date for determining members entitled to vote at a meeting of members shall, unless otherwise required by law, be at the close of business on the business day preceding the day on which notice is given. |
Votes of joint holders
65. |
In the case of joint holders the vote of the joint holder whose name appears first on the register of members in respect of the joint holding shall be accepted to the exclusion of the votes of the other joint holders. |
Votes on behalf of an incapable member
66. |
A member in respect of whom an order has been made by any court having jurisdiction in matters concerning mental disorder may vote, on a show of hands or on a poll, by any person authorised in that behalf by that court and the person so authorised may exercise other rights in relation to general meetings, including appointing a proxy. Evidence to the satisfaction of the directors of the authority of the person claiming the right to vote shall be delivered to the Office, or such other place as is specified in accordance with these articles for the delivery or receipt of appointments of proxy, not less than 48 hours before the time appointed for holding the meeting or adjourned meeting at which the right to vote is to be exercised, and in default the right to vote shall not be exercisable. |
No right to vote where sums overdue
67. |
No member shall have the right to vote at any general meeting or at any separate meeting of the holders of any class of shares, either in person or by proxy, in respect of any share held by him unless all amounts presently payable by him in respect of that share have been paid. |
Objections and validity of votes
68. |
(1) |
Any objection to the qualification of any person voting at a general meeting or on a poll or to the counting of, or failure to count, any vote, must be made at the meeting or adjourned meeting or at the time the poll is taken (if not taken at the meeting or adjourned meeting) at which the vote objected to is tendered. Any objection made in due time shall be referred to the chairman of the meeting whose decision shall be final and conclusive. If a vote is not disallowed by the chairman of the meeting it is valid for all purposes. |
(2) |
The Company shall not be bound to enquire whether any proxy or corporate representative votes in accordance with the instructions given to him by the member he represents and if a proxy or corporate representative does not vote in accordance with the instructions of the member he represents the vote or votes cast shall nevertheless be valid for all purposes. |
PROXIES AND CORPORATE REPRESENTATIVES
Appointment of proxies
69. |
A member is entitled to appoint another person as his proxy to exercise all or any of his rights to attend and to speak and vote at a meeting of the Company. The appointment of a proxy shall be deemed also to confer authority to demand or join in demanding a poll. Delivery of an appointment of proxy shall not preclude a member from attending and voting at the meeting or at any adjournment of it. A proxy need not be a member. A member may appoint more than one proxy in relation to a meeting, provided that each proxy is appointed to exercise the rights attached to a different share or shares held by him. References in these articles to an appointment of proxy include references to an appointment of multiple proxies. |
70. |
Where two or more valid appointments of proxy are received in respect of the same share in relation to the same meeting, the one which is last sent shall be treated as replacing and revoking the other or others. If the Company is unable to determine which is last sent, the one which is last received shall be so treated. If the Company is unable to determine either which is last sent or which is last received, none of such appointments shall be treated as valid in respect of that share. |
Form of proxy appointment
71. |
(1) |
Subject to article 72 an appointment of proxy shall be in writing in any usual form or in any other form which the directors may approve and shall be executed by or on behalf of the appointor which in the case of a corporation may be either under its common seal or under the hand of a duly authorised officer or other person duly authorised for that purpose. The signature on the appointment of proxy need not be witnessed. |
(2) |
Where the appointment of a proxy is expressed to have been or purports to have been executed by a duly authorised person on behalf of a member: |
(a) |
the Company may treat the appointment as sufficient evidence of that person's authority to execute the appointment of proxy on behalf of that member; and |
(b) |
the member shall, if requested by or on behalf of the Company, send or procure the sending of any authority under which the appointment of proxy has been executed, or a certified copy of any such authority to such address and by such time as required under article 73 and, if the request is not complied with in any respect, the appointment of proxy may be treated as invalid. |
Proxies sent or supplied in electronic form
72. |
The directors may (and shall for so long as any shares are held in a settlement system operated by DTC or if and to the extent that the Company is required to do so by the Acts) allow an appointment of proxy to be sent or supplied in electronic form subject to any conditions or limitations as the directors may specify. Where the Company has given an electronic address in any instrument of proxy or invitation to appoint a proxy, any document or information relating to proxies for the meeting (including any document necessary to show the validity of, or otherwise relating to, an appointment of proxy, or notice of the termination of the authority of a proxy) may be sent by electronic means to that address, subject to any conditions or limitations specified in the relevant notice of meeting. |
Receipt of appointments of proxy
73. |
(1) |
An appointment of proxy may: |
(a) |
in the case of an appointment of proxy in hard copy form, be received at the Office or such other place as is specified in the notice convening the meeting, or in any appointment of proxy or any invitation to appoint a proxy sent out or made available by the Company in relation to the meeting, not less than 48 hours before the time for holding the meeting or adjourned meeting to which it relates; |
(b) |
in the case of an appointment of proxy in electronic form, be received at the electronic address specified in the notice convening the meeting, or in any instrument of proxy or any invitation to appoint a proxy sent out or made available by the Company in relation to the meeting, not less than 48 hours before the time for holding the meeting or adjourned meeting to which it relates; and |
(c) |
in the case of a poll taken subsequently to the date of the meeting or adjourned meeting, be received as aforesaid not less than 24 hours (or such shorter time as the directors may determine) before the time appointed for the taking of the poll. |
(2) |
The directors may specify in the notice convening the meeting that in determining the time for delivery of proxies pursuant to this article, no account shall be taken of any part of any day that is not a working day. An appointment of proxy which is not received or delivered in a manner so permitted shall be invalid. |
Termination of appointments of proxy
74. |
A vote given or poll demanded by proxy shall be valid notwithstanding the previous termination of the authority of the person voting or demanding a poll, unless notice of the termination was delivered in writing to the Company at such place or address at which an appointment of proxy may be duly received under article 73 not later than the last time at which an appointment of proxy should have been received under article 73 in order for it to be valid. |
Availability of appointments of proxy
75. |
The directors may at the expense of the Company send or make available appointments of proxy or invitations to appoint a proxy to the members by post or by electronic means or otherwise (with or without provision for their return prepaid) for use at any general meeting or at any separate meeting of the holders of any class of shares, either in blank or nominating in the alternative any one or more of the directors or any other person. If for the purpose of any meeting, appointments of proxy or invitations to appoint as proxy a person or one of a number of persons specified in the invitations are issued at the Company's expense, they shall be issued to all (and not to some only) of the members entitled to be sent a notice of the meeting and to vote at it. The accidental omission, or the failure due to circumstances beyond the Company's control, to send or make available such an appointment of proxy or give such an invitation to, or the non-receipt thereof by, any member entitled to attend and vote at a meeting shall not invalidate the proceedings at that meeting. |
Corporations acting by representatives
76. |
(1) |
Subject to the provisions of the Acts, any corporation (other than the Company itself) which is a member of the Company may, by resolution of its directors or other governing body, authorise a person or persons to act as its representative or representatives at any meeting of the Company, or at any separate meeting of the holders of any class of shares. The corporation shall for the purposes of these articles be deemed to be present in person at any such meeting if a person or persons so authorised is present at it. The Company may require such person or persons to produce a certified copy of the resolution before permitting him to exercise his powers. |
(2) |
A vote given or poll demanded by a corporate representative shall be valid notwithstanding that he is no longer authorised to represent the member unless notice of the termination was delivered in writing to the Company at such place or address and by such time as is specified in article 73 for the receipt of an appointment of proxy. |
APPOINTMENT AND RETIREMENT OF DIRECTORS
Number of directors
77. |
Unless otherwise determined by a majority of the directors the number of directors (disregarding alternate directors) shall not be subject to any maximum but shall not be less than two. |
Procedure for appointment or reappointment at general meeting
78. |
No person other than a director retiring at the meeting shall be appointed or reappointed a director at any general meeting unless: |
(a) |
he is recommended by the directors; or |
(b) |
not less than 14 nor more than 35 days before the date appointed for holding the meeting, notice executed by a member qualified to vote on the appointment or reappointment has been given to the Company of the intention to propose that person for appointment or reappointment, stating the particulars which would, if he were appointed or reappointed, be required to be included in the Company's register of directors, together with notice executed by that person of his willingness to be appointed or reappointed. |
Election of two or more directors
79. |
At a general meeting a motion for the appointment of two or more persons as directors by a single resolution shall not be made, unless a resolution that it shall be so made has first been agreed to by the meeting without any vote being given against it. For the purposes of this article a motion for approving a person's appointment or for nominating a person for appointment shall be treated as a motion for his appointment. |
Power of directors to appoint a director
80. |
The directors may appoint a person who is willing to act as a director, and is permitted by law to do so, to be a director, either to fill a vacancy or as an additional director, provided that the appointment does not cause the number of directors to exceed any number fixed as the maximum number of directors. |
Annual retirement of directors
81. |
The directors shall be divided into three classes: "Class A", "Class B" and "Class C". The number of directors in each class shall be as nearly equal as possible. Upon the adoption of these articles, the existing directors shall by resolution classify themselves as "Class A Directors", "Class B Directors" or "Class C Directors". The Class A Directors shall stand elected for a term expiring at the Company’s first annual general meeting, the Class B Directors shall stand elected for a term expiring at the Company’s second annual general meeting and the Class C Directors shall stand elected for a term expiring at the Company’s third annual general meeting. Commencing at the Company’s first annual general meeting following the adoption of these articles, and at each annual general meeting thereafter, directors elected to succeed those directors whose terms expire shall be elected for a term of office to expire at the third succeeding annual general meeting after their election. Except as the Acts or other applicable law may otherwise require, in the interim between annual general meetings called for the election of directors and/or the removal of one or more directors and the filling of any vacancy in that connection, additional directors and any vacancies in the board of directors, including unfilled vacancies resulting from the removal of directors for cause, may be filled by the vote of a majority of the remaining directors then in office, although less than a quorum (as defined in these articles), or by the sole remaining director. All directors shall hold office until the expiration of their respective terms of office and until their successors shall have been elected and qualified. A director elected to fill a vacancy resulting from the death, resignation or removal of a director shall serve for the remainder of the full term of the director whose death, resignation or removal shall have created such vacancy and until his successor shall have been elected and qualified. |
Filling of vacancy
82. |
If the Company, at the meeting at which a director retires, does not fill the vacancy the retiring director shall, if willing to act, be deemed to have been reappointed unless at the meeting it is resolved not to fill the vacancy or a resolution for the reappointment of the director is put to the meeting and lost. |
Director not reappointed at annual general meeting
83. |
A director who retires at an annual general meeting may be reappointed. If he is not reappointed or deemed to have been reappointed, he shall retain office until the meeting elects someone in his place or, if it does not do so, until the close of the meeting. |
DISQUALIFICATION OF DIRECTORS
Termination of a director's appointment
84. |
A person ceases to be a director as soon as: |
(a) |
that person ceases to be a director by virtue of any provision of the Acts or is prohibited from being a director by law; |
(b) |
a bankruptcy order is made against that person; |
(c) |
a composition is made with that person's creditors generally in satisfaction of that person's debts; |
(d) |
notification is received by the Company from that person that he is resigning or retiring from his office as director, and such resignation or retirement has taken effect in accordance with its terms; |
(e) |
in the case of a director who holds any executive office, his appointment as such is terminated or expires and the directors resolve that he should cease to be a director; |
(f) |
that person is absent without permission of the directors from all meetings of the directors held during a continuous period of six months or more and the directors resolve that he should cease to be a director; or |
(g) |
a notice in writing is served upon him personally, or at his residential address provided to the Company for the purposes of section 165 of the Companies Act 2006, signed by all the other directors stating that he shall cease to be a director with immediate effect (and such notice may consist of several copies each signed by one or more directors, but a notice executed by an alternate director need not also be executed by his appointor and, if it is executed by a director who has appointed an alternate director, it need not also be executed by the alternate director in that capacity). |
ALTERNATE DIRECTORS
Appointment and removal of an alternate director
85. |
Any director (other than an alternate director) may appoint any other director, or any other person approved by resolution of the directors and willing to act and permitted by law to do so, to be an alternate director and may remove an alternate director appointed by him from his appointment as alternate director. |
Rights of an alternate director
86. |
An alternate director shall be entitled to receive notices of meetings of the directors and of committees of the directors of which his appointor is a member, to attend and vote at any such meeting at which the director appointing him is not present, and generally to perform all the functions of his appointor as a director in his absence. An alternate director shall not (unless the Company by ordinary resolution otherwise determines) be entitled to any fees for his services as an alternate director, but shall be entitled to be paid such expenses as might properly have been paid to him if he had been a director. |
Termination of an alternate director's appointment
87. |
An alternate director shall cease to be an alternate director if his appointor ceases to be a director; however, if a director retires, pursuant to these articles or otherwise, but is reappointed or deemed to have been reappointed at the meeting at which he retires, any appointment of an alternate director made by him which was in force immediately prior to his retirement shall continue after his reappointment. |
88. |
An alternate director shall cease to be an alternate director on the occurrence in relation to the alternate director of any event which, if it occurred in relation to his appointor, would result in the termination of the appointor's appointment as a director. |
Method of appointment or removal of an alternate director
89. |
An appointment or removal of an alternate director shall be by notice in writing to the Company signed by the director making or revoking the appointment or in any other manner approved by the directors. |
Other provisions regarding alternate directors
90. |
Save as otherwise provided in these articles, an alternate director shall: |
(a) |
be deemed for all purposes to be a director; |
(b) |
alone be responsible for his own acts and omissions; |
(c) |
in addition to any restrictions which may apply to him personally, be subject to the same restrictions as his appointor; and |
(d) |
not be deemed to be the agent of or for the director appointing him. |
POWERS OF DIRECTORS
General powers of the Company vested in the directors
91. |
(1) |
The purposes of the Company are to promote the success of the Company for the benefit of its members as a whole and, through its business and operations, to have a material positive impact on society and the environment, taken as a whole. |
(2) |
The business of the Company shall be managed by the directors who, subject to the provisions of these articles and to any directions given by special resolution of the Company to take, or refrain from taking, specified action, may exercise all the powers of the Company. No alteration of these articles and no such direction shall invalidate any prior act of the directors which would have been valid if that alteration had not been made or that direction had not been given. The general management powers given by this article shall not be limited by any special authority or power given to the directors by any other article. |
(3) |
In exercising the powers of the Company in a Director shall have regard (amongst other matters) to: |
a) the likely consequences of any decision in the long term;
b) the interests of the Company's employees;
c) the need to foster the Company's business relationships with suppliers, customers and others;
d) the impact of the Company's operations on the community and the environment;
e) the desirability of the Company maintaining a reputation for high standards of business conduct; and
f) the need to act fairly as between members of the Company,
together, the matters referred to above shall be defined for the purposes of this Article as the "Stakeholder Interests".
(4) |
For the purposes of a Director's duty to act in the way he or she considers, in good faith, most likely to promote the success of the Company, a Director shall not be required to regard the benefit of any particular Stakeholder Interest or group of Stakeholder Interests as more important than any other. |
(5) |
Nothing in this Article express or implied, is intended to or shall create or grant any right or any cause of action to, by or for any person (other than the Company). |
(6) |
The Directors of the Company shall for each financial year of the Company prepare a strategic report as if sections 414A(1) and 414C of the Companies Act 2006 force at the date of adoption of these Articles) applies to the Company whether or not they would be required to do so otherwise than by this Article. |
(7) |
Notwithstanding the generality of (2) above, the directors may exercise all the powers of the Company to: (i) borrow money; (ii) mortgage or charge all or any part or parts of its undertaking, property and uncalled capital; and (iii) issue debentures and other securities, whether outright or as collateral security for any debt, liability or obligation of the Company or of any third party. |
Provision for employees on cessation or transfer of business
92. |
The directors may decide to make provision for the benefit of persons employed or formerly employed by the Company or any of its subsidiary undertakings (other than a director or former director or shadow director) in connection with the cessation or transfer to any person of the whole or part of the undertaking of the Company or that subsidiary undertaking. |
Delegation to persons or committees
93. |
(1) |
Subject to the provisions of these articles, the directors may delegate any of the powers which are conferred on them under the articles: |
(a) |
to such person or committee; |
(b) |
by such means (including by power of attorney); |
(c) |
to such an extent; |
(d) |
in relation to such matters or territories; and |
(e) |
on such terms and conditions, |
as they think fit.
(2) |
If the directors so specify, any such delegation may authorise further delegation of the directors' powers by any person to whom they are delegated. |
(3) |
The directors may revoke any delegation in whole or part, or alter its terms and conditions. |
(4) |
The power to delegate under this article includes power to delegate the determination of any fee, remuneration or other benefit which may be paid or provided to any director. |
(5) |
Subject to paragraph (6) of this article, the proceedings of any committee appointed under paragraph (1)(a) of this article with two or more members shall be governed by such of these articles as regulate the proceedings of directors so far as they are capable of applying. |
(6) |
The directors may make rules regulating the proceedings of such committees, which shall prevail over any rules derived from these articles pursuant to paragraph (5) of this article if, and to the extent that, they are not consistent with them. |
(7) |
References to a committee of the directors are to a committee established in accordance with these articles, whether or not comprised wholly of directors. |
DIRECTORS' REMUNERATION, GRATUITIES AND BENEFITS
Directors' remuneration
94. |
(1) |
Until otherwise determined by the Company by ordinary resolution, there shall be paid to the directors (other than alternate directors) such fees for their services in the office of director as the directors may determine, provided that any fees paid to the directors shall not exceed the amounts set out in the then applicable directors' remuneration policy approved by members for the purposes of section 439A of the Companies Act 2006. The fees shall be deemed to accrue from day to day and shall be distinct from and additional to any remuneration or other benefits which may be paid or provided to any director pursuant to any other provision of these articles. |
(2) |
Any director who holds any other office in the Company (including for this purpose the office of chairman or deputy-chairman), or who serves on any committee of the directors, or who performs, or undertakes to perform, services which the directors consider go beyond the ordinary duties of a director may be paid such additional remuneration (whether by way of fixed sum, bonus, commission, participation in profits or otherwise) as the directors may determine. |
95. |
Expenses |
96. |
The directors may also be paid all reasonable expenses properly incurred by them in connection with their attendance at meetings of the directors or of committees of the directors or general meetings or separate meetings of the holders of any class of shares or of debentures of the Company and any reasonable expenses properly incurred by them otherwise in connection with the exercise of their powers and the discharge of their responsibilities in relation to the Company. |
Directors' gratuities and benefits
97. |
The directors may (by the establishment of, or maintenance of, schemes or otherwise) provide benefits, whether by the payment of allowances, gratuities or pensions, or by insurance or death, sickness or disability benefits or otherwise, for any director or any former director of the Company or of any body corporate which is or has been a subsidiary undertaking of the Company or a predecessor in business of the Company or of any such subsidiary undertaking, and for any member of his family (including a spouse or civil partner or a former spouse or former civil partner) or any person who is or was dependent on him and may (before as well as after he ceases to hold such office) contribute to any fund and pay premiums for the purchase or provision of any such benefit. |
Executive directors
98. |
The directors may appoint one or more of their number to the office of managing director or to any other executive office of the Company and any such appointment may be made for such term, at such remuneration and on such other conditions as the directors think fit. |
DIRECTORS' APPOINTMENTS AND INTERESTS
Other interests and offices
99. |
(1) |
Provided that he has disclosed to the directors the nature and extent of any material interest of his, a director notwithstanding his office: |
(a) |
may be a party to, or otherwise interested in, any transaction or arrangement with the Company or in which the Company is otherwise interested; |
(b) |
may be a director or other officer of, or be employed by, or hold any position with, or be a party to any transaction or arrangement with, or otherwise interested in, any body corporate in which the Company is interested. |
(2) |
No transaction or arrangement shall be liable to be avoided on the ground of any interest, office, employment or position within paragraph (1) above and the relevant director: |
(a) |
shall not infringe his duty to avoid a situation in which he has, or can have, a direct or indirect interest that conflicts, or possibly may conflict, with the interests of the Company as a result of any such office, employment or position, or any such transaction or arrangement, or any interest in any such body corporate; |
(b) |
shall not, by reason of his office as a director of the Company be accountable to the Company for any benefit which he derives from any such office, employment or position, or any such transaction or arrangement, or from any interest in any such body corporate; |
(c) |
shall not be required to disclose to the Company, or use in performing his duties as a director of the Company, any confidential information relating to any such office, employment, or position if to make such a disclosure or use would result in a breach of a duty or obligation of confidence owed by him in relation to or in connection with such office, employment or position; and |
(d) |
may absent himself from discussions, whether in meetings of the directors or otherwise, and exclude himself from information, which will or may relate to such office, employment, position, transaction, arrangement or interest. |
(3) |
For the purposes of this article: |
(a) |
a general notice given to the directors that a director is to be regarded as having an interest of the nature and extent specified in the notice in any transaction or arrangement in which a specified person or class of persons is interested shall be deemed to be a disclosure that the director has an interest in any such transaction of the nature and extent so specified; |
(b) |
an interest of which a director has no knowledge and of which it is unreasonable to expect him to have knowledge shall not be treated as an interest of his; |
(c) |
a director shall be deemed to have disclosed the nature and extent of an interest which consists of him being a director, officer or employee of any subsidiary undertaking of the Company; |
(d) |
a director need not disclose an interest if it cannot be reasonably regarded as likely to give rise to a conflict of interest; and |
(e) |
a director need not disclose an interest if, or to the extent that, the other directors are already aware of it (and for this purpose the other directors are treated as aware of anything of which they ought reasonably to be aware). |
100. |
(1) |
The directors may (subject to such terms and conditions, if any, as they may think fit to impose from time to time, and subject always to their right to vary or terminate such authorisation) authorise, to the fullest extent permitted by law: |
(a) |
any matter which would otherwise result in a director infringing his duty to avoid a situation in which he has, or can have, a direct or indirect interest that conflicts, or possibly may conflict, with the interests of the Company and which may reasonably be regarded as likely to give rise to a conflict of interest (including a conflict of interest and duty or conflict of duties); and |
(b) |
a director to accept or continue in any office, employment or position in addition to his office as a director of the Company and, without prejudice to the generality of paragraph (1)(a) of this article, may authorise the manner in which a conflict of interest arising out of such office, employment or position may be dealt with, either before or at the time that such a conflict of interest arises, |
provided that the authorisation is effective only if (i) any requirement as to the quorum at the meeting at which the matter is considered is met without counting the director in question or any other interested director, and (ii) the matter was agreed to without their voting or would have been agreed to if their votes had not been counted.
(2) |
If a matter, or office, employment or position, has been authorised by the directors in accordance with this article then (subject to such terms and conditions, if any, as the directors may think fit to impose from time to time, and subject always to their right to vary or terminate such authorisation or the permissions set out below) no transaction or arrangement relating to any such matter shall be liable to be avoided on the ground of any such matter, or office, employment or position and the relevant director: |
(a) |
shall not infringe his duty to avoid a situation in which he has, or can have, a direct or indirect interest that conflicts, or possibly may conflict, with the interests of the Company as a result of any such matter, or office, employment or position; |
(b) |
shall not, by reason of his office as a director of the Company, be accountable to the Company for any benefit which he derives from any such matter, or from any such office, employment or position; |
(c) |
shall not be required to disclose to the Company, or use in performing his duties as a director of the Company, any confidential information relating to such matter, or such office, employment or position if to make such a disclosure or use would result in a breach of a duty or obligation of confidence owed by him in relation to or in connection with that matter, or that office, employment or position; and |
(d) |
may absent himself from discussions, whether in meetings of the directors or otherwise, and exclude himself from information, which will or may relate to that matter, or that office, employment or position. |
PROCEEDINGS OF DIRECTORS
Procedures regarding board meetings
101. |
(1) |
Subject to the provisions of these articles, the directors may make any rule which they think fit about how they take decisions, and about how such rules are to be recorded or communicated to directors. |
(2) |
A director may, and the secretary at the request of a director shall, call a meeting of the directors. |
(3) |
Notice of a board meeting may be given to a director personally, or by telephone, or sent in hard copy form to him at a postal address notified by him to the Company for this purpose, or sent in electronic form to such electronic address (if any) as may for the time being be notified by him to the Company for that purpose. A director may waive notice of any board meeting and any such waiver may be retrospective. |
(4) |
Questions arising at a meeting shall be decided by a majority of votes. In case of an equality of votes, the chairman shall (unless he is not entitled to vote on the resolution in question) have a second or casting vote. A director who is also an alternate director shall be entitled in the absence of his appointor to a separate vote on behalf of his appointor in addition to his own vote; and an alternate director who is appointed by two or more directors shall be entitled to a separate vote on behalf of each of his appointors in the appointor's absence. |
(5) |
A meeting of the directors may consist of a conference between directors some or all of whom are in different places provided that each director who participates in the meeting is able: |
(a) |
to hear each of the other participating directors addressing the meeting; and |
(b) |
if he so wishes, to address each of the other participating directors simultaneously, |
whether directly, by conference telephone or by any other form of communication equipment (whether in use when this article is adopted or developed subsequently) or by a combination of such methods. A quorum shall be deemed to be present if those conditions are satisfied in respect of at least the number of directors required to form a quorum. A meeting held in this way shall be deemed to take place at the place where the largest group of directors is assembled or, if no such group is readily identifiable, at the place from where the chairman of the meeting participates at the start of the meeting.
Number of directors below minimum
102. |
The continuing directors or a sole continuing director may act notwithstanding any vacancies in their number, but, if the number of directors is less than either the number fixed as the minimum, or the quorum required for a meeting of the directors (or both) the continuing directors or director may act only for the purpose of filling vacancies or of calling a general meeting. |
Election and removal of chairman and deputy chairman
103. |
The directors may elect from their number, and remove, a chairman and a deputy chairman of the board of directors. The chairman, or in his absence the deputy chairman, shall preside at all meetings of the directors, but if there is no chairman or deputy chairman, or if at the meeting neither the chairman nor the deputy chairman is present within ten minutes after the time appointed for the meeting, or if neither of them is willing to act as chairman, the directors present may choose one of their number to be chairman of the meeting. |
Resolutions in writing
104. |
A resolution in writing agreed to by all the directors entitled to receive notice of a meeting of the directors and who would be entitled to vote (and whose vote would have been counted) on the resolution at a meeting of the directors shall (if that number is sufficient to constitute a quorum) be as valid and effectual as if it had been passed at a meeting of the directors, duly convened and held. A resolution in writing is adopted when all such directors have signed one or more copies of it or have otherwise indicated their agreement to it in writing. A resolution agreed to by an alternate director, however, need not also be agreed to by his appointor and, if it is agreed to by a director who has appointed an alternate director, it need not also be agreed to by the alternate director in that capacity. |
Quorum
105. |
No business shall be transacted at any meeting of the directors unless a quorum is present. The quorum may be fixed by the directors. If the quorum is not fixed by the directors, the quorum shall be two. A director shall not be counted in the quorum present in relation to a matter or resolution on which he is not entitled to vote (or when his vote cannot be counted) but shall be counted in the quorum present in relation to all other matters or resolutions considered or voted on at the meeting. An alternate director who is not himself a director shall if his appointor is not present, be counted in the quorum. An alternate director who is himself a director shall only be counted once for the purpose of determining if a quorum is present. |
Permitted interests and voting
106. |
(1) |
Subject to articles 106 (2) and 107, notwithstanding the fact that a proposed decision of the directors concerns or relates to any matter in which a director has, or may have, directly or indirectly, any kind of interest whatsoever, that director may participate in the decision-making process for both quorum and voting purposes. |
(2) |
The directors have the power to authorise a director's conflict of interest under section 175(4) (b) of the Acts. If the directors propose to exercise this power, the director facing the conflict is not to be counted as participating in the decision to authorise the conflict for quorum or voting purposes. |
107. |
Subject to the provisions of the Acts, and provided that (if required to do so by the said Acts) he has declared to the directors the nature and extent of any direct or indirect interest of his, a director, notwithstanding his office: |
(1) |
may be a party to or otherwise interested in, any transaction or arrangement with the Company or in which the Company is otherwise interested; |
(2) |
may be a director or other officer or an employee of, or a party to any transaction or arrangement with, or otherwise interested in, any subsidiary of the Company or body corporate in which the Company is interested; and |
(3) |
is not accountable to the Company for any remuneration or other benefits which he derives from any such office or employment or from any such transaction or arrangement or from any interest in any such body corporate and no transaction or arrangement is liable to be avoided on the ground of any such remuneration, benefit or interest. |
Suspension or relaxation of prohibition on voting
108. |
The Company may by ordinary resolution suspend or relax to any extent, in respect of any particular matter, any provision of these articles prohibiting a director from voting at a meeting of the directors or of a committee of the directors. |
Questions regarding director's rights to vote
109. |
If a question arises at a meeting of the directors as to the right of a director to vote, the question may, before the conclusion of the meeting, be referred to the chairman of the meeting (or, if the director concerned is the chairman, to the other directors at the meeting), and his ruling in relation to any director other than himself (or, as the case may be, the ruling of the majority of the other directors in relation to the chairman) shall be final and conclusive. |
DIVIDENDS
Declaration of dividends by Company
110. |
The Company may by ordinary resolution declare dividends in accordance with the respective rights of the members, but no dividend shall exceed the amount recommended by the directors. |
Payment of interim dividends
111. |
The directors may pay interim dividends if it appears to them that they are justified by the profits of the Company available for distribution. If the share capital is divided into different classes, the directors may pay interim dividends on shares which confer deferred or non-preferred rights with regard to dividend as well as on shares which confer preferential rights with regard to dividend, but no interim dividend shall be paid on shares carrying deferred or non-preferred rights if, at the time of payment, any preferential dividend is in arrear. The directors may also pay at intervals settled by them any dividend payable at a fixed rate if it appears to them that the profits available for distribution justify the payment. If the directors act in good faith they shall not incur any liability to the holders of shares conferring preferred rights for any loss they may suffer by the lawful payment of an interim dividend on any shares having deferred or non-preferred rights. |
Payment according to amount paid up
112. |
Except as otherwise provided by these articles or the rights attached to shares, all dividends shall be declared and paid according to the amounts paid up on the shares on which the dividend is paid. If any share is issued on terms that it ranks for dividend as from a particular date, it shall rank for dividend accordingly. In any other case (and except as aforesaid), dividends shall be apportioned and paid proportionately to the amounts paid up on the shares during any portion or portions of the period in respect of which the dividend is paid. For the purpose of this article, no account is to be taken of any amount which has been paid up on a share in advance of the due date for payment of that amount. |
Non-cash distribution
113. |
The directors may determine when resolving to pay a dividend, and a general meeting declaring a dividend may, upon the recommendation of the directors, direct that it shall be satisfied wholly or partly by the distribution of specific assets and in particular of fully paid shares or debentures of any other company. Where any difficulty arises in regard to the distribution, the directors may settle the same as they think fit and in particular (but without limitation) may: |
(a) |
issue fractional certificates or other fractional entitlements (or ignore fractions) and fix the value for distribution of such specific assets or any part thereof; |
(b) |
determine that cash shall be paid to any member on the basis of the value so fixed in order to adjust the rights of those entitled to participate in the dividend; and |
(c) |
vest any such specific assets in trustees. |
Dividend payment procedure
114. |
(1) |
Any dividend or other money payable relating to a share shall be paid to: |
(a) |
the holder; |
(b) |
if the share is held by more than one holder, all joint holders; or |
(c) |
the person or persons becoming entitled to the share by reason of the death or bankruptcy of a holder or otherwise by operation of law, |
and such person shall be referred to as the "recipient" for the purposes of this article and article 115.
(2) |
Any dividend or other money payable relating to a share shall be paid by such method as the directors decide. Without limiting any other method of payment which the directors may decide upon, the payments may be made, wholly or partly: |
(a) |
by sending a cheque, warrant or any other similar financial instrument to the recipient by post addressed to his registered address or, in the case of joint recipients, by sending such cheque, warrant or any other similar financial instrument to the registered address of whichever of the joint recipients' names appears first on the register of members, or, in the case of persons entitled by operation of law, to any such persons; |
(b) |
by inter-bank transfer or any other electronic form or electronic means to an account (of a type approved by the directors) which is specified in a written instruction from the recipient (or, in the case of joint recipients, all joint recipients); |
(c) |
in respect of shares in uncertificated form, where the Company is authorised to do so by or on behalf of the recipient (or, in the case of joint recipients, all joint recipients) in such manner as the directors may from time to time consider sufficient, by means of a relevant system; |
(d) |
in some other way requested in writing by the recipients (or, in the case of joint recipients, all joint recipients) and agreed by the Company; |
(e) |
in the case of a Depositary, and subject to the approval of the directors, to such persons and postal addresses as the Depositary may direct; or |
(f) |
to such other person as may be set out in a written instruction from the recipient (or, in the case of joint recipients, all joint recipients), in which case payment shall be made in accordance with sub clauses (a) to (d) above, as specified in the written instruction. |
(3) |
In respect of the payment of any dividend or other sum which is a distribution, the directors may decide, and notify recipients, that: |
(a) |
one or more of the means described in paragraph (2) will be used for payment and a recipient may elect to receive the payment by one of the means so notified in the manner prescribed by the directors; |
(b) |
one or more of such means will be used for the payment unless a recipient elects otherwise in the manner prescribed by the directors; or |
(c) |
one or more of such means will be used for the payment and that recipients will not be able to elect otherwise. |
The directors may for this purpose decide that different methods of payment may apply to different recipients or groups of recipients.
(4) |
All cheques, warrants and similar financial instruments are sent, and payment in any other way is made, at the risk of the person who is entitled to the money and the Company will not be responsible for a payment which is lost, rejected or delayed. The Company can rely on a receipt for a dividend or other money paid in relation to a share from any one of the joint recipients on behalf of all of them. The Company is treated as having paid a dividend if the cheque, warrant or similar financial instrument is cleared or if a payment is made using a relevant system or inter-bank transfer or other electronic means. |
(5) |
Subject to the rights attaching to any shares: |
(a) |
any dividends or other monies payable on or in respect of a share may be declared or paid in such currency or currencies and using such exchange rate or such date for determining the value or currency conversions as the directors may determine; and |
(b) |
following agreement with a Depositary, the directors may decide that that Depositary shall receive dividends in a currency other than the currency in which they were declared and can make arrangements accordingly. In particular, if a Depositary has chosen or agreed to receive dividends in another currency, the directors can make arrangements with the Depositary for payment to be made to the Depositary for value on the date on which the relevant dividend is paid, or a later date decided by the directors. |
Right to cease sending payment and unclaimed payments
115. |
(1) |
The Company may cease to send any cheque or warrant, or to use any other method of payment, for any dividend payable in respect of a share if: |
(a) |
in respect of at least two consecutive dividends payable on that share the cheque or warrant has been returned undelivered or remains uncashed, or another method of payment has failed; |
(b) |
in respect of one dividend payable on that share, the cheque or warrant has been returned undelivered or remains uncashed, or another method of payment has failed, and reasonable enquiries have failed to establish any new address or account of the recipient; or |
(c) |
a recipient does not specify an address, or does not specify an account of a type prescribed by the directors, or other details necessary in order to make a payment of a dividend by the means by which the directors have decided in accordance with these articles that a payment is to be made, or by which the recipient has elected to receive payment, and such address or details are necessary in order for the company to make the relevant payment in accordance with such decision or election, |
but, subject to the provisions of these articles, the Company may recommence sending cheques or warrants, or using another method of payment, for dividends payable on that share if the person or persons entitled so request and have supplied in writing a new address or account to be used for that purpose.
(2) |
In cases where the Company makes a payment of a dividend or other sum which is a distribution in accordance with these articles and that payment is rejected or refunded, such sum may be invested or otherwise made use of for the benefit of the Company until the relevant recipient (or, in the case of joint recipients, all joint recipients) nominates a valid address or account to which the payment shall be made. If the Company does this, it will not be a trustee of the money and will not be liable to pay interest on it and any amount credited to an account of the Company is to be treated as having been paid to the relevant recipient (or, in the case of joint recipients, all joint recipients) at the time it is credited to that account. |
No interest on dividends
116. |
No dividend or other money payable in respect of a share shall bear interest against the Company, unless otherwise provided by the rights attached to the share. |
Forfeiture of unclaimed dividends
117. |
(1) |
Any dividend or other money payable in respect of a share which has remained unclaimed for 12 years from the date when it became due for payment shall be forfeited (unless the directors decide otherwise) and shall cease to remain owing by the Company and the Company shall not be obliged to account to, or be liable in any respect to, the recipient or person who would have been entitled to the amount. |
(2) |
If the Company sells the share under Article 39, any dividend or other money payable in respect of the share outstanding at the time of sale shall be forfeited and the Company shall not be obliged to account to, or be liable in any respect to, the recipient or person who would have been entitled to the amount. |
Scrip dividends
118. |
The directors may, with the authority of an ordinary resolution of the Company, offer any holders of ordinary shares the right to elect to receive new ordinary shares, credited as fully paid, instead of cash in respect of the whole (or some part, to be determined by the directors) of any dividend specified by the ordinary resolution. The following provisions shall apply: |
(a) |
The resolution may specify a particular dividend or dividends (whether or not declared), or may specify any, some or all dividends declared or payable within a specified period, but such period must not end later than the end of the third annual general meeting following the date of the meeting at which the ordinary resolution is passed. |
(b) |
The directors may offer such rights of election to holders either: |
(i) |
in respect of the next dividend proposed to be paid; or |
(ii) |
in respect of that dividend and all subsequent dividends, until such time as the election is revoked by the Company or the authority given pursuant to paragraph (a) of this article expires without being renewed (whichever is the earlier). |
(c) |
The entitlement of each holder of shares to new shares of the same class shall be such that the relevant value of the entitlement shall be as nearly as possible equal to (but not greater than) the cash amount (disregarding any tax credit) that such holder would have received by way of dividend. For this purpose "relevant value" shall be the closing price or last sale price of a share if such class of shares is publicly traded or such price as may be determined by the board of directors of the Company in its reasonable good faith judgment. A certificate or report by the auditors as to the amount of the relevant value in respect of any dividend shall be conclusive evidence of that amount. |
(d) |
No fraction of a share shall be allotted and the directors may make such provision for fractional entitlements as they think fit, including provision: |
(i) |
for the whole or part of the benefit of fractional entitlements to be disregarded or to accrue to the Company; or |
(ii) |
for the value of fractional entitlements to be accumulated on behalf of a member (without entitlement to interest) and applied in paying up new shares in connection with a subsequent offer by the Company of the right to receive shares instead of cash in respect of a future dividend. |
(e) |
If the directors resolve to offer a right of election, they shall, after determining the basis of allotment, notify the holders of ordinary shares in writing of the right of election offered to them, and shall send with, or following, such notification, forms of election and specify the procedure to be followed and place at which, and the latest time by which, elections must be received in order to be effective. No notice need be given to a holder who has previously made (and has not revoked) an earlier election to receive new shares in place of all future dividends. |
(f) |
The directors may on any occasion decide that rights of election shall only be made available subject to such exclusions, restrictions or other arrangements as they shall in their absolute discretion deem necessary or desirable in order to comply with legal or practical problems under the laws of, or the requirements of any recognised regulatory body or stock exchange in, any territory. |
(g) |
The dividend (or that part of the dividend in respect of which a right of election has been given) shall not be payable on ordinary shares in respect of which an election has been duly made ("the elected ordinary shares"). Instead, additional ordinary shares shall be allotted to the holders of the elected ordinary shares on the basis of allotment determined as aforesaid. For such purpose the directors shall capitalise out of any amount for the time being standing to the credit of any reserve or fund (including any share premium account or capital redemption reserve) or any of the profits which could otherwise have been applied in paying dividends in cash, as the directors may determine, a sum equal to the aggregate nominal amount of the additional ordinary shares to be allotted on that basis and apply it in paying up in full the appropriate number of ordinary shares for allotment and distribution to the holders of the elected ordinary shares on that basis. |
(h) |
The directors shall not proceed with any election unless the Company has sufficient reserves or funds that may be capitalised to give effect to it after the basis of allotment is determined. |
(i) |
For the purposes of a scrip dividend authorised pursuant to this article only, a resolution of the directors capitalising any profits of the Company not required for paying any preferential dividend (whether or not they are available for distribution) or any sum standing to the credit of any reserve or fund of the Company (including any share premium account, capital redemption reserve, merger reserve or revaluation reserve) shall have the same effect as if such capitalisation had been declared by ordinary resolution of the Company in accordance with article 119 and the directors may, in relation to any such capitalisation, exercise all of the powers conferred on them by article 119. |
(j) |
Unless the directors decide otherwise or the rules of a relevant system require otherwise, any new ordinary shares which a holder has elected to receive instead of cash in respect of some or all of his dividend will be: |
(i) |
shares in uncertificated form if the corresponding elected ordinary shares were uncertificated shares on the record date for that dividend; and |
(ii) |
shares in certificated form if the corresponding elected ordinary shares were shares in certificated form on the record date for that dividend. |
(k) |
The additional ordinary shares when allotted shall rank pari passu in all respects with the fully paid ordinary shares then in issue except that they will not be entitled to participation in the dividend in lieu of which they were allotted. |
(l) |
The directors may do all acts and things which they consider necessary or expedient to give effect to any such capitalisation, and may authorise any person to enter on behalf of all the members interested into an agreement with the Company providing for such capitalisation and incidental matters and any agreement so made shall be binding on all concerned. |
CAPITALISATION OF PROFITS
Capitalisation of profits
119. |
(1) The directors may with the authority of an ordinary resolution of the Company: |
(a) |
subject as provided in this article, resolve to capitalise any profits of the Company not required for paying any preferential dividend (whether or not they are available for distribution) or any sum standing to the credit of any reserve or fund of the Company (including any share premium account, capital redemption reserve, merger reserve or revaluation reserve); |
(b) |
appropriate the sum resolved to be capitalised to the members in proportion to the nominal amounts of the shares (whether or not fully paid) held by them respectively which would (or in the case of treasury shares, which would if such shares were not held as treasury shares) entitle them to participate in a distribution of that sum if the shares were fully paid and the sum were then distributable and were distributed by way of dividend and apply such sum on their behalf either in or towards paying up the amounts, if any, for the time being unpaid on any shares held by them respectively, or in paying up in full shares or debentures of the Company of a nominal amount equal to that sum, and allot such shares or debentures credited as fully paid to those members or as they may direct, in those proportions, or partly in one way and partly in the other, but the share premium account, the capital redemption reserve, and any profits which are not available for distribution may, for the purposes of this article, only be applied in paying up shares to be allotted to members credited as fully paid; |
(c) |
resolve that any shares so allotted to any member in respect of a holding by him of any partly paid shares shall so long as such shares remain partly paid rank for dividend only to the extent that the latter shares rank for dividend; |
(d) |
make such provision by the issue of fractional certificates or other fractional entitlements (or by ignoring fractions) or by payment in cash or otherwise as they think fit in the case of shares or debentures becoming distributable in fractions (including provision whereby the benefit of fractional entitlements accrues to the Company rather than to the members concerned); |
(e) |
authorise any person to enter on behalf of all the members concerned into an agreement with the Company providing for the allotment to them respectively, credited as fully paid, of any further shares to which they are entitled upon such capitalisation, any agreement made under such authority being binding on all such members; and |
(f) |
generally do all acts and things required to give effect to such resolution as aforesaid. |
(2) |
Where, pursuant to an employees' share scheme (within the meaning of section 1166 of the Companies Act 2006) the Company has granted options to subscribe for shares on terms which provide (inter alia) for adjustments to the subscription price payable on the exercise of such options or to the number of shares to be allotted upon such exercise in the event of any increase or reduction in or other reorganisation of the Company's issued share capital and an otherwise appropriate adjustment would result in the subscription price for any share being less than its nominal value, then the directors may, on the exercise of any of the options concerned and payment of the subscription price which would have applied had such adjustment been made, capitalise any such profits or other sum as is mentioned in paragraph (1)(a) above to the extent necessary to pay up the unpaid balance of the nominal value of the shares which fall to be allotted on the exercise of such options and apply such amount in paying up such balance and allot shares fully paid accordingly. The provisions of paragraphs (1)(a) to (f) above shall apply with the necessary alterations to this paragraph (but as if the authority of an ordinary resolution of the Company were not required). |
RECORD DATES FOR PAYMENTS and issue
Company or directors may fix record dates for payments and issue
120. |
Notwithstanding any other provision of these articles, but without prejudice to the rights attached to any shares, the Company or the directors may fix a date and time as the record date by reference to which persons registered as holders of shares or other securities shall be entitled to receipt of any dividend, distribution, allotment or issue, and that date may be before, on or after the date on which the dividend, distribution, allotment or issue is declared, paid or made, and where such a record date is fixed, references in these articles to a holder of shares or member to whom a dividend is to be paid or a distribution, allotment or issue is to be made shall be construed accordingly; |
NOTICES AND OTHER COMMUNICATIONS
Requirements for writing
121. |
Any notice to be given to or by any person pursuant to these articles shall be in writing other than a notice calling a meeting of the directors which need not be in writing. |
Methods of sending or supplying
122. |
(1) |
Any notice, document or information may (without prejudice to articles 126 and 127) be sent or supplied by the Company to any member: |
(a) |
by hand, that is by any person (including a courier or process server) handing it to the member or leaving it at the member's registered address; |
(b) |
by sending it by post in a prepaid envelope addressed to the member at his registered address address; |
(c) |
by sending it in electronic form to a person who has agreed (generally or specifically) that the notice, document or information may be sent or supplied in that form (and has not revoked that agreement); |
(d) |
by making it available on a website, provided that the requirements in paragraph (2) of this article and the provisions of the Acts are satisfied; |
(e) |
through a relevant system; or |
(f) |
in some other way authorised in writing by the relevant member. |
(2) |
The requirements referred to in paragraph (1)(d) of this article are that: |
(a) |
the member has agreed (generally or specifically) that the notice, document or information may be sent or supplied to him by being made available on a website (and has not revoked that agreement), or the member has been asked by the Company to agree that the Company may send or supply notices, documents and information generally, or the notice, document or information in question, to him by making it available on a website and the Company has not received a response within the period of 28 days beginning on the date on which the Company's request was sent and the member is therefore taken to have so agreed (and has not revoked that agreement); |
(b) |
the member is sent a notification of the presence of the notice, document or information on a website, the address of that website, the place on that website where it may be accessed, and how it may be accessed ("notification of availability"); |
(c) |
in the case of a notice of meeting, the notification of availability states that it concerns a notice of a company meeting, specifies the place, time and date of the meeting, and states whether it will be an annual general meeting; and |
(d) |
the notice, document or information continues to be published on that website, in the case of a notice of meeting, throughout the period beginning with the date of the notification of availability and ending with the conclusion of the meeting and in all other cases throughout the period specified by any applicable provision of the Acts, or, if no such period is specified, throughout the period of 28 days beginning with the date on which the notification of availability is sent to the member, save that if the notice, document or information is made available for part only of that period then failure to make it available throughout that period shall be disregarded where such failure is wholly attributable to circumstances which it would not be reasonable to have expected the Company to prevent or avoid. |
(3) |
In the case of joint holders: |
(a) |
it shall be sufficient for all notices, documents and other information to be sent or supplied to the joint holder whose name stands first in the register of members in respect of the joint holding only; and |
(b) |
the agreement of the joint holder whose name stands first in the register of members in respect of the joint holding that notices, documents and information may be sent or supplied in electronic form or by being made available on a website shall be binding on all the joint holders. |
(4) |
In the case of a member registered on a branch register, any notice, document or other information can be posted or despatched or in the country where the branch register is kept. |
(5) |
For the avoidance of doubt, the provisions of this article are subject to article 42. |
(6) |
The Company may at any time and at its sole discretion choose to send or supply notices, documents and information only in hard copy form to some or all members. |
Deemed receipt of notice
123. |
A member present either in person or by proxy at any meeting of the Company or of the holders of any class of shares shall be deemed to have received notice of the meeting and, where requisite, of the purposes for which it was called. |
Company or directors may fix record dates for notices
124. |
(1) |
The Company or the directors may fix a date and time as the record date by reference to which persons registered as holders of shares or other securities shall be entitled to receive any notice or other document to be given to members and no change in the register after that time shall invalidate the giving of the notice or document, provided that in the case of a notice of general meeting or the annual accounts and reports of the Company, such record date shall be not more than sixty (60) days before the day the notice or document is sent. |
(2) |
Every person who becomes entitled to a share shall be bound by any notice in respect of that share which, before his name is entered in the register of members, has been given to the person from whom he derives his title. |
Notice when post not available
125. |
Where, by reason of any suspension or curtailment of postal services, the Company is unable effectively to give notice of a general meeting, or meeting of the holders of any class of shares, the board may decide that the only persons to whom notice of the affected general meeting must be sent are: the directors; the Company's auditors; those members to whom notice to convene the general meeting can validly be sent by electronic means and those members to whom notification as to the availability of the notice of meeting on a website can validly be sent by electronic means. In any such case the Company shall also: |
(a) |
advertise the general meeting in at least two national daily newspapers published in the United States; and |
(b) |
send or supply a confirmatory copy of the notice to members in the same manner as it sends or supplies notices under article 123 if at least seven clear days before the meeting the posting of notices again becomes practicable. |
Other notices and communications advertised in national newspaper
126. |
Any notice, document or information to be sent or supplied by the Company to the members or any of them, not being a notice of a general meeting, shall be sufficiently sent or supplied if sent or supplied by advertisement in at least one national daily newspaper published in the United States. |
When notice or other communication deemed to have been received
127. |
Any notice, document or information sent or supplied by the Company to the members or any of them: |
(a) |
by hand, shall be deemed to have been received on the day it was handed to the member or left at the member's registered address; |
(b) |
by post, shall be deemed to have been received 24 hours after the time at which the envelope containing the notice, document or information was posted unless it was sent by second class post, or there is only one class of post, or it was sent by air mail to an address outside the United States, in which case it shall be deemed to have been received 48 hours after it was posted, and proof that the envelope was properly addressed, prepaid and posted shall be conclusive evidence that the notice, document or information was sent; |
(c) |
by electronic means, shall be deemed to have been received 24 hours after it was sent. Proof that a notice, document or information in electronic form was addressed to the electronic address provided by the member for the purpose of receiving communications from the Company shall be conclusive evidence that the notice, document or information was sent; |
(d) |
by making it available on a website, shall be deemed to have been received on the date on which notification of availability on the website is deemed to have been received in accordance with this article or, if later, the date on which it is first made available on the website; |
(e) |
by means of a relevant system, shall be deemed to have been received 24 hours after the Company or any sponsoring system-participant acting on the Company's behalf, sends the issuer-instruction relating to the notice, document or information; |
(f) |
by any other means specified in a written authorisation from the relevant member, shall be deemed to have been received when the Company has done what it was authorised to do by that member; and |
(g) |
by advertisement, shall be deemed to have been received on the day on which the advertisement appears. |
Communications sent or supplied to persons entitled by transmission
128. |
(1) |
If a person who claims to be entitled to a share in consequence of the death or bankruptcy of a holder or otherwise by operation of law supplies to the Company: |
(a) |
such evidence as the directors may reasonably require to show his title to the share; and |
(b) |
an address at which notices, documents or information may be sent or supplied to such person, |
then such a person shall be entitled to have sent or supplied to him at such address any notice, document or information to which the relevant holder would have been entitled if the death or bankruptcy or any other event giving rise to an entitlement to the share by law had not occurred.
(2) |
Until a person entitled to the share has complied with article 128(1), any notice, document or information may be sent or supplied to the relevant holder in any manner authorised by these articles, as if the death or bankruptcy or any other event giving rise to an entitlement to the share by law had not occurred. This shall apply whether or not the Company has notice of the death or bankruptcy or other event. |
Power to stop sending communications to untraced members
129. |
If on three consecutive occasions notices, documents or information sent or supplied to a member have been returned undelivered, the member shall not be entitled to receive any subsequent notice, document or information until he has supplied to the Company (or its agent) a new registered address, or shall have informed the Company, in such manner as may be specified by the Company, of an electronic address. For the purposes of this article, references to notices, documents or information include references to a cheque or other instrument of payment; but nothing in this article shall entitle the Company to cease sending any cheque or other instrument of payment for any dividend, unless it is otherwise so entitled under these articles. |
Validation of documents in electronic form
130. |
Where a document is required under these articles to be signed by a member or any other person, if the document is in electronic form, then in order to be valid the document must: |
(a) |
incorporate the electronic signature, or personal identification details (which may be details previously allocated by the Company), of that member or other person, in such form as the directors may approve; or |
(b) |
be accompanied by such other evidence as the directors may require in order to be satisfied that the document is genuine. |
The Company may designate mechanisms for validating any such document and a document not validated by the use of any such mechanisms shall be deemed as having not been received by the Company. In the case of any document or information relating to a meeting, an instrument of proxy or invitation to appoint a proxy, any validation requirements shall be specified in the relevant notice of meeting in accordance with articles 43 and 72.
BRANCH REGISTERS
Overseas branch registers
131. |
The Company, or the directors on behalf of the Company, may cause to be kept in any territory an overseas branch register of members resident in such territory, and the directors may make, and vary, such arrangements as they may think fit in relation to the keeping of any such register. |
ADMINISTRATION
Making and retention of minutes
132. |
The directors shall cause minutes to be made, in books kept for the purpose of: |
(a) |
all appointments of officers made by the directors; and |
(b) |
all proceedings at meetings of the Company, of the holders of any class of shares in the Company, and of the directors, and of committees of the directors, including the names of the directors present at each such meeting. |
Minutes shall be retained for at least ten years from the date of the appointment or meeting and shall be kept available for inspection in accordance with the Acts.
Inspection of accounts
133. |
Except as provided by statute or by order of the court or authorised by the directors or an ordinary resolution of the Company, no person is entitled to inspect any of the Company's accounting or other records or documents merely by virtue of being a member. |
Appointment of secretary
134. |
The secretary shall be appointed by the directors for such term, at such remuneration and upon such other conditions as they think fit; and any secretary so appointed may be removed by them. |
Use of the seal
135. |
The seal shall be used only by the authority of a resolution of the directors or of a committee of the directors. The directors may determine whether any instrument to which the seal is affixed shall be signed and, if it is to be signed, who shall sign it. Unless otherwise determined by the directors: |
(a) |
share certificates and, subject to the provisions of any instrument constituting the same, certificates issued under the seal in respect of any debentures or other securities, need not be signed and any signature may be applied to any such certificate by any mechanical or other means or may be printed on it; |
(b) |
every other instrument to which the seal is affixed shall be signed by |
(i) |
two directors of the Company; |
(ii) |
one director and the secretary of the Company; or |
(iii) |
at least one authorised person in the presence of a witness who attests the signature. |
For this purpose an authorised person is any director of the Company or the secretary of the Company, or any person authorised by the directors for the purpose of signing instruments to which the seal is affixed.
Official seal for use abroad
136. |
The Company may have an official seal for use in accordance with the Acts. Such a seal shall be used only by the authority of a resolution of the directors or of a committee of the directors. |
Destruction of documents
137. |
(1) |
The Company may destroy: |
(a) |
any instrument of transfer, after six years from the date on which it is registered; |
(b) |
any dividend mandate or notification of change of name or address, after two years from the date on which it is recorded; |
(c) |
any share certificate, after one year from the date on which it is cancelled; and |
(d) |
any other document on the basis of which an entry in the register of members is made, after six years from the date on which it is made. |
(2) |
Any document referred to in paragraph (1) of this article may be destroyed earlier than the relevant date authorised by that paragraph, provided that a copy of the document (whether made electronically, by microfilm, by digital imaging or by any other means) has been made which is not destroyed before that date. |
(3) |
It shall be conclusively presumed in favour of the Company that every entry in the register of members purporting to have been made on the basis of a document destroyed in accordance with this article was duly and properly made, that every instrument of transfer so destroyed was duly registered, that every share certificate so destroyed was duly cancelled, and that every other document so destroyed was valid and effective in accordance with the particulars in the records of the Company, provided that: |
(a) |
this article shall apply only to the destruction of a document in good faith and without notice of any claim (regardless of the parties to it) to which the document might be relevant; |
(b) |
nothing in this article shall be construed as imposing upon the Company any liability in respect of the destruction of any such document otherwise than in accordance with this article which would not attach to the Company in the absence of this article; and |
(c) |
references in this article to the destruction of any document include references to the disposal of it in any manner. |
Change of name
138. |
The Company may change its name by resolution of the directors. |
WINDING UP
Winding up
139. |
If the Company is wound up, the liquidator may, with the sanction of a special resolution and any other sanction required by law, divide among the members in specie the whole or any part of the assets of the Company and may, for that purpose, value any assets and determine how the division shall be carried out as between the members or different classes of members. The liquidator may, with the like sanction, vest the whole or any part of the assets in trustees upon such trusts for the benefit of the members as he may with the like sanction determine, but no member shall be compelled to accept any assets upon which there is a liability. |
INDEMNITY
Power to indemnify directors
140. |
(1) |
Subject to paragraph (2) of this article, the Company: |
(a) |
may indemnify to any extent any person who is or was a director, or a director of any associated company, directly or indirectly (including by funding any expenditure incurred or to be incurred by him) against any loss or liability, whether in connection with any proven or alleged negligence, default, breach of duty or breach of trust by him or otherwise, in relation to the Company or any associated company; |
(b) |
may indemnify to any extent any person who is or was a director of an associated company that is a trustee of an occupational pension scheme, directly or indirectly (including by funding any expenditure incurred or to be incurred by him) against any liability incurred by him in connection with the company's activities as trustee of an occupational pension scheme; and |
(c) |
may purchase and maintain insurance for any person who is or was a director, or a director of any associated company, against any loss or liability or any expenditure he may incur, whether in connection with any proven or alleged negligence, default, breach of duty or breach of trust by him or otherwise, in relation to the Company or any associated company, |
and for this purpose an associated company means any body corporate which is or was a subsidiary undertaking of the Company or in which the Company or any subsidiary undertaking of the Company is or was interested.
(2) |
This article does not authorise any indemnity which would be prohibited or rendered void by any provision of the Acts or by any other provision of law. |
Depositary interests other than dtc
141. |
(1) |
The directors shall, subject always to applicable law and the provisions of these articles, have power to implement or approve (or both) any arrangements which they may, in their absolute discretion, think fit in relation to (without limitation) the evidencing of title to and transfer of Depositary Interests or similar interests in shares. |
(2) |
The directors may from time to time take such actions and do such things as they may, in their absolute discretion, think fit in relation to the operation of any such arrangements under paragraph (1) above including, without limitation, treating Depositary Interest Holders as if they were holders directly of the shares or interests in shares represented thereby for the purposes of compliance with any obligations imposed under these articles on members. |
(3) |
If and to the extent that the directors implement or approve (or both) any arrangements in relation to the evidencing of title to and transfer of Depositary Interests or similar interests in shares in accordance with paragraphs (1) and (2) above, the directors shall ensure that such arrangements provide (in so far as is practicable): |
(a) |
a Depositary Interest Holder with the same or equivalent rights as a member of the Company including, without limitation, in relation to the exercise of voting rights and provision of information; and |
(b) |
the Company and the directors with the same or equivalent powers as given under these articles in respect of a member of the Company, including, without limitation, the powers of the board of directors under article 42 so that such power may be exercised against a Depositary Interest Holder and the shares or interest in shares represented by such Depositary Interest or similar interest. |
(4) |
The provisions of paragraphs (1) to (3) shall not apply to any Depositary Interests held in a settlement system operated by DTC. |
43
Exhibit 99.2
VivoPower International PLC
International solar power company that develops, owns and operates solar projects in a capital efficient manner.
Provides critical energy infrastructure solutions to commercial and industrial customers throughout Australia.
Partners with long-term investors, suppliers and developers to accelerate growth.
Nasdaq: VVPR
|
Contents
The Reports |
Page |
Highlights |
1 |
Chairman’s Statement |
2 |
Chief Executive’s Review |
4 |
Strategic Report |
7 |
Directors’ Report |
18 |
Corporate Governance |
24 |
Directors’ Remuneration Report |
27 |
Independent Auditor’s Report to the Members of VivoPower International PLC |
34 |
|
|
Group Financial Statements and Notes |
|
Consolidated Statement of Comprehensive Income |
38 |
Consolidated Statement of Financial Position |
39 |
Consolidated Statement of Cash Flow |
40 |
Consolidated Statement of Changes in Equity |
41 |
Notes to the Financial Statements |
42 |
|
|
Parent Company Financial Statements and Notes |
|
Company Statement of Financial Position |
70 |
Company Statement of Cash Flow |
71 |
Company Statement of Changes in Equity |
72 |
Notes to the Company Financial Statements |
73 |
|
|
Other Information |
|
Company Information |
76 |
Highlights
Accomplishments |
✓ | Top-tier US solar developer with 1.8GW in development | ||
✓ | 941 MW of projects progressed to advanced and construction stage | ||
✓ | Transition to new management team | ||
✓ | $3.4 million annual reduction in overhead run-rate | ||
✓ | Outperformance of Aevitas unit in Australia | ||
✓ | Strategic review initiated on 1.8 GW US solar portfolio | ||
✓ | Achieved full certification as a B Corporation | ||
(USD in thousands, except per share data) |
2018 |
2017 * | ||||||
Revenue |
33,647 | 32,250 | ||||||
Gross profit |
5,123 | 27,273 | ||||||
Operating (loss)/profit |
(7,595 | ) | 17,027 | |||||
Adjusted EBITDA** |
(3,201 | ) | 18,643 | |||||
Basic earnings per share |
(2.06 | ) | 0.81 | |||||
Diluted earnings per share |
(2.06 | ) | 0.81 |
* Comparative results are for the 14-month period ended 31 March 2017.
** Adjusted EBITDA is a non-IFRS financial measure. We define Adjusted EBITDA as earnings before interest, taxes, depreciation and amortisation, impairment of assets, impairment of goodwill, and one-off non-recurring costs, including restructuring expenses, non-recurring remuneration and consulting fees. We believe that Adjusted EBITDA and Adjusted earnings per share provides investors and other users of our financial information consistency and comparability with our past financial performance, facilitates period-to-period comparisons of operations and facilitates comparisons with our peer companies, many of which use a similar non-IFRS or generally accepted accounting principles in the United States (“GAAP”) financial measure to supplement their IFRS or GAAP results, as applicable.
Chairman’s Statement
The fiscal year ended 31 March 2018 has proven to be a difficult one for VivoPower International PLC (“VivoPower” or the “Company”), due to a combination of external and internal factors. The key developments during FY2018 were as follows:
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Consummated a joint venture with Innovative Solar Systems (ISS) for a qualified pipeline of solar projects totalling 1.8GW (DC) which made VivoPower one of the top-tier solar developers in the United States; |
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Consummated an Alliance Agreement with ReNu Energy Limited in Australia for the sale of solar assets below 5MW in size in Australia and closing the first deal under this agreement, being the sale of Amaroo School solar; |
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Change of senior leadership team, with the termination of Dr. Philip Comberg in October 2017, with Carl Weatherly White (formerly CFO) replacing him as CEO and the appointment of Art Russell as CFO in November 2017; |
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Initiation of legal action against former CEO, Dr Philip Comberg seeking US$27m of damages incurred during his period of leadership, following the discovery of a range of issues; |
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Failure to achieve FY2018 financial budget due to external and internal factors and despite a strong above budget performance from Aevitas Group Limited (“Aevitas”), the Australian power services subsidiary of VivoPower; and |
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Appointment of Cohn Resnick as corporate adviser to undertake a strategic review in December 2017, following various approaches in relation to the 1.8GW ISS portfolio. |
The key external factor that adversely affected VivoPower in FY2018 was President Donald Trump’s proposed introduction of tariffs on imported solar panels into the US. This was first flagged by Trump in early May 2017 but a recommendation was not made until late November 2017 and not sanctioned until January 2018. This effectively put a halt on the utility scale solar development industry in the United States for the FY2018 year as it created too much uncertainty and also triggered a sharp short-term increase in solar panel prices, hence increased development costs.
VivoPower made the difficult decision to focus on the long term and sacrifice short term financial budget targets, as rushing to develop in FY2018 would have adversely impacted project profitability whereas waiting for solar panel prices to resume their decline would yield greater profitability per project in the medium to long run. There is precedent for this occurring in the past, with President Obama’s solar panel tariffs of 2014 creating a similar short-term spike in solar panel prices. This lasted for less than 12 months and solar panel prices resumed their long-term decline shortly thereafter and the solar development industry flourished. We are already seeing the decline in solar panel prices resuming, aided by the recent announcement by China to stop subsidies for the domestic Chinese solar market. This is widely expected to see a glut of panels that will be released on to the market driving prices significantly lower over the next 12 – 24 months.
The key internal factor that had an adverse impact on VivoPower was leadership issues, that necessitated a change in CEO be made in October 2017. The Company’s new leadership team has had to spend a lot of time since then fixing a range of resultant operational issues across finance, accounting, IT, pipeline development and human resources, which has somewhat diluted the ability to focus on business development and growth opportunities. In addition, the Company has had to incur write-downs totalling $26 million due to legacy issues.
Reflecting back over the last 18 months since VivoPower was listed on NASDAQ, it does look like the company has experienced highs and lows that most companies would go through over a 10 to 20 year period. Following on from a profitable scaling up in FY2017, the last 12 months has necessitated a strategic pivot due to Trump policies, a change of leadership and a “clearing of the decks” with respect to non-core geographies, non-core assets as well as general overhead reduction, resulting in restructuring and impairment charges and an overall financial loss.
Chairman’s Statement (continued)
VivoPower’s primary focus for the year ahead is to crystallise value from the 1.8GW US portfolio, which has attracted significant interest from a range of parties. The range of potential outcomes include co-development financing to outright portfolio sale. At the time of writing this, we have a range of qualified groups in due diligence. Furthermore, there will be a heightened focus on ensuring Aevitas fully realises the strong growth potential it has as a result of the New South Wales infrastructure boom as well as the solar boom in Australia. Aevitas has an all-time record forward order book of US$15 million, including a range of solar related opportunities.
Last but not least, it was pleasing that VivoPower was able to secure B Corporation status in May 2018. In order to achieve this, VivoPower had to pass a strict and detailed assessment of its governance processes, systems and people.
On behalf of the rest of the Board of Directors, I would like to take this opportunity to thank all of the VivoPower team, our partners, financiers, customers, suppliers and shareholders for their support and engagement during the period. Rest assured, the VivoPower team and board is committed to overcoming challenges and realizing value across the business units.
Kevin Chin
Chairman
18 July 2018
Chief Executive’s Review
Over the past 12 months, the global solar power generation industry has continued its evolution, and now delivers the lowest cost of power in most global markets. Fueled by manufacturing efficiencies, technological innovation, and significant capital inflows, solar power has become accepted as a reliable, low-cost source of power by the world’s largest and most sophisticated utilities and industrial users of electricity. With the advent of commercially viable battery storage in the very near future, the adoption of solar power will continue to dominate new sources of power generation. According to Bloomberg New Energy Finance, over 6,000 GW of solar PV will be built globally through 2050 – almost half of all new electricity generation capacity in that period.
These powerful trends do not mean that increased deployment of solar power generation will be smooth. Solar power is disruptive to the business models of well capitalised incumbents, who have significant investments in potentially uneconomic assets. Some of these market participants are resistant to the changes posed by increased adoption of solar power. Political and regulatory support lags industry requirements, and in certain instances has created setbacks. In the context of the U.S. market, this includes the Section 201 solar tariff that was introduced by the Trump administration in January. In addition, the expectation for lower power prices has created a significant decline in the price at which new solar projects can sell power under long term contracts. Whether bilateral discussions or responding to open request for proposals, the market for selling power is highly competitive. Developers must focus on building the lowest cost projects to be successful.
In the face of these challenges, we strongly believe that opportunities to profit from the continued deployment of solar power offers unparalleled opportunities for companies that embrace resilience, tenacity and adaptability. With these attributes in mind, VivoPower has made a number of significant changes this year, both from a strategic and operational perspective.
Over the last six months, VivoPower has executed a strategic shift to prioritise solar development in the United States and Australia and to cease initiatives in Latin America, Europe and Asia. Importantly, the Company has determined that our previous strategy of acquiring developed solar projects from third-party developers for the sale to long term owners (the “build, transfer, operate” or “BTO” model) was no longer appropriate due to market changes as a result of the Trump tariff cuts and increasing competition for solar projects in the advanced stage of development. As a result, we have decided to focus resources on identified development opportunities, where we can progress projects to an advanced stage, with a view to capturing a greater share of development profit.
Chief Executive’s Review (continued)
We also successfully transitioned our senior management and formed a lean and cohesive team that is focused on operational execution and delivery in the context of our new sharpened strategy. We developed key objectives, with precise and measurable priorities, and are determined to execute against our plan.
There are several key outcomes of our strategy that warrant highlighting below:
• |
Streamlined focus on two key geographies for solar development: |
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USA: finance and deliver on the first projects from our development joint venture with Innovative Solar Systems (“ISS Joint Venture”); |
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Australia: drive revenue growth and margin expansion; capture opportunities in the booming solar power and battery storage market; |
• |
Eliminated $3.4 million in annualized recurring overhead costs through rationalisation of resources and exiting non-productive regional markets; |
• |
Realised non-core investments to release capital: |
– |
$11.6 million sale of non-strategic minority interests in North Carolina projects; and |
– |
$2.0 million in project sales in Australia |
The sale of our non-controlling minority interests in two North Carolina projects, were executed at a 12.7x EBITDA multiple. This sale also allowed us to eliminate $0.6 million in annual overhead related to managing the projects. We incurred a non-cash charge in the carrying value of the assets, reflecting heightened uncertainty in the projected future value of the sale of electricity in the wholesale North Carolina market after the current power sale contracts expire in 2027. Predicting the future value of wholesale power so far in the future is difficult, and results in a wide range of possible asset values for asset-in-use valuations. It also reflects changes in the interest rate environment.
We also restructured our solar development team in Australia, with a change of leadership there also and the introduction of a more disciplined approach to development pipeline origination and qualification. This restructure however has resulted in a one-time impairment charge of $10.5 million as a result of a review of the historical development pipeline.
We have made strong progress during the year across our development portfolio in the United States, which has been conducted in a joint venture with our early stage development partner Innovative Solar Systems since April 2017. All of the projects have achieved significant development milestones and over half of the projects are now considered advanced stage. Depending on the outcome of several near term PPA discussions with potential counterparties, we are looking forward to beginning construction on projects later this year. Our development portfolio has also attracted significant inbound interest from potential development financing partners as well as from groups seeking to purchase all or part of the portfolio. This is in part due to the increasing pools of capital entering the solar development and asset ownership space – we are seeing new players enter the market each month. As a result, we engaged Cohn Resnick to run a strategic review process in relation to the portfolio so as to ascertain how we could best maximise value for shareholders. This is a priority focus for the VivoPower team in FY2019.
The other key priority is ensuring that Aevitas, our power services business in Australia that provides critical energy infrastructure solutions fully capitalizes on the NSW infrastructure boom in Australia as well as the solar installation boom. This involves continuing to drive growth in solar electrical services and commencing solar EPC (engineering, procurement and construction) work and introducing battery storage solutions.
We have also delivered on several qualitative achievements as part of our commitment to corporate social responsibility. We are proud that we have achieved B Corporation status. This achievement was the result of teamwork across the globe and is a strong testament to our culture and focus on achieving sustainable business practices. We have also delivered on our commitment to environmental responsibility, as evidenced by our project to re-deploy surplus equipment and lightly damaged solar panels, that would otherwise be bound for landfill, to offset 100% of the electricity costs for 100 low-income homeowners in South Carolina, USA.
Chief Executive’s Review (continued)
To reorganize a business is not a simple task and is disruptive to our team and clients. We have had to aggressively re-architect our cost structure, and our team has made sacrifices and has demonstrated discipline and focus – for that I am grateful. Moving into fiscal 2019, I am confident that we can deliver on our operational and financial goals, anchored in our two strong markets. I would like to thank the team for their commitment to our priorities.
Carl Weatherley-White
Chief Executive Officer
18 July 2018
Strategic Report
Principal Activities
VivoPower is an international solar power producer and energy storage company that develops, owns and operates photovoltaic (PV) solar projects in a capital efficient manner. VivoPower partners with long-term investors, suppliers and developers to accelerate the growth of its portfolio of solar projects. In addition, the Company provides critical energy infrastructure solutions to commercial and industrial customers throughout Australia through our power services business. VivoPower pursues business in two operating segments: (i) solar development activities focused on opportunities in the United States and Australia; and, (ii) power services via our wholly-owned subsidiary, Aevitas Group Limited, in Australia.
Solar Development – United States and Australia
We believe that a unique market opportunity exists in solar development as a result of three powerful trends: (i) an accelerating demand for solar power generation by energy users, fueled by continued declines in the Levelised Cost of Energy (“LCOE”), as well as the increasing Corporate Social Responsibility (“CSR”) requirements; (ii) continued reduction in the cost of developing, designing and constructing solar electrical generation facilities as well as commercial viability of new technologies such as battery storage; and, (iii) increased availability and reduced cost of institutional and corporate capital for solar projects.
Successful solar development requires an experienced team that can manage many work streams on a parallel path, from initially identifying attractive locations to completing on time and budget. This process involves achieving key milestones such as site control, permitting, interconnection and transmission, design and engineering, power marketing, equipment procurement and financing. We have the ability to identify attractive projects and the capacity to create value by controlling development and construction to ensure that projects are not only built on time and on budget but are also able to generate attractive returns to institutional investors.
Since long-term investors typically value projects on the basis of long term rates of return (IRR), the development profit that may be created by a developer is the difference between the cost to develop projects and the fair market value of such projects. We believe that successful project development results in a significantly lower cost basis than buying projects that are already developed.
With this approach, we believe that we can achieve attractive risk-adjusted returns in the current market, and we target a multiple of invested capital (“MOIC”) of approximately 1.75x - 2.00x. To achieve this return, we focus on managing capital in a disciplined manner during the early development stages and monetizing projects with lower cost capital once projects achieve an advanced stage.
Strategic Report (continued)
Solar Development - Key Milestones
Early Stage
Early stage development is primarily focused on securing site control, data collection, community engagement, preliminary permitting, and offtake analysis. We consider site control to be achieved once we have obtained purchase or lease options, easements or other written rights of access to the land necessary for the construction and operation of the solar project. This stage requires very little capital deployment, and we seek to have a broad set of development projects that have different characteristics to minimise project concentration risks.
Mid-Stage
During the mid-stage development period, we pursue the following stringent set of development criteria:
• |
Transmission Interconnection Study. Identification of a point of interconnection to the transmission or distribution system, obtained a queue position with the relevant electric system operator and commenced or completed a system impact study (or equivalent). A system impact study and its approval by the relevant transmission or distribution system operator is a prerequisite to the design and construction of the facilities that will interconnect the solar project with the transmission or distribution system. |
• |
Solar Insolation Estimate (PVsyst). Obtained a PVsyst solar report, the solar industry standard software report, which gathers solar insolation information and incorporates the characteristics and design of the proposed solar project to create an expected energy output for the project. |
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Environmental Impact Study and Permitting. Completion of an environmental impact study (or equivalent) as a prerequisite to obtaining the key permits necessary for the construction and operation of our project. Depending on the size and location of the project, we generally initiate the studies needed for an environmental impact study approximately 18 months prior to the anticipated construction start date and receive the material permits shortly before financing close and start of construction. To consider this milestone completed, we will have either finished an environmental impact study or received the material permits for the construction and operation of our solar project. |
Advanced Stage
Once achieving mid-stage development criteria, a project is considered to be at an advanced stage, which indicates a high degree of confidence for successful completion. The most important goal of this stage is to obtain a revenue contract to sell power to a credit worthy counterparty, usually through a Power Purchase Agreement (PPA), which supports third-party financing. Long-term PPAs range from 10-25 years with creditworthy off takers, typically obtained by responding to requests for proposals or conducting bilateral negotiations with utility, commercial, industrial, municipal, or financial enterprises. In certain markets with liquid electricity trading, it is possible to enter into financial hedges to support a minimum price of power sold into such markets.
Strategic Report (continued)
Construction Stage
After achieving advanced stage criteria, the definitive contracts between the project company, financing parties and the engineering, procurement, and construction (“EPC”) firm who will build the project may be executed, and the construction phase of the project may commence. During this stage, and once the definitive agreements have been executed, the construction of the project is carried out, so that the project can be commissioned and interconnected to the grid, achieving its commercial operations date (“COD”) under the PPA.
Operations Stage
Once achieving COD, the operational stage begins, and the project generates electricity and sells power. During this phase, VivoPower may provide ongoing services encompassing operations, maintenance and optimisation of these solar plants pursuant to long-term contracts. In addition, if a minority equity stake is retained, VivoPower may realise revenues from the sale of power.
Solar Development - Capital Planning
From a capital perspective, each phase of development requires a different level of capital commitment, which we manage carefully to minimise our risks and to maximise our returns, as follows:
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Early stage development generally requires deployment of capital in an amount up to 2% of the eventual cost of building the project, and is typically funded by VivoPower’s corporate working capital; |
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Advanced stage development, which can be partly funded by co-development capital partners of VivoPower, generally requires deployment of capital in an amount up to 10% of the eventual cost of building the project; |
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Construction Stage development requires funding for 100% of the cost of building the project, which funding may be arranged and/or obtained by VivoPower from a variety of capital sources, including construction loans, tax equity investments, as well as construction equity investments, in an amount that depends on debt capacity of the project among other factors; and, |
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The Operations Stage requires no additional funding, although the construction stage financing may be refinanced with lower cost and longer-term debt, depending on market conditions. |
Solar Development - United States
During the year ended 31 March 2017, the Company developed its first two major solar projects, both located in North Carolina, United States, known as NC-31 and NC-47 (together the “NC Projects”). VivoPower acquired 100% of these projects in mid-2016 and completed the development and construction of both projects by May 2017. Pursuant to our capital management strategy, we sold a majority stake in the projects to a third-party investor during the construction stage and completed a 100% sale to the investor subsequent to March 31, 2018.
In April 2017, we re-invested the development profit related to the NC Projects in the acquisition of a 50% interest in the ISS Joint Venture with an early-stage solar development company, Innovative Solar Systems, LLC, for a diversified portfolio of 38 utility-scale solar projects in 9 different states, representing a total electricity generating capacity of approximately 1.8 gigawatts DC. Under the terms of the ISS Joint Venture, when each of the 38 projects achieve advanced stage, the Company has a right of first offer to purchase the project from the joint venture at a fixed price. VivoPower anticipates that this joint venture will provide the opportunity to generate significant revenues and profits for several years as the individual projects in the portfolio mature.
Strategic Report (continued)
Over the last year, we completed many important development milestones, and the majority of the projects have reached an advanced stage. On June 12, 2018, we announce the first project to have reached construction stage, a 28 MW project in South Carolina. We expect the majority of projects to reach construction stage during FY 2019.
The following chart sets forth our solar projects in development and indicates the key development criteria that have been met.
US Solar Portfolio Development Milestones
Solar Development - Australia
In addition to the U.S. solar assets, VivoPower has developed and acquired a diverse portfolio of operating solar projects in Australia totaling 2,738 kilowatts across 81 sites in every Australian state and the Australian Capital Territory. VivoPower’s Australia projects are fully-contracted with high-quality commercial, municipal and non-profit customers under long-term power purchase agreements.
In May 2017, we entered into an alliance agreement with ReNu Energy Limited (ASX: RNE) of Australia, pursuant to which ReNu Energy has a right of first offer to acquire solar projects originated by VivoPower in Australia below 5 megawatts in size, in addition to which ReNu Energy will pay an annual alliance fee and up-front origination fees to us.
In February 2018, we completed the sale of the 600-kilowatt Amaroo Solar PV Project, the largest rooftop solar project in the Australian Capital Territory, to ReNu Energy for a total purchase price of $1.9 million. In December 2017, we announced a signed term sheet for the sale of an additional portfolio of five solar PV projects totaling approximately 340 kilowatts for a total purchase price of approximately $0.4 million.
VivoPower continues to opportunistically pursue attractive monetisation opportunities for its operating Australian assets, through both third-party sales as well as potential alternative methods, such as asset securitisation.
Strategic Report (continued)
Importantly, we continue to develop and finance new solar projects throughout Australia, both individually and with experienced partners. In January 2018, VivoPower, in partnership with leading Australian solar installer Autonomous Energy, was appointed as a preferred supplier for solar power purchase agreements for the New South Wales state and local government, enabling government councils and other organisations to acquire solar goods and services from VivoPower. In February 2018, VivoPower signed a term sheet for the development of a portfolio of utility-scale solar projects in New South Wales, to total 50 megawatts or more, with an established Australian engineering partner. VivoPower is involved in discussions with numerous large corporate and municipal electricity off takers throughout Australia for the development of medium-to-large scale behind-the-meter and utility-scale solar PV projects to help those customers meet their renewable energy procurement goals. In many cases, VivoPower is working with Aevitas for the design, engineering and construction of these new solar PV projects. Our relationship with Aevitas positions us favourably against competing solar developers in Australia who must contract with independent EPC firms for the construction of their solar projects.
Power Services
Through our wholly-owned Australian subsidiary, Aevitas Group Limited (“Aevitas”), we provide critical energy infrastructure generation and distribution solutions including the design, supply, installation and maintenance of power and control systems, with an increasing focus on solar, renewable energy, and energy efficiency. Aevitas has a large and diverse customer base in excess of 650 active commercial and industrial customers and is considered a trusted power adviser. Aevitas is located in the Hunter Valley and Newcastle region, which is the most densely populated industrial belt in Australia, and which has amongst the most expensive power prices in the country.
Aevitas was formed in 2013 through the acquisitions of J.A. Martin Pty Limited (“J.A. Martin”) and Kenshaw Electrical Pty Limited (“Kenshaw”) and was acquired by VivoPower in December 2016. Structural and cyclical factors have created a strong operating environment for Aevitas, particularly the strong growth in infrastructure investing and a recovery in the mining sector. VivoPower is seeing the benefits of the acquisition of Aevitas in terms of leveraging its longstanding relationships with an extensive base of commercial and industrial customers to originate behind-the-meter solar projects and convert these opportunities into development revenues.
The Australian solar generation market is demonstrating a strong growth profile; SERA Analytics predicts that investment in large-scale solar will increase to $2.0 billion in 2018. In addition, there is significant growth of behind the meter ground mount and roof-top solar installations as commercial, industrial and government entities respond to concerns about energy security and costs by embracing cheaper solar power solutions. Aevitas has recently completed the provision of electrical installation and services for two new solar farms (4.8 megawatts and 9.7 megawatts). It is now Clean Energy Council (CEC) approved to be able to complete the entire EPC process, not just the electrical component, and is very well positioned competitively to leverage the strong growth outlook for Australian solar.
A key market for Aevitas is the data centre sector and we are benefiting from this growth through our long-term relationship with one of Australia’s leading data centre companies, Canberra Data Centre (CDC). Kenshaw has been engaged by CDC since 2012 to install and maintain generators, a capability that we are leveraging with other data centres.
While maintaining and growing its core competency in power generation, Aevitas is working to extend its strategy to include battery storage solutions. Battery storage is rapidly becoming commercially viable and will shortly become a standard feature in both solar and other commercial applications.
Industry Overview
From an industry perspective, solar power is the world’s largest potential energy source and is the fastest-growing form of renewable energy. Between 2003 and 2017, cumulative installed solar capacity increased at an average annual growth rate of 43%, according to the International Energy Agency (“IEA”) [2018 Snapshot of Global Photovoltaic Markets] and the European Photovoltaic Industry Association (“EPIA”) [Global Market Outlook for Photovoltaics 2014-2018]. Yet, solar energy’s contribution to global energy generation remains insignificant, contributing less than 2% globally, even as panel costs have dropped more than 92% over the same period, according to BNEF [Q12018 Global PV Market Outlook].
Strategic Report (continued)
As noted above, battery storage is rapidly becoming commercially viable and will shortly become a standard feature of our solar projects. VivoPower has incorporated battery storage options in many of our solar projects and as the cost curve continues to decline, this technology will become more prevalent. We believe that battery storage will help lower grid-wide peaks, smooth intraday variations and accelerate the reduction of fossil-fueled generation and replace it with cleaner emission-free renewable energy.
Our Current Markets
United States
The U.S. utility-scale electric fleet generated 4,014,804 thousand megawatt hours (“MWh”) of electricity in 2017 according to IEA data. Approximately 30.1% of this was generated from coal-fired power stations, with gas-fired power stations contributing approximately 31.7% of generation. FERC data for utility-scale generation plants of 1 megawatt or greater capacity shows that the U.S. had 1,186 gigawatts of installed generating capacity at the end of November 2017. Of this installed capacity, solar represented just 2.5%. However, FERC data shows that solar is the fastest growing utility-scale generation type, with the installed base of utility scale-solar plants of 1 megawatt or greater expanding at a compound average annual growth rate of 60% from 2010 to 2017.
U.S. Policy Initiatives to Encourage Solar
The U.S. has in place many incentives to encourage installation of renewable energy. The principal federal incentives as they relate to solar include:
• |
Federal Investment Tax Credit (“ITC”): The ITC confers a tax credit of 30% of the eligible solar energy property basis at the time the solar generating facility is placed in service for tax purposes. The 30% ITC rate reduces in 2020 to 26%, 22% for 2021 and 10% for 2022 and years thereafter. |
• |
Modified Accelerated Cost Recovery System Depreciation (“MACRS”): MACRS allow an acceleration of eligible expenditure on solar energy property basis over a period of five years, notwithstanding that the economic life of a solar PV generation facility may be well over twenty-five years. |
The principal state based solar incentives include:
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Renewable Portfolio Standards (“RPS”): RPS are state based programs typically mandating electricity providers to produce or purchase a minimum level of renewable energy as part of their electricity sales mix. A total of 29 states and the District of Columbia presently have binding RPS in place. |
Strategic Report (continued)
• |
A feature of many state based RPS programs is the use of Renewable Energy Credits (“RECs”) to provide a price signal to incentivise solar capacity installation. RECs enable an electricity provider who has insufficient renewable generation to meet their RPS obligation by buying credits. |
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Feed-in-Tariffs (“FIT”): Currently 6 states have FITs in place. Feed in tariffs typically apply to DG solar facilities connected to the distribution grid. They allow a solar facility owner to sell excess electricity produced back to the distribution grid. Solar FIT rates can vary depending on the time of day. |
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Net Metering: Net metering typically applies to DG solar facilities connected to the distribution grid. Net Metering allows a customer to net surplus production from their solar systems against their consumption of electricity from the grid. |
Australia
Australia possesses some of the highest solar insolation in the world. According to the Australian Department of Industry, Innovation and Science, solar PV has been the most rapidly expanding renewable energy source in the country over the last ten years, growing by 59% per year on average. However, this was from a low base and solar remains a relatively small contributor to Australia’s energy mix. According to BNEF, in 2016 about 10.1 terawatt-hours of electricity was generated from solar PV technologies representing only 4.2% of Australia’s total electricity generation; Australia is still highly reliant on heavily polluting coal generation, contributing 154 terawatt-hours or 63% of total electricity generation in 2016 [BNEF Australia County Profile].
According to BNEF, Australia installed 1.2 gigawatts of solar PV in 2017 and reached a cumulative installed capacity of 7.1 gigawatts, the vast majority of which has historically come in the form of small-scale residential and commercial roof-top systems. BNEF projects solar capacity additions in 2018 and 2019 of 1.2 gigawatts and 2.7 gigawatts, respectively [BENF 2018 Australia Energy Market Outlook]. Unlike in the past, a significant proportion of this growth is expected to come from large, utility-scale solar PV installations, with 3.6 gigawatts of utility-scale capacity expected to be added between 2018 and 2019 compared to 2.4 gigawatts of small-scale projects over the same period.
Financial Results
During the year ended 31 March 2018, the Company and its subsidiaries (the “Group”) generated statutory revenue of $33.6 million, gross profit of $5.1 million, operating loss of $7.6 million, and net loss of $27.9 million. For the year ended 31 March 2017, the Group generated revenue of $32.3 million, gross profit of $27.2 million, operating profit of $17.3 million and net profit of $5.6 million.
Adjusted EBITDA for the year ended 31 March 2018 was a loss of $3.2 million, compared to a profit of $18.6 million in the previous period. Adjusted EBITDA is a non-IFRS financial measure. We define Adjusted EBITDA as earnings before interest, taxes, depreciation and amortisation, impairment of assets, impairment of goodwill, and one-off non-recurring costs, including restructuring expenses, non-recurring remuneration and consulting fees.
The results of operations for the year ended 31 March 2018 were significantly influenced by a change in the mix of operations. In the prior year ended 31 March 2017, our operations were dominated by the completion of the Group’s first solar project, NC-31, and near completion of a second project, NC-47, both located in North Carolina, United States (together, the “NC Projects”). These NC Projects contributed $24.6 million to revenue and gross profit in fiscal year 2017. In addition, a $1.6 million preferred supplier agreement was recognised in revenue and gross profit during that year. Aevitas Group Limited (“Aevitas”) had been acquired only three months prior to 31 March 2017, and accordingly contributed a lesser amount of $5.6 million to revenue and $0.7 million to gross profit.
This is in contrast to the current year ended 31 March 2018, wherein $0.8 million was contributed to revenue and gross profit from the completion of the NC Projects and a full year of operation of Aevitas contributed $31.8 million of revenue and $4.3 million of gross profit. None of the 38 solar projects in the ISS Joint Venture achieved a construction stage of development during the year and accordingly did not contribute to profitability in the year ended 31 March 2018.
Strategic Report (continued)
The results of operations for the year ended 31 March 2018, reflect higher general and administrative costs, which included $2.4 million annualized effect of the Aevitas and VivoPower Australia acquisitions in the prior year (only three months of operations were included in the year ended 31 March 2017) and $3.1 million non-recurring remuneration costs and consulting fees. As a result of the strategic restructuring of our business, a number of employees and contractors were transitioned from the business and accordingly $1.5 million of remuneration expense in the year ended 31 March 2018 will be non-recurring. In addition, Arowana International Limited, VivoPower’s ultimate controlling party, re-charged $1.6 million of third-party consulting fees to the Company related to our solar development business. These services included international solar procurement consulting, project evaluations, engineering review and technical validation related to the EPC contract for NC-31, a solar project in North Carolina which was substantially completed on 27 March 2017. These costs by their nature were one-time and are not expected to recur in the future.
The results of operations for the year ended 31 March 2018, also reflects $1.9 million of one-time restructuring costs required to re-align our solar development activities to focus on successful delivery of existing U.S. and Australian investments and legal fees related to the restructuring, as further described in note 7 to the financial statements.
The impairment of assets relates to the sale, subsequent to the year-end, of the Company’s 14.5% and 10.0% equity interests, respectively, in the NC-31 and NC-47 projects, the $11.4 million balance of which has been reflected as assets held for sale within current assets at March 31, 2018, as further described in note 8 to the financial statements. This non-cash charge in the carrying value of the assets, reflecting uncertainty in the projected future value of the sale of electricity in the wholesale North Carolina market after the current power sale contracts expire in 2027. Predicting the future value of wholesale power so far in the future is difficult, and results in a wide range of possible asset values for asset-in-use valuations. It also reflects changes in the interest rate environment.
The impairment of goodwill relates to goodwill acquired in the acquisition of VivoPower Australia as part of the Business Combination ($10.5 million) and the first-time consolidation of three Philippine-based controlled entities ($0.6 million), all as further discussed in note 13 to the financial statements.
Management analyses our business in three reportable segments: Solar Development, Power Services, and Corporate Office. Solar Development is the development, construction, financing and operation of solar power generating plants. Power Services is represented by Aevitas operating in Australia and its focus on the design, supply, installation and maintenance of power and control systems. Corporate Office is the Company’s corporate functions, including costs to maintain Nasdaq public company listing, comply with applicable reporting requirements of the U.S. Securities and Exchange Commission (“SEC”), and related investor relations and is located in the United Kingdom. The following are the results of operations for the years ended 31 March by reportable segment:
2018 (US dollars in thousands) |
Solar Development |
Power Services |
Corporate Office |
Total |
||||||||||||
Revenue |
1,840 | 31,807 | - | 33,647 | ||||||||||||
Costs of sales |
(1,042 |
) |
(27,482 |
) |
- | (28,524 |
) |
|||||||||
Gross profit |
798 | 4,325 | - | 5,123 | ||||||||||||
General and administrative expenses |
(6,468 |
) |
(2,173 |
) |
(4,173 |
) |
(12,814 |
) |
||||||||
Gain on sale of assets |
1,143 | 213 | - | 1,356 | ||||||||||||
Depreciation and amortisation |
(19 |
) |
(1,233 |
) |
(8 |
) |
(1,260 |
) |
||||||||
Operating (loss)/profit |
(4,546 |
) |
1,132 | (4,181 |
) |
(7,595 |
) |
|||||||||
Restructuring costs |
(964 |
) |
(335 |
) |
(574 |
) |
(1,873 |
) |
||||||||
Impairment of assets |
(10,191 |
) |
- | - | (10,191 |
) |
||||||||||
Impairment of goodwill |
(11,092 |
) |
- | - | (11,092 |
) |
||||||||||
Transaction costs |
- | - | - | - | ||||||||||||
Finance expense – net |
(400 |
) |
(1,283 |
) |
(1,703 |
) |
(3,386 |
) |
||||||||
(Loss)/profit before taxation |
(27,193 |
) |
(486 |
) |
(6,458 |
) |
(34,137 |
) |
||||||||
Income tax expense |
6,291 | (85 |
) |
52 | 6,258 | |||||||||||
(Loss)/profit for the year |
(20,902 |
) |
(571 |
) |
(6,406 |
) |
(27,879 |
) |
Strategic Report (continued)
2017 (US dollars in thousands) |
Solar Development |
Power Services |
Corporate Office |
Total |
||||||||||||
Revenue |
26,636 | 5,614 | - | 32,250 | ||||||||||||
Costs of sales |
(29 |
) |
(4,948 |
) |
- | (4,977 |
) |
|||||||||
Gross profit |
26,607 | 666 | - | 27,273 | ||||||||||||
General and administrative expenses |
(4,544 |
) |
(598 |
) |
(4,453 |
) |
(9,595 |
) |
||||||||
Gain on sale of assets |
- | - | - | - | ||||||||||||
Depreciation and amortisation |
(4 |
) |
(646 |
) |
(1 |
) |
(651 |
) |
||||||||
Operating profit |
22,059 | (578 |
) |
(4,454 |
) |
17,027 | ||||||||||
Restructuring costs |
- | - | - | - | ||||||||||||
Impairment of assets |
- | - | - | - | ||||||||||||
Impairment of goodwill |
- | - | - | - | ||||||||||||
Transaction costs |
- | - | (5,800 |
) |
(5,800 |
) |
||||||||||
Finance expense - net |
(174 |
) |
(363 |
) |
(52 |
) |
(589 |
) |
||||||||
Profit/(loss) before taxation |
21,885 | (941 |
) |
(10,306 |
) |
10,638 | ||||||||||
Income tax expense |
(6,078 |
) |
294 | 446 | (5,338 |
) |
||||||||||
Profit/(loss) for the year |
15,807 | (647 |
) |
(9,860 |
) |
5,300 |
While overall revenue rose $1.4 million year-over-year from 2017 to 2018, the revenue in the current year was largely generated from a full twelve months of operation within the Power Services segment (Aevitas), which had a lower gross profit margin of 13.6% (2017: 11.9%) than Solar Development activities.
As discussed above, general and administrative expenses were higher by $2.4 million due to the annualized effect of the Aeviias and VivoPower Australia acquisition in the prior year (only three months of expense in the prior year) and $3.1 million of non-recurring remuneration costs and consulting fees.
Amortisation expense was higher in the Power Services business year-over-year due to a full year amortisation of intangible assets acquired as part of the Aevitas and VivoPower Australia acquisitions on 29 December 2016.
A gain on the sale of solar assets arose in the current year in the Australian business as the Amaroo solar project was sold to ReNu Energy under the terms of the Alliance Agreement and, as noted above and discussed in more detail below, while our results of operations were negatively impacted by a $1.9 million of one-time restructuring costs, $10.2 million impairment of assets and $11.1 million impairment of goodwill.
Financing costs increased year-over-year predominately due to the full year impact of the convertible loan notes and preferred share financing in Power Services (Aevitas) and the $19.0 million Arowana related party loan advanced in the prior year. In addition, $0.4 million of borrowing costs was incurred in the current year related to a $2.0 million short-term loan (“DEPCOM Loan”) provided by SolarTide, LLC, an affiliate of DEPCOM Power, an engineering, procurement, and construction firm that was involved in the development of the NC Projects.
As of 31 March 2018, the Group had net assets of $37.0 (2017: $64.6) million, with intangible assets, including goodwill of $36.4 (2017: $46.3) million and investments of $14.1 (2017: $18.1) million.
As of 31 March 2018, the Group’s current assets were $21.3 (2017: $30.8) million, which was comprised of $1.9 (2017: $11.0) million of cash and cash equivalents, $7.9 (2017: $19.8) million of trade and other receivables, and $11.4 (2017: nil) million of assets held for sale related to the NC Projects. Current liabilities were $20.6 (2017: $12.2) million, which resulted in a current asset-to-liability ratio of 1.03:1 (2017: 2.53:1) at year-end.
Cash used for the year was $9.0 (2017: cash generated $11.0) million, arising from cash generated by operating activities of $8.9 (2017: $6.3) million, cash used in investing activities of $16.6 (2017: $26.7) million, and cash used in financing activities of $1.3 (2017: cash generated $31.4) million. At 31 March 2018, the Group had cash reserves of $1.9 (2017: $11.0) million and debt of $22.3 (2017: $20.3) million, giving a net debt position of $20.4 (2017: $9.3) million.
Strategic Report (continued)
Investing activities in the current year were comprised of a $14.1 million investment in the ISS Joint Venture, $3.6 million investment in the NC Projects, purchase of $0.6 million of operating assets in Power Services (Aevitas) businesses, $0.6 million investment in a solar project in Australia, offset by $2.3 million proceeds on sale of assets, principally the sale of the Amaroo solar project. Of the total $14.1 million investment in the ISS Joint Venture, only $12.8 million was funded during the year ended March 31, 2018, with the remaining $1.3 million commitment recorded as a current liability in trade and other payables.
Financing activities included finance lease borrowings of $0.3 million, net of repayments, on motor vehicle assets in Power Services (Aevitas) businesses, $2.0 million proceeds of the DEPCOM Loan, and a $0.8 million short-term loan from Arowana, offset by finance expense of $3.4 million and repayment of bank loan on the sale of the Amaroo solar project.
Principal Risks and Uncertainties
VivoPower is exposed to a number of risks and uncertainties which could have a material impact on the Group’s long-term performance and could cause actual results to differ materially from historical and expected results.
Market risk
The Group’s financial performance is tied very closely to the business activity within both the renewable energy and the investment management sectors. Capital and project availability are identified as being key market risks.
Operational risk
VivoPower operates within local, and national, laws and regulations which from time to time may change.
Competitive risk
Having the ability to pay developers down-payments to secure pipeline is advantageous, but there is competition from parties pursuing similar transactions. VivoPower expects greater competition from other parties entering the sector with this capability.
People risk
Attraction and retention of key staff is essential to the continued success of the business. The Board recognises that the future success of the Group will depend to a substantial extent not only on the ability and experience of its senior management, but also on individuals and teams that support the projects. Staff are remunerated appropriately and employees are encouraged to develop their skills.
International risk
As the Group operates internationally, it is subject to the tax laws and regulations of several countries. In addition, conducting business on different continents presents logistical and management challenges whether related to local standards, business cultures or compliance. The Group takes careful steps to comply with all applicable tax and other laws, rules and regulations.
Financial risk
It is the Group’s policy to manage identifiable financial risks. The Group operates internationally and so has exposure to movements in exchange rates, in particular between the US Dollar, GB Pound and Australian Dollar. The Group ensures that it holds sufficient cash amounts to meet all working capital requirements.
For further discussion on financial risk refer to note 28 to the financial statements.
Employees
People are central to our business and the contribution of talented and motivated employees is vital to the continued success of the Group. The Group has a policy of keeping employees informed of, and engaged in, its business strategy through regular briefings and team meetings. Employee involvement at all levels is encouraged.
It is a policy of the Group to recruit, develop and promote people on merit and to treat everyone equally regardless of their race, ethnic origin or nationality, age, gender, sexual orientation, disability, religion or belief.
Strategic Report (continued)
The Group gives every consideration to applications for employment from disabled persons where the requirements of the position may be adequately covered by the abilities of the applicant concerned. In the event of members of staff becoming disabled, ways are examined to ensure that their employment with the Group continues and that the appropriate training is arranged. It is the policy of the Group to ensure that the training, career development and promotion of disabled employees should, as far as possible, be the same as that of other employees.
The table shows, as per required quoted company regulations, the number of staff of each sex employed at the Company and their level of seniority.
Female |
Male |
Total |
||||||||||
Directors |
1 | 4 | 5 | |||||||||
Senior Manager |
5 | 21 | 26 | |||||||||
Employees |
16 | 143 | 159 | |||||||||
Total |
22 | 168 | 190 |
The Environment
The Group recognises the importance of environmental responsibility and believes that its direct activities have a positive impact on the environment as the Company facilitates greater use of renewable energy. Surplus equipment and lightly damaged solar panels used in projects, that would otherwise be bound for landfill, are being used to complete smaller projects to offset 100% of the electricity costs for 100 low-income homeowners in South Carolina, USA.
Communities
VivoPower has maintained an active program of community involvement and philanthropy, including programs with low income homeowners, military veterans, church organisations and schools. During the building of the 91 MW in North Carolina, VivoPower contributed funds to rebuild a local church and towards relief related to a major hurricane. Approximately 50% of our construction workers were military veterans, and we worked with the University of North Carolina (Pembroke) to assist job training and student tours.
In addition, we created an initiative for a low-income community solar farm, comprising 2 MW located on 10 acres of distressed urban brown field in Spartanburg, South Carolina. The project will use slightly damaged modules from our projects, along with donations from other solar projects in the region. These modules otherwise would have been sent to local landfills, but instead will produce solar power to feed into the utility grid. Electricity revenues will be used to make the project self-sustaining on an ongoing basis, and to offset 100% of the electricity needs for 100 very low-income homeowners through our partnership with Habitat for Humanity. This program was accepted into the 18-month US Department of Energy Sunshot program for low income solar.
The Strategic Report comprising pages 7 to 17 was approved by the Board and signed on its behalf by:
Kevin Chin
Chairman
18 July 2018
Directors’ Report
The Directors are pleased to present their report and the audited financial statements of VivoPower International PLC (“the Company”) and its subsidiary undertakings (together “the Group”) for the year ended 31 March 2018.
Directors
The Directors who held office during the period and up until the date of this report:
|
Appointed |
Resigned |
Non-executive Directors |
|
|
Kevin Chin |
27 April 2016 |
|
Gary Hui |
21 December 2016 |
|
Edward Hyams |
02 November 2016 |
|
Peter Sermol |
21 December 2016 |
|
Shimi Shah |
28 December 2017 |
|
|
|
|
Executive Directors |
|
|
Phillip Comberg, CEO |
01 May 2016 |
04 October 2017 |
Carl Weatherley-White, CEO |
04 October 2017 |
28 December 2017 |
Pursuant to Articles of the Company, the Directors are divided into three classes, as nearly equal in number as possible and designated as Class A, Class B and Class C. The initial term of Class A Director, Gary Hui, expired at the Company’s first annual general meeting in September 2017; he was re-elected for a further three-year term. The initial term of Class B Directors, consisting of Peter Sermol and Edward Hyams, will expire at the 2018 annual general meeting; and the initial term of the Class C Directors, consisting of Kevin Chin and Shimi Shah, will expire at the 2019 annual general meeting. At each annual general meeting thereafter, successors to the class of Directors whose term expires at that annual general meeting are elected for a term to expire at the third annual meeting following such election.
Accordingly, Peter Sermol and Edward Hyams retire by rotation of Class B Directors at the next Annual General Meeting; both have offered themselves for re-election to a further three-year term. Peter and Edward’s biographies are set out below. They both have a Non-Executive Directors Appointment Letter as described in the Director’s Remuneration Report on page 29. A resolution to reappoint Peter Sermol and Edward Hyams will be proposed at the forthcoming Annual General Meeting.
The Company maintains insurance cover for all Directors and officers of Group companies against liabilities which may be incurred by them while acting as Directors or officers of Group companies.
Details of Directors’ total remuneration are contained in the Directors’ Remuneration Report on page 29.
Details of the current Board of Directors and their relevant experience is provided below.
Kevin Chin
Kevin has extensive experience in “hands on” strategic and operational management having served as CEO, CFO and COO of various companies across a range of industries, including solar energy, software, traffic management, education, funds management and vocational education. He also has significant international experience in private equity, buyouts of public companies, mergers and acquisitions and capital raisings as well as funds management, accounting, litigation support and valuations.
Kevin is the founder of Arowana & Co. (Arowana), a diversified investment group with operations across Australia, New Zealand and Southeast Asia. Arowana has listed companies on the Australian Stock Exchange and NASDAQ as well as unlisted companies. Arowana International Limited, listed on the Australian Stock Exchange is the largest shareholder in VivoPower. Kevin is primarily responsible for delivering annualised returns in excess of 30% to investors across Arowana’s investments since its formation in 2007.
Directors’ Report (continued)
Over his twenty-five year career, Kevin has held a number of strategic and operational leadership roles and was also previously with Lowy Family Group, J.P. Morgan, Ord Minnett, PwC and Deloitte. Kevin holds a Bachelor of Commerce degree from the University of New South Wales where he was one of the inaugural University Co-Op Scholars with the School of Banking and Finance. He is also a qualified Chartered Accountant and a Fellow of FINSIA, where he was a lecturer in the Masters of Applied Finance programme.
Gary Hui
Gary has over twenty years of investment experience in the Asia Pacific region. He currently serves as the Chief Investment Officer for Arowana International Limited and the Arowana Australasian Value Opportunities Fund Limited.
Prior to this, he was with Indus Capital, a hedge fund founded by former Soros Fund Management Partners, where he was Managing Director and Chief Representative of Indus’ Singapore office. Prior to becoming a principal investor, Gary was an investment banker at J.P. Morgan in Australia and Hong Kong, where he advised clients across a broad range of industries.
Gary qualified as a Chartered Accountant and completed the Securities Institute of Australia (now FINSIA) program where he placed first nationally in Mergers & Acquisitions. He holds a Bachelor of Commerce degree from the University of New South Wales.
Edward Hyams
Edward has over forty years of experience in Power Engineering, Renewables and in Energy Efficiency as an Executive, Private Equity Partner and as a Non-Executive Director.
As a Partner at Englefield Capital, he co-led the Renewable Energy Fund, investing in Solar, Wind and Biomass developments in Europe. He joined Englefield having led the management team which Englefield and another PE firm backed to invest in Zephyr, the first structured financing of a portfolio of renewables assets in the UK.
Prior to Englefield, Edward held senior executive roles as CEO of BizzEnergy, Managing Director of Eastern Group PLC and Director of Engineering at Southern Electric Plc. Edward was a non-executive Director of the UK Energy Saving Trust following the electricity and gas privatisations in the early 1990’s. He re-joined the Trust as Non-Executive Chairman in 2005.
Edward is a Chartered Engineer, graduating with a degree in Electrical Engineering from Imperial College, London and holds a Diploma in Accounting and Finance from the Association of Certified Chartered Accountants. He has completed executive programs in finance at Harvard Business School and in strategy and organisation at Stanford.
Peter Sermol
Peter has over thirty years of experience in institutional finance. Peter is the co-founder of North Star Solar Ltd, a company focused on installing UK rooftop solar PV and battery storage which developed a model to install renewable technologies with energy savings repaying capex.
Prior to this, with his proven track record in trading distressed debt, Peter ran the Toronto office of Amstel Securities, a Dutch regulated brokerage firm for eight years. During this period Peter expanded the office to focus on uncovering and seeding uncorrelated investment opportunities. Taking a sector agnostic view, investments ranged from Latin American NPL’s, financing Canadian property developers, Australian non-conforming loans, US viatical life insurance policies, US non-prime auto loans. During this period, he also served as CEO of an online media distribution company.
Previously, Peter worked with specialist brokerage and advisory firms including Anca Capital Partners and Amstel as well as co-founding his own brokerage firm, Global Markets Ltd trading Asian Convertible Bonds and GDRs. Peter studied marine electronics at the Merchant Naval College, Greenhithe.
Directors’ Report (continued)
Shimi Shah
Shimi has been actively involved in investing and venture capital for over 20 years. Shimi is the Chairperson of Carousel Solutions, a technology and business advisory group, focusing on assisting companies navigate expansion into and out of the Middle East and Europe, build diversified businesses, appoint boards, and provide efficient technology solutions to mitigate security risk and increase productivity.
Shimi is also an active independent director and advisory board member. She is a board director of Bboxx, a $25 million revenue distributed energy business, chairs the leading kid’s club design company called Worldwide Kids Club, is part of the advisory committee for the Green Gateway Fund, a $250 million clean technology and sustainability fund and is on the advisory board of the North East Fund, a $200 million regional development fund. She also sits on the board of the Pay It Forward Foundation based in the US.
Prior to this, she was CEO at FORSA LLC, Managing Partner at Partnerships UK (PUK), Chief Investment Officer at Hanson Capital, and has worked at 3i and Citigroup. Shimi holds Masters in Management from Queens’ College Cambridge and Bachelor of Science degree from King’s College, London, in Management and Economics. She is an active member of the Young President’s Organisation (YPO) in Europe and Africa.
Legal Proceedings
From time to time, the Company is subject to legal proceedings and claims in the ordinary course of business. Although we believe that the outcome of any such matters will not have a material adverse effect on our business, such outcomes are not ascertainable in advance and litigation can have an adverse impact on us because of defense and settlement costs, diversion of management resources, damages or penalties and other factors.
On 26 February 2018, Philip Comberg, former Chief Executive Officer and former director of VivoPower, filed a claim in the High Court of Justice Queen’s Bench Division in the United Kingdom against VivoPower and a subsidiary, VivoPower International Services Limited (“VISL”). Subsequently, filed claim particulars stated that the claim is for declarations in respect of payments alleged to be due to Mr. Comberg, damages, restitution in relation to services allegedly rendered by Mr. Comberg, interest and costs. In particular, Mr. Comberg claims VISL committed a repudiatory breach of Mr. Comberg’s service agreement with VISL in connection with the termination of Mr. Comberg’s employment, and claims as damages amounts including £615,600 in unpaid amounts allegedly relating to the notice period under the service agreement, £540,000 relating to shares of stock in PLC that Mr. Comberg alleges were not delivered to him but were due, and, inter alia, amounts relating to bonuses alleged to be due, fees relating to services Mr. Comberg claims he provided, as well as interest and costs (collectively, the “Comberg Claims”).
On 9 April 2018, VivoPower and VISL filed a defense and counterclaims against Mr. Comberg. In the defense, VivoPower and VISL denied that a repudiatory breach was committed by VISL and denied the other Comberg Claims, and asserted that Mr. Comberg was terminated for cause and/or by the acceptance on the part of VISL of Mr. Comberg’s own repudiatory breach of Mr. Comberg’s service agreement. VivoPower and VISL also filed counterclaims against Mr. Comberg for damages in an amount of approximately $27 million plus certain amounts to be quantified. VivoPower and VISL alleged in the counterclaims that, inter alia, Mr. Comberg (i) failed properly to oversee financial accounting and reporting and to ensure that these functions were properly staffed for a NASDAQ listed company; (ii) misrepresented the cash resources of VivoPower and its subsidiaries to the VivoPower Board; (iii) failed adequately to manage investor communications and relationships; (iv) failed properly to manage the operations and functions of VivoPower’s Investment Committee; (v) mismanaged employment and personnel related matters and relations with the Board; (vi) failed to invest half of his 2017 bonus in shares of VivoPower despite agreeing with the Company he would do so (which agreement was a condition to receiving his bonus); (vii) breached the Group’s expenses policy; (viii) worked for another company while CEO of VivoPower, in breach of his services agreement; (ix) provided misleading and exaggerated information to VivoPower about his experience and past roles; and (x) failed to report his own wrongdoing in breach of his services agreement and fiduciary duties to VivoPower and VISL. VivoPower and VISL strongly believe in the merits of their litigation against Mr. Comberg and intend to continue a strong defense and pursuit of the foregoing counterclaims against Mr. Comberg.
Directors’ Report (continued)
Dividends
The Company has never declared or paid any dividends on our ordinary shares, and we currently do not plan to declare dividends on our ordinary shares in the foreseeable future. Any determination to pay dividends to holders of our ordinary shares will be at the discretion of our board of directors and will depend upon many factors, including our financial condition, results of operations, projections, liquidity, earnings, legal requirements, restrictions in our debt arrangements and other factors that our board of directors deem relevant.
Subsequent Events
On 25 May 2018, the Company sold its minority equity interests in two solar power projects in North Carolina, United States. Of the $11.4 million net expected proceeds on sale, $4.0 million was received as an advance payment, with the balance due upon final closing of the transaction, which occurred on 3 July 2018.
Going Concern
The financial statements have been prepared on a going concern basis, as directors believe the Company will be able to meet its liabilities as they fall due.
In the year ended 31 March 2018, $9.4 million of cash was generated from operations, principally due to collection of development fees receivable which were earned in the prior year. This cash flow was invested in new solar development projects ($18.0 million) none of which matured in the current year. The net result was a decrease in cash during the year of $9.0 million, leaving cash reserves of $1.9 million at 31 March 2018.
The subsequent event described above in this Directors’ Report was executed by the Company in order to provide additional liquidity to support both the solvency and growth of the business.
In addition, in the coming year the Company will continue the development of the 38 solar projects within the ISS Joint Venture portfolio in the United States, develop and sell solar projects in Australia, and continue to grow the increasingly profitable and cash generative power services businesses in Australia.
The directors have examined going concern against a detailed profit, working capital, and cash flow forecast to June 2019, which reflects the matters discussed in the foregoing paragraphs but does not reflect any additional share issuance, new debt facilities other than disclosed above, nor sale of assets other than in the ordinary course of business. Having reviewed the future plans and projections for the Company’s business and its current financial position, the directors are satisfied that the Company has adequate financial resources to continue to manage the business risks successfully and to remain in operational existence for the foreseeable future. Accordingly, they continue to adopt the going concern basis in preparing the report and accounts.
Share Capital
As at 31 March 2018, there are 13,557,376 ordinary shares in issue. There were no new shares issued or repurchased during the year. At the Company’s Annual General Meeting in 2017, the directors were given authority to allot shares up to an aggregate nominal amount of $1,560.00.
On 30 March 2017, the Company repurchased 129,805 shares at a price of $4.50 per share for a total of $591,915.80, including commission. The shares are being held as treasury shares and are included in the total number of shares outstanding at 31 March 2018.
There are no specific restrictions on the transfer of shares in the Company, which is governed by the Articles of Association and prevailing legislation, nor is the Company aware of any agreements between holders of securities that may result in restrictions on the transfer of shares or that may result in restrictions on voting rights.
Directors’ Report (continued)
Articles of Association
The Company’s Articles of Association may only be amended by special resolution at a general meeting of shareholders.
Substantial Interests
As at 13 July 2018, the last practicable date before publication of this report, the Company has been notified of the following interests of 3% or more of its issued capital of 13,557,376 ordinary shares.
|
Number of Shares |
Percentage of Issued Capital |
Arowana International Limited (1) |
8,176,804 |
60.30% |
The Panaga Group Trust |
1,241,531 |
9.2% |
(1) |
Includes Arowana International Limited and its controlled entities including, Arowana Australasian Special Situations Fund 1 Pty Limited, Arowana Australasian VCMP 2, LP, Arowana Australasian Special Situations Partnership 1, LP, Arowana Energy Holdings Pty Ltd. |
Statement of Directors Responsibilities
The directors are responsible for preparing the Annual Report and Accounts for the Group and parent company financial statements in accordance with applicable law and regulations.
Company law requires the directors to prepare Group and parent company financial statements for the financial period. Under that law they have elected to prepare the Group financial statements in accordance with International Financial Reporting Standards and applicable law and have elected to prepare the financial statements for Company under the same methodology.
Under company law the directors must not approve the financial statements unless they are satisfied that they give a true and fair view of the state of affairs of the Group and parent company and of their profit or loss for that period. In preparing each of the Group and parent company financial statements, the directors are required to:
● |
Select suitable accounting policies and then apply them consistently; |
● |
Make judgements and estimates that are reasonable and prudent; |
● |
For the Group financial statements, state whether they have been prepared in accordance with IFRS; and, |
● |
For the parent company financial statements, state whether applicable UK Accounting Standards have been followed, subject to any material departures disclosed and explained in the financial statements. |
The Directors are responsible for keeping adequate accounting records that are sufficient to show and explain the parent company’s transactions and disclose with reasonable accuracy at any time the financial position of the parent company and enable them to ensure that its financial statements comply with the Companies Act 2006. They have general responsibility for taking such steps as are reasonably open to them to safeguard the assets of the Group and to prevent and detect fraud and other irregularities.
This annual report and financial statements together with the Notice of Annual General Meeting and other information regarding the Group may be viewed on the Company’s website at www.vivopower.com.
Directors’ Report (continued)
Auditors
PKF-Littlejohn LLP has indicated its willingness to continue as auditor. In accordance with s489 of the Companies Act 2006, a resolution to re-appoint them as auditors for the ensuing year will be put to the members at the forthcoming Annual General Meeting.
The Directors who held office at the date of approval of this Directors’ Report confirm that, so far as they are each aware, there is no relevant audit information of which the Company’s auditors are unaware; and each director has taken all the steps that he ought to have taken as a director to make himself aware of any relevant audit information and to establish that the Company’s auditors are aware of that information. This confirmation is given and should be interpreted in accordance with the provisions of s418 of the Companies Act 2006.
The Directors' Report comprising pages 18 to 23 was approved by the Board and signed on its behalf by:
Kevin Chin
Chairman
18 July 2018
Corporate Governance
The Company’s shares have been listed on NASDAQ since 29 December 2016. The Board is accountable to the Company’s shareholders for good governance and this statement describes principles of corporate governance that have been applied by the Company.
The Directors believe that good corporate governance, involving risk appraisal and management, prudent decision-making, open communication and business efficiency, is important for the long-term benefit of the stakeholders in the Group.
Board of Directors
The Board is collectively responsible for providing leadership of the Group within a framework of prudent and effective controls and constructively challenges and helps to develop and communicate the Group’s strategic aims.
The Board is currently comprised of five non-executive directors. The Board has determined that Edward Hyams, Peter Sermol, and Shimi Shah are independent in accordance with the listing rules of NASDAQ. All directors are given regular access to the Company’s operations and personnel as and when required. Their biographies on pages 18 to 20 illustrate their relevant corporate and industry experience to bring judgement on issues of strategy, performance, resources and standards of conduct which are vital to the success of the Group.
The Board considers the overall strategic direction, development and control of the Group and reviews trading performance, investment opportunities and other matters of significance to the Group. Various decisions require Board approval, including but not limited to the approval of the annual budget, larger capital expenditure proposals, acquisitions and disposals. Board papers, which are distributed to all directors in advance of each meeting, follow a set agenda although further subjects are added for discussion as the need arises.
The Board is scheduled to meet normally no less than six times per year to enable the Board to discharge its duties effectively and to consider those matters which specifically require Board review and decision. In addition, meetings are also convened on an adhoc basis when there is urgent or delegated business which cannot wait until the next scheduled meeting.
The following table sets out the number of meetings of the Board, excluding ad hoc meetings, and its committees during the year ended 31 March 2018 and the attendance of the members at those meetings (attended/eligible to attend):
|
Board |
Audit Committee |
Remuneration Committee |
Nomination Committee |
Kevin Chin |
9 / 11 * |
8/8 |
5/5 |
1/1 |
Gary Hui |
7 / 11 |
N/A |
N/A |
N/A |
Edward Hyams |
11 / 11 |
10/10 |
5/5 |
1/1 |
Peter Sermol |
11 / 11 |
10/10 |
5/5 |
1/1 |
Shimi Shah |
4 / 4 |
2/ 2 |
N/A |
N/A |
Carl Weatherly-White |
1 / 1 |
N/A |
N/A |
N/A |
Philip Comberg |
5 / 5 |
N/A |
N/A |
N/A |
* Kevin Chin was recused from one board meeting and could not attend the other due to a medical emergency.
Audit Committee
The Audit Committee is comprised of the three independent directors, with Shimi Shah serving as Chairman, and meets at least three times a year. Prior to 28 December 2017, Kevin Chin was a member of the Audit Committee, serving as Chairman, along with Edward Hyams and Peter Sermol. The Chief Executive Officer and Chief Financial Officer are generally in attendance in a non-voting capacity to provide detailed reports and deal with any queries which arise.
Corporate Governance (continued)
An invitation is also extended to the auditors to attend meetings of the Audit Committee in order to discuss issues relating to the audit and financial control of the Group. The auditors also have direct access, should they so require, to the Audit Committee. The Audit Committee has responsibility within the terms of reference for, among other things, the planning and review of the Group’s annual and interim financial statements, the supervision of its auditors in the review of such financial statements and the review and monitoring of their independence.
The Audit Committee focuses particularly on the Group’s compliance with legal requirements and accounting standards, and on ensuring that effective systems for internal financial control are maintained. The ultimate responsibility for reviewing and approving the report and interim statements
Remuneration Committee
The Remuneration Committee comprises three independent directors, with Edward Hyams serving as Chairman. Prior to 28 December 2017, Kevin Chin was a member of the Remuneration Committee, serving as Chairman, along with Edward Hyams and Peter Sermol. Board members are invited to join but only Remuneration Committee members may vote. The Remuneration Committee meets at least twice a year and has the responsibility for determining, within the agreed terms of reference, the Group’s policy on the remuneration of senior executives.
Nominations Committee
The Nominations Committee consists of three independent board members with Peter Sermol serving as Chairman. Prior to 28 December 2017, Kevin Chin was a member of the Nominations Committee, serving as Chairman, along with Edward Hyams and Peter Sermol. The Nominations Committee identifies, evaluates and selects candidates for Board positions, ensures appropriate succession planning and reviews annually the composition and the size of the Board. In considering the appointment of a new director, the Nominations Committee considers and defines the characteristics, qualities, skills and experience that it considers would complement the overall balance and composition of the Board.
Internal Control
The Board oversees management’s activities in relation to the systems of internal control. Management has responsibility for maintaining the Group’s system of internal control and for reviewing its effectiveness. The system of internal control is designed to manage rather than eliminate the risk of failure to achieve the Group’s strategic business objectives and can only provide reasonable assurance against material misstatement or loss.
The key elements of the system of internal control are:
Control environment
There is sufficient segregation of duties and authorisation controls on approval of customer and supplier contracts, recruitment of staff, approval of purchases and payment of suppliers.
Financial reporting
The Senior management has regular meetings to discuss all aspects of the business and review financial performance against budget and provides a monthly summary report to the Board. The Group has a sustainable system of financial reporting and forecasting covering profits, assets, liabilities, cash flow and capital expenditure. The systems include regular monitoring of cash, monthly reporting of financial results. Budgets and business plans are prepared annually and reviewed by the Board.
Corporate Governance (continued)
Capital investment
For any significant investment, a detailed proposal is first approved by the Company’s Investment Committee. then by the board of directors of VivoPower International Services Limited (“Services Board”). Any major investment is always approved by the Board or the Services Board. The Company’s Investment Committee process contains five stages to ensure the Company has an explicit understanding of a portfolio’s purpose, objective and a clear definition of success in determining whether the portfolio achieves that purpose and meets that objective. The five stages include:
(i) |
Completion of a Lead Qualification Form to provide a project overview, indicative returns, capital required, risks, timeline and areas to consider in future diligence; |
(ii) |
First Investment Committee Meeting (‘IC1’) to provide a comprehensive summary of the project including detailed legal, technical, financial information and risks; |
(iii) |
Second Investment Committee Meeting (‘IC2’) which includes everything in IC1 plus summary of transaction documentation and update on diligence; |
(iv) |
Board approval to fund the project, and formally recommend that project executes transaction documentation; and, |
(v) |
Board approval to execute the transaction documentation. |
Communications with Shareholders
The Company encourages two-way communications with shareholders. The Board endeavors to maintain good relationships with its institutional shareholders by holding regular meetings after results are published with further dialogue as requested.
The Company’s Annual General Meeting will be held on 20 August 2018 at the Company’s registered office. The notice of the meeting is sent to shareholders at least 21 days before the Annual General Meeting. The directors are available for questions both formally during the meeting and informally afterwards.
This annual report and financial statements together with the Notice of Annual General Meeting and other information regarding the Group may be viewed on the Company’s website at www.vivopower.com.
Directors’ Remuneration Report
This report has been prepared in accordance with the provisions of the United Kingdom Companies Act 2006 and Schedule 8 of The Large and Medium-sized Companies and Groups (Accounts and Reports) Regulations 2008 (as amended in 2013).
Statement by the Chairman of the Remuneration Committee
On behalf of the Remuneration Committee (the "Committee"), I am pleased to present the Remuneration Report for the year ended 31 March 2018.
The Committee is comprised of Shimi Shah, Edward Hyams, and Peter Sermol, each of whom the Board has determined is independent. Shimi Shah joined the Committee on 28 December 2017; prior to that, Kevin Chin was a member of the Committee.
The Committee has a written charter, a form of which is available free of charge on VivoPower’s website at www.vivopower.com. The remuneration committee’s duties, which are specified in our Remuneration Committee Charter, include, but are not limited to:
• |
Setting the remuneration policy for all executive directors and executive officers, including pension rights and any compensation payments; |
• |
Reviewing the appropriateness and relevance of the remuneration policy; |
• |
Determining total individual compensation packages; |
• |
Reviewing and designing share incentive and share option plans, determining awards thereunder and administering such plans; |
• |
Approving design of and targets for performance-related pay schemes; |
• |
Determining pension arrangements; |
• |
Appointing compensation consultants; |
• |
Approving contractual appointment terms for directors and senior executives; and, |
• |
Related duties. |
The Company’s objective with respect to remuneration of directors is to attract and retain high-calibre individuals who are able to bring an appropriately senior level of experience and judgement to bear on issues of strategy, performance, resources and standard of conduct.
No changes are proposed to the Directors Remuneration Policy for Executive and Non-Executive Directors as approved by shareholders on 5 September 2017.
The Company's Annual Report on Remuneration, disclosing the compensation paid to directors in respect of the year ended 31 March 2018, is provided on pages 28-33 of this Annual Report.
Edward Hyams
Chair of the Remuneration Committee
18 July 2018
Directors’ Remuneration Report (continued)
Annual Report on Remuneration
Executive Directors
The amount earned by each of the Executive Directors for the period ended 31 March 2018 is set out in the table below:
Salary |
Benefits |
Bonus |
LTIP |
Pension |
Total |
|||||||||||||||||||||||||||||||
2018 |
2017 |
2018 |
2017 |
2018 |
2017 |
2018 |
2017 |
2018 |
2017 |
2018 |
2017 |
|||||||||||||||||||||||||
Phillip Comberg |
£275,491 | £315,000 | £11,020 | £12,600 |
NIL |
£630,000 |
NIL |
NIL |
£27,549 | £31,500 | £314,060 | £989,100 | ||||||||||||||||||||||||
Carl Weatherley-White |
£68,673 | N/A | £1,477 | N/A |
NIL |
N/A |
NIL |
N/A |
NIL |
N/A | £70,151 | N/A |
Phillip Comberg, former Chief Executive Officer, was appointed as a Director 1 May 2016 and served until his resignation on 4 October 2017. The terms of his compensation were as disclosed in the Annual Report and Accounts for the year ended 31 March 2017. He was not entitled to any bonus or termination of services payments as a result of his resignation. See Legal Proceedings in the Directors Report on page 20 for further details.
Carl Weatherley-White, Chief Executive Officer, was appointed to the Board on 04 October 2017 and resigned as a director on 28 December 2017, remaining as Chief Executive Officer. The information presented reflects his compensation for only the period of time he served as a Director.
Details of amounts included in the single total figure for the year ended 31 March 2018
Benefits
The following benefits were available to the Executive Directors during the year ended 31 March 2018:
● |
Private Medical |
● |
Participation in a directors' and officers' indemnification insurance policy |
Annual bonus and long-term incentive awards
No Annual Bonus was payable or long-term incentive awards vested during the year ending 31 March 2018.
Retirement benefits
As more fully described below, during the year ending 31 March 2018 in lieu of retirement benefits the Company paid £27,549 to Philip Comberg for payment into his personal pension plan.
Total pension entitlements
Under the terms of the Service Agreement entered into with Philip Comberg, in lieu of pension contributions, the Company paid to Philip Comberg an amount equal to 10% of his annual salary in monthly instalments. This amount was then paid by Philip Comberg into his personal pension.
Scheme interests awarded in the year ended 31 March 2018
No equity interests were granted to the Executive Directors in the year ended 31 March 2018.
Directors’ Remuneration Report (continued)
Non-Executive Directors
The amount earned by each Director for the year ended 31 March 2018 and 14 months ended 31 March 2017 is set out in the table below:
Salary and fees |
Bonuses |
Benefits |
2018 Total |
2017 Total |
|||||||||||
Kevin Chin |
£195,000 | - | - | £195,000 | £200,000 | ||||||||||
Gary Hui |
£126,636 | - | - | £126,636 | £72,992 | ||||||||||
Edward Hyams |
£53,000 | - | - | £53,000 | £27,667 | ||||||||||
Peter Sermol |
£113,000 | - | - | £113,000 | £19,477 | ||||||||||
Shimi Shah |
£15,000 | - | - | £15,000 | - |
Kevin Chin receives £165,000 per annum for being Chairman of the Board plus a further £30,000 for being Chairman of each of the Audit, Nomination and Remuneration Committees for the portion of the year he served in this capacity. Kevin Chin was officially appointed as a Non-Executive Director on 1 August 2016 and prior to this date he acted for the benefit of the Company through his role as the Executive Chairman and CEO of Arowana International from the date of incorporation (i.e. 1 February 2016). The amount presented in the table above for 2017 reflects the amount earned by Kevin Chin over the period 1 February 2016 to 31 March 2017.
Gary Hui was appointed as a Non-Executive Director on 1 August 2016. Prior to this date he acted for the benefit of the Company through his role as the CIO of Arowana International from the 1 July 2016. Gary Hui receives £48,000 per annum for being a Non-Executive Director. In addition to director fees, Gary Hui is also paid an annual salary of US$360,000, of which $260,000 is recharged to Arowana International Limited. The retained cost of £78,636 (US$100,000) is paid in compensation for additional work undertaken on behalf of the Company, including his role on the investment committee.
Edward Hyams was appointed as a Non-Executive Director on 29 July 2016 and commenced that role from 2 November 2016. Edward Hyams receives £48,000 per annum for being a Non-Executive Director and an additional £5,000 per annum for being a member of the Nomination, Audit and Remuneration Committees.
Peter Sermol was appointed as a Non-Executive Director on 1 August 2016 and commenced that role from 21 December 2016. Peter Sermol receives £48,000 per annum for being a Non-Executive Director and an additional £5,000 per annum for being a member of the Nomination, Audit and Remuneration Committees. In accordance with the Directors Remuneration Policy, Peter Sermol was also paid a one-time fee of £60,000 in the year ended 31 March 2018 as additional compensation for foregone opportunities at the time he joined the Board.
Shimi Shah was appointed as a Non-Executive Director on 28 December 2017 and commenced that role on the same date. Shimi Shah receives £48,000 per annum for being a Non-Executive Director and an additional £4,000 per annum per committee for being a member of the Nomination, Audit and Remuneration Committees.
Other payments to Directors in the year ended 31 March 2018
Payments to past Directors for loss of office
No payments were made to any past director during the year, or in connection with a director's loss of office during the year.
Directors’ Remuneration Report (continued)
Director’s Interests
The Directors beneficial interest in the 13,557,376 issued ordinary shares of the Company as at 31 March 2018 are detailed below.
Outstanding scheme interests, at 31 March 2018 |
||||||||||||||||||
Number of Shares Beneficially Owned |
Unvested scheme interests (not subject to performance measures) |
Vested but unexercised scheme interests |
Total shares subject to outstanding scheme interests |
Total of all share interests and outstanding scheme interests, at 31 March 2018 |
Percentage of Outstanding Shares |
|||||||||||||
Kevin Chin (1) (2) |
1,266,531 | - | - | - | 1,266,531 | 9.3 | % | |||||||||||
Gary Hui (3) |
325,045 | - | - | - | 325,045 | 2.4 | % | |||||||||||
Edward Hyams |
- | - | - | - | - | - | ||||||||||||
Peter Sermol |
- | - | - | - | - | - | ||||||||||||
Shimi Shah |
- | - | - | - | - | - | ||||||||||||
Philip Comberg |
- | - | - | - | - | - | ||||||||||||
Carl Weatherley-White |
13,610 | - | - | - | 13,610 | 0.0 | % |
(1) |
Represents shares held by Borneo Capital Pty Limited and The Panaga Group Trust, of which Mr. Chin is a beneficiary and one of the directors of the corporate trustee of such fund. |
(2) |
Does not include shares held by Arowana International Limited, of which Mr. Chin is a director. |
(3) |
Shares are held by Beira Corp., of which Mr. Hui is a director. |
Minimum shareholding requirements
The Company currently does not have any applicable shareholding guidelines. The Remuneration Committee reserves the right to implement shareholding guidelines. If shareholding guidelines are implemented, these will be disclosed in the relevant Annual Report on Remuneration.
Comparison to Company Performance
Performance graph and table and comparison to CEO pay
The following graph shows total shareholder return for the Company for the period from its listing on 29 December 2016 to 31 March 2018, relative to the Nasdaq Composite Index. The Nasdaq Composite Index is considered an appropriate comparator for VivoPower:
Directors’ Remuneration Report (continued)
The following table shows details of the compensation paid to the individual(s) in the role of CEO:
Single figure of remuneration |
Bonus as % of maximum |
LTIP as % of maximum |
||||||||||||||||
2018 |
2017 |
2018 |
2017 |
2018 |
2017 |
|||||||||||||
Phillip Comberg |
£314,060 | £989,100 | 0% | 64% | 0% | 0% | ||||||||||||
Carl Weatherley-White |
£146,904 | N/A | 0% | N/A | 0% | N/A |
Phillip Comberg resigned as Chief Executive Officer and a Director on 4 October 2017. The information presented reflects his compensation for the period from 1 April 2017 to 4 October 2017.
Carl Weatherley-White was appointed as Chief Executive Officer and a Director on 04 October 2017 and resigned as a Director on 28 December 2017, remaining as Chief Executive Officer. The information presented reflects his compensation for the period of his tenure as CEO, from 04 October 2017 to 31 March 2018.
Relative importance of pay
The table below shows the total pay for all of the Group's employees compared to other key financial indicators.
Year ending 31 March 2018 |
Period ending 31 March 2017 |
|
Employee remuneration (USD) |
14,929,000 |
7,072,309 |
Distributions to shareholders (USD) |
NIL |
NIL |
Implementation of Remuneration Policy
Executive Directors
Base Salary
The Committee will set an Executive Director’s base salary in line with the remuneration policy approved by the shareholders on 5 September 2017. The Committee intends to keep any base salary under review and will consider whether the amount and terms on which base salary is payable is appropriate given the Company's economic position and wider market conditions. Any changes to base salary will be compliant with the remuneration policy outlined above and will be disclosed in the Remuneration Report for the relevant financial year.
Benefits
The Committee will provide an Executive Director with benefits in line with the remuneration policy approved by the shareholders on 5 September 2017. The Committee intends to keep benefits under review and will consider whether the amount and terms on which benefits are payable are appropriate given the Company's economic position and wider market conditions. Any changes to benefits will be compliant with the remuneration policy and will be disclosed in the Remuneration Report for the relevant financial year.
Annual bonus
The annual bonus for an Executive Director will include a mixture of financial and personal metrics. The performance criteria attaching to bonuses will be disclosed retrospectively provided that commercial sensitivity is no longer an issue. It is expected that retrospective disclosure will be made in the notes to the single total figure table of the 2019 Annual Report on Remuneration. The maximum level of award that may be received by an Executive Director under his annual bonus for the year ending 31 March 2019 has been set at 150% of base salary.
Directors’ Remuneration Report (continued)
Equity incentive plan
The performance-based elements of the equity incentive plan award made to an Executive Director will include a mixture of financial metrics. The performance criteria attaching to the award will be disclosed retrospectively provided that commercial sensitivity is no longer an issue. It is expected that retrospective disclosure of performance criteria for any awards granted under the equity incentive plan in the year ending 31 March 2019 will be made in the notes to the single total figure table of the 2022 Annual Report on Remuneration.
The maximum level of award that may be received by an Executive Director under the Equity Incentive Plan is currently expected to be 100% of base salary as outlined in the remuneration policy approved by shareholders on 5 September 2017.
Retirement benefits
The Committee will provide retirement benefits in line with the remuneration policy approved by shareholders on 5 September 2017. The Committee intends to keep the value of retirement benefits under review and will consider whether the amount and terms on which the sum is payable are payable are appropriate given the Company's economic position and wider market conditions. Any changes to the sum will be compliant with the remuneration policy outlined above and will be disclosed in the Remuneration Report for the relevant financial year.
Non-Executive Directors
Cash Compensation
The Committee will pay annual retainers to non-executive directors in line with the remuneration policy approved by shareholders on 5 September 2017. The Committee intends to keep the value of annual retainers under review and will consider from time to time whether the amount and terms on which retainers are payable are appropriate given the Company's economic position and wider market conditions. Any changes to retainers will be compliant with the remuneration policy and will be disclosed in the Remuneration Report for the relevant financial year.
Directors receive an annual retainer for service on the Board, with supplementary retainers payable for additional Board responsibilities, as follows:
Annual retainer for Board membership |
£ 48,000 |
Annual retainer for the Chairman of the Board |
£165,000 |
Additional annual retainer for the committee members |
Agreed Individually |
The fee levels are reviewed on an annual basis, and may be increased by the Company taking into account factors such as the time commitment of the role and market levels in companies of comparable size and complexity. Fees may be amended before any annual review to reflect any changes to the Director’s role or Board committee memberships which occur during the period or when making a new appointment.
New Directors may also be eligible for a one-time fee of £6,000 or such higher amounts as the Company determines, based on market conditions, the proposed New Directors’ skills and experience and the Company's circumstances.
Equity Compensation
There is currently no equity plan in place for Non-Executive Directors. The Committee may determine to implement a plan for Non-Executive Directors, which plan would be subject to any applicable approval requirements. Details of such a plan would be disclosed in the Remuneration Report for the relevant financial year.
Directors’ Remuneration Report (continued)
Benefits
The Committee will provide benefits to Non-Executive directors in line with the remuneration policy approved by shareholders on 5 September 2017. The Committee intends to keep the value of benefits under review and will consider whether the amount and terms on which benefits are provided are appropriate given the Company's economic position and wider market conditions. Any changes to benefits will be compliant with the remuneration policy outlined above and will be disclosed in the Remuneration Report for the relevant financial year.
Consideration of Matters Relating to Directors’ Remuneration
Remuneration Committee
The members of the Committee during the period and their attendance at meetings of the Committee, are set out below:
Attendance |
|
Kevin Chin |
5/5 |
Edward Hyams |
5/5 |
Peter Sermol |
5/5 |
Shimi Shah |
0/0 |
No Non-Executive Directors are involved in deciding their own remuneration.
The Committee retained Pearl Meyer to advise the Committee on various matters, including the Equity Incentive Plan. Pearl Meyer is a signatory to the Remuneration Consultants' Code of Conduct. The Committee has reviewed the operating processes in place at Pearl Meyer and is satisfied that the advice it receives is independent and objective.
Herbert Smith Freehills LLP and Winston & Strawn LLP provide the Company with legal advice. Advice from Herbert Smith Freehills LLP and Winston & Strawn LLP is made available to the Remuneration Committee, where it relates to matters within its remit.
Statement of voting at general meeting
The Directors' Remuneration Policy for the year ended 31 March 2017 was approved by shareholders at the Annual General Meeting held on 5 September 2017. The resolution to approve the remuneration policy was approved by 99.0% of voting shareholders, with 0.8% voting against the resolution and 0.2% of votes not cast.
The Annual Report on Remuneration for the year ended 31 March 2017 was approved by shareholders at the Annual General Meeting held on 5 September 2017. The resolution to approve the report was approved by 95.4% of voting shareholders, with 0.0% voting against the resolution and 4.6% of votes not cast.
The Remuneration Report was approved by a duly authorised Committee of the Board of Directors on 18 July 2018 and signed on its behalf by:
Edward Hyams
Chair of the Remuneration Committee
18 July 2018
Independent Auditor’s Report to the Members of VivoPower International PLC
Opinion
We have audited the financial statements of VivoPower International PLC (the parent company) and its subsidiaries (the group) for the year ended 31 March 2018 which comprise the Group and Parent Company Statements of Financial Position, the Group Statement of Comprehensive Income, the Group Statements of Cash Flows, the Group and Parent Company Statements of Changes in Equity, Statement of Cash Flow, and notes to the financial statements, including a summary of significant accounting policies. The financial reporting framework that has been applied in their preparation is applicable law and International Financial Reporting Standards (IFRSs) as adopted by the European Union.
In our opinion:
• |
the financial statements give a true and fair view of the state of the Group’s and of the parent company’s affairs as at 31 March 2018 and of the Group’s and the parent company’s loss for the period then ended; |
• |
the group’s and parent company’s financial statements have been properly prepared in accordance with IFRSs as adopted by the European Union and, for the parent company, as applied in accordance with the provisions of the Companies Act 2006; and, |
• |
the financial statements have been prepared in accordance with the requirements of the Companies Act 2006; and, as regards the group financial statements, Article 4 of the IAS Regulation. |
Basis for opinion
We conducted our audit in accordance with International Standards on Auditing (UK) (ISAs (UK)) and applicable law. Our responsibilities under those standards are further described in the Auditor’s responsibilities for the audit of the financial statements section of our report. We are independent of the group and parent company in accordance with the ethical requirements that are relevant to our audit of the financial statements in the UK, including the FRC’s Ethical Standard as applied to listed public interest entities, and we have fulfilled our other ethical responsibilities in accordance with these requirements. We believe that the audit evidence we have obtained is sufficient and appropriate to provide a basis for our opinion.
Conclusions related to going concern
We have nothing to report in respect of the following matters in relation to which the ISAs (UK) require us to report to you where:
• |
the directors’ use of the going concern basis of accounting in the preparation of the financial statements is not appropriate; or, |
• |
the directors have not disclosed in the financial statements any identified material uncertainties that may cast significant doubt about the group’s or the parent company’s ability to continue to adopt the going concern basis of accounting for a period of at least twelve months from the date when the financial statements are authorised for issue. |
Our application of materiality
The scope of our audit was influenced by our application of materiality. We set certain quantitative thresholds for materiality. These, together with qualitative considerations, helped us to determine the scope of our audit and the nature, timing and extent of our audit procedures on the individual financial statement line items and disclosures and in evaluating the effect of misstatements, both individually and on the financial statements as a whole.
Based on our professional judgement, we determined materiality for the financial statements as a whole to be $1.4 million. This was calculated by allocating a percentage factor to various financial measures, including revenue (1%), gross assets (2%), net assets (5%) and profit before tax (5%).
We agreed with the Audit Committee that we would report to them misstatements identified during our audit above $1.05 million as well as misstatements that, in our view, warranted reporting for qualitative reasons.
Independent Auditor’s Report to the Members of VivoPower International PLC
On overview of the scope of our audit
As part of designing our audit, we determined materiality, as above, and assessed the risk of material misstatement in the financial statements. In particular, we looked at where the directors made subjective judgements, for example in respect of significant accounting estimates. We also addressed the risk of management override of internal controls, including evaluating whether there was evidence of bias by the directors that represented a risk of material misstatement due to fraud.
The accounting records of all US and Australian undertakings were audited by Component auditors, under the oversight of us as Parent Company auditors in accordance with International Standard on Auditing 600, based upon Component materiality and risk to the Group.
Key audit matters
Key audit matters are those matters that, in our professional judgment, were of most significance in our audit of the financial statements of the current period and include the most significant assessed risks of material misstatement (whether or not due to fraud) we identified, including those which had the greatest effect on: the overall audit strategy, the allocation of resources in the audit; and directing the efforts of the engagement team. These matters were addressed in the context of our audit of the financial statements as a whole, and in forming our opinion thereon, and we do not provide a separate opinion on these matters.
Key Audit Matter
|
How the scope of our audit responded to the key audit matter |
|||
Carrying value of intangible assets
|
|
|||
The Group carries a material amount of goodwill and separately identifiable intangible assets following the acquisitions of VivoPower Pty Limited, and Aevitas O Holdings Limited in the period ended 31 March 2017. These fall under IFRS 3 “Business Combinations” and as such a Purchase Price Allocation (“PPA”) exercise was performed in 2018 during the year to identify the separately identifiable intangible assets acquired. As a result the following risks may arise:
|
●
●
● |
We corroborated accounting entries in respect of acquired and revalued assets and liabilities to PPA work performed by independent and competent experts. We also assessed the independence and competence of these experts.
We reviewed the key PPA assumptions and estimates applied.
We reviewed the Group’s forecast cash flows for each acquisition made in the prior year and Management’s associated impairment reviews. We assessed the appropriateness of the forecasts having regard to post year end management information and our understanding of each business. |
||
●
● |
Intangible assets including goodwill arising on acquisition may not have been identified, valued or disclosed correctly.
Goodwill must be tested for impairment on at least an annual basis whilst other intangible assets are assessed for indicators of impairment. The determination of recoverable amount, being the higher of value in use and fair value less disposal costs, requires judgement by Management in identifying and then valuing the cash generating units. Recoverable amounts are based on Management’s assessment of key variables and the most appropriate discount rate. |
●
●
●
●
● |
We performed testing of the mathematical accuracy of the cash flow models and ensured each of the key assumptions were appropriately reflected.
We critically assessed the key assumptions in management’s value in use calculations used to determine the recoverable amounts of goodwill and separately identifiable intangible assets.
We performed sensitivity analysis on the headroom to changes in key assumptions.
We reviewed the appropriateness of the related disclosures in note 13 of the financial statements
An impairment of $10.5m was recognised in respect of Goodwill that had arisen on the acquisition of VivoPower Pty Limited. |
Independent Auditor’s Report to the Members of VivoPower International PLC
Other information
The other information comprises the information included in the annual report, other than the financial statements and our auditor’s report thereon. The directors are responsible for the other information. Our opinion on the group and parent company financial statements does not cover the other information and, except to the extent otherwise explicitly stated in our report, we do not express any form of assurance conclusion thereon. In connection with our audit of the financial statements, our responsibility is to read the other information and, in doing so, consider whether the other information is materially inconsistent with the financial statements or our knowledge obtained in the audit or otherwise appears to be materially misstated. If we identify such material inconsistencies or apparent material misstatements, we are required to determine whether there is a material misstatement in the financial statements or a material misstatement of the other information. If, based on the work we have performed, we conclude that there is a material misstatement of this other information, we are required to report that fact.
We have nothing to report in this regard.
Opinion on other matter prescribed by the Companies Act 2006
In our opinion the part of the directors’ remuneration report to be audited has been properly prepared in accordance with the Companies Act 2006.
In our opinion, based on the work undertaken in the course of the audit:
• |
the information given in the Strategic Report and the Directors’ Report for the financial year for which the financial statements are prepared is consistent with the financial statements financial statements; and, |
• |
the Strategic Report and the Directors’ Report have been prepared in accordance with applicable legal requirements |
Matters on which we are required to report by exception
In light of the knowledge and understanding of the group and the parent company and their environment obtained in the course of the audit, we have not identified material misstatements in the Strategic Report or the Directors’ Report.
We have nothing to report in respect of the following matters in relation to which the Companies Act 2006 requires us to report to you if, in our opinion:
• |
adequate accounting records have not been kept by the parent company, or returns adequate for our audit have not been received from branches not visited by us; or |
• |
the parent company financial statements and the part of the directors’ remuneration report to be audited are not in agreement with the accounting records and returns; or |
• |
certain disclosures of Directors’ remuneration specified by law are not made; or |
• |
we have not received all the information and explanations we require for our audit. |
Responsibilities of directors
As explained more fully in the directors’ responsibilities statement, the directors are responsible for the preparation of the group and parent company financial statements and for being satisfied that they give a true and fair view, and for such internal control as the directors determine is necessary to enable the preparation of financial statements that are free from material misstatement, whether due to fraud or error.
In preparing the group and parent company financial statements, the directors are responsible for assessing the group’s and the parent company’s ability to continue as a going concern, disclosing, as applicable, matters related to going concern and using the going concern basis of accounting unless the directors either intend to liquidate the group or the parent company or to cease operations, or have no realistic alternative but to do so.
Independent Auditor’s Report to the Members of VivoPower International PLC
Auditors responsibilities for the audit of the financial statements
Our objectives are to obtain reasonable assurance about whether the financial statements as a whole are free from material misstatement, whether due to fraud or error, and to issue an auditor’s report that includes our opinion. Reasonable assurance is a high level of assurance, but is not a guarantee that an audit conducted in accordance with ISAs (UK) will always detect a material misstatement when it exists. Misstatements can arise from fraud or error and are considered material if, individually or in the aggregate, they could reasonably be expected to influence the economic decisions of users taken on the basis of these financial statements.
A further description of our responsibilities for the audit of the financial statements is located on the Financial Reporting Council’s website at: http://www.frc.org.uk/auditorsresponsibilities. This description forms part of our auditor’s report.
Use of our report
This report is made solely to the company’s members, as a body, in accordance with Chapter 3 of Part 16 of the Companies Act 2006. Our audit work has been undertaken so that we might state to the company’s members those matters we are required to state to them in an auditor’s report and for no other purpose. To the fullest extent permitted by law, we do not accept or assume responsibility to anyone, other than the company and the company's members as a body, for our audit work, for this report, or for the opinions we have formed.
Alistair Roberts (Senior Statutory Auditor) For and on behalf of PKF Littlejohn LLP Statutory auditor |
1 Westferry Circus Canary Wharf London, UK, E14 4HD |
18 July 2018
Consolidated Statement of Comprehensive Income
for the year ended 31 March 2018
(USD in thousands, except per share amounts)
Note |
2018 |
2017 | * | ||||||
Revenue |
4 | 33,647 | 32,250 | ||||||
Cost of sales |
(28,524 |
) |
(4,977 |
) |
|||||
Gross profit |
5,123 | 27,273 | |||||||
General and administrative expenses |
(12,814 |
) |
(9,595 |
) |
|||||
Gain on sale of assets |
5 | 1,356 | - | ||||||
Depreciation of property, plant and equipment |
12 | (420 |
) |
(103 |
) |
||||
Amortisation of intangible assets |
13 | (840 |
) |
(548 |
) |
||||
Operating (loss)/profit |
6 | (7,595 |
) |
17,027 | |||||
Restructuring costs |
7 | (1,873 |
) |
- | |||||
Impairment of assets |
8 | (10,191 |
) |
- | |||||
Impairment of goodwill |
13 | (11,092 |
) |
- | |||||
Transaction costs |
- | (5,800 |
) |
||||||
Finance income |
10 | 9 | 13 | ||||||
Finance expense |
10 | (3,395 |
) |
(602 |
) |
||||
(Loss)/profit before income tax |
(34,137 |
) |
10,638 | ||||||
Income tax expense |
11 | 6,258 | (5,338 |
) |
|||||
(Loss)/profit for the year |
(27,879 |
) |
5,300 | ||||||
Other comprehensive income |
|||||||||
Items that may be reclassified subsequently to profit or loss: |
|||||||||
Currency translation differences recognised directly in equity |
222 | 599 | |||||||
Total comprehensive (loss)/income for the year |
(27,657 |
) |
5,899 | ||||||
Earnings per share |
|||||||||
Basic |
24 | (2.06 |
) |
0.81 | |||||
Diluted |
24 | (2.06 |
) |
0.81 |
* Comparative results are for the 14-month period ended 31 March 2017.
Consolidated Statement of Financial Position
for the year ended 31 March 2018
(USD in thousands, except per share amounts)
Note |
2018 |
2017 |
|||||||
ASSETS |
|||||||||
Non-current assets |
|||||||||
Property, plant and equipment |
12 | 1,915 | 2,163 | ||||||
Intangible assets |
13 | 36,402 | 46,320 | ||||||
Deferred tax assets |
11 | 2,570 | 2,312 | ||||||
Other receivables |
- | 1,167 | |||||||
Investments |
15 | 14,147 | 18,060 | ||||||
Total non-current assets |
55,034 | 70,022 | |||||||
Current assets |
|||||||||
Cash and cash equivalents |
16 | 1,939 | 10,970 | ||||||
Trade and other receivables |
17 | 7,903 | 19,844 | ||||||
Assets held for sale |
8 | 11,436 | - | ||||||
Total current assets |
21,278 | 30,814 | |||||||
TOTAL ASSETS |
76,312 | 100,836 | |||||||
EQUITY AND LIABILITIES |
|||||||||
Current liabilities |
|||||||||
Trade and other payables |
18 | 14,082 | 8,262 | ||||||
Finance lease payable |
19 | 285 | 145 | ||||||
Provision for income tax |
11 | 103 | 2,361 | ||||||
Provisions – current |
20 | 2,470 | 1,339 | ||||||
Loans and borrowings |
21 | 3,670 | 90 | ||||||
Total current liabilities |
20,610 | 12,197 | |||||||
Non-current liabilities |
|||||||||
Loans and borrowings |
21 | 18,092 | 19,925 | ||||||
Provisions |
20 | 288 | 237 | ||||||
Deferred tax liabilities |
11 | 26 | 3,776 | ||||||
Finance lease payable |
19 | 293 | 95 | ||||||
Total non-current liabilities |
18,699 | 24,033 | |||||||
Total Liabilities |
39,309 | 36,230 | |||||||
Equity |
|||||||||
Share capital |
22 | 163 | 163 | ||||||
Share premium |
40,215 | 40,215 | |||||||
Cumulative translation reserve |
821 | 599 | |||||||
Other reserves |
23 | 18,383 | 18,329 | ||||||
Retained earnings/(accumulated deficit) |
(22,579 |
) |
5,300 | ||||||
Total Equity |
37,003 | 64,606 | |||||||
TOTAL EQUITY AND LIABILITIES |
76,312 | 100,836 |
These financial statements were approved by the Board of Directors on 18 July 2018 and were signed on its behalf by Kevin Chin.
Consolidated Statement of Cash Flow
for the year ended 31 March 2018
(USD in thousands, except per share amounts)
Note |
2018 |
2017 | * | ||||||
Cash flows from operating activities |
|||||||||
(Loss)/profit for the year |
(27,879 |
) |
5,300 | ||||||
Income tax expense |
(6,258 |
) |
5,338 | ||||||
Finance income |
(9 |
) |
- | ||||||
Finance expense |
3,395 | 600 | |||||||
Transaction costs |
5,800 | ||||||||
Impairment of goodwill |
11,092 | - | |||||||
Impairment of assets |
10,191 | - | |||||||
Depreciation of property, plant and equipment |
420 | 103 | |||||||
Amortisation of intangible assets |
840 | 548 | |||||||
Gain on sale of assets |
(1,356 |
) |
- | ||||||
Decrease/(increase) in trade and other receivables |
11,457 | (21,007 |
) |
||||||
Increase in trade and other payables |
5,822 | 8,260 | |||||||
Increase in provisions |
1,182 | 1,339 | |||||||
Net cash (used in)/from operating activities |
8,897 | 6,281 | |||||||
Cash flows from investing activities |
|||||||||
Interest received |
9 | 13 | |||||||
Proceeds on sale of property plant and equipment |
5 | 2,297 | - | ||||||
Purchase of property plant and equipment |
12 | (1,101 |
) |
(97 |
) |
||||
Investment in capital projects |
15 | (17,823 |
) |
(18,060 |
) |
||||
Cash acquired received from acquisitions |
- | 1,485 | |||||||
Acquisitions |
- | (10,080 |
) |
||||||
Net cash (used in)/from investing activities |
(16,618 |
) |
(26,739 |
) |
|||||
Cash flows from financing activities |
|||||||||
Finance lease borrowings |
19 | 519 | - | ||||||
Finance lease repayments |
19 | (181 |
) |
- | |||||
Financing agreements |
21 | 2,000 | 330 | ||||||
Loans from related parties |
21 | 770 | 19,944 | ||||||
Repayment of bank loan |
21 | (1,023 |
) |
- | |||||
Finance expense |
(3,395 |
) |
- | ||||||
Funds received from issuing shares |
- | 167 | |||||||
Costs from listing |
- | (11,469 |
) |
||||||
Funds received from listing |
- | 22,456 | |||||||
Net cash from/(used in) financing activities |
(1,310 |
) |
31,428 | ||||||
Net (decrease)/increase in cash and cash equivalents |
(9,031 |
) |
10,970 | ||||||
Cash and cash equivalents at the beginning of the year |
16 | 10,970 | - | ||||||
Cash and cash equivalents at the end of the year |
16 | 1,939 | 10,970 |
* Comparative results are for the 14-month period ended 31 March 2017.
Consolidated Statement of Changes in Equity
for the year ended 31 March 2018
(USD in thousands, except per share amounts)
Share Capital |
Share Premium |
Other Reserves |
Cumulative Translation Reserve |
Retained Earnings (Accumulated Deficit) |
Total |
|||||||||||||
At 1 February 2016 |
- | - | - | - | - | - | ||||||||||||
Total comprehensive income for the year |
- | - | - | 599 | 5,300 | 5,899 | ||||||||||||
Redenomination of share capital |
(4 | ) | - | - | - | - | (4 | ) | ||||||||||
Issue of new shares |
167 | 40,215 | - | - | - | 40,382 | ||||||||||||
Equity instruments |
- | - | 25,072 | - | - | 25,072 | ||||||||||||
Capital raising costs |
- | - | 9,722 | ) | - | - | (9,722 | ) | ||||||||||
Share option reserve |
- | - | 3,713 | - | - | 3,713 | ||||||||||||
Purchase of shares |
- | - | (592 | ) | - | - | (592 | ) | ||||||||||
Other reserves |
- | - | (142 | ) | - | - | (142 | ) | ||||||||||
163 | 40,215 | 18,329 | 599 | 5,300 | 64,606 | |||||||||||||
At 31 March 2017 |
163 | 40,215 | 18,329 | 599 | 5,300 | 64,606 | ||||||||||||
Total comprehensive loss for the year |
- | - | - | 222 | (27,879 | ) | (27,657 | ) | ||||||||||
Other reserves |
- | - | 54 | - | - | 54 | ||||||||||||
- | - | 54 | 222 | (27,879 | ) | (27,603 | ) | |||||||||||
At 31 March 2018 |
163 | 40,215 | 18,383 | 821 | (22,579 | ) | 37,003 |
For further information on “Other Reserves” please see note 2.
Notes to the Financial Statements
for the year ended 31 March 2018
1. |
Reporting entity |
VivoPower International PLC (“VivoPower” or the “Company”) is a public company limited by shares and incorporated under the laws of England and Wales and domiciled in the United Kingdom. The address of the Company’s registered office is 91 Wimpole Street, Marylebone, London, W1G 0EF United Kingdom. The consolidated financial statements of the Company as at and for the year ended 31 March 2018 comprise the financial statements of the Company and its subsidiaries (together referred to as the ‘Group’ and individually as ‘Group entities’. The ultimate parent company into which these results are consolidated is Arowana International Limited.
2. |
Significant accounting policies |
The principal accounting policies applied in the preparation of these financial statements are set out below. These policies have been consistently applied to all years presented, unless otherwise stated.
2.1 |
Basis of preparation |
VivoPower International PLC consolidated financial statements were prepared in accordance with International Financial Reporting Standards (IFRS), as issued by the International Accounting Standards Board (IASB), IFRIC interpretations and the Companies Act 2006 applicable to companies reporting under IFRS. The consolidated financial statements have been prepared under the historical cost convention.
The preparation of financial statements with adopted IFRS requires the use of critical accounting estimates. It also requires the management to exercise judgement in the process of applying the Company’s accounting policies. The areas involving a higher degree of judgement or complexity, or areas where the assumptions and estimates are significant to the consolidated financial statements are disclosed in note 3.
The financial statements have been prepared on a going concern basis, as the directors believe the Company will be able to meet its liabilities as they fall due.
During the year ended 31 March 2018, the Company undertook a strategic restructuring of its business which aimed at a $3.4 million annual reduction in general and administrative expenses going forward. In addition, subsequent to year-end the Company raised $11.4 million of cash by sale of its minority equity investments in the North Carolina projects, as disclosed in note 8, $2.0 million of which was used to repay the current financing agreement disclosed in note 21. The Company’s power services business represented by the Aevitas Group produced $2.4 million EBITDA for the year ended 31 March 2018 and is expected to continue to perform at or above this level. The Company is also engaged in a financing initiative within the Aevitas Group which is expected to provide an additional $2.3 million of working capital. These actions provide sufficient cash to support business operations and meet obligations as they become due through July 2019.
In order to develop the portfolio of solar projects within Innovative Solar Ventures I, LLC joint venture, as disclosed in note 15, the Company will have to seek project specific financing which would be secured and supported by the development assets within the joint venture. This is a normal part of the solar development business and the Company is confident that there are investors and capital available in the market to accomplish planned development.
To ensure success of the business, the directors have prepared and reviewed additional plans to mitigate any cash flow risk that may arise during the next twelve months. These actions include the implementation of further operational cost reductions, renegotiation of the terms of repayment of the related party loan of $19.0 million disclosed in note 21, and a further sale of assets as required.
Notes to the Financial Statements (continued)
for the year ended 31 March 2018
Based on the foregoing, the directors believe that the Company is well placed to manage its business risk successfully, despite some current economic and political uncertainty. The directors therefore have a reasonable expectation that the Company has adequate resources to continue in operational existence for the foreseeable future. Thus, they have continued to adopt the going concern basis in preparing these financial statements.
Comparative results presented are for the 14-month period from formation to 31 March 2017. All financial information presented in US dollars has been rounded to the nearest thousand.
2.2 |
Basis of consolidation |
The consolidated financial statements include those of VivoPower International PLC and all of its subsidiary undertakings.
Subsidiary undertakings are those entities controlled directly or indirectly by the Company. The results of the subsidiaries acquired are included in the consolidated Statement of Comprehensive Income from the date of acquisition using the same accounting policies of those of the Group. All business combinations are accounted for using the purchase method.
Where necessary, adjustments are made to the financial statements of subsidiaries to bring their accounting policies in line with those used by other members of the Group.
All intra-group balances and transactions, including any unrealised income and expense arising from intra-group transactions, are eliminated in full in preparing the consolidated financial statements. Unrealised gains arising from transactions with equity invested investees are eliminated against the investment to the extent of the Group’s interest in the investee. Unrealised losses are eliminated in the same way as unrealised gains, but only to the extent that there is no evidence of impairment.
2.3 |
Intangible assets |
All intangible assets, except goodwill, are stated at fair value less accumulated amortisation and any accumulated impairment losses. Goodwill is not amortised and is stated at cost less any accumulated impairment losses.
Goodwill
Goodwill arose on the effective acquisition of VivoPower Pty Limited and the Aevitas Group Limited (“Aevitas”). Goodwill is reviewed annually to test for impairment.
Other intangible assets
Intangible assets acquired through a business combination are initially measured at fair value and then amortised over their useful economic lives.
In the prior year, the Group took advantage of the provisions of IFRS 3 in accounting for the business combinations arising from the acquisitions of Aevitas O Holdings Pty Limited and VivoPower Pty Limited whereby the financial statements recognised the Directors' best estimate of the individual allocation of goodwill and other separately identifiable assets acquired. The purchase price allocation exercise was completed in the current year and revaluations reflected as disclosed in Note 13.
Amortisation is calculated on a straight-line basis to write down the assets over their useful economic lives at the following rates:
Customer relationships – 7 years
Trade names – 14 years
Favourable supply contracts – 5 years
Databases – 5 years
Notes to the Financial Statements (continued)
for the year ended 31 March 2018
2.4 |
Property, plant and equipment |
Property, plant and equipment are stated at cost less accumulated depreciation and any accumulated impairment losses. The cost of an item of property, plant and equipment comprises its purchase price and the costs directly attributable to bringing the asset into use.
When parts of an item of property, plant and equipment have different useful lives, they are accounted as separate items (major components) of property, plant and equipment.
Depreciation is calculated on a straight-line basis so as to write down the assets to their estimated residual value over their useful economic lives at the following rates:
Computer equipment - 3 years
Fixtures and fittings - 3 years
Motor vehicles – 5 years
Plant & equipment – 3.5 to 10 years
Leasehold improvements – 20 to 40 years
2.5 |
Business combinations |
Acquisitions of subsidiaries and businesses are accounted for using the purchase method. The consideration transferred in a business combination is the fair value at the acquisition date of the assets transferred and the liabilities incurred by the Group and includes the fair value of any contingent consideration arrangement. Acquisition-related costs are recognised in the income statement as incurred.
2.6 |
Leases |
Leases are classified as finance leases whenever the terms of the lease transfer substantially all the risks and rewards of ownership to the lessee. All other leases are classified as operating leases. Assets held under finance leases are initially recognised as property, plant and equipment at an amount equal to the fair value of the leased assets or, if lower, the present value of the minimum lease payments at the inception of the lease, and then depreciated over their useful economic lives.
Lease payments are apportioned between the repayment of capital and interest. The capital element of future lease payments is included in the Statement of Financial Position as a liability. Interest is charged to the Statement of Comprehensive Income so as to achieve a constant rate of interest on the remaining balance of the liability.
Rentals payable under operating leases are charged to the Statement of Comprehensive Income on a straight-line basis over the lease term. Operating leases incentives are recognised as a reduction in the rental expense over the lease term.
2.7 |
Impairment of non-financial assets |
Goodwill is allocated to cash-generating units for the purposes of impairment testing. The recoverable amount of the cash-generating unit (‘CGU’) to which the goodwill relates is tested annually for impairment or when events or changes to circumstances indicate that it might be impaired.
The carrying values of property, plant and equipment, investments and intangible assets other than goodwill are reviewed for impairment only when events indicate the carrying value may be impaired.
Notes to the Financial Statements (continued)
for the year ended 31 March 2018
In an impairment test the recoverable amount of the cash-generating unit or asset is estimated in order to determine the existence or extent of any impairment loss. The recoverable amount is the higher of fair value less costs to sell and the value in use to the Group. An impairment loss is recognised to the extent that the carrying value exceeds the recoverable amount. In determining a cash-generating unit’s or asset’s value in use, estimated future cash flows are discounted to their present value using a pre-tax discount rate that reflects current market assessments of the time-value of money and risks specific to the cash-generating unit or asset that have not already been included in the estimate of future cash flows. All impairment losses are recognised in the Statement of Comprehensive Income.
An impairment loss in respect of goodwill is not reversed. In the case of other assets, impairment losses recognised in prior periods are assessed at each reporting date for any indications that the loss has decreased or no longer exists. These impairment losses are reversed if there has been any change in the estimates used to determine the recoverable amount. An impairment loss is reversed only to the extent so that the asset’s carrying amount does not exceed the carrying value that would have been determined, net of depreciation or amortisation, if no impairment loss had been recognised.
2.8 |
Financial instruments |
Financial assets and liabilities are recognised in the Group’s Statement of Financial Position when the Group becomes a party to the contracted provision of the instrument. The following policies for financial instruments have been applied in the preparation of the consolidated financial statements.
Fair value is the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date. The fair value measurement is based on the presumption that the transaction to sell the asset or transfer the liability takes place either:
● |
in the principal market for the asset or liability; or |
● |
in the absence of a principal market, in the most advantageous market for the asset or liability. |
The principal or the most advantageous market must be accessible by the Group. The fair value of an asset or a liability is measured using the assumptions that market participants would use when pricing the asset or liability, assuming that market participants act in their economic best interest.
All assets and liabilities for which fair value is measured or disclosed in the financial statements are categorised within the fair value hierarchy, described as follows, based on the lowest level input that is significant to the fair value measurement as a whole:
● |
Level 1 — quoted (unadjusted) market prices in active markets for identical assets or liabilities; |
● |
Level 2 — valuation techniques for which the lowest level input that is significant to the fair value measurement is directly or indirectly observable; and |
● |
Level 3 — valuation techniques for which the lowest level input that is significant to the fair value measurement is unobservable. |
Cash and cash equivalents
For the purpose of preparation of the Statement of Cash Flow, cash and cash equivalents includes cash at bank and in hand.
Bank borrowings
Interest-bearing bank loans are recorded at the proceeds received. Direct issue costs paid on the establishment of loan facilities are recognised over the term of the loan on a straight-line basis. The initial payment is taken to the Statement of Financial Position and then amortised over the full-length of the facility.
Trade and other receivables
Trade and other receivables are stated at amounts receivable less any allowance for the expected future issue of credit notes and for non-recoverability due to credit risk.
Notes to the Financial Statements (continued)
for the year ended 31 March 2018
Trade payables
Trade payables are non-interest bearing and are stated at their amortised cost.
Share Capital
Ordinary shares are classified as equity. Incremental costs directly attributable to the issue of ordinary shares are recognised as a deduction from equity, net of any tax effects.
Repurchase of share capital (treasury shares)
When share capital recognised as equity is repurchased as equity by the Company the amount of the consideration paid, which includes directly attributable costs, net of any tax effects, is recognised as a deduction from equity, and excluded from the number of shares in issue when calculating earnings per share.
2.9 |
Taxation |
Income tax expense comprises current and deferred tax.
Current tax is recognised based on the amounts expected to be paid or recovered under the tax rates and laws that have been enacted or substantively enacted by the end of the reporting period.
Deferred tax is provided on temporary timing differences that arise between the carrying amounts of assets and liabilities for financial reporting purposes and their corresponding tax values. Liabilities are recorded on all temporary differences except in respect of initial recognition of goodwill and in respect of investments in subsidiaries where the timing of the reversal of the temporary difference is controlled by the Group and it is probable that it will not reverse in the foreseeable future. Deferred tax assets are recognised to the extent that it is probable that future taxable profits will be available against which the asset can be offset. Deferred tax is measured on an undiscounted basis using the tax rates and laws that have been enacted or substantively enacted by the end of the accounting period.
Deferred tax assets and liabilities are offset if there is a legally enforceable right to offset current tax assets and liabilities, they relate to income taxes levied by the same tax authority and the Group intends to settle current tax liabilities and assets on a net basis or their tax assets and liabilities will be realised simultaneously.
Current and deferred tax are recognised in the Statement of Comprehensive Income, except when the tax relates to items charged or credited directly to equity, in which case it is dealt with directly in equity.
2.10 |
Provisions |
Provisions are recognised when the Group has a present obligation because of a past event, it is probable that the Group will be required to settle that obligation, and it can be measured reliably.
Provisions are measured at the directors’ best estimate of the expenditure required to settle the obligation at the date of Statement of Financial Position.
Where the time value of money is material, provisions are measured at the present value of expenditures expected to be paid in settlement.
Notes to the Financial Statements (continued)
for the year ended 31 March 2018
2.11 |
Earnings per share |
The Group presents basic and diluted earnings per share [EPS] data for ordinary shares. Basic EPS is calculated by dividing the profit or loss attributable to ordinary shareholders of the Company by the weighted average number of ordinary shares, excluding the shares held as treasury shares. Currently there are no diluting effects on EPS for ordinary shares, therefore, diluted EPS is the same as basic EPS.
2.12 |
Foreign currencies |
The Company’s functional and presentational currency is the US dollar. Items included in the separate financial statements of each Group entity are measured in the functional currency of that entity. Transactions denominated in foreign currencies are translated into the functional currency of the entity at the rates of exchange prevailing at the dates of the individual transactions. Foreign currency monetary assets and liabilities are translated at the rates of exchange prevailing at the end of the reporting period.
Exchange gains and losses arising are charged to the Statement of Comprehensive Income within finance income or expenses. The Statement of Comprehensive and Statement of Financial Position of foreign entities are translated into US dollars on consolidation at the average rates for the period and the rates prevailing at the end of the reporting period respectively. Exchange gains and losses arising on the translation of the Group’s net investment foreign entities are recognised as a separate component of shareholders’ equity.
Foreign currency denominated share capital and related share premium and reserve accounts are recorded at the historical exchange rate at the time the shares were issued or the equity created.
2.13 |
Revenue recognition |
Revenue comprises the fair value of the consideration received or receivable for the sale of services in the ordinary course of the Group’s activities. Revenue is shown net of discounts, value-added tax, other sales related taxes, and after the elimination of sales within the Group.
Revenue comprises development revenues, electrical installations, electrical servicing and maintenance and generator sales.
The Company adopted IFRS 15 “Revenue from Contracts with Customers” with effect from the date of incorporation.
The Group has a number of different revenue streams and the key components in determining the correct recognition are as follows:
Development revenue, which is revenue generated from development services relating to the building and construction of solar projects, is recognised on a percentage completion basis as the value is accrued by the end user over the life of the contract. The periodic recognition is calculated through weekly project progress reports.
Aevitas revenue for small jobs and those completed in a limited timeframe are recognised when the job is complete. On longer term projects revenue is recognised on a percentage completion basis. The projects have defined milestones which determines the timing of the billing to the customers. The achievement of the milestones then also provides an accurate indication of how much of the project is complete.
Notes to the Financial Statements (continued)
for the year ended 31 March 2018
2.14 |
Employee benefits |
Pension
The employer pension contributions are associated with defined contribution schemes. The costs are therefore recognised in the month in which the contribution is incurred, which is consistent with recognition of payroll expenses.
Short-term benefits
Short-term employee benefit obligations are measured on an undiscounted basis and are expensed as the related service is provided.
A liability is recognised for the amount expected to be paid under short-term cash bonus or profit-sharing plans if the Group has a present legal or constructive obligation to pay this amount because of past service provided by the employee and the obligation can be reliably measured.
Short-term compensated absences
A liability for short-term compensated absences, such as holiday, is recognised for the amount the Group may be required to pay because of the unused entitlement that has accumulated at the end of the reporting period.
2.15 |
Restructuring costs |
Restructuring costs are by nature one-time incurrences and do not represent the normal trading activities of the business and accordingly are disclosed separately on the consolidated statement of comprehensive income in accordance with IAS 1 in order to draw them to the attention of the reader of the financial statements. Restructuring costs are defined in accordance with IAS 37 as being related to sale or termination of a line of business, closure of business locations, changes in management structure, or fundamental reorganisations.
2.16 |
New standards, amendments and interpretations not yet adopted |
During the current year, the Group adopted all of the new and revised Standards and Interpretations issued by the International Accounting Standards Board (“IASB”) and the IFRS Interpretations Committee of the IASB that are relevant to its operations and effective for accounting periods beginning on 1 April 2017. The Group is assessing the impact on the financial statements of these adoptions.
The IASB and IFRIC have issued the following standards and with an effective date after the date of the financial statements and have not been applied in preparing these consolidated financial statements:
• |
IFRS 2 ‘Amendments: Classification and Measurement of Share-based payment transactions’ – effective for annual periods on or after 1 January 2018; |
• |
IFRS 9: ‘Financial Instruments’ – effective for annual periods on or after 1 January 2018; |
• |
IFRS 16: ‘Leases’ – effective for annual periods on or after 1 January 2019; |
• |
IFRIC 22: ‘Foreign Currency Transactions and Advance Consideration’ – effective for annual periods on or after 1 January 2018; and, |
• |
IFRIC 23: ‘Uncertainty over Income Tax Treatments’ – effective for annual periods on or after 1 January 2019. |
There are no other IFRS or IFRIC interpretations that are not yet effective that would be expected to have a material impact on the Group.
Notes to the Financial Statements (continued)
for the year ended 31 March 2018
3. |
Critical accounting judgements and estimates |
In preparing the consolidated financial statements, the directors are required to make judgements in applying the Group’s accounting policies and in making estimates and making assumptions about the future. These estimates could have a significant risk of causing a material adjustment to the carrying value of assets and liabilities in the future financial periods. The critical judgements that have been made in arriving at the amounts recognised in the consolidated financial statements are discussed below.
3.1 |
IFRS 10 – Consolidated Financial Statements |
The objective of the standard is to establish principles for the presentation and preparation of consolidated financial statements when an entity controls one or more other entities. The Group has assessed whether it controls project companies in which the Group has an interest.
The Group assessed control by reviewing, first, whether the Group had power over the entity, secondly, had exposure, or rights, to variable returns from its involvement with the project, and finally, whether it had the ability to use its power over the investee to affect the amount of the project’s returns.
On assessing the three criteria, all of which must exist, the Group concluded that it did not in fact have control and elected not to consolidate the project companies into the consolidated financial statements of the Group.
3.2 |
Impairment of non-financial assets |
The carrying values of property, plant and equipment, investments and intangible assets other than goodwill are reviewed for impairment only when events indicate the carrying value may be impaired. Goodwill is tested annually for impairment or when events or changes to circumstances indicate that it might be impaired.
As further disclosed in note 8, subsequent to year-end, two investments were sold for less than carrying values at 31 March 2018, indicating an impairment. Accordingly, an impairment was recorded at 31 March 2018 to reflect to the net realisable value based on the sale proceeds.
During the year ended 31 March 2018, two impairments of goodwill were recorded. To assess impairment, estimated future cash flows are discounted to their present value using a pre-tax discount rate that reflects current market assessments of the time-value of money and risks specific to the related cash-generating unit. Judgement was applied in making estimates and assumptions about the future cash flows, including the appropriateness of discounts rates applied, as further disclosed in note 13.
3.3 |
Operating profit/(loss) |
In preparing the consolidated financial statements of the Group, judgement was applied with respect to those items which are presented on consolidated statement of comprehensive income as included within operating profit/(loss). Those revenues and expenses which are determined to be specifically related to the on-going operating activities of the business are included within operating profit. Expenses or charges to earnings which are not related to operating activities, are one-time costs determined to be not representative of the normal trading activities of the business, or that arise from revaluation of assets, are reported below operating profit/(loss).
Notes to the Financial Statements (continued)
for the year ended 31 March 2018
3.4 |
Transaction related costs |
The transaction related costs were incurred by the business in preparation for the entry onto Nasdaq. The costs incurred were recharged costs from Arowana International Limited including legal, accounting and professional fees in relation to our operations in the United States. The costs by nature are one-off, and therefore, have no bearing on the financial performance of the business. To enable comparability in future periods the costs are disclosed separately on the face on the Statement of Comprehensive Income.
3.5 |
Income taxes |
In recognising income tax assets and liabilities, management makes estimates of the likely outcome of decisions by tax authorities on transactions and events whose treatment for tax purposes is uncertain. Where the outcome of such matters is different, or expected to be different, from previous assessments made by management, a change to the carrying value of the income tax assets and liabilities will be recorded in the period in which such determination is made. The carrying values of income tax assets and liabilities are disclosed separately in the consolidated Statement of Financial Position.
3.6 |
Share option reserve |
As part of the Initial Public Offering Listing, VivoPower issued an amended and restated unit purchase option (UPO) replacing the options issued by Arowana Inc. The options are viewed as a share-based award granted to Early Bird Capital. The cost of the award is recognised directly in equity and is applied against capital raising costs. As the option holder has the right to receive shares in VivoPower international PLC the share-based payment transaction would be equity settled. The fair value of the options was determined at the grant date, using the Black Scholes Model, and not remeasured subsequently. As the options have no vesting conditions the related expense is recognised immediately.
3.7 |
Convertible preference shares and loan notes |
As part of the IPO listing process VivoPower International PLC acquired Aevitas. The instruments previously issued by Aevitas were restructured to become convertible into VivoPower International PLC shares. The company considered IAS 32 paragraph 16 in determining the accounting treatment. The Company has determined the instruments to be treated as equity under the “fixed-for-fixed” rule meaning that both the amount of consideration received/receivable and the number of equity instruments to be issued must be fixed for the instrument to be classified as equity. Both elements are satisfied within the instruments.
4 |
Revenue and segmental information |
The Group determines and presents operating segments based on the information that is provided internally to the Board of Directors, which is the Group’s chief operating decision maker.
The Group considers that it has three reportable segments: Solar Development, Power Services, and Corporate Office. Solar Development is the development, construction, financing and operation of solar power generating plants in the U.S. and Australia. Power Services is represented by Aevitas operating in Australia and operations focus on the design, supply, installation and maintenance of power and control systems. Corporate Office is all United Kingdom based corporate functions.
An operating segment is a component of the Group that engages in business activities from which it may earn revenues and incur expenses, including any revenues and expenses that relate to the transactions with any of the Group’s other components. Operating segments results are reviewed regularly by the Board of Directors to assess its performance and make decisions about resources to be allocated to the segment, and for which discrete financial information is available.
Notes to the Financial Statements (continued)
for the year ended 31 March 2018
Segment results that are reported to the Board of Directors include items directly attributable to a segment as well as those that can be allocated to a segment on a reasonable basis.
4.1 |
Revenue |
Revenue by geographic location is follows:
(US dollars in thousands) |
2018 |
2017 |
|||||
United States |
1,622 | 24,945 | |||||
Australia |
31,985 | 5,705 | |||||
United Kingdom |
- | 1,600 | |||||
Total revenue |
33,647 | 32,250 |
Revenue by product and service is follows:
(US dollars in thousands) |
2018 |
2017 |
|||||
Development fees |
828 | 24,555 | |||||
Electrical products and related services |
31,631 | 5,615 | |||||
Other revenue |
1,188 | 2.080 | |||||
Total revenue |
33,647 | 32,250 |
No more than 10% of the revenue relates to one customer (2017: 40.3%).
4.2 |
Operating segments |
a) |
Segment results of operations |
Results of operations for the year ended 31 March by reportable segment are as follows:
2018 (US dollars in thousands) |
Solar Development |
Power Services |
Corporate Office |
Total |
|||||||||
Revenue |
1,840 | 31,807 | - | 33,647 | |||||||||
Costs of sales |
(1,042 | ) | (27,482 |
) |
- | (28,524 |
) |
||||||
Gross profit |
798 | 4,325 | - | 5,123 | |||||||||
General and administrative expenses |
(6,468 |
) |
(2,173 |
) |
(4,173 |
) |
(12,814 |
) |
|||||
Gain on sale of assets |
1,143 | 213 | - | 1,356 | |||||||||
Depreciation and amortisation |
(19 |
) |
(1,233 |
) |
(8 |
) |
(1,260 |
) |
|||||
Operating profit |
(4,546 |
) |
1,132 | (4,181 |
) |
(7,595 |
) |
||||||
Restructuring costs |
(964 |
) |
(335 |
) |
(574 |
) |
(1,873 |
) |
|||||
Impairment of assets |
(10,191 |
) |
- | - | (10,191 |
) |
|||||||
Impairment of goodwill |
(11,092 |
) |
- | - | (11,092 |
) |
|||||||
Transaction costs |
- | - | - | - | |||||||||
Finance expense - net |
(400 |
) |
(1,283 |
) |
(1,703 |
) |
(3,386 |
) |
|||||
(Loss)/profit before taxation |
(27,193 |
) |
(486 |
) |
(6,458 |
) |
(34,137 |
) |
|||||
Income tax expense |
6,291 | (85 |
) |
52 | 6,258 | ||||||||
(Loss)/profit for the year |
(20,902 |
) |
(571 |
) |
(6,406 |
) |
(27,879 |
) |
Notes to the Financial Statements (continued)
for the year ended 31 March 2018
2017 (US dollars in thousands) |
Solar Development |
Power Services |
Corporate Office |
Total |
|||||||||
Revenue |
26,636 | 5,614 | - | 32,250 | |||||||||
Costs of sales |
(29 |
) |
(4,948 |
) |
- | (4,977 |
) |
||||||
Gross profit |
26,607 | 666 | - | 27,273 | |||||||||
General and administrative expenses |
(4,544 |
) |
(598 |
) |
(4,453 |
) |
(9,595 |
) |
|||||
Gain on sale of assets |
- | - | - | - | |||||||||
Depreciation and amortisation |
(4 |
) |
(646 |
) |
(1 |
) |
(651 |
) |
|||||
Operating profit |
22,059 | (578 |
) |
(4,454 |
) |
17,027 | |||||||
Restructuring costs |
- | - | - | - | |||||||||
Impairment of assets |
- | - | - | - | |||||||||
Impairment of goodwill |
- | - | - | - | |||||||||
Transaction costs |
- | - | (5,800 |
) |
(5,800 |
) |
|||||||
Finance expense - net |
(174 |
) |
(363 |
) |
(52 |
) |
(589 |
) |
|||||
Profit/(loss) before taxation |
21,885 | (941 |
) |
(10,306 |
) |
10,638 | |||||||
Income tax expense |
(6,078 |
) |
294 | 446 | (5,338 |
) |
|||||||
Profit/(loss) for the year |
15,807 | (647 |
) |
(9,860 |
) |
5,300 |
b) |
Segment net assets |
Net assets as at March 31 by reportable segment are as follows:
2018 (US dollars in thousands) |
Solar Development |
Power Services |
Corporate Office |
Total |
|||||||||
Assets |
41,270 | 34,421 | 621 | 76,312 | |||||||||
Liabilities |
(11,101 |
) |
(6,473 |
) |
(21,735 |
) |
(39,309 |
) |
|||||
Net assets |
30,169 | 27,948 | (21,114 |
) |
37,003 |
2017 (US dollars in thousands) |
Solar Development |
Power Services |
Corporate Office |
Total |
|||||||||
Assets |
42,235 | 24,268 | 34,333 | 100,836 | |||||||||
Liabilities |
(27,858 |
) |
(4,620 |
) |
(3,752 |
) |
(36,230 |
) |
|||||
Net assets |
14,377 | 19,648 | 30,581 | 64,606 |
5. |
Gain on sale of assets |
The gain on sale of assets for the year-ended 31 March 2018 totalling $1.3 million arose on the sale of the Amaroo solar project in Australia ($1.1 million gain) and sale of disposal of property & equipment assets by the Aevitas business ($0.2 million gain).
The proceeds on sale of the Amaroo solar project purchase price was $2.0 million for plant and equipment assets with a net book value $0.9 million. The proceeds of sale were applied to repay a related bank loan from ANZ Bank with an outstanding balance of principal and interest on the transaction date of $1.0 million.
The Aevitas gain on sale of assets of $0.2 million is comprised of numerous small sales of surplus vehicles as part of on-going fleet upgrade and renewal and sale of scrap materials.
Notes to the Financial Statements (continued)
for the year ended 31 March 2018
6. |
Operating Profit |
Operating profit is stated after charging:
(US dollars in thousands) |
2018 |
2017 |
|||||
Amortisation of intangible assets |
840 | 548 | |||||
Depreciation of property, plant and equipment |
420 | 103 | |||||
Operating lease costs – land and buildings |
304 | 174 | |||||
Gain/(loss) on foreign exchange |
59 | - | |||||
Auditors’ remuneration – audit fees |
414 | 246 | |||||
Auditors’ remuneration – audit related services |
- | 57 | |||||
Auditors’ remuneration – tax services |
13 | - | |||||
Directors emoluments |
1,131 | 1,705 | |||||
Gain/(loss) on disposal of assets |
1,356 | - |
Auditors’ remuneration – audit related services for the year ended 31 March 2017 represents costs incurred for the review of the Company’s registration statement by Marcum LLP.
7. |
Restructuring costs |
(US dollars in thousands) |
2018 |
2017 |
|||||
Corporate restructuring – workforce reduction |
734 | - | |||||
Corporate restructuring – professional fees |
566 | - | |||||
Corporate restructuring – terminated projects |
573 | - | |||||
Total |
1,873 | - |
Restructuring costs by nature are one-time incurrences, and therefore, do not represent normal trading activities of the business. These costs are disclosed separately in order to draw them to the attention of the reader of the financial information and enable comparability in future periods.
During the year, the Board undertook a strategic restructuring of our business to align operations, personnel, and business development activities to focus on a fewer number of areas of activity. Associated with this restructuring was the departure of a number of employees and contractors from the business. The workforce reduction cost represents the total salary, benefit, severance, and contract costs paid in the year or accruing to these individuals in the future for which no services will be rendered to the Company. Professional fees represent legal fees incurred to resolve certain disputes related to some of these separations. Terminated projects are the costs incurred for business development of specific solar development projects in South America and Australia for which the decision was made not to proceed for economic reasons.
8. |
Impairment of assets and assets held for sale |
Subsequent to 31 March 2018, the Company entered into an agreement to sell the 14.5% and 10% equity interests in two North Carolina solar project investments to the majority investor at the fair market value of these projects. The proceeds of sale, net of transaction costs, are $11.4 million. At 31 March 2018, the Company’s investment in these investments totalled $21.6 million and accordingly, an impairment of $10.2 million was recorded and the remaining net realisable value of $11.4 million reclassified to current assets as an asset held for sale. These investments were previously recorded as investments, as more fully disclosed in note 15.
Notes to the Financial Statements (continued)
for the year ended 31 March 2018
9. |
Staff numbers and costs |
The average number of employees (including directors) during the year was:
2018 |
2017 |
||||||
Sales and Business Development |
9 | 4 | |||||
Central Services & Management |
37 | 11 | |||||
Production |
148 | 23 | |||||
Total |
194 | 38 |
Their aggregate remuneration costs comprised:
(US dollars in thousands) |
2018 |
2017 |
|||||
Salaries, wages and incentives |
11,857 | 5,707 | |||||
Social security costs |
2,457 | 398 | |||||
Pension contributions |
278 | 196 | |||||
Short-term compensated absences |
337 | 403 | |||||
Total |
14,929 | 6,704 |
Directors’ emoluments were $1130,570 (2017: $1,704,809) of which the highest paid director received $407,682 (2017: $1,297,504). Director emoluments include employer social security costs.
Key Management Personnel:
(US dollars in thousands) |
2018 |
2017 |
|||||
Salaries, wages and incentives |
2,281 | 3,014 | |||||
Social security costs |
217 | 194 | |||||
Pension contributions |
64 | 39 | |||||
Short-term compensated absences |
13 | 101 | |||||
Total |
2,575 | 3,348 |
Key management personnel are those below the Board level that have a significant impact on the operations of the business. The number of key management personnel, including directors for the year ended 31 March 2018 was 11 (2017: 11).
10. |
Finance income and expense |
(US dollars in thousands) |
2018 |
2017 |
|||||
Finance income |
|||||||
Interest received |
9 | - | |||||
Foreign exchange gains |
- | 13 | |||||
Total |
9 | 13 |
Finance expense |
|||||||
Related party loan interest payable |
1,636 | 171 | |||||
Convertible loan notes and preference shares interest payable |
1,220 | 358 | |||||
Financing agreement finance cost payable |
217 | - | |||||
Finance lease interest payable |
55 | - | |||||
Bank interest payable |
17 | 37 | |||||
Foreign exchange losses |
93 | - | |||||
Other finance costs |
157 | 36 | |||||
Total |
3,395 | 602 |
Notes to the Financial Statements (continued)
for the year ended 31 March 2018
11. |
Income tax expenses |
The tax charge comprises:
(US dollars in thousands) |
2018 |
2017 |
|||||
Current tax |
|||||||
UK corporation tax |
(29 |
) |
- | ||||
Foreign tax |
2,279 | (2,361 |
) |
||||
Total current tax |
2,250 | (2,361 |
) |
||||
Deferred tax |
|||||||
Current year |
|||||||
UK corporation tax |
(370 |
) |
451 | ||||
Foreign tax |
4,378 | (3,428 |
) |
||||
Total deferred tax |
4,008 | (2,977 |
) |
||||
Total tax recovery/(charge) on profit on ordinary activities |
6,258 | (5,338 |
) |
The difference between the total tax charge and the amount calculated by applying the weighted average corporation tax rate applicable to each of the tax jurisdictions in which the Group operates to the profit before tax is shown below.
(US dollars in thousands) |
2018 |
2017 |
|||||
(Loss)/profit on ordinary activities before tax |
(34,137 |
) |
10,638 | ||||
Tax on group (loss)/profit on ordinary activities at the weighted average corporation tax rate of 23% (2017: UK standard corporation tax rate of 20%) |
7,772 | (2,131 |
) |
||||
Effects of: |
|||||||
Expenses that are not deductible in determining taxable profits |
(3,872 |
) |
(73 |
) |
|||
Release of prior year current tax provision |
2,358 | - | |||||
Tax rates of subsidiaries operating in other jurisdictions |
- | (3,108 |
) |
||||
Change in tax rates |
- | (26 |
) |
||||
Total tax recovery/(charge) for the year recognised in the Consolidated Statement of Comprehensive Income |
6,258 | (5,338 |
) |
11.1 |
Deferred tax |
(US dollars in thousands) |
2018 |
2017 |
|||||
Deferred tax assets |
2,570 | 2,312 | |||||
Deferred tax liabilities |
(26 |
) |
(3,776 |
) |
|||
Net deferred tax asset/(liability) |
2,544 | (1,464 |
) |
These assets and liabilities are analysed as follows:
Deferred tax assets |
Tax losses |
Other timing differences |
Total |
|||||||
1 April 2017 |
2,312 | - | 2,312 | |||||||
Credit/(charged) to comprehensive income |
(727 |
) |
985 | 258 | ||||||
31 March 2018 |
1,585 | 985 | 2,570 |
Notes to the Financial Statements (continued)
for the year ended 31 March 2018
Deferred tax liabilities |
Accelerated allowances |
Other timing differences |
Total |
|||||||
1 April 2017 |
(13 |
) |
(3,763 |
) |
(3,776 |
) |
||||
Credit/(charged) to comprehensive income |
5 | 3,745 | 3,750 | |||||||
31 March 2018 |
(8 |
) |
(18 |
) |
(26 |
) |
Deferred tax has been recognised in the current period using the tax rates applicable to each of the tax jurisdictions in which the Group operates. Deferred tax assets and liabilities are offset when there is a legally enforceable right to set off current tax assets against current tax liabilities.
12. |
Property, plant and equipment |
(US dollars in thousands) |
Computer Equipment |
Motor Vehicles |
Plant & Equipment |
Leasehold improvement |
Fixtures and Fittings |
Total |
|||||||||||||
Cost |
|||||||||||||||||||
At 1 April 2017 |
525 | 1,632 | 1,892 | 156 | 11 | 4,216 | |||||||||||||
Foreign exchange |
3 | 10 | 12 | 1 | - | 26 | |||||||||||||
Additions |
121 | 437 | 537 | 4 | 2 | 1,101 | |||||||||||||
Disposals |
(7 |
) |
(82 |
) |
(921 |
) |
- | - | (1,010 |
) |
|||||||||
At 31 March 2018 |
642 | 1,997 | 1,520 | 161 | 13 | 4,333 | |||||||||||||
Depreciation |
|||||||||||||||||||
At 1 April 2017 |
327 | 1,027 | 650 | 41 | 8 | 2,053 | |||||||||||||
Foreign exchange |
2 | 6 | 4 | - | - | 12 | |||||||||||||
Charge for the year |
97 | 203 | 107 | 12 | 1 | 420 | |||||||||||||
Disposals |
(4 |
) |
(63 |
) |
- | - | - | (67 |
) |
||||||||||
At 31 March 2018 |
422 | 1,173 | 761 | 53 | 9 | 2,418 | |||||||||||||
Net book value |
|||||||||||||||||||
At 1 April 2017 |
198 | 605 | 1,242 | 115 | 3 | 2,163 | |||||||||||||
At 31 March 2018 |
220 | 824 | 759 | 108 | 4 | 1,915 |
The Group has $0.6 (2017: $0.3) million of assets held under finance lease. Details of the liabilities are shown in note 19.
13. |
Intangible Assets |
(US dollars in thousands) |
2018 |
2017 |
|||||
Goodwill |
24,482 | 30,393 | |||||
Other intangible assets |
11,920 | 15,927 | |||||
Carrying value at 31 March |
36,402 | 46,320 |
Notes to the Financial Statements (continued)
for the year ended 31 March 2018
(a) |
Goodwill |
Goodwill arose on the purchase of Aevitas O Holdings Limited and VivoPower Pty Limited on 29 December 2016.
(US dollars in thousands) |
2018 |
2017 |
|||||
As at 1 April |
30,393 | - | |||||
Revaluations |
3,597 | - | |||||
Goodwill previously not recognised |
627 | ||||||
Impairment |
(11,092 |
) |
|||||
Reclassifications |
138 | - | |||||
Additions |
- | 30,024 | |||||
Foreign exchange |
819 | 369 | |||||
Carrying value at 31 March |
24,482 | 30,393 |
The carrying amounts of goodwill by Cash Generating Unit (“CGU”) are as follows:
(US dollars in thousands) |
2018 |
2017 |
|||||
Aevitas O Holdings Limited |
13,949 | 9,800 | |||||
VivoPower Pty Limited |
10,533 | 20,593 | |||||
Total |
24,482 | 30,393 |
In the prior year, the Group took advantage of the provisions of IFRS 3 in accounting for the business combinations arising from the acquisitions of Aevitas O Holdings Pty Limited and VivoPower Pty Limited whereby the financial statements recognised the Directors' best estimate of the individual allocation of goodwill and other separately identifiable assets acquired. The purchase price allocation exercise was completed in the current year and gave rise to a $3.6 million revaluation of goodwill and corresponding decrease intangible assets as noted below.
The Group conducts impairment tests on the carrying value of goodwill annually, or more frequently if there are any indications that goodwill might be impaired. The recoverable amount of the Cash Generating Unit (“CGU”) to which goodwill has been allocated are determined from value in use calculations. The key assumptions in the calculations are the discount rates applied, expected operating margin levels and long-term growth rates. Management estimates discount rates that reflect the current market assessments while margins and growth rates are based upon approved budgets and related projections.
The Group prepares cash flow forecasts using the approved budgets for the coming financial year and management projections for the following two years. Cash flows are also projected for subsequent years as management believe that the investment is held for the long term. These budgets and projections reflect management’s view of the expected market conditions and the position of the CGU’s products and services within those markets.
As a result of the impairment review as at 31 March 2018, an impairment charge of $10.5 million was recorded against the goodwill that arose on the acquisition of VivoPower Pty Limited in the previous year. The recoverable amount was determined based on the present value of estimated future cash flows discounted at 12.1% for cash flows budgeted for the year ended 31 March 2019 and 15.1% for forecast cash flows thereafter. The Group’s strategic shift in Australia to the development of medium-to-large scale behind-the-meter and utility-scale solar PV projects, away from our previous strategy of acquiring small developed roof-mounted solar projects from third-party developers to sell to long term owners, while expected to be more profitable in the longer-term, presents a higher degree of execution risk in the short-term as suitable opportunities need to be identified, secured and developed. In addition, the Company’s cost of capital and expected return from such projects has increased as limited capital is prioritized to the best opportunities.
Notes to the Financial Statements (continued)
for the year ended 31 March 2018
In addition, an impairment charge of $0.6 million was recorded on the first-time consolidation of three Philippine-based controlled entities. VivoPower Singapore Pte Ltd, a wholly-owned subsidiary, has control over three Philippines-based subsidiaries, V.V.P. Holdings Inc., VivoPower Philippines Inc., and VivoPower RE Solutions Inc. These entities have not been previously consolidated on the basis of materiality. As the activity within these entities has continued to increase, it was deemed appropriate to consolidate them with effect from 1 April 2018. Upon initial consolidation, the Group recognized negative net assets of $0.6 million which resulted in a corresponding amount of goodwill on acquisition. This goodwill was immediately deemed impaired and the impact of the provision is included in the Consolidated Statement of Comprehensive Income for the year ended 31 March 2018.
The CGU represented by Aevitas was assessed to have a value in excess of its respective carrying value and hence no additional adjustments to goodwill were considered necessary. Key assumptions used in the assessment of the Aevitas were:
● |
the discount rate was based on the weighted average cost of capital of 9.2% (2017: 8.3%); and, |
● |
no sensitivity analysis is provided as the Company expects no foreseeable changes in the assumptions that would result in impairment of the goodwill. |
(b) |
Other Intangible assets |
(US dollars in thousands) |
Customer Relationships |
Trade Names |
Favourable Supply Contracts |
Databases |
Other |
Total |
|||||||||||||
Cost |
|||||||||||||||||||
At 1 April 2017 |
9.953 | 2,488 | 2,488 | 734 | 812 | 16,475 | |||||||||||||
Foreign exchange |
139 | 63 | 126 | 4 | - | 332 | |||||||||||||
Revaluation |
(4,293 |
) |
129 | 1,963 | (584 |
) |
(812 |
) |
(3,597 |
) |
|||||||||
Additions |
- | - | - | - | 98 | 98 | |||||||||||||
At 31 March 2018 |
5,799 | 2,680 | 4,577 | 154 | 98 | 13,308 | |||||||||||||
Amortisation |
|||||||||||||||||||
At 1 April 2017 |
347 | 43 | 122 | 36 | - | 548 | |||||||||||||
Amortisation |
330 | 194 | 284 | 32 | - | 840 | |||||||||||||
At 31 March 2018 |
677 | 237 | 406 | 68 | - | 1,388 | |||||||||||||
Net book value |
|||||||||||||||||||
At 1 April 2017 |
9,606 | 2,445 | 2,366 | 698 | 812 | 15,927 | |||||||||||||
At 31 March 2018 |
5,122 | 2,443 | 4,171 | 86 | 98 | 11,920 |
Notes to the Financial Statements (continued)
for the year ended 31 March 2018
14. |
Investment in subsidiaries |
The principal operating undertakings in which the Group’s interest at the year-end is more than 20% are as follows:
Subsidiary undertakings |
Percentage of ordinary shares held |
Registered address |
|
VivoPower International Services Limited |
100% |
3rd Floor 37 Esplanade, St Helier, Jersey, JE2 3QA |
|
VivoPower International Holdings Limited |
100% |
91 Wimpole Street, London, England, UK W1G 0EF |
|
VivoPower USA LLC |
100% |
|
|
VivoRex LLC |
100% |
||
VivoPower US-NC-31, LLC |
100% |
251 Little Falls Drive, Wilmington, DE, USA 19808 | |
VivoPower US-NC-47, LLC |
100% |
||
VivoPower (USA) Development, LLC |
100% |
||
VivoPower Pty Limited |
100% |
|
|
Aevitas O Holdings Pty Limited |
100% |
||
Aevitas Group Limited |
99.9% |
||
Aevitas Holdings Pty Limited |
100% |
153 Walker St, North Sydney NSW, Australia 2060 | |
Electrical Engineering Group Pty Limited |
100% |
||
JA Martin Electrical Limited |
100% |
||
Kenshaw Electrical Pty Limited |
100% |
||
VivoPower WA Pty Limited |
100% |
|
|
VVP Project 1 Pty Limited |
100% |
||
VVP Project 2 Pty Limited |
100% |
||
Amaroo Solar Tco Pty Limited |
100% |
||
Amaroo Solar Hco Pty Limited |
100% |
||
Amaroo Solar Fco Pty Limited |
100% |
153 Walker St, North Sydney NSW, Australia 2060 | |
Amaroo Solar Pty Limited |
100% |
||
SC Tco Pty Limited |
100% |
||
SC Hco Pty Limited |
100% |
||
SC Fco Pty Limited |
100% |
||
SC Oco Pty Limited |
100% |
||
ACN 613885224 Pty Limited |
100% |
||
Juice Capital Fund 1 Pty Limited |
100% |
||
VivoPower Singapore Pte Limited |
100% |
36, UOB Plaza 1, 80 Raffles Place, Singapore 048624 |
|
V.V.P. Holdings Inc. |
40% |
Unit 10A, Net Lima Building, 5th Avenue cor. 26th Street, E-Square Zone, Crescent Park West, Bonifacio Global City, Taguig, Metro Manila |
|
VivoPower Philippines Inc. |
64% |
||
VivoPower RE Solutions Inc. |
64% |
||
Innovative Solar Ventures I, LLC |
50% |
251 Little Falls Drive, Wilmington, DE, USA 19808 |
The Philippine entities above, listed as Associates, are under the control of VivoPower Singapore Pte Limited, and therefore are consolidated into the consolidated financials of VivoPower International PLC. This is in line with IFRS 10 [7] where it satisfies all three criteria to determine whether control exists.
Notes to the Financial Statements (continued)
for the year ended 31 March 2018
15. |
Investments |
(US dollars in thousands) |
% Owned |
2018 |
2017 |
|||||||
Innovative Solar Ventures I, LLC |
50% | 14,147 | - | |||||||
US-NC-31 Sponsor Partner, LLC |
14.45% | - | 10,529 | |||||||
US-NC-47 Sponsor Partner, LLC |
10% | - | 7,531 | |||||||
Total |
14,147 | 18,060 |
In April 2017, the Company entered into a 50% joint venture with an early-stage solar development company, Innovative Solar Systems, LLC, to develop a diversified portfolio of 38 utility-scale solar projects in 9 different states, representing a total electricity generating capacity of approximately 1.8 gigawatts, through an investment entity called Innovative Solar Ventures I, LLC (the “ISS Joint Venture”). This investment is accounted for under the equity method.
Under the terms of the agreement, the Company committed to invest $14.9 million, which was recorded in full at the outset and offset by a corresponding current obligation payable. The investment balance at 31 March 2018, has been reduced by a $0.7 million commission credit described below.
Under the terms of the ISS Joint Venture agreement the Company committed to invest $14.9 million for a 50% equity interest in the portfolio of 38 projects, an amount which included $0.8 million in potential brokerage commissions that have not been required and which have been credited towards the Company’s commitment. In addition, an initial capital contribution of $0.5 million was made by a top-tier U.S.-based EPC firm, in consideration for a right to provide certain engineering services related to the ISS Joint Venture portfolio projects. The $14.9 million investment is allocated to each of the 38 projects based on monthly capital contributions determined with reference to completion of specific project development milestones under an approved development budget for the ISS Joint Venture. The Company contributed to the ISS Joint Venture an additional $12.4 million of the $14.9 million commitment over the course of the year ended 31 March 2018, which after giving effect to the payment by the EPC firm and a proportionate amount of the commission credit, left a remaining capital commitment at 31 March 2018, of $1.3 million, which is recorded in trade and other payables.
The table below provides summarised financial information for the ISS Joint Venture. The information disclosed reflects the amounts presented in the financial statements of ISS Joint Venture, amended to reflect adjustments made by the Company when using the equity method, including fair value adjustments and modifications for differences in accounting policy. The summarised financial information for the ISS Joint Venture does not represent the Company’s share of those amounts.
(US dollars in thousands) |
2018 |
2017 |
|||||
Current assets |
1,373 | - | |||||
Non-current assets |
26,921 | - | |||||
Net assets |
28,294 | - |
No summarised statement of comprehensive income has been presented as there were no movements in comprehensive income in the year (2017: nil).
Notes to the Financial Statements (continued)
for the year ended 31 March 2018
Reconciliation to carrying amounts:
(US dollars in thousands) |
2018 |
2017 |
|||||
Opening net assets |
- | - | |||||
Initial investment |
29,808 | - | |||||
Commission credit |
(1,514 | ) | - | ||||
Net assets |
28,294 | - | |||||
VivoPower share in % |
50 | % | - | ||||
VivoPower share in $ (US dollars in thousands) |
14,147 |
During the year ended 31 March 2017, the Company developed its first two major solar projects, located in North Carolina, United States, known as NC-31 and NC-47 (together the “NC Projects”). The Company acquired these projects on 14 June 2016 and 29 August 2016, respectively. On 29 July 2016 and 25 October 2016, and prior to commencement of construction, third-party investors acquired the majority of these projects, with the Company retaining a 14.5% and 10.0% non-controlling equity interest in NC-31 and NC-47, respectively (“Residual Interests”). The Company invested $18.1 million in the year ended 31 March 2017, and an additional $3.5 million in the year ended 31 March 2018, for a total cost of $21.6 million related to the Residual Interests. Subsequent to 31 March 2018, the Company sold the Residual Interests to the majority investor and accordingly have reclassified the investment to current assets as asset held for sale, as more fully disclosed in note 8.
16. |
Cash and cash equivalents |
(US dollars in thousands) |
2018 |
2017 |
|||||
Cash at bank and in hand |
1,939 | 10,970 |
The credit ratings of the counterparties with which cash was held are detailed in the table below.
(US dollars in thousands) |
2018 |
2017 |
|||||
A-1+ |
830 | 2,341 | |||||
A-1 |
969 | 8,161 | |||||
A-2 |
140 | 468 | |||||
Total |
1,939 | 10,970 |
17. |
Trade and other receivables |
(US dollars in thousands) |
2018 |
2017 |
|||||
Current receivables |
|||||||
Trade receivables |
5,333 | 5,248 | |||||
Accrued income |
120 | 13,183 | |||||
Prepayments |
391 | 563 | |||||
Other receivables |
2,059 | 722 | |||||
Related party receivable |
- | 128 | |||||
Total |
7,903 | 19,844 | |||||
Non-current receivables |
|||||||
Loan due from associate |
- | 549 | |||||
Other receivables |
- | 618 | |||||
Total |
- | 1,167 |
Notes to the Financial Statements (continued)
for the year ended 31 March 2018
Analysis of trade receivables:
(US dollars in thousands) |
2018 |
2017 |
|||||
Trade and other receivables |
5,335 | 5,250 | |||||
Less: credit note provision |
(2 |
) |
(2 |
) |
|||
Total |
5,333 | 5,248 |
The maximum exposure to credit risk for trade receivables by geographic region was:
(US dollars in thousands) |
2018 |
2017 |
|||||
USA |
129 | ||||||
United Kingdom |
12 | 1,600 | |||||
Australia |
5,192 | 3,648 | |||||
Total |
5,333 | 5,248 |
The aging of the trade receivables, net of provisions is:
(US dollars in thousands) |
2018 |
2017 |
|||||
0-90 days |
5,326 | 5,092 | |||||
Greater than 90 days |
7 | 156 | |||||
Total |
5,333 | 5,248 |
18. |
Trade and other payables |
(US dollars in thousands) |
2018 |
2017 |
|||||
Trade payables |
5,644 | 2,158 | |||||
Accruals |
3,008 | 1,297 | |||||
Related party payable |
- | 1,445 | |||||
Treasury shares (see note 25 for further details) |
- | 592 | |||||
Payroll liabilities |
504 | 1,972 | |||||
Sales tax payable |
310 | 412 | |||||
Deferred income |
1,544 | 305 | |||||
Other creditors |
3,072 | 81 | |||||
Total |
14,082 | 8,262 |
19. |
Obligations under finance leases |
(US dollars in thousands) |
Minimum lease payments: |
Present value of minimum lease payments |
|||||||||||
2018 |
2017 |
2018 |
2017 |
||||||||||
Amounts payable under finance leases: |
|||||||||||||
Less than one year |
291 | 165 | 285 | 145 | |||||||||
Later than one year but not more than five |
327 | 107 | 293 | 95 | |||||||||
618 | 272 | 578 | 240 | ||||||||||
Future finance charges |
(40 |
) |
(32 |
) |
- | - | |||||||
Total obligations under finance lease |
578 | 240 | - | - |
Notes to the Financial Statements (continued)
for the year ended 31 March 2018
20. |
Provisions |
(US dollars in thousands) |
2018 |
2017 |
|||||
Current provisions |
|||||||
Employee and contractor termination |
616 | - | |||||
Onerous contract |
380 | - | |||||
Employee entitlements |
1,474 | 1,339 | |||||
Non-current provisions |
|||||||
Employee entitlements |
288 | 237 | |||||
Total |
2,758 | 1,576 |
The employee and contractor termination provision represents severance and contract termination costs associated with employees and contractors who departed the business as a result of the restructuring more fully disclosed in note 7.
The onerous contract provision recognizes the loss associated with a contract to sell Solar Renewable Energy Certificates purchased from the NC-47 project at a loss until April 21, 2022.
Employee entitlements include long term leave and vacation provisions.
(US dollars in thousands) |
Employee Entitlements |
Employee Termination |
Contractor Termination |
Onerous Contract |
Total |
|||||||||||
At 1 April 2016 |
- | - | - | - | - | |||||||||||
Acquired through business combinations |
1,576 | - | - | - | 1,576 | |||||||||||
At 31 March 2017 |
1,576 | -- | - | - | 1,576 | |||||||||||
Charged/(credited) to profit or loss |
||||||||||||||||
Additional provisions recognised |
186 | 32 | 584 | 380 | 1,182 | |||||||||||
At 31 March 2018 |
1,762 | 32 | 584 | 380 | 2,758 |
21. |
Loans and borrowings |
(US dollars in thousands) |
2018 |
2017 |
|||||
Current liabilities |
|||||||
Financing agreement |
2,000 | - | |||||
Related party loan |
1,670 | - | |||||
Bank loan |
- | 90 | |||||
Non-current liabilities |
|||||||
Bank loan |
- | 933 | |||||
Related party loan |
18,092 | 18,992 | |||||
Total |
21,762 | 20,015 |
The financing agreement represents a short-term loan from SolarTide, LLC, an affiliate of DEPCOM Power, which was made in January 2018, subject to a loan fee of $0.3m, interest at 12%, and was repaid in May 2018.
The related party loans in current liabilities are with Arowana International Limited. A $0.8 million was made in March 2018, bears interest at 8.5%, and was repaid in April 2018. The remaining $0.9 million is the current portion of the non-current related party loan described below.
Notes to the Financial Statements (continued)
for the year ended 31 March 2018
The bank loan was due to ANZ Bank and was repaid in February 2018 on sale of the related Amaroo solar project. The loan was repayable over an 11.5-year period at a monthly repayment amount of approximately $7,500 per month for 138 months.
The non-current related party loan of $18.1 million loan is the non-current portion of a $19 million loan from Arowana International Limited, which bears interest at 8.5% paid monthly in arrears, and is repayable in twelve equal monthly instalments of $75,000 beginning April 2018, with the remainder repayable in 36 equal monthly instalments thereafter.
22. |
Called up share capital |
2018 |
2017 |
||||||||
Allotted, called up and fully paid |
|||||||||
Ordinary shares of $0.012 each as at 31 March |
$ | 162,689 | $ | 162,689 | |||||
Number allotted |
|||||||||
Ordinary shares of $0.012 each |
13,557,376 | 13,557,376 |
No. of shares |
||||
At 1 April 2017 |
13,557,376 | |||
Issue of new shares |
- | |||
At 31 March 2018 |
13,557,376 |
23. |
Other reserves |
(US dollars in thousands) |
2018 |
2017 |
|||||
Equity instruments |
25.072 | 25,072 | |||||
Share option reserve |
3,713 | 3,713 | |||||
Capital raising costs |
(9,722 |
) |
(9,722 |
) |
|||
Treasury shares (see note 25) |
(592 |
) |
(592 |
) |
|||
Foreign exchange |
(88 |
) |
(142 |
) |
|||
Total |
18,383 | 18,329 |
Equity instruments are convertible preference shares and convertible loan notes in Aevitas Group Limited (“Aevitas Group”) which must convert to shares of VivoPower at $10.20 per share no later than 30 June 2021. The Company has classified these instruments as equity under the “fixed-for-fixed” rule meaning that both the amount of consideration received/receivable and the number of equity instruments to be issued is fixed.
There are 2,473,367 convertible preference shares outstanding with a face value of AU$3.00 per share and mature on June 30, 2021. The value held in reserves of AU$9,956,149 represents their face value plus the dividends accrued to 29 December 2016, the date at which they became convertible to VivoPower shares. Convertible preference shares are subordinated to all creditors of Aevitas Group, rank equally amongst themselves, and rank in priority to ordinary shares of Aevitas Group.
There are 2,473,367 convertible loan notes outstanding with a face value of AU$7.00 per share and mature on June 30, 2021. The value held in reserves of AU$22,489,140 represents their face value plus the dividends accrued to 29 December 2016, the date at which they became convertible to VivoPower shares. The convertible loan notes rank equally with the unsecured creditors of Aevitas Group.
Notes to the Financial Statements (continued)
for the year ended 31 March 2018
Dividends or interest is payable quarterly in arrears at a rate of 7% on the capitalised value to 29 December 2016. At maturity, or if a trigger event such as a change of control event, listing event or a disposal of substantially all of Aevitas Group has occurred, the Company can choose to redeem the instruments or convert them into VivoPower ordinary shares at a price of US$10.20 per share.
In connection with the acquisition of Aevitas Group, the Company entered into a guarantee of the obligations of Aevitas Group under the terms of the preference shares and loan notes.
The share option reserve represents 828,000 share options granted to Early Bird Capital as part of the initial public share offering. The options entitle the holder to buy VivoPower ordinary shares at US$8.70 at any time before 30 April 2020. The options were accounted for as a share-based award and accordingly, the cost of the award was recognised directly in equity and was applied against capital raising costs. The fair value of the options was determined at the grant date, using the Black Scholes Model, and not remeasured subsequently.
24. |
Earnings per share |
The earnings and weighted average numbers of ordinary shares used in the calculation of earnings per share are as follows:
(US dollars in thousands) |
2018 |
2017 |
|||||
Profit/(loss) for the year |
(27,879 |
) |
5,300 | ||||
Weighted average number of shares in issue (‘000s) |
13,557 | 6,548 | |||||
Basic earnings/(loss) per share (dollars) |
(2.06 |
) |
0.81 | ||||
Diluted earnings/(loss) per share (dollars) |
(2.06 |
) |
0.81 |
25. |
Treasury shares |
On 30 March 2017, the Company repurchased 129,805 shares at a price of $4.50 for a total sum of $591,916, including commission. The shares are being held as treasury shares.
26. |
Contingencies |
(a) Litigation
On February 26, 2018, the Company’s former Chief Executive Officer, Phillip Comberg, filed a legal claim alleging the Company committed a repudiatory breach of his service agreement in connection with the termination of his employment on October 4, 2017. Mr. Comberg is claiming damages of £615,600 related to the notice period in his service agreement, £540,000 related to shares in the Company he alleges were due to him, and other unquantified amounts related to bonuses and past services fees alleged to be due.
On April 9, 2018, the Company filed a defence and counterclaim, denying the claims asserted by Mr. Comberg and claiming damages in an amount of approximately $27 million plus certain other amounts to be quantified. The Company believes strongly in the merits of its litigation against Mr. Comberg and intends to continue a strong defence and counterclaim.
As the outcome of the litigation is uncertain, very much dependent upon uncertain future determinations by third parties, and the amount of any possible recovery or liability cannot be reliably measured, no provision has been made in these financial statements in respect of this matter.
Notes to the Financial Statements (continued)
for the year ended 31 March 2018
(b) Bank guarantees
The Group has issued bank guarantees totalling $1.0 million to customers to secure performance obligations under power services contracts. These obligations are secured by first charge over the assets of JA Martin PTY Limited.
27. |
Operating lease commitments |
(US dollars in thousands) |
2018 |
2017 |
|||||
Property |
Property |
||||||
Commitments under non-cancellable operating leases expiring: |
|||||||
Within one year |
144 | 15 | |||||
Later than one year and less than five years |
160 | 159 |
The Group leases several buildings and office facilities. The terms of the leases vary from location to location. The main leases are in New South Wales, Australia and run for a period for a period of 5 years and 1 year. The leases are due to expire in 2019.
28. |
Pensions |
The Group’s principal pension plan comprises the compulsory Superannuation scheme in Australia, where the Group contributes 9.5%. The pension charge for the year represents contributions payable by the Group which amounted to $900,483 (2017: $196,005) in respect of the Australian scheme. New schemes will be completed for the UK and US during the forthcoming year.
29. |
Financial instruments |
(US dollars in thousands) |
2018 |
2017 |
|||||
Financial assets |
|||||||
Trade and other receivables |
7,512 | 20,448 | |||||
Cash and cash equivalents |
1,939 | 10,970 | |||||
Total |
9,451 | 31,418 | |||||
Financial Liabilities |
|||||||
Loans and borrowings |
21,762 | 20,015 | |||||
Trade and other payables |
13,268 | 5,878 | |||||
Finance leases payable |
578 | 240 | |||||
Total |
35,608 | 26,133 |
The amounts disclosed in the above table for trade and other receivables and payables do not agree to the amount reported in the Company’s consolidated statement of financial position as they exclude prepaid expenses, payroll and sale tax payables which are not considered to be financial assets or liabilities.
(a) Financial risk management
The Group’s principal financial instruments are bank balances, cash and medium-term loans. The main purpose of these financial instruments is to manage the Group’s funding and liquidity requirements. The Group also has other financial instruments such as trade receivables and trade payables which arise directly from its operations.
The Group is exposed through its operations to the following financial risks:
● |
Liquidity risk |
● |
Credit risk |
Notes to the Financial Statements (continued)
for the year ended 31 March 2018
● |
Interest rate risk |
● |
Foreign currency risk |
The Board of Directors has overall responsibility for the establishment and oversight of the Group’s risk management framework. Policy for managing risks is set by the Chief Financial Officer and is implemented by the Group’s finance department. All risks are managed centrally with a tight control of all financial matters.
(b) Liquidity risk
Liquidity risk is the risk that the Group will not be able to meet its financial obligations as they fall due. The Group considers that it has no significant liquidity risk. The Group held cash resources of $1.9 (2017: $10.9) million with related party loan of $19.0 (2017: $19.0) million. The ratio of current assets to current liabilities is 1.03 (2017: 2.53:1). The Group manages its liquidity as a whole and ensures that there are sufficient available cash resources for each Group company to operate effectively.
(c) Credit risk
The primary risk arises from the Group’s receivables from customers. The majority of the Group’s customers are long standing and have been a customer of the Group for many years. Losses have occurred infrequently. The Group is mainly exposed to credit risks from credit sales but the Group has no significant concentrations of credit risk and keeps the credit status of customers under review. Credit risks of customers of new customers are reviewed before entering into contracts. The debtor exposure is monitored by Group finance and the local entities review and report their exposure on a monthly basis.
The Group does not consider the exposure to the above risks to be significant and has therefore not presented a sensitivity analysis on the identified risks.
The credit quality of debtors neither past due nor impaired is good. Refer to note 17 for further analysis on trade receivables.
(d) Foreign currency risk
The Group operates internationally and is exposed to foreign exchange risk on sales and purchases that are denominated in currencies other than the respective functional currencies of the Group entities to which they relate, primarily with respect to GBP and USD, but also between USD and AUD.
The Group’s investments in overseas subsidiaries are not hedged as those currency positions are either USD denominated and/or considered to be long-term in nature.
The Group is exposed to foreign exchange risk on $7.4 million of trade and other receivables denominated in AUD. In addition, the Group is exposed to foreign exchange risk on $6.1 million or trade and other payables, of which $4.9 million is denominated in AUD and $1.2 million in GBP.
The related party loans are denominated in USD, and therefore, foreign currency risk is eliminated.
(e) Interest rate risk
As a result of the related party loan agreement the Group is exposed to interest rate volatility. However, the interest rate is fixed for the medium term, therefore, the risk is largely mitigated for the near future. The Group will continue to monitor the movements in the wider global economy.
Notes to the Financial Statements (continued)
for the year ended 31 March 2018
30. |
Related party transactions |
Arowana International Limited is the ultimate controlling party by virtue of its 60.3% shareholding in VivoPower. Kevin Chin, Chairman of VivoPower, is also Chief Executive of Arowana International Limited. During the year, a number of services were provided to the Group from Arowana and its subsidiaries (“Arowana”); the extent of the transactions between the two groups is listed below.
VivoPower is indebted to Arowana via a related party loan on normal commercial terms with interest charged at 8.5% per annum, which was repaid, together with interest, in April 2018. At 31 March 2018 the principal balance due to Arowana by VivoPower under this loan was $770,000 (2017: nil).
VivoPower is indebted to Arowana via a related party loan on normal commercial terms with interest at 8.5% per annum payable monthly in arrears and principal repayable in equal monthly instalments of $75,000 beginning April 2018, with the remainder repayable in 36 equal monthly instalments thereafter. At 31 March 2018 the principal balance due to Arowana by VivoPower under this loan was $18,992,263 (2017: $18,992,263).
Directors fees for Kevin Chin in the amount of $21,094 per month are charged by Arowana Partners Group Pty Limited. At 31 March 2018 the Company had an account payable to Arowana Partners Group Pty Limited of $42,188 (2017: nil) in respect of these services.
Art Russell, Chief Financial Officer, is employed by Arowana International UK Limited, a subsidiary of Arowana, and seconded to VivoPower; $26,352 per month is charged to the Company for these services. At 31 March 2018 the Company had an account payable of $80,036 (2017: nil) in respect of these services.
Gary Hui, Director, is paid an annual salary of $360,000 by VivoPower, $260,000 of which is recharged to Arowana on a monthly basis, together with related expenses. At 31 March 2018 VivoPower had an account receivable from Arowana of $242,915 (2017: $121,046) in respect of these recharges.
From time to time, costs incurred by Arowana on behalf of VivoPower are recharged to the Company. During the year ended 31 March 2018, Arowana recharged $1.6 million of third-party fees to VivoPower related to international solar procurement consulting, project evaluations, engineering review and technical validation related to the EPC contract for NC-31, a solar project in North Carolina which was substantially completed on 27 March 2017; the expense has been included in general and administrative expenses. In addition, $202,003 was recharged to the Company related to an abandoned business development project and included in restructuring costs as disclosed in note 7. At 31 March 2018 the Company has a payable to Arowana for both amounts, totalling $1,802,003 (2017: nil).
Kevin Chin or entities controlled by Kevin Chin are investors in ReNu Energy, with whom the Group entered into an alliance agreement and sold the Amaroo solar project for $2.0 million during the year.
Aevitas is indebted to the following subsidiaries of Arowana via their holdings in Aevitas convertible loan notes, which are accounted for as equity instruments within other reserves, as more fully described in note 23, and for which they earned $758,766 of interest during the year ended 31 March 2018. The outstanding amount represents the face value plus interest accrued to 29 December 2016:
● |
Arowana Australasian Special Situations 1A Pty Ltd <Arowana Australasian Special Situations Trust 1A A/C>: 666,666 Aevitas notes held with an outstanding amount of $4,655,366; |
|
● |
Arowana Australasian Special Situations 1B Pty Ltd <Arowana Australasian Special Situations Trust 1B A/C>: 666,666 Aevitas notes held with an outstanding amount of $4,655,366; and, |
|
● |
Arowana Australasian Special Situations 1C Pty Ltd <Arowana Australasian Special Situations Trust 1C A/C>: 666,667 Aevitas notes held with an outstanding amount of $4,655,366. |
Notes to the Financial Statements (continued)
for the year ended 31 March 2018
Subsidiaries of Arowana hold the following convertible preferred shares of Aevitas, which are accounted for as equity instruments within other reserves, and for which they earned $325,185 of dividends during the year ended 31 March 2018. The outstanding amount represents the face value plus dividends accrued to 29 December 2016:
● |
Arowana Australasian Special Situations 1A Pty Ltd <Arowana Australasian Special Situations Trust 1A A/C>: 388,889 Aevitas preferred shares held with an outstanding amount of $1,163,843; |
|
● |
Arowana Australasian Special Situations 1B Pty Ltd <Arowana Australasian Special Situations Trust 1B A/C>: 388,889 Aevitas preferred shares held with an outstanding amount of $1,163,843; |
|
● |
Arowana Australasian Special Situations 1C Pty Ltd <Arowana Australasian Special Situations Trust 1C A/C>: 388,889 Aevitas preferred shares held with an outstanding amount of $1,163,843; and, |
|
● |
Arowana Australasian Special Situations Fund 1 Pty Limited <Arowana Australasian Special Situation Fund >: 833,333 Aevitas preferred shares held with an outstanding amount of $2,493,948. |
Aevitas is indebted to the following entities via their holdings in Aevitas convertible loan notes:
● |
The Panaga Group Trust, of which Mr. Kevin Chin is a beneficiary and one of the directors of the corporate trustee of such trust, holds 4,500 notes with an outstanding amount of $31,425 representing face value plus interest accrued to December 31, 2016, and earned interest of $1,707 for the year ended March 31, 2018; and, |
|
● |
Sd & K Investments Pty Ltd <Hoskins Family A/C> an entity controlled by Mr Dudley Hoskin holds 43,249 notes with an outstanding amount of $302,010, representing face value plus interest accrued to December 31, 2016, and earned interest of $16,408 for the year ended March 31, 2018. |
Aevitas is indebted to the following entities via their holdings in Aevitas convertible preferred shares:
● |
The Panaga Group Trust, of which Mr. Kevin Chin is a beneficiary and one of the directors of the corporate trustee of such trust, holds 4,500 shares with an outstanding amount of $13,467 representing face value plus dividends accrued to December 31, 2016, and earned dividends of $732 for the year ended March 31, 2018; and, |
|
● |
Sd & K Investments Pty Ltd <Hoskins Family A/C> an entity controlled by Mr Dudley Hoskin holds 43,249 shares with an outstanding amount of $129,433 representing face value plus dividends accrued to December 31, 2016, and earned dividends of $7,032 for the year ended March 31, 2018 |
31. |
Key management personnel compensation |
Key management personnel, which are those roles that have a group management aspect to them are included in note 9 to the consolidated financial statements.
32. |
Ultimate controlling party |
The ultimate controlling party and the results into which these financials are consolidated is Arowana International Limited.
Company Statement of Financial Position
as at 31 March 2018
(US dollars in thousands) |
Note |
2018 |
2017 |
||||||
ASSETS |
|||||||||
Non-current assets |
|||||||||
Investments |
3 | 7,388 | 17,853 | ||||||
Intercompany loan receivable |
25,258 | 25,072 | |||||||
Total non-current assets |
33,646 | 42,925 | |||||||
Current assets |
|||||||||
Cash and cash equivalents |
20 | 439 | |||||||
Other receivables |
4 | 17,257 | 15,526 | ||||||
Total current assets |
17,277 | 15,965 | |||||||
TOTAL ASSETS |
49,923 | 58,890 | |||||||
EQUITY AND LIABILITIES |
|||||||||
Current liabilities |
|||||||||
Trade payables |
630 | 245 | |||||||
Accrued expenses and other payables |
5 | 600 | 870 | ||||||
Total current liabilities |
1,230 | 1,115 | |||||||
Equity |
|||||||||
Share capital |
6 | 163 | 163 | ||||||
Share premium |
40,215 | 40,215 | |||||||
Other reserves |
7 | 18,657 | 18,471 | ||||||
Retained deficit |
(10,342 |
) |
(1,074 |
) |
|||||
Total Equity |
48,693 | 57,775 | |||||||
TOTAL EQUITY AND LIABILITIES |
49,923 | 58,890 |
Registered number 09978410
As allowed by S408 Companies Act 2006, no profit and loss account is presented in respect of the parent company. The loss for Company after taxation was $9,260,663 (2017: $1,074,396).
These financials were approved by the Board on 18 July 2018 and signed on its behalf by:
Kevin Chin
Chairman
Company Cash Flow Statement
for the year ended 31 March 2018
(US dollars in thousands) |
Note |
2018 |
2017 |
* | |||||
Cash flows from operating activities |
|||||||||
Loss for the year |
(9,261 |
) |
(1,074 |
) |
|||||
Income tax expense |
29 | - | |||||||
Finance income |
(2 |
) |
- | ||||||
Finance expense |
33 | - | |||||||
Impairment of investment |
3 | 10,465 | (399 |
) |
|||||
Increase in trade and other receivables |
277 | (399 |
) |
||||||
Increase in trade and other payables |
86 | 1,115 | |||||||
Net cash (used in)/from operating activities |
1,627 | (358 | ) | ||||||
Cash flows from investing activities |
|||||||||
Interest received |
2 | - | |||||||
Investment in subsidiary |
3 | - | (17,853 |
) |
|||||
Intercompany loan funding |
4 | (2,008 |
) |
(15,127 |
) |
||||
Net cash (used in)/from investing activities |
(2,006 |
) |
(32,980 |
) |
|||||
Cash flows from financing activities |
|||||||||
Other reserves |
(7 |
) |
- | ||||||
Finance expense |
(33 |
) |
- | ||||||
Funds received from issuing shares |
- | 40,378 | |||||||
Costs from listing |
- | (6,009 |
) |
||||||
Issuance treasury shares |
- | (592 |
) |
||||||
Net cash from/(used in) financing activities |
(40 |
) |
33,777 | ||||||
Net increase in cash and cash equivalents |
(419 |
) |
439 | ||||||
Cash and cash equivalents at the beginning of the year |
439 | - | |||||||
Cash and cash equivalents at the end of the year |
20 | 439 |
* Comparative results are for the 14-month period ended 31 March 2017.
Company Statement of Changes in Equity
for the period ended 31 March 2018
(US dollars in thousands) |
Share Capital |
Share Premium |
Other Reserves |
Retained Deficit |
Total |
||||||||||
At 1 February 2016 |
- | - | - | - | - | ||||||||||
Total comprehensive income for the year |
- | - | - | (1,074 | ) | (1,074 | ) | ||||||||
Redenomination of share capital |
(4 | ) | - | - | - | (4 | ) | ||||||||
Issue of new shares |
167 | 40,215 | - | - | 40,382 | ||||||||||
Equity instruments |
- | - | 25,072 | - | 25,072 | ||||||||||
Capital raising costs |
- | - | (9,722 | ) | - | (9,722 | ) | ||||||||
Share option reserve |
- | - | 3,713 | - | 3,713 | ||||||||||
Purchase of shares |
- | - | (592 | ) | - | (592 | ) | ||||||||
Other reserves |
- | - | - | - | - | ||||||||||
163 | 40,215 | 18,471 | (1,074 | ) | 57,775 | ||||||||||
At 31 March 2017 |
163 | 40,215 | 18,471 | (1,074 | ) | 57,775 | |||||||||
Total comprehensive income for the year |
- | - | - | (9,261 | ) | (9,261 | ) | ||||||||
Foreign exchange |
- | - | 186 | (7 | ) | 179 | |||||||||
At 31 March 2018 |
163 | 40,215 | 18,657 | (10,342 | ) | 48,693 |
For further information on “Other Reserves” please see note 7 to the Company Financial Statements.
Notes to the Company Financial Statements
for the period ended 31 March 2018
1. |
Basis of preparation |
VivoPower International PLC company financial statements were prepared in accordance with International Financial Reporting Standards (IFRS), IFRIC interpretations and the Companies Act 2006 applicable to companies reporting under IFRS. The financial statements have been prepared under the historical cost convention.
As allowed by S408 Companies Act 2006, no profit and loss account is presented in respect of the parent company.
2. |
Accounting policies |
(a) Foreign exchange
The Company’s functional and presentational currency is the US dollar. Transactions denominated in foreign currencies are translated into the functional currency of the entity at the rates prevailing at the dates of the individual transactions. Foreign currency monetary assets and liabilities are translated at the rates prevailing at the balance sheet date. Exchange gains and losses arising are charged or credited to the profit and loss account.
(b) Taxation
Deferred taxation is provided in full for material timing differences except where recoverability of a deferred tax is considered to be remote in the foreseeable future. Deferred tax balances are not discounted unless the effects are considered to be material the Company’s results.
(c) Investments
Investments held as non-current assets are shown at cost less provision for impairment.
(d) Related party transactions
Details of the related party transactions can be found in note 30 within the consolidated financial statements.
3. |
Investments |
(US dollars in thousands) |
2018 |
2017 |
|||||
Shares in group undertakings |
|||||||
Investment in VivoPower International Services Limited |
7,388 | 17,853 | |||||
Total |
7,388 | 17,853 |
The details of the principal undertakings in which the Group’s interest at the period-end was more than 20%, all of which are referred to in note 14 in the consolidated financial statements.
As at 31 March 2018, VivoPower International Services Limited (“VISL”) recorded an impairment charge of $10.5 million against goodwill that arose on the acquisition of VivoPower Pty Limited in the previous year, as disclosed in note 13 in the consolidated financial statements. Accordingly, this impairment has been reflected in the Company’s investment in VISL.
Notes to the Company Financial Statements (continued)
for the period ended 31 March 2018
4. |
Other receivables |
(US dollars in thousands) |
2018 |
2017 |
|||||
Amounts owed by group undertakings |
17,145 | 15,127 | |||||
Prepaid expenses |
122 | 399 | |||||
Total |
17,257 | 15,526 |
5. |
Accrued expenses and other payables |
(US dollars in thousands) |
2018 |
2017 |
|||||
Accrued expenses |
566 | 267 | |||||
Treasury shares |
- | 592 | |||||
Payroll tax liabilities |
6 | 4 | |||||
Other creditors |
29 | 7 | |||||
Total |
600 | 870 |
6. |
Share capital |
(US dollars in thousands) |
2018 |
2017 |
|||||||
Allotted, called up and fully paid |
|||||||||
Ordinary shares of $0.012 each as at 31 March |
$ | 162,689 | $ | 162,689 | |||||
Number allotted |
|||||||||
Ordinary shares of $0.012 each |
13,557,376 | 13,557,376 |
No. of shares |
|||||
1 April 2017 |
13,557,376 | ||||
Issue of new shares |
- | ||||
At 31 March 2018 |
13,557,376 |
The Company issued 13,557,376 ordinary shares at a nominal value of $0.012 during the period ended 31 March 2017.
On 30 March 2017, the Company repurchased 129,805 shares at a price of $4.50 for a total sum of $591,916, including commission. The shares are being held as treasury shares.
7. |
Other reserves |
(US dollars in thousands) |
2018 |
2017 |
|||||
Equity instruments |
25,072 | 25,072 | |||||
Capital raising costs |
(9,722 | ) | (9,722 | ) | |||
Share option reserve |
3,713 | 3,713 | |||||
Treasury shares (see note 6) |
(592 | ) | (592 | ) | |||
Foreign exchange |
186 | - | |||||
Total |
18,657 | 18,471 |
Notes to the Company Financial Statements (continued)
for the period ended 31 March 2018
Equity instruments relate to convertible preference shares and convertible loan notes that are exchangeable for shares in VivoPower International PLC. There are 2,473,367 convertible preference shares at an issue price of $3.00 per share. There are 2,473,367 convertible loan notes at an issue price of $7.00 per share. The value held in reserves represents their face value plus the accrued interest to 31 December 2016. Interest is payable quarterly in arrears at a rate of 7% on both instruments.
Share option reserve relates to share options whereby the holder can buy VivoPower International PLC shares at US$8.70 at any time before 30 April 2020. As at 31 March 2018, there were 828,000 options outstanding.
8. |
Employees and directors |
The company employed no members of staff during the course of the period. Contractual agreements are in place for five non-executive directors to serve on the board of VivoPower International PLC.
See the Directors’ Report in the consolidated financial statements for full details of the directors.
Company Information
ADVISORS |
|
Company Registrars |
Legal Advisers |
Computershare Inc., |
Herbert Smith Freehills LLP, |
250 Royall Street, |
Exchange House, |
Canton, MA, USA 02021 |
Primrose Street, |
|
London, UK EC2A 2EG |
|
|
Correspondence address: |
Principal Bankers |
Computershare Inc., |
Barclays Bank PLC, |
P.O. Box 505000, |
Level 16, 1 Churchill Place, |
Louisville, KY, USA 40233 |
Canary Wharf, |
|
London, UK E14 5HP |
|
|
Independent auditors |
Company Secretary |
PKF Littlejohn LLP, |
First Names Secretaries (GB) Limited, |
1 Westferry Circus, |
4th Floor, 45 Monmouth Street, |
Canary Wharf, |
London, UK WC2H 9DG |
London, UK E14 4HD |
|
SHAREHOLDER INFORMATION
Country of Incorporation and main countries of operation |
Number of Securities in Issue |
|
|
|
|
International PLC is incorporated in England & Wales. The Company operates in the United Kingdom, United States and Australia |
As of 18 July 2018, the Company’s VivoPower issued share capital consists of 13,557,376 ordinary shares with a nominal value of $0.012 each. The Company has 129,805 treasury shares. |
|
|
|
|
|
|
|
Company Registration |
|
|
Registered office: 91 Wimpole Street, London, UK W1G 0EF |
|
|
Registered in England & Wales |
|
|
Company number: 09978410 |
|
FINANCIAL CALENDAR
Annual General Meeting (“AGM”)
The Company’s AGM will be held at 15:00 on 20 August 2018, at the Company’s headquarters, located at 91 Wimpole Street, Marylebone, London, United Kingdom W1G 0EF.
Exhibit 99.3
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