Statutory Disclosures
Pensions
The assets of the UK defined-benefit pension fund are controlled by the Directors of Aggreko Pension Scheme Trustee Limited; they are held separately from the assets of the Company and invested by independent fund managers. These segregated funds cannot be invested directly in the Company. Four trustees have been appointed by the Company and, in addition, one member-nominated trustee has been appointed. This fund was closed to new employees joining the Group after 1 April 2002; new UK employees are now offered membership of a Group Personal Pension Plan.
Share capital
On 31 December 2012 the Company had in issue 268,366,083 ordinary shares of 13549/775p each ('ordinary shares'), 18,352,057,648 deferred shares of 1/775 pence each and 182,700,915 deferred shares of 618/25 pence each ('Deferred Shares') comprising 74.62%, 0.48% and 24.90% respectively of the Company's issued share capital. Details of the changes in issued share capital during the year are shown in Note 23 to the accounts.
Rights and obligations attached to shares
Subject to applicable statutes (in this section referred to as the 'Companies Acts') and to any rights conferred on the holders of any other shares, any share may be issued with or have attached to it such rights and restrictions as the Company may by ordinary resolution decide or, if no such resolution has been passed or so far as the resolution does not make specific provision, as the Board may decide.
Voting
Subject to any special terms as to voting upon which any shares may be issued or may for the time being be held and to any other provisions of the Articles, on as how of hands every member who is present in person or by proxy or represented by a corporate representative at a general meeting of the Company has one vote. On a poll every member who is present in person or by proxy or represented by a corporate representative has one vote for every share of which he is the holder. In the case of joint holders of a share the vote of the senior who tenders a vote, whether in person or by proxy, is accepted to the exclusion of the votes of the other joint holders and, for this purpose, seniority is determined by the order in which the names stand in the register in respect of the joint holding.
The holders of the Deferred Shares are not entitled to receive notice of any general meeting of the Company or to attend, speak or vote at any such meeting.
Restrictions on voting
No member is, unless the Board otherwise decides, entitled in respect of any share held by him to vote (either personally or by proxy or by a corporate representative) at any general meeting of the Company or at any separate general meeting of the holders of any class of shares in the Company if any calls or other sums presently payable by him in respect of that share remain unpaid or if he is a person with a 0.25 per cent interest (as defined in the Articles) and he has been served with a restriction notice (as defined in the Articles) after failure to provide the Company with information concerning interests in those shares required to be provided under the Companies Acts.
The Company is not aware of any agreement between holders of securities that may result in restrictions on voting rights.
Dividends and other distributions
Subject to the provisions of the Companies Acts, the Company may by ordinary resolution from time to time declare dividends in accordance with the respective rights of the members, but no dividend can exceed the amount recommended by the Board.
Subject to the provisions of the Companies Acts,the Board may pay such interim dividends as appear to the Board to be justified by the financial position of the Company and may also pay any dividend payable at a fixed rate at intervals settled by the Board whenever the financial position of the Company, in the opinion of the Board, justifies its payment. If the Board acts in good faith, it shall not incur any liability to the holders of any shares for any loss they may suffer in consequence of the payment of an interim or fixed dividend on any other class of shares ranking pari passu with or after those shares.
The Deferred Shares confer no right to participatein the profits of the Company.
On a return of capital on a winding-up (excluding any intra-Group reorganisation on a solvent basis), holders of Deferred Shares are entitled to be paid the nominal capital paid up or credited as paid up on such Deferred Shares after paying to the holders of the ordinary shares the nominal capital paid up or credited as paid up on the ordinary shares held by them respectively, together with the sum of £100,000,000 on each ordinary share.
The Board may deduct from any dividend or other moneys payable to a member by the Company on or in respect of any shares all sums of money (if any) presently payable by him to the Company on account of calls or otherwise in respect of shares of the Company. The Board may also withhold payment of all or any part of any dividends or other moneys payable in respect of the Company's shares from a person with a 0.25 per cent interest (as defined in the Articles) if such a person has been served with a restriction notice (as defined in the Articles) after failure to provide the Company with information concerning interests in those shares required to be provided under the Companies Acts.
Variation of rights
Subject to the provisions of the Companies Acts, rights attached to any class of shares may be varied either with the consent in writing of the holders of not less than three-fourths 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 general meeting of the holders of those shares. The necessary quorum applying to any such separate general meeting is two persons holding or representing by proxy not less than one-third in nominal value of the issued shares of the class (excluding any shares of that class held as treasury shares), (but at any adjourned meeting one holder present in person or by proxy (whatever the number of shares held by him) will constitute a quorum); every holder of shares of the class present in person or by proxy (excluding any shares of that class held as treasury shares) is entitled on a poll to one vote for every share of the class held by him (subject to any rights or restrictions attached to any class of shares) and any holder of shares of the class present in person or by proxy may demand a poll.
Restrictions on transfer of securities
in the Company
There are no restrictions on the transfer of securities in the Company, except that:
- certain restrictions may from time to time be imposed by laws and regulations (for example, insider trading laws);
- pursuant to the Listing Rules of the Financial Services Authority certain employees and Directors of the Company require the approval of the Company to deal in the Company's ordinary shares; and
- the Deferred Shares are not transferable except in accordance with the paragraph headed 'Powers in relation to the Company issuing or buying back its own shares' below or with the written consent of the Directors.
The Company is not aware of any agreements between holders of securities that may result in restrictions onthe transfer of securities.
Amendment of Articles of Association
Unless expressly specified to the contrary in the Articles of the Company, the Articles may be amended by a special resolution of the Company's shareholders.
Appointment and replacement of Directors
Unless otherwise determined by ordinary resolution of the Company, the number of Directors (disregarding alternate Directors) is not less than two nor more than fifteen. No shareholding qualification for Directors is required. The Company or the Board may appoint any person to be a Director. Any Director so appointed by the Board shall hold office only until the next general meeting and shall then be eligible for election. The Board or any committee authorised by the Board may appoint one or more Directors to hold employment or executive office with the Company for such period (subject to the Companies Acts) and on such other terms as the Board or Committee may in its discretion decide and may revoke or terminate any appointment so made.
The Articles state that each Director must retire from office at the third Annual General Meeting after the Annual General Meeting at which he was last elected. However, it is a requirement of the UK Corporate Governance Code that all Directors should be subject to annual election by shareholders. In addition to any power of removal conferred by the Companies Acts, the Company may by special resolution remove any Director before the expiration of his period of office. The office of a Director must be vacated if: (i) he resigns his office by notice in writing delivered to the office or tendered at a meeting of the Board; or (ii) by notice inwriting he offers to resign and the Board resolves to accept such offer; or (iii) his resignation is requested by all of the other Directors and all of the other Directors are not less than three in number; or (iv) a registered medical practitioner who is treating that Director gives a written opinion to the Company stating that that Director has become physically or mentally incapable of acting as a Director and may remain so for more than three months; or (v) by reason of a Director's mental health, a court makes an order which wholly or partly prevents that Director from personally exercising any powers or rights which that Director would otherwise have; or (vi) he is absent without the permission of the Board from meetings of the Board (whether or not an alternate Director appointed by him attends) for six consecutive months and the Board resolves that his office is vacated; or (vii) he becomes bankrupt or compounds with his creditors generally; or (viii) he is prohibited by law from being a Director; or (ix) he ceases to be a Director by virtue of the Companies Acts or is removed from office pursuant to the Articles.
Powers of the Directors
Subject to the provisions of the Companies Acts, the Company's Articles and to any directions given by the Company in general meeting by special resolution, the business of the Company is managed by the Board, which may exercise all the powers of the Company whether relating to the management of the business of the Company or not. In particular, the Board may exercise all the powers of the Company to borrow money and to mortgage or charge all or any part of the undertaking, property and assets (present and future) and uncalled capital of the Company and to issue debentures and other securities, whether outright or as collateral security for any debt, liability or obligation of the Company or any third party.
Powers in relation to the Company issuing or buying back its own shares
The Directors were granted authority at the last Annual General Meeting held in 2012 to allot relevant securities(i) up to a nominal amount of £12,206,454 and (ii) comprising equity securities up to a nominal amount of £24,412,909 (including within any such limit any shares and rights to subscribe for or convert any security into shares allotted under (i)), in connection with an offer by way of a rights issue. That authority will apply until the earlier of 30 June 2013 and the conclusion of the Annual General Meeting for 2013. At this year's Annual General Meeting shareholders will be asked to grant an authority to allot relevant securities up to a nominal amount of £12,271,057, such authority to apply until the end of next year's Annual General Meeting (or, if earlier, until the close of business on 30 June 2014).
A special resolution will also be proposed to renew the Directors' power to make non-pre-emptive issues for cash in connection with rights issues and otherwise up to a nominal amount of £1,840,843.
The Company was also authorised at the Annual General Meeting held in 2012 to make market purchases of up to 26,713,863 ordinary shares. This authorisation will expire on the earlier of the conclusion of the Annual General Meeting of the Company for 2013 and 30 June 2013.
A special resolution will also be proposed at this year's Annual General Meeting to renew the Directors' authority to repurchase the Company's ordinary shares in the market. The authority will be limited to a maximum of 26,857,931 ordinary shares and sets the minimum and maximum prices which may be paid.
The Company may at any time, without obtaining the sanction of the holders of the Deferred Shares: (a) appoint any person to execute on behalf of any holder of Deferred Shares a transfer of all or any of the Deferred Shares (and/or an agreement to transfer the same) to the Company or to such person as the Directors may determine, in any case for not more than 1 penny for all the Deferred Shares then being purchased from him; and (b) cancel all or any of the Deferred Shares so purchased by the Company in accordance with the Companies Acts.
Securities carrying special rights
No person holds securities in the Company carrying special rights with regard to control of the Company.
Rights under the employee share scheme
Appleby Trust (Jersey) Limited, as Trustee of the Aggreko Employees' Benefit Trust, holds 0.81% of the issued share capital of the Company as at 7 March 2013 on trust for the benefit of the employees and former employees of the Group and their dependents. The voting rights in relation to these shares are exercised by the Trustee and there are no restrictions on the exercise of the voting of, or the acceptance of any offer relating to, the shares. The Trustee is obliged to waive all dividends on the shares unless requested to do otherwise by the Company in writing.
Going concern
The Directors, having made all the relevant enquiries, consider that the Group and the Company have adequate resources at their disposal to continue their operations for the foreseeable future, and that it is therefore appropriate to prepare the accounts on a going concern basis.
Change of control
The Company has in place a number of agreements with advisers, financial institutions and customers which contain certain termination rights which would have effect on a change of control. The Directors believe these agreements to be commercially sensitive and that their disclosure would be seriously prejudicial to the Company; accordingly they do not intend disclosing specific details of these. In addition, all of the Company's share schemes contain provisions which in the event of a change of control, would result in outstanding options and awards becoming exercisable, subject to the rules of the relevant schemes.
There are no agreements between the Company and its Directors or employees providing for compensation for loss of office or employment that occurs because of a takeover bid.
Disclosure of informationto the Company's Auditor
In accordance with section 418 of the Companies Act 2006 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 (as defined by section 418(3) of the Companies Act 2006) of which the Company's Auditor is 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 Auditor is aware of that information.
Indemnity of officers
Under Article 154 of the Articles, the Company may indemnify any Director or other officer against any liability, subject to the provisions of the Companies Acts, and the Articles grant an indemnity to the Directors against any liability for the costs of legal proceedings where judgement is given in their favour.
Under the authority conferred by Article 154, the Company has granted indemnities to Directors and officers of the Company and its subsidiaries. The indemnities do not apply to any claim which arises out of fraud, default, negligence or breach of fiduciary duty or trust by the indemnified person.
In addition, the Company may purchase and maintain for any Director or other officer, insurance against any liability. The Company maintains appropriate insurance cover against legal action brought against its Directors and officers and the Directors and officers of its subsidiaries.
Supplier payment policy
It is the Company's policy to settle the terms and conditions of payment with suppliers when agreeing each transaction, to ensure that suppliers are made aware of these terms and, in practice, provided the supplier meets its contractual obligations, to abide by them. In overall terms, the Company had approximately 10 days' credit outstanding as at the balance sheet date (2011: 11 days').
Essential contractual arrangements
The Company buys the majority of its generator engines from Cummins Limited, a subsidiary of Cummins Inc based in Columbus, Indiana, USA. The Company also relies upon their global service and support network for the supply of spare parts. The Company's relationship with Cummins is governed by a supply agreement which is regularly reviewed.
Annual General Meeting
The Company's Annual General Meeting will be held at 11.00 a.m. 25 April 2013 at the Radisson BLU Hotel, 301 Argyle Street, Glasgow G2 8DL. The Notice of Meeting is given together with explanatory notes, in the booklet which accompanies the printed report.
Auditor
Resolutions re-appointing PricewaterhouseCoopers LLP as the Company's and Group's auditor and authorising the Directors to determine their remuneration will be proposed at the Annual General Meeting.
Material share interests
As at 31 December 2012 the Company had received notifications of the following major shareholdings, representing 3% or more of the voting rights attached to the issued ordinary share capital of the Company:
|
Name of shareholder |
Number |
% of total |
|
Capital Group |
27,197,764 |
10.14 |
|
Prudential PLC1 |
15,860,093 |
5.94 |
|
Baillie Gifford & Co1 |
13,518,442 |
5.04 |
|
A E H Salvesen2 |
9,995,283 |
3.73 |
|
Legal & General |
– |
Below |
|
1 Including direct and indirect subsidiary company interests. 2 Including immediate family and trustee interests. |
||
Between 31 December 2012 and 7 March 2013, the Company received the following notifications of major shareholdings:
|
Name of shareholder |
Date |
Number |
% of total |
|
BlackRock Inc1 |
04/01/2013 |
13,447,349 |
5.01 |
|
Capital Group |
04/01/2013 |
29,834,313 |
11.12 |
|
Capital Group |
11/01/2013 |
26,682,717 |
9.94 |
|
Capital Group |
30/01/2013 |
23,581,779 |
8.79 |
|
Capital Group |
01/02/2013 |
16,671,097 |
6.21 |
|
Capital Group |
05/02/2013 |
16,021,549 |
5.97 |
|
Capital Group |
12/02/2013 |
12,091,039 |
4.50 |
|
1 Including direct and indirect subsidiary company interests. |
|||
The Directors are not aware of any other material interests amounting to 3% or more in the share capital of the Company.
Peter Kennerley
Group Legal Director & Company Secretary
7 March 2013