2. LA CONCEPCIÓN DEL AGUA Y SU PROYECCIÓN INSTITUCIONAL
2.4. LAS DEFICIENCIAS DEL SISTEMA ESPAÑOL DE GESTIÓN DEL AGUA
2.4.1.5. Cambios recientes en la distribución institucional de responsabi-
The following provides a summary of the relevant articles contained in the Guarantor‘s Articles of Association which relate to the Guarantor as the principal company of a REIT group (the ‘‘REIT Articles’’ and each a ‘‘REIT Article’’):
Relevant definitions
REIT Regulations UK legislation as described in Part 12 of the Corporation Tax Act 2010.
Substantial Shareholder a corporate shareholder that is beneficially entitled, directly or indirectly, to 10 per cent. or more of the Guarantor’s dividends or share capital or that controls, directly or indirectly, 10 per cent. or more of the voting rights of the Guarantor.
Substantial Shareholding the shares in respect of which a Substantial Shareholder is entitled to distributions, directly or indirectly, and/or the votes attached to which are controlled, directly, or indirectly, by the Substantial Shareholder.
24.1 The REIT Articles
(a) provide the Directors with powers to identify Substantial Shareholders;
(b) prohibit the payment of distributions in respect of Ordinary Shares that form part of a Substantial Shareholding, unless certain conditions are met;
(c) allow distributions in respect of Ordinary Shares that form part of a Substantial Shareholding where the Substantial Shareholder has disposed of its rights to distributions in respect of its Ordinary Shares; and
(d) seek to ensure that if a distribution is paid in respect of Ordinary Shares that form part of a Substantial Shareholding and arrangements of the kind referred to in (c) above are not in place, the Substantial Shareholder concerned does not become beneficially entitled to that distribution.
A Substantial Shareholder means a shareholder whose interest in the Guarantor, whether legal or beneficial, direct or indirect, may cause the Guarantor to be liable to pay tax under section 551 of the Corporation Tax Act 2010 (as such legislation may be modified, supplemented or replaced from time to time) on or in connection with the making of a distribution to or in respect of such person including, at the date of adoption of the REIT Article, any holder of excessive rights as defined in section 553 of the Corporation Tax Act 2010 and a Substantial Shareholding means the shares in the Guarantor in relation to which or by virtue of which (in whole or in part) a person is a Substantial Shareholder.
24.2 Identification of Substantial Shareholders
The REIT Articles require a Substantial Shareholder and any registered shareholder holding shares on behalf of a Substantial Shareholder to notify the Guarantor if his Ordinary Shares form part of a Substantial Shareholding. Such a notice must be given by the end of the second business day after the day on which the duty to notify arose. The REIT Articles give the board of Directors the right to require any person to provide information in relation to any Ordinary Shares in order to determine whether the Ordinary Shares form part of a Substantial Shareholding. If the required information is not provided within the time specified (which would be seven days after a request is made or such other period as the board of Directors may decide), the board of Directors would be entitled to impose sanctions, including withholding dividends (as described below) and/or requiring the transfer of the Ordinary Shares to another person who is not and does not thereby become a Substantial Shareholder (as described below).
The Directors shall be entitled to presume without enquiry, unless any Director has reason to believe otherwise, that a person is not a Substantial Shareholder.
The REIT Articles provide that a distribution will not be paid on any Ordinary Shares that the board of Directors believes may form part of a Substantial Shareholding unless the board of Directors is satisfied that the Substantial Shareholder is not beneficially entitled to the distribution.
If in these circumstances payment of a distribution is withheld, the distribution will be paid subsequently if the board of Directors is satisfied that:
(a) the Substantial Shareholder concerned is not beneficially entitled to the distribution; (b) the shareholding is not part of a Substantial Shareholding;
(c) all or some of the Ordinary Shares and the right to the distribution have been transferred to a person who is not, and does not thereby become, a Substantial Shareholder (in which case the dividends would be paid to the transferee); or
(d) sufficient Ordinary Shares have been transferred (together with the right to the distributions) such that the Ordinary Shares retained are no longer part of a Substantial Shareholding (in which case the distributions would be paid on the retained Ordinary Shares).
For this purpose, references to the ‘‘transfer’’ of an Ordinary Share include the disposal (by any means) of beneficial ownership of, control of voting rights in respect of and beneficial entitlement to distributions in respect of that Ordinary Share.
24.4 Payment of a distribution where rights to it have been transferred
The REIT Articles provide that distributions may be paid on Ordinary Shares that form part of a Substantial Shareholding if the board of Directors is satisfied that the right to the distribution has been transferred to a person who is not, and does not thereby become, a Substantial Shareholder and the board of Directors may be satisfied that the right to the distribution has been transferred if it receives a certificate containing appropriate confirmations and assurances from the Substantial Shareholder. Such a certificate may apply to a particular distribution or to all future distributions in respect of Ordinary Shares forming part of a specified Substantial Shareholding, until notice rescinding the certificate is received by the Guarantor. A certificate that deals with future distributions will include undertakings by the person providing the certificate:
(a) to ensure that the entitlement to future distributions will be disposed of; and
(b) to inform the Guarantor immediately of any circumstances which would render the certificate no longer accurate.
The Directors may require that any such certificate is copied or provided to such persons as they may determine, including HM Revenue and Customs (“HMRC”).
If the board of Directors believes a certificate given in these circumstances is or has become inaccurate, then it will be able to withhold payment of future distributions (as described above). In addition, the board of Directors may require a Substantial Shareholder to pay the Guarantor the amount of any tax payable (and other costs incurred) as a result of a distribution having been paid to a Substantial Shareholder in reliance on the inaccurate certificate. The board of Directors may (as described below) arrange for the sale of the relevant Ordinary Shares and retain any such amount from the proceeds. Any such amount may also be recovered out of the distributions to which the Substantial Shareholder concerned may become entitled in the future.
Certificates provided in the circumstances described above will be of considerable importance to the Guarantor in determining whether distributions can be paid. If the Guarantor suffers loss as a result of any misrepresentation or breach of undertaking given in such a certificate, it may seek to recover damages directly from the person who has provided it.
The effect of these provisions is that there is no restriction on a person becoming or remaining a Substantial Shareholder provided that the person who does so makes appropriate arrangements to divest itself of the entitlement to distributions.
24.5 Trust arrangements where rights to distributions have not been disposed of by Substantial Shareholder
The REIT Articles provide that if a distribution is paid in respect of a Substantial Shareholding, such distribution and any income arising from it shall be held by the payee or the payee’s transferee on trust absolutely for the persons nominated by the Substantial Shareholder in such proportions as directed in the nomination. For these provisions to apply the Substantial Shareholder should be beneficially entitled to the distribution.
24.6 Mandatory sale of Substantial Shareholdings
The REIT Articles also allow the board of Directors to require the disposal of Ordinary Shares forming part of a Substantial Shareholding if:
(A) a Substantial Shareholder has been identified and a distribution has been announced or declared and the board of Directors has not been satisfied that the Substantial Shareholder has transferred the right to the distribution (or otherwise is not beneficially entitled to it);
(B) there has been a failure to provide information requested by the board of Directors; or (C) any information provided by any person proves materially inaccurate or misleading.
If a disposal of Ordinary Shares required by the board of Directors is not completed within the timeframe specified by the board of Directors or the Guarantor incurs a charge to tax as a result of a distribution having been paid on a Substantial Shareholding, the board of Directors may arrange for the sale of the relevant shares.
24.7 Takeovers
The REIT Articles do not prevent a person from acquiring control of the Guarantor through a takeover or otherwise, although such an event may cause the Guarantor to cease to qualify as a REIT.
24.8 Other
The REIT Articles also give the Guarantor power to require any shareholder who applies to be paid distributions without any tax withheld to provide such certificate as the board of Directors may require to establish the shareholder’s entitlement to that treatment.
25 Major Shareholdings
As at 8 January 2013 (being the latest practicable date prior to the publication of this document) the Guarantor had been notified of or was otherwise aware of the following Shareholders who were directly or indirectly interested in 3 per cent. or more of the Ordinary Shares:
Holder Shares held Per cent held
Tokenhouse Holdings (IOM)
Limited 173,566,817 19.99%
Coronation Asset Management (pty)
Limited 123,278,246 14.20%
Gordon Family Interests 92,143,203 10.61%
Public Investment Corporation 35,565,906 4.10%
GENERAL INFORMATION