As
filed with the Securities and Exchange Commission on May 31, 2024
Registration
Statement No. 333-279316
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
AMENDMENT NO. 1
TO
FORM
F-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SMX
(Security Matters) Public Limited Company
(Exact name of registrant as specified in its charter)
Ireland |
|
3590 |
|
N/A |
(State or other jurisdiction of
incorporation or organization) |
|
(Primary Standard Industrial
Classification Code Number) |
|
(I.R.S. Employer
Identification Number) |
+353-1-920-1000
Mespil Business Centre, Mespil House, Sussex Road,
Dublin 4, Ireland
(Address and telephone number of registrant’s
principal executive offices)
Puglisi & Associates
850 Library Avenue, Suite 204
Newark, DE 19711
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copies to:
Stephen E. Fox, Esq.
Samantha Guido, Esq.
Ruskin Moscou Faltischek P.C.
1425 RXR Plaza
East Tower, 15th Floor
Uniondale, NY 11556
Tel: (516) 663-6580 |
|
Doron Afik Adv.
Afik & Co.
103 Hahashmonaim Street
Tel Aviv, Israel 6120101
Tel: +972.3.6093609 |
|
Connor Manning
Arthur Cox
Ten Earlsfort Terrace
Dublin 2
D02 T380 |
Approximate date of commencement
of proposed sale to the public: From time to time after the date this registration statement becomes effective.
If any of the securities being
registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933 check
the following box: ☒
If this Form is filed to register
additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective
amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective
amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same offering. ☐
Indicate by check mark whether
the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933.
☒ Emerging growth company
If an emerging growth company
that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant has elected not to use the
extended transition period for complying with any new or revised financial accounting standards† provided pursuant to Section 7(a)(2)(B)
of the Securities Act. ☐
† |
The term “new or revised financial accounting standard” refers to any update issued by the Financial Accounting Standards Board to its Accounting Standards Codification after April 5, 2012. |
The Registrant hereby amends this registration
statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which
specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities
Act of 1933, as amended, or until the registration statement shall become effective on such date as the Securities and Exchange Commission,
acting pursuant to said Section 8(a), may determine.
PART
II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item
6. Indemnification of Directors and Officers
The
Company will be subject to the ICA. Subject to exceptions, the ICA does not permit a company to exempt a director or certain officers
from, or indemnify a director against, liability in connection with any negligence, default, breach of duty or breach of trust by a director
in relation to the company. The exceptions allow a company to (i) purchase and maintain director and officer insurance against any liability
attaching in connection with any negligence, default, breach of duty or breach of trust owed to the company; and (ii) indemnify a director
or other officer against any liability incurred in defending proceedings, whether civil or criminal (a) in which judgement is given in
his or her favor or in which he or she is acquitted or (b) in respect of which an Irish court grants him or her relief from any such
liability on the grounds that he or she acted honestly and reasonably and that, having regard to all the circumstances of the case, he
or she ought fairly to be excused for the wrong concerned.
Under
the Company’s Amended and Restated Memorandum and Articles of Association, subject to certain limitations and so far as may be
permitted by the ICA, each director, officer or employee of the Company, and each person who is or was serving at the request of the
Company as a director, officer or employee of another company, or of a partnership, joint venture, trust or other enterprise, including
service with respect to employee benefit plans maintained or sponsored by the Company, shall be entitled to be indemnified by the Company
against all costs, charges, losses, expenses and liabilities incurred by him or her in the execution and discharge of his or her duties
or in relation thereto, including any liability incurred by him or her in defending any proceedings, civil or criminal, which relate
to anything done or omitted or alleged to have been done or omitted by him or her as a director, officer or employee of the Company or
such other company, partnership, joint venture, trust or other enterprise, and in which judgment is given in his or her favor (or the
proceedings are otherwise disposed of without any finding or admission of any material breach of duty on his or her part) or in which
he or she is acquitted or in connection with any application under any statute for relief from liability in respect of any such act or
omission in which relief is granted to him or her by the court. However, any such indemnity shall not be made in respect of any claim,
issue or matter as to which such person shall have been adjudged to be liable for fraud or dishonesty in the performance of his or her
duty to the Company unless and only to the extent that the courts of Ireland or the court in which such action or suit was brought shall
determine upon application that despite the adjudication of liability, but in view of all the circumstances of the case, such person
is fairly and reasonably entitled to indemnity for such expenses as the court shall deem proper.
The
Company on closing entered into indemnification agreements with each of the directors of the Company to provide contractual indemnification
providing for indemnification and advancements by the Company of certain expenses and costs relating to claims, suits or proceedings
arising from his or her service to the Company, and to Lionheart if applicable or, at Lionheart’s request, service to other entities,
as officers or directors occurring at or prior to the Merger Effective Time to the maximum extent permitted by applicable law.
The
Company is also anticipated to maintain standard policies of insurance under which coverage is provided (1) to its directors and officers
against loss arising from claims made by reason of breach of duty or other wrongful act, while acting in their capacity as directors
and officers of the Company, and (2) to the Company with respect to payments which may be made by the Company to such officers and directors
pursuant to any indemnification provision contained in the Company’s Amended and Restated Memorandum and Articles of Association
or otherwise as a matter of law.
Item
7. Recent Sales of Unregistered Securities
The
following list sets forth information as to all of the Company’s securities sold in the last three years which were not registered
under the Securities Act. The descriptions of these issuances are historical and have not been adjusted to give effect to the Business
Combination.
All
of the below issuances reflect the number of Ordinary Shares issued at the time of issuance and do not reflect the an adjustment
pursuant to the Reverse Stock Split.
In
connection with the Company’s initial formation, the Company issued one ordinary share at a price of US$0.0001 each to Doron Afik,
and subsequently issued 25,000 deferred ordinary shares at a price of €1.00 per share, to Doron Afik. Immediately prior to consummation
of the Transactions, the Company had paid up capital of €25,000 and US$0.0001.
In
March 2023, in connection with the Standby Equity Purchase Agreement, by and between YA II PN, LTD (“Yorkville”) and the
Company, dated February 23, 2023 (the “SEPA”), the Company issued 92,315 Ordinary Shares to Yorkville as a 1.5% commitment
fee.
In
April 2023, the Company granted, pursuant to its 2022 Incentive Equity Plan, (a) an aggregate of 4,361,920 restricted stock units that
settle into ordinary shares of the Company and (b) options to purchase an aggregate of 597,030 ordinary shares, in each case to certain
of the Company’s executives, directors, employees, consultants and agents.
On
May 4, 2023, the Company issued (a) an aggregate of 872,418 ordinary shares, (b) redeemable warrants to purchase an aggregate of 384,500
ordinary shares and (c) warrants to purchase an aggregate of 255,500 ordinary shares, in each case to certain holders of outstanding
convertible bridge promissory notes of the Company, upon the conversions thereof in accordance with their terms.
In
May 2023, in connection with the SEPA, the Company issued 109,397 Ordinary Shares to Yorkville upon the conversion of $100,000 in principal
amount of its convertible promissory note.
In
June 2023, in connection with the SEPA, the Company issued 214,523 Ordinary Shares to Yorkville upon the conversion of $200,000 in principal
amount of its convertible promissory note.
On
June 16, 2023, in connection with the SEPA, the Company issued 258,933 Ordinary Shares to Yorkville upon the conversion of $150,000 in
principal amount of its convertible promissory note.
On
June 27, 2023, the Company issued to EF Hutton, a division of Benchmark Investments, LLC warrants to subscribe for 766,667 number of
Ordinary Shares as set forth in the Registration Statement on Form F-1 as filed with the SEC on June 28, 2023.
On
July 19, 2023, in connection with the SEPA, the Company issued 2,682,141 Ordinary Shares to Yorkville upon the conversion of $550,000
in principle amount of its convertible promissory note.
On
August 7, 2023, in connection with the SEPA, the Company issued 1,159,155 Ordinary Shares to Yorkville upon the conversion of $132,723.25
in principle amount of its convertible promissory note.
On
September 6, 2023, in connection with a Securities Purchase Agreement dated September 5, 2023 (“Securities Purchase Agreement”),
the Company issued (i) a convertible promissory note to an institutional investor in the principal amount of $4,290,000, and (ii) two
(2) warrants to the institutional investor, an “A” warrant and a “B” warrant. The A Warrant for 3,929,051 Ordinary
Shares has a conversion price of $0.0022 per shares and the B Warrant for 2,619,367 Ordinary Shares has an exercise price of $1.6378
per share.
On
September 20, 2023, in connection with the SEPA, the Company issued 129,421 Ordinary Shares to Yorkville upon the conversion of $167,246.75
in principal amount of its convertible promissory note.
On
September 28, 2023, in connection with amendments to loan agreements dated September 19, 2023, the Company issued 487,281 Ordinary Shares
to Kamea-the United Kibbutz Movement Ltd.
On
September 29, 2023, in connection with the SEPA, the Company issued 86,497 Ordinary Shares to Yorkville upon the conversion of $100,000
in principal amount of its convertible promissory note.
On
November 9, 2023, in connection with the Independent Contractor Engagement, dated August 11, 2023, by and between Holger and SMX Circular
Economy Platform Pte. Ltd., the Company issued 38,640 Ordinary Shares to Holger.
On
November 9, 2023, in connection with the Independent Contractor Engagement, dated August 23, 2023, by and between Mauro and SMX Circular
Economy Platform Pte. Ltd., the Company issued 22,325 Ordinary Shares to Mauro.
On
November 15, 2023, in connection with the Securities Purchase Agreement, the Company issued 146,223 Ordinary Shares to an institutional
investor upon the conversion of $239,484.02 in principal amount of its convertible promissory note.
On
November 20, 2023, in connection with the SEPA, the Company issued 89,269 Ordinary Shares to Yorkville upon the conversion of $100,000
in principal amount of its convertible promissory note.
On
November 28, 2023, in connection with the SEPA, the Company issued 727,270 Ordinary Shares to Yorkville upon the conversion of $800,000
in principal amount of its convertible promissory note.
On
November 28, 2023, in connection with the Securities Purchase Agreement, the Company issued 161,046 Ordinary Shares to an institutional
investor upon the conversion of $263,761.14 in principal amount of its convertible promissory note.
On
December 8, 2023, in connection with the Securities Purchase Agreement, the Company issued of 205,462 Ordinary Shares to an institutional
investor upon the conversion of $336,505.66 in principal amount of its convertible promissory note.
On
December 8, 2023, in connection with an inducement offer letter agreement with certain holders of existing warrants, dated December 7,
2023, the Company issued an aggregate of 909,090 new warrants to purchase, in the aggregate, up to 909,090 Ordinary Shares at an exercise
price of either (i) $0.0022 per share in an amount not to exceed 75% of the New Warrant Shares, or (ii) $1.15 per share, in the discretion
of the warrantholders.
On
December 8, 2023, in connection with an inducement offer letter agreement, dated December 7, 2023, the Company issued an aggregate of
606,060 ordinary shares to certain holders of existing warrants.
On
December 11, 2023, in connection with the Securities Purchase Agreement, the Company issued 247,568 Ordinary Shares to an institutional
investor upon the conversion of $405,466.87 in principal amount of its convertible promissory note.
On
December 13, 2023, in connection with the Securities Purchase Agreement, the Company issued 258,417 Ordinary Shares to an institutional
investor upon the conversion of $423,235.36 in principal amount of its convertible promissory note.
On
December 18, 2023, in connection with the Securities Purchase Agreement, the Company issued 271,337 Ordinary Shares to an institutional
investor upon the conversion of $444,393.7 in principal amount of its convertible promissory note.
On
January 12, 2024, in connection with the Securities Purchase Agreement, the Company issued 301,267 Ordinary Shares to an institutional
investor upon the conversion of $493,415.09 in principal amount of its convertible promissory note.
On
January 12, 2024, the Company issued an aggregate of 4,032,256 Ordinary Shares and warrants to purchase an aggregate of 4,032,256 ordinary
shares, to holders (the “Note Holders”) of existing convertible notes (the “Existing Notes”) and Redeemable Warrants
(the “Redeemable Warrants”), in exchange for the cancellation of an aggregate of (a) approximately $750,000 owed to the Note
Holders under the Notes and (b) $1,450,000 cash value of Redeemable Warrants.
On
January 12, 2024, the Company issued 457,682 Ordinary Shares to a service provider (the “Service Provider”) as payment in
full for $260,000 worth of services previously provided to the Company by the Service Provider.
On
January 19, 2024, in connection with the Securities Purchase Agreement, the Company issued 552,181 Ordinary Shares to an institutional
investor upon the conversion of $904,362.04 in principal amount of its convertible promissory note.
On
January 25, 2024, in connection with the SEPA, the Company issued 500,000 Ordinary Shares to Yorkville as advances under the SEPA.
On
February 2, 2024, the Company issued 500,000 Ordinary Shares to EF Hutton, LLC in lieu of paying a cash fee of $155,000 to EF Hutton,
LLC for underwriting services.
On
February 7, 2024, in connection with the SEPA, the Company issued 500,000 Ordinary Shares to Yorkville as advances under the SEPA.
On
February 7, 2024, in connection with the Securities Purchase Agreement, the Company issued 475,866 Ordinary Shares to an institutional
investor upon the conversion of $779,374.08 in principal amount of its convertible promissory note.
On
February 16, 2024, in connection with the SEPA, the Company issued 500,000 Ordinary Shares to Yorkville as advances under the SEPA.
On
February 21, 2024, a warrant holder exercised 653,595 Ordinary Shares underlying a Warrant A at an exercise price per share of $0.0022.
On
February 27, 2024, a warrant holder exercised 736,274 Ordinary Shares underlying a Warrant A at an exercise price per share of $0.0022.
On
February 28, 2024, in connection with a private placement binding term sheet, the Company issued (i) a convertible security to an investor
relating to a loan in the principal amount of $407,000, and (ii) 100,000 warrants to the investor. The warrants have an exercise price
of $0.05 per share.
On March 4, 2024,
a warrant holder exercised 773,088 Ordinary Shares underlying a Warrant A at an exercise price of $0.0022.
On March 11,
2024, a warrant holder exercised 1,309,975 Ordinary Shares underlying a Warrant A at an exercise price of $0.0022.
On March 13,
2024, in connection with the SEPA, the Company issued 274,396 Ordinary Shares to Yorkville as advances under the SEPA.
On March 22,
2024, a warrant holder exercised 316,332 Ordinary Shares underlying a Warrant A at an exercise price of $0.0022.
On March 27,
2024, in connection with the SEPA, the Company issued 900,000 Ordinary Shares to Yorkville as advances under the SEPA.
On April 11,
2024, in connection with a Securities Purchase Agreement, the Company issued a convertible promissory note to an institutional investor
in the principal amount of $2,250,000, and a 5.5 year warrant for 11,825,508 Ordinary Shares at an exercise price of $0.157 per share.
Also on April
11, 2024, the Company issued 2,619,367 Ordinary Shares upon the exercise of outstanding warrants, at an amended exercise price per share
of $0.0022.
On April and
May 2024, the Company issued an aggregate of 1,812,486 Ordinary Shares to certain former debtholders of the Company upon the conversion
of outstanding warrants held by them and as additional consideration for the prior cancellation of such debt.
On May 28, 2024,
the Company issued 103,373 Ordinary Shares to an institutional investor upon the conversion of $169,305 in accrued interest under a convertible
promissory note.
None
of the foregoing transactions involved any underwriters, underwriting discounts or commissions, or any public offering. The Registrant
believes these transactions were exempt from registration under the Securities Act in reliance upon Section 4(a)(2) of the Securities
Act (or Regulation D or Regulation S promulgated thereunder), or Rule 701 promulgated under Section 3(b) of the Securities Act as transactions
by an issuer not involving any public offering or pursuant to benefit plans and contracts relating to compensation as provided under
Rule 701. The recipients of the securities in each of these transactions represented their intentions to acquire the securities for investment
only and not with a view to or for sale in connection with any distribution thereof, and appropriate legends were placed upon the stock
certificates issued in these transactions. All recipients had adequate access, through their relationships with us, to information about
the Registrant.
Item
8. Exhibits.
Item
8. Exhibits and Financial Statement Schedules
Exhibit
No. |
|
Description |
|
|
|
2.1 |
|
Business
Combination Agreement, dated as of July 26, 2022, by and among Empatan Public Limited Company, Lionheart III Corp., Security Matters
PTY and Aryeh Merger Sub, Inc. (incorporated by reference to Annex A to the Registration Statement on Form F-4 (Reg. No. 333-267301),
as amended, initially filed with the SEC on September 6, 2022). |
|
|
|
2.2 |
|
Scheme
Implementation Deed, dated July 26, 2022, by and among Lionheart III Corp., Empatan Public Limited Company and Security Matters PTY
(incorporated by reference to Annex B-1 to the Registration Statement on Form F-4 (Reg. No. 333-267301), as amended, initially filed
with the SEC on September 6, 2022). |
|
|
|
3.1 |
|
Articles
of Association of the Company (incorporated by reference to Exhibit 3.2 to the Registration Statement on Form F-4 (Reg. No. 333-267301),
as amended, initially filed with the SEC on September 6, 2022). |
|
|
|
3.2 |
|
Form
of Amended and Restated Memorandum and Articles of Association of the Company (incorporated by reference to Annex C to the Registration
Statement on Form F-4 (Reg. No. 333-267301), as amended, initially filed with the SEC on September 6, 2022). |
|
|
|
3.3 |
|
Deed
of Variation-Scheme Implementation Deed, dated January 8, 2023, by and among Lionheart III Corp., Empatan Public Limited Company
and Security Matters PTY (incorporated by reference to Annex B-2 to the Registration Statement on Form F-4 (Reg. No. 333-267301),
as amended, filed with the SEC on January 12, 2023). |
|
|
|
3.4 |
|
Constitution
True Gold Consortium Pty Ltd. (incorporated by reference to Exhibit 10.19 to the Registration Statement on Form F-4 (Reg. No. 333-267301),
as amended, filed with the SEC on December 28, 2022). |
|
|
|
3.5 |
|
Certificate
of Incorporation on Change of Name (incorporated by reference to Exhibit 3.5 to the Registration Statement on Form F-1 (Reg. No.
333-270674), as amended, initially filed with the SEC on March 17, 2023). |
|
|
|
3.6 |
|
Amended
Public Limited Company Constitution of SMX (Security Matters) Public Limited Company Memorandum of Association (incorporated by reference
to Exhibit 1.1 to the Company’s Current Report on Form 6-K filed with the SEC on August 18, 2023). |
|
|
|
3.7 |
|
Further
Amended Public Limited Company Constitution of SMX (Security Matters) Public Limited Company Memorandum of Association (incorporated
by reference to Exhibit 3.7 to the Registration Statement on Form F-1 (Reg. No. 333-274774), as amended, initially filed with the
SEC on September 29, 2023). |
|
|
|
4.1 |
|
Promissory
Note between the Company and EF Hutton, dated March 7, 2023 (incorporated by reference to Exhibit 4.1 to the Registration Statement
on Form F-1 (Reg. No. 333-270674), as amended, initially filed with the SEC on March 17, 2023). |
|
|
|
4.2 |
|
Warrant
Agreement, dated November 3, 2021, by and between the Company and Continental Stock Transfer & Trust Company (incorporated by
reference to Exhibit 4.1 of the Current Report on Form 8-K filed by Lionheart III Corp with the SEC on November 9, 2021) |
|
|
|
4.3 |
|
Form
of Warrant A (incorporated by reference to Exhibit 4.3 to the Registration Statement on Form F-1 (Reg. No. 333-272503), as amended,
initially filed with the SEC on June 7, 2023) |
|
|
|
4.4 |
|
Form
of Warrant B (incorporated by reference to Exhibit 4.4 to the Registration Statement on Form F-1 (Reg. No. 333-272503), as amended,
initially filed with the SEC on June 7, 2023) |
|
|
|
4.5 |
|
Form
of Pre-Funded Warrant (incorporated by reference to Exhibit 4.5 to the Registration Statement on Form F-1 (Reg. No. 333-272503),
as amended, initially filed with the SEC on June 7, 2023) |
|
|
|
4.6 |
|
Form
of Underwriter’s Warrant (incorporated by reference to Exhibit 4.6 to the Registration Statement on Form F-1 (Reg. No. 333-272503),
as amended, initially filed with the SEC on June 7, 2023) |
|
|
|
4.7 |
|
Form
of Warrant Agent Agreement with Respect to Warrant A, by and between the Company and Continental Stock Transfer & Trust Company
(incorporated by reference to Exhibit 4.7 to the Registration Statement on Form F-1 (Reg. No. 333-272503), as amended, initially
filed with the SEC on June 7, 2023) |
|
|
|
4.8 |
|
Form
of Warrant Agent Agreement with Respect to Warrant B, by and between the Company and Continental Stock Transfer & Trust Company
(incorporated by reference to Exhibit 4.8 to the Registration Statement on Form F-1 (Reg. No. 333-272503), as amended, initially
filed with the SEC on June 7, 2023) |
|
|
|
4.9 |
|
Form
of A Warrant (incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 6-K filed with the SEC on September
6, 2023) |
|
|
|
4.10 |
|
Form
of B Warrant (incorporated by reference to Exhibit 4.2 to the Company’s Current Report on Form 6-K filed with the SEC on September
6, 2023) |
|
|
|
4.11 |
|
Form
of New Warrant (incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 6-K filed with the SEC on
December 7, 2023). |
|
|
|
4.12 |
|
Warrant
to YAII PN, Ltd. (incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 6-K filed with the SEC on
February 2, 2024). |
|
|
|
4.13 |
|
Form
of New Warrant (incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 6-K filed with the SEC on
December 7, 2023). |
|
|
|
4.14 |
|
Form
of Pre-Funded Warrant (incorporated by reference to Exhibit 4.14 to the Company’s Registration Statement on Form F-1 (Reg.
No. 333-276760), as amended, initially filed with the SEC on February 8, 2024). |
|
|
|
4.15 |
|
Form of Ordinary Share Purchase Warrant (incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 6-K filed with the SEC on April 12, 2024). |
|
|
|
4.16 |
|
Form of Warrant (incorporated by reference to Exhibit 2.17 to the Company’s Annual Report on Form 20-F, as amended, initially filed with the SEC on April 30, 2024). |
|
|
|
5.1** |
|
Opinion of Arthur Cox |
|
|
|
10.1 |
|
Registration
Rights Agreement, dated November 3, 2021, by and between Lionheart III Corp, Lionheart Equities, LLC and certain securityholders
(incorporated by reference to Exhibit 10.3 to the Registration Statement on Form F-4 (Reg. No. 333-267301), as amended, initially
filed with the SEC on September 6, 2022). |
|
|
|
10.2 |
|
Private
Placement Securities Subscription Agreement, dated November 3, 2021, by and between Lionheart III Corp and Lionheart Equities, LLC
(incorporated by reference to Exhibit 10.5 to the Registration Statement on Form F-4 (Reg. No. 333-267301), as amended, initially
filed with the SEC on September 6, 2022). |
|
|
|
10.3 |
|
Form
of Indemnity Agreement (incorporated by reference to Exhibit 10.6 to the Registration Statement on Form F-4 (Reg. No. 333-267301),
as amended, initially filed with the SEC on September 6, 2022). |
|
|
|
10.4 |
|
Amended
and Restated Sponsor Agreement, dated July 26, 2022, by and among Lionheart III Corp, Lionheart Equities, LLC, and certain insiders
(incorporated by reference herein to Exhibit 10.9 to the Registration Statement on Form F-4 (Reg. No. 333-267301), as amended, initially
filed with the SEC on September 6, 2022). |
|
|
|
10.5 |
|
Amended
and Restated Registration Rights Agreement, by and between the Company, Lionheart Equities,
LLC and Holders, dated February 23, 2023 (incorporated by reference to Exhibit 4.10 to the
Company’s Annual Report on Form 20-F for the fiscal year ended December 31, 2022, filed
with the SEC on April 28, 2023).
|
10.6 |
|
Employment
Agreement, dated June 1, 2021, by and between Security Matters Ltd. and Haggai Alon (incorporated by reference to Exhibit 10.12 to
the Registration Statement on Form F-4 (Reg. No. 333-267301), as amended, filed with the SEC on December 28, 2022). |
|
|
|
10.7 |
|
Employment
Agreement, dated April 25, 2021, by and between Security Matters Ltd. and Limor Moshe Lotker (incorporated by reference to Exhibit
10.13 to the Registration Statement on Form F-4 (Reg. No. 333-267301), as amended, filed with the SEC on December 28, 2022). |
|
|
|
10.8 |
|
Amendment
I, dated June 9, 2022, to Employment Agreement dated June 1, 2021, by and between Security Matters Ltd. and Haggai Alon (incorporated
by reference to Exhibit 10.14 to the Registration Statement on Form F-4 (Reg. No. 333-267301), as amended, filed with the SEC on
December 28, 2022). |
|
|
|
10.9 |
|
Amendment
I, dated June 9, 2022, to Employment Agreement dated April 25, 2021, by and between Security Matters Ltd. and Limor Moshe Lotker
(incorporated by reference to Exhibit 10.15 to the Registration Statement on Form F-4 (Reg. No. 333-267301), as amended, filed with
the SEC on December 28, 2022). |
|
|
|
10.10 |
|
License
Agreement, dated January 1, 2015, by and between Isorad Ltd. and Security Matters Ltd. (incorporated by reference to Exhibit 10.16
to the Registration Statement on Form F-4 (Reg. No. 333-267301), as amended, filed with the SEC on December 28, 2022). |
|
|
|
10.11 |
|
Amendment
to License Agreement, dated July 10, 2018, by and between Isorad Ltd. and Security Matters Ltd. (incorporated by reference to Exhibit
10.17 to the Registration Statement on Form F-4 (Reg. No. 333-267301), as amended, filed with the SEC on December 28, 2022). |
|
|
|
10.12 |
|
Addendum
to License Agreement, dated April 30, 2019, by and between Isorad Ltd. and Security Matters Ltd. (incorporated by reference to Exhibit
10.18 to the Registration Statement on Form F-4 (Reg. No. 333-267301), as amended, filed with the SEC on December 28, 2022). |
|
|
|
10.13 |
|
TrueGold
Licensing Agreement dated July 26, 2020, by and between Security Matters Ltd. and True Gold Consortium Pty Ltd. (incorporated by
reference to Exhibit 10.20 to the Registration Statement on Form F-4 (Reg. No. 333-267301), as amended, filed with the SEC on December
28, 2022). |
|
|
|
10.14 |
|
Shareholders
Agreement dated July 27, 2020 by and among Security Matters PTY, W.A. Mint Pty Ltd. and True Gold Consortium Pty Ltd. (incorporated
by reference to Exhibit 10.21 to the Registration Statement on Form F-4 (Reg. No. 333-267301), as amended, filed with the SEC on
December 28, 2022). |
|
|
|
10.15 |
|
True
Gold R&D Services Agreement dated November 16, 2022, by and between Security Matters Ltd. and True Gold Consortium Pty Ltd. (incorporated
by reference to Exhibit 10.22 to the Registration Statement on Form F-4 (Reg. No. 333-267301), as amended, filed with the SEC on
December 28, 2022). |
|
|
|
10.16 |
|
Services
Agreement dated June 16, 2021, by and between Security Matters PTY and True Gold Consortium Pty Ltd. (incorporated by reference to
Exhibit 10.23 to the Registration Statement on Form F-4 (Reg. No. 333-267301), as amended, filed with the SEC on December 28, 2022). |
10.17 |
|
Amendment,
dated May 26, 2022, to True Gold R&D Services Agreement, by and between Security Matters, Ltd. and True Gold Consortium Pty.
Ltd. (incorporated by reference to Exhibit 10.24 to the Registration Statement on Form F-4 (Reg. No. 333-267301), as amended, filed
with the SEC on December 28, 2022). |
|
|
|
10.18 |
|
Shareholders
Agreement dated April 30, 2019, by and among Security Matters Ltd., Trifecta Industries Ltd. and Newco (incorporated by reference
to Exhibit 10.25 to the Registration Statement on Form F-4 (Reg. No. 333-267301), as amended, filed with the SEC on December 28,
2022). |
|
|
|
10.19 |
|
Chairman
Agreement dated July 26, 2022, by and among Ophir Sternberg and the Company (incorporated by reference to Exhibit 10.26 to the Registration
Statement on Form F-4 (Reg. No. 333-267301), as amended, filed with the SEC on December 28, 2022). |
|
|
|
10.20 |
|
Independent
Contractor Agreement dated July 26, 2022, by and among Faquiry Diaz and the Company (incorporated by reference to Exhibit 10.27 to
the Registration Statement on Form F-4 (Reg. No. 333-267301), as amended, filed with the SEC on December 28, 2022). |
|
|
|
10.21 |
|
Form
of Assignment, Assumption and Amendment Agreement with respect to the Warrant Agreement (incorporated by reference to Exhibit 4.4
to the Registration Statement on Form F-4 (Reg. No. 333-267301), as amended, filed with the SEC on December 28, 2022). |
|
|
|
10.22 |
|
Reciprocal
Standby Equity Purchase Agreement with YA II PN, LTD., dated February 23, 2023 (incorporated by reference to Exhibit 4.27 to the
Shell Company Report on Form 20-F (File No. 001-41639), as amended, filed with the SEC on March 7, 2023). |
|
|
|
10.23 |
|
Convertible
Promissory Note with YA II PN, LTD., dated March 9, 2023 (incorporated by reference to Exhibit 4.28 to the Shell Company Report on
Form 20-F (File No. 001-41639), as amended, filed with the SEC on March 7, 2023). |
|
|
|
10.24 |
|
Form
of Senior Secured Promissory Note (incorporated by reference to Exhibit 4.29 to the Shell Company Report on Form 20-F (File No. 001-41639),
as amended, filed with the SEC on March 7, 2023). |
|
|
|
10.25 |
|
Form
of Specific Security Deed (incorporated by reference to Exhibit 4.30 to the Shell Company Report on Form 20-F (File No. 001-41639),
as amended, filed with the SEC on March 7, 2023). |
|
|
|
10.26 |
|
Form
of 15% Senior Convertible Note due 2024 Growth Financing Termsheet (incorporated by reference to Exhibit 4.31 to the Shell Company
Report on Form 20-F (File No. 001-41639), as amended, filed with the SEC on March 7, 2023). |
|
|
|
10.27 |
|
Amended
and Restated Promissory Note with Lionheart Management, LLC and Lionheart Equities, LLC, dated March 7, 2023 (incorporated by reference
to Exhibit 4.32 to the Shell Company Report on Form 20-F (File No. 001-41639), as amended, filed with the SEC on March 7, 2023). |
|
|
|
10.28 |
|
2022
Incentive Equity Plan (incorporated by reference to Exhibit 4.33 to the Company’s Annual Report on Form 20-F for the fiscal
year ended December 31, 2022, filed with the SEC on April 28, 2023). |
|
|
|
10.29 |
|
Lock-Up
Agreement, dated February 23, 2023, by and between the Company and Ophir Sternberg (incorporated by reference to Exhibit 4.34 to
the Company’s Annual Report on Form 20-F for the fiscal year ended December 31, 2022, filed with the SEC on April 28, 2023). |
|
|
|
10.30 |
|
Lock-Up
Agreement, dated February 23, 2023, by and between the Company and Thomas Hawkins (incorporated by reference to Exhibit 4.35 to the
Company’s Annual Report on Form 20-F for the fiscal year ended December 31, 2022, filed with the SEC on April 28, 2023). |
|
|
|
10.31 |
|
Lock-Up
Agreement, dated February 23, 2023, by and between the Company and Faquiry Diaz Cala (incorporated by reference to Exhibit 4.36 to
the Company’s Annual Report on Form 20-F for the fiscal year ended December 31, 2022, filed with the SEC on April 28, 2023). |
10.32 |
|
Lock-Up
Agreement, dated February 23, 2023, by and between the Company and Haggai Alon (incorporated by reference to Exhibit 4.37 to the
Company’s Annual Report on Form 20-F for the fiscal year ended December 31, 2022, filed with the SEC on April 28, 2023). |
|
|
|
10.33 |
|
Lock-Up
Agreement, dated February 23, 2023, by and between the Company and James Anderson (incorporated by reference to Exhibit 4.38 to the
Company’s Annual Report on Form 20-F for the fiscal year ended December 31, 2022, filed with the SEC on April 28, 2023). |
|
|
|
10.34 |
|
Lock-Up
Agreement, dated February 23, 2023, by and between the Company and Lionheart Equities, LLC (incorporated by reference to Exhibit
4.39 to the Company’s Annual Report on Form 20-F for the fiscal year ended December 31, 2022, filed with the SEC on April 28,
2023). |
|
|
|
10.35 |
|
Lock-Up
Agreement, dated February 23, 2023, by and between the Company and Roger Meltzer (incorporated by reference to Exhibit 4.40 to the
Company’s Annual Report on Form 20-F for the fiscal year ended December 31, 2022, filed with the SEC on April 28, 2023). |
|
|
|
10.36 |
|
Lock-Up
Agreement, dated February 23, 2023, by and between the Company and Thomas Byrne (incorporated by reference to Exhibit 4.41 to the
Company’s Annual Report on Form 20-F for the fiscal year ended December 31, 2022, filed with the SEC on April 28, 2023). |
|
|
|
10.37 |
|
Lock-Up
Agreement, dated February 23, 2023, by and between the Company and Benguy Escrow Co. Ltd. A/C. (incorporated by reference to Exhibit
4.42 to the Company’s Annual Report on Form 20-F for the fiscal year ended December 31, 2022, filed with the SEC on April 28,
2023). |
|
|
|
10.38 |
|
Lock-Up
Agreement, dated February 23, 2023, by and between the Company and Paul Rapisarda (incorporated by reference to Exhibit 4.43 to the
Company’s Annual Report on Form 20-F for the fiscal year ended December 31, 2022, filed with the SEC on April 28, 2023). |
|
|
|
10.39 |
|
Form
of 2022 Incentive Equity Plan, Option Award Agreement (incorporated by reference to Exhibit 4.44 to the Company’s Annual Report
on Form 20-F for the fiscal year ended December 31, 2022, filed with the SEC on April 28, 2023). |
|
|
|
10.40 |
|
Form
of 2022 Incentive Equity Plan, RSU Award Agreement (incorporated by reference to Exhibit 4.45 to the Company’s Annual Report
on Form 20-F for the fiscal year ended December 31, 2022, filed with the SEC on April 28, 2023). |
|
|
|
10.41 |
|
Amendment
to Binding Terms of Agreement, dated March 1, 2023, by and between the Company and Subscriber (incorporated by reference to Exhibit
4.46 to the Company’s Annual Report on Form 20-F for the fiscal year ended December 31, 2022, filed with the SEC on April 28,
2023). |
|
|
|
10.42 |
|
Amendment
to 10% Secured Notes, dated March 1, 2023, by and between the Company and Subscriber (incorporated by reference to Exhibit 4.47 to
the Company’s Annual Report on Form 20-F for the fiscal year ended December 31, 2022, filed with the SEC on April 28, 2023). |
|
|
|
10.43 |
|
Amendment
to Binding Terms of Agreement, dated March 1, 2023, by and between the Company and Subscriber (incorporated by reference to Exhibit
4.48 to the Company’s Annual Report on Form 20-F for the fiscal year ended December 31, 2022, filed with the SEC on April 28,
2023). |
|
|
|
10.44 |
|
Amendment
to Senior Secured Promissory Note Due August 24, 2024, dated March 1, 2023, by and between the Company and Subscriber (incorporated
by reference to Exhibit 4.49 to the Company’s Annual Report on Form 20-F for the fiscal year ended December 31, 2022, filed
with the SEC on April 28, 2023). |
|
|
|
10.45 |
|
Amendment
to Senior Secured Promissory Note, dated March 2, 2023, by and between the Company and Subscriber (incorporated by reference to Exhibit
4.50 to the Company’s Annual Report on Form 20-F for the fiscal year ended December 31, 2022 filed with the SEC on April 28,
2023). |
10.46 |
|
Amendment
to 10% Secured Notes Due July 1st, 2023, dated March 1, 2023, by and between the Company and Subscriber (incorporated
by reference to Exhibit 4.51 to the Company’s Annual Report on Form 20-F for the fiscal year ended December 31, 2022, filed
with the SEC on April 28, 2023). |
|
|
|
10.47 |
|
Amendment
to 10% Secured Notes, dated March 1, 2023, by and between the Company and Subscriber (incorporated by reference to Exhibit 4.52 to
the Company’s Annual Report on Form 20-F for the fiscal year ended December 31, 2022, filed with the SEC on April 28, 2023). |
|
|
|
10.48 |
|
Amendment
to 10% Secured Bridge Notes, dated March 1, 2023, by and between the Company and Subscriber (incorporated by reference to Exhibit
4.53 to the Company’s Annual Report on Form 20-F for the fiscal year ended December 31, 2022, filed with the SEC on April 28,
2023). |
|
|
|
10.49 |
|
Amendment
to Binding Terms of Agreement, dated March 1, 2023, by and between the Company and Subscriber (incorporated by reference to Exhibit
4.54 to the Company’s Annual Report on Form 20-F for the fiscal year ended December 31, 2022, filed with the SEC on April 28,
2023). |
|
|
|
10.50 |
|
Amendment
to Loan Agreement, dated March 2, 2023, by and between the Company and Subscriber (incorporated by reference to Exhibit 4.55 to the
Company’s Annual Report on Form 20-F for the fiscal year ended December 31, 2022, filed with the SEC on April 28, 2023). |
|
|
|
10.51 |
|
Amendment
to Senior Secured Promissory Note Due July 31, 2023, dated March 5, 2023, by and between the Company and Subscriber (incorporated
by reference to Exhibit 4.56 to the Company’s Annual Report on Form 20-F for the fiscal year ended December 31, 2022, filed
with the SEC on April 28, 2023). |
|
|
|
10.52 |
|
Amendment
to Senior Secured Promissory Note Due December 19, 2023, dated March 1, 2023, by and between the Company and Subscriber (incorporated
by reference to Exhibit 4.57 to the Company’s Annual Report on Form 20-F for the fiscal year ended December 31, 2022, filed
with the SEC on April 28, 2023). |
|
|
|
10.53 |
|
Conversion
and Exchange Rights Agreement, dated March 1, 2023, by and between the Company and Subscriber (incorporated by reference to Exhibit
4.58 to the Company’s Annual Report on Form 20-F for the fiscal year ended December 31, 2022, filed with the SEC on April 28,
2023). |
|
|
|
10.54 |
|
Conversion
and Exchange Rights Agreement, dated March 1, 2023, by and between the Company and Subscriber (incorporated by reference to Exhibit
4.59 to the Company’s Annual Report on Form 20-F for the fiscal year ended December 31, 2022, filed with the SEC on April 28,
2023). |
|
|
|
10.55 |
|
Amendment
to Senior Secured Promissory Note Due December 19, 2023, dated March 1, 2023, by and between the Company and Subscriber (incorporated
by reference to Exhibit 4.60 to the Company’s Annual Report on Form 20-F for the fiscal year ended December 31, 2022, filed
with the SEC on April 28, 2023). |
|
|
|
10.56 |
|
Amendment
to Senior Secured Promissory Note Due July 31, 2023, dated March 5, 2023, by and between the Company and Subscriber (incorporated
by reference to Exhibit 4.61 to the Company’s Annual Report on Form 20-F for the fiscal year ended December 31, 2022, filed
with the SEC on April 28, 2023). |
|
|
|
10.57 |
|
Amended
and Restated Promissory Note dated as of March 7, 2023, in favor of Lionheart Management, LLC and Lionheart Equities, LLC (incorporated
by reference to Exhibit 4.62 to the Company’s Annual Report on Form 20-F for the fiscal year ended December 31, 2022, filed
with the SEC on April 28, 2023). |
|
|
|
10.58 |
|
Amendment
dated April 27, 2023 to Amended and Restated Promissory Note dated as of March 7, 2023 (incorporated by reference to Exhibit 4.63
to the Company’s Annual Report on Form 20-F filed with the SEC on April 28, 2023), |
|
|
|
10.59 |
|
Convertible
Promissory Note with YA II PN, LTD., dated May 22, 2023 (incorporated by reference to Exhibit 10.59 to the Registration Statement
on Form F-1 (Reg. No. 333-272503), as amended, initially filed with the SEC on June 7, 2023). |
10.60 |
|
Letter
Agreement by and between the Company and YA II PN, Ltd., dated July 27, 2023 (incorporated by reference to Exhibit 10.60 to the Company’s
Registration Statement on Form F-1 (Reg. No. 333-274378), as amended, initially filed with the SEC on September 6, 2023). |
|
|
|
10.61 |
|
Form
of Securities Purchase Agreement (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 6-K filed
with the SEC on September 6, 2023). |
|
|
|
10.62 |
|
Form
of Promissory Note (incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 6-K filed with the SEC
on September 6, 2023). |
|
|
|
10.63 |
|
Form
of Registration Rights Agreement (incorporated by reference to Exhibit 10.3 to the Company’s Current Report on Form 6-K filed
with the SEC on September 6, 2023). |
|
|
|
10.64 |
|
Employment Agreement by and between Security Matters Pty and Zeren Browne, dated July 21, 2022 (incorporated by reference to Exhibit 10.64 to the Company’s Registration Statement on Form F-1 (Reg No. 333-276258), as amended, initially filed with the SEC on December 22, 2023). |
|
|
|
10.65 |
|
Form
of Conversion and Exchange Rights Agreement (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form
6-K filed with the SEC on January 25, 2024). |
|
|
|
10.66 |
|
Form
of Conversion and Exchange Rights Agreement (incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form
6-K filed with the SEC on January 25, 2024). |
|
|
|
10.67 |
|
Letter
Agreement with YAII PN, Ltd. (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 6-K filed with
the SEC on February 2, 2024). |
|
|
|
10.68 |
|
Form
of Inducement Letter (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 6-K filed with the
SEC on December 7, 2023). |
|
|
|
10.69 |
|
Investment
Agreement dated as of October 3, 2023 (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 6-K
filed with the SEC on October 10, 2023). |
|
|
|
10.70 |
|
Employment
Agreement by and between Security Matters Ltd. and Ofira Bar dated December 23, 2023 (incorporated by reference to Exhibit 10.1 to
the Company’s Current Report on Form 6-K filed with the SEC on March 1, 2024). |
|
|
|
10.71 |
|
Private
Placement Binding Term Sheet by and between the Company and Steve Wallitt, dated February 25, 2024 (incorporated by reference to
Exhibit 10.71 the Company’s Registration Statement on Form F-1 (Reg. No. 333-277482), as amended, filed with the SEC on March
7, 2024). |
|
|
|
10.72 |
|
Form
of Securities Purchase Agreement (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 6-K filed
with the SEC on April 12, 2024). |
|
|
|
10.73 |
|
Form
of Promissory Note (incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 6-K filed with the SEC
on April 12, 2024). |
|
|
|
10.74 |
|
Form
of Registration Rights Agreement (incorporated by reference to Exhibit 10.3 to the Company’s Current Report on Form 6-K filed
with the SEC on April 12, 2024). |
|
|
|
10.75 |
|
Form
of Warrant Amendment and Inducement Letter (incorporated by reference to Exhibit 10.4 to the Company’s Current Report on Form
6-K filed with the SEC on April 12, 2024). |
|
|
|
10.76 |
|
Stock Purchase Agreement, by and between Generating Alpha Ltd. and the Company, dated April 19, 2024 (incorporated by reference to Exhibit 10.76 to the Company’s Registration Statement on Form F-1 (File No. 333-376257), as amended, initially filed with the SEC on December 22, 2023). |
|
|
|
10.77 |
|
Form of Conversion and Exchange Rights Agreement (incorporated by reference to Exhibit 4.77 to the Company’s Annual Report of Form 20-F, filed with the SEC on April 30, 2024). |
|
|
|
21.1 |
|
List of Subsidiaries of the Company (incorporated by reference to Exhibit 21.1 to the Company’s Registration Statement on Form F-1 (Reg. No. 333-276760), as amended, initially filed with the SEC on January 30, 2024). |
|
|
23.1** |
|
Consent of Arthur Cox (included as part of Exhibit 5.1) |
|
|
23.2* |
|
Consent of BDO Ziv Haft |
|
|
|
24.1* |
|
Power of Attorney (included on signature page to the initial filing of the Registration Statement) |
|
|
99.1 |
|
Relevant
Territories for withholding Tax on Dividends (incorporated by reference to Exhibit 99.1 to the Company’s Registration Statement
on Form F-1 (Reg. No. 333-270674), as amended, initially filed with the SEC on March 17, 2023). |
|
|
|
101.INS* |
|
Inline XBRL
Instance Document |
|
|
|
101.SCH* |
|
Inline XBRL
Taxonomy Extension Schema Document |
|
|
|
101.CAL* |
|
Inline XBRL
Taxonomy Extension Calculation Linkbase Document |
|
|
|
101.DEF* |
|
Inline XBRL
Taxonomy Extension Definition Linkbase Document |
|
|
|
101.LAB* |
|
Inline
XBRL Taxonomy Extension Label Linkbase Document |
|
|
|
101.PRE* |
|
Inline XBRL
Taxonomy Extension Presentation Linkbase Document |
|
|
|
104* |
|
Cover
Page Interactive Data File (embedded within the Inline XBRL document). |
|
|
|
107* |
|
Filing Fee Table |
* Previously filed.
** Filed herewith.
(b)
Financial Statement Schedules
Schedules
have been omitted because the information required to be set forth therein is not applicable or is shown in the financial statements
or notes thereto.
(d)
Filing Fee Table.
The
Filing Fee Table and related disclosure is filed herewith as Exhibit 107.
Item
9. Undertakings.
(a)
The undersigned hereby undertakes:
(1)
to file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)
to include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii)
to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective
amendment thereof) that, individually or in the aggregate, represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration
Fee” table in the effective registration statement; and
(iii)
to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
(2)
that for the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof;
(3)
to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering;
(4)
to file a post-effective amendment to the registration statement to include any financial statements required by “Item 8.A. of
Form 20-F” at the start of any delayed offering or throughout a continuous offering. Financial statements and information otherwise
required by Section 10(a)(3) of the Securities Act need not be furnished; provided, that the registrant includes in the prospectus, by
means of a post-effective amendment, financial statements required pursuant to this paragraph and other information necessary to ensure
that all other information in the prospectus is at least as current as the date of those financial statements; and
(5)
that, for the purpose of determining liability under the Securities Act to any purchaser:
(i)
if the registrant is relying on Rule 430B:
(A)
each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the registration statement; and
(B)
each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required
by section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of
the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering
described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter,
such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement
to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof; provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement
or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of
the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify
any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such
document immediately prior to such effective date; or
(ii)
if the registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating
to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall
be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness; provided, however,
that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated
or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as
to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration
statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first
use.
(b)
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SEC
such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that
a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
(c)
The undersigned hereby undertakes:
(1)
that for purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as
part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant
to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time
it was declared effective; and
(2)
for the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof.
SIGNATURES
Pursuant
to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form F-1 and has duly caused and authorized this registration statement to be signed on its behalf by the
undersigned.
|
SMX
(SECURITY MATTERS) PUBLIC LIMITED COMPANY |
|
|
|
May
31, 2024 |
By: |
/s/
Haggai Alon |
|
Name: |
Haggai
Alon |
|
Title: |
CEO |
Pursuant
to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities and
on the dates indicated.
Signature |
|
Title |
|
Date |
|
|
|
|
|
/s/
Haggai Alon |
|
Chief
Executive Officer and Director |
|
May
31, 2024 |
Haggai
Alon |
|
(Principal
Executive Officer) |
|
|
|
|
|
|
|
* |
|
Chief
Financial Officer |
|
May
31, 2024 |
Ofira
Bar |
|
(Principal
Financial and Accounting Officer) |
|
|
|
|
|
|
|
* |
|
Chairman
of the Board of Directors |
|
May
31, 2024 |
Ophir
Sternberg |
|
|
|
|
|
|
|
|
|
* |
|
Executive
Vice President, Chief Strategy Officer |
|
May
31, 2024 |
Zeren
Browne |
|
and
Director |
|
|
|
|
|
|
|
* |
|
Director |
|
May
31, 2024 |
Amir
Bader |
|
|
|
|
|
|
|
|
|
|
|
Director |
|
|
Pauline
Khoo |
|
|
|
|
|
|
|
|
|
* |
|
Director |
|
May
31, 2024 |
Roger
Meltzer |
|
|
|
|
|
|
|
|
|
* |
|
Director |
|
May
31, 2024 |
Thomas
Hawkins |
|
|
|
|
* Haggai Alon, pursuant to Powers of Attorney
(executed by each of the officers and directors listed above and indicated as signed above, and filed with the Securities and Exchange
Commission), by signing his name hereto does hereby sign and execute this Amendment to the Registration Statement on behalf of each of
the persons referenced above.
By: |
/s/ Haggai Alon |
|
|
Haggai Alon |
|
|
Attorney-in-Fact |
|
Date: May 31, 2024
AUTHORIZED
REPRESENTATIVE
Pursuant
to the requirements of the Securities Act, this registration statement on Form F-1 has been signed on behalf of the registrant by the
undersigned, solely in his capacity as the duly authorized representative of the registrant in the United States, on May 31, 2024.
Puglisi
& Associates |
|
|
|
|
By: |
/s/
Donald J. Puglisi |
|
Name: |
Donald
J. Puglisi |
|
Title |
Managing
Director |
|
Exhibit
5.1
ARTHUR
COX
Our
Reference: SM116/001
|
|
Arthur
Cox LLP
Ten
Earlsfort Terrace
Dublin
2
D02
T380
+353
1 920 1000
dublin@arthurcox.com
dx:
27 dublin
Dublin
Belfast
London
New
York
San
Francisco
arthurcox.com |
30
May 2024
STRICTLY
PRIVATE AND CONFIDENTIAL
SMX
(Security Matters) Public Limited Company
Mespil
Business Centre
Mespil
House
Sussex
Road
Dublin
4
Ireland
D04
T4A6
Re: |
SMX (Security Matters) Public
Limited Company |
To
whom it may concern,
1. | Basis
of Opinion (the “Opinion”) |
| 1.1 | We
are acting as Irish legal counsel to SMX (Security Matters) Public Limited Company, a public
company limited by shares incorporated under the laws of Ireland under company registration
number 722009 (the “Company”), in connection with the resale of ordinary
shares of the Company, US$0.0022 par value per share (the “Ordinary Shares”)
pursuant to the Transaction (as defined at paragraph 1.2 below). We refer to the registration
statement on Form F-1 filed by the Company on 10 May 2024 with the U.S. Securities and Exchange
Commission (the “SEC”) pursuant to the Securities Act of 1933, as amended
(the “Securities Act”), as amended from time to time (the “Registration
Statement”). |
| 1.2 | Terms
used but not defined herein shall have the meaning assigned to them in the Registration Statement. |
| 1.3 | We
refer, in particular, to the resale of up to an aggregate of 27,543,449 Ordinary Shares (the
“Shares”) as outlined in the Registration Statement (the “Transaction”). |
| 1.4 | This
Opinion is solely for the benefit of the addressee of this Opinion in each case in connection
with the Transaction only, and not for any other purpose. This Opinion shall be used solely
for the benefit of the addressee and may not be relied upon, used, transmitted, referred
to, quoted from, circulated, copied, filed with any governmental agency or authority, disseminated
or disclosed by or to any other person or entity for any purpose(s) without our prior written
consent, save that this Opinion may be disclosed by the addressee to its respective officers,
employees, auditors and professional advisors and to its affiliates and any officers, employees,
auditors and professional advisors of such affiliates, in each case on a “need to know”
basis to the extent necessary for those individuals or affiliates in performing their duties
and to the extent required by law, regulation or any governmental or regulatory authority
or in connection with actual or threatened legal proceedings relating to the Transaction. |
| 1.5 | This
Opinion is confined to and given in all respects on the basis of the laws of Ireland (meaning
Ireland exclusive of Northern Ireland) in force as at the date hereof as currently applied
by the courts of Ireland. We have made no investigations of and we express no opinion as
to the laws of any other jurisdiction or the effect thereof. In particular, we express no
opinion on the laws of the European Union as it affects any jurisdiction other than Ireland.
We have assumed without investigation that insofar as the laws of any jurisdiction other
than Ireland are relevant, such laws do not prohibit and are not inconsistent with any of
the obligations or rights expressed in the Transaction. |
| 1.6 | In
giving this Opinion, we have examined copies of the documents referred to in Schedule 1 (the
“Documents”) sent to us by email in pdf or other electronic format. |
| 1.7 | This
Opinion is also strictly confined to: |
| (a) | the
matters expressly stated herein and is not to be read as extending by implication or otherwise
to any other matter; |
| (c) | the
searches listed at paragraph 1.9 below. |
We
express no opinion and make no representation or warranty as to any matter of fact or in respect of any documents which may exist in
relation to the Transaction other than in respect of the Documents.
| 1.8 | For
the purpose of giving this Opinion, we have examined plain photocopies, copies certified
to our satisfaction or documents sent to us by email in pdf format of the Documents. |
| 1.9 | For
the purpose of giving this Opinion, we have caused to be made the following legal searches
against the Company on 30 May 2024 (the “Searches”): |
| (a) | on
the file of the Company maintained by the Registrar of Companies in Dublin for mortgages,
debentures or similar charges or notices thereof and for the appointment of any receiver,
examiner or liquidator; |
| (b) | in
the Judgments Office of the Irish High Court for unsatisfied judgments, orders, decrees and
the like for the five years immediately preceding the date of the search; and |
| (c) | in
the Central Office of the Irish High Court in Dublin for any proceedings and petitions filed
in the last two years. |
| 1.10 | This
Opinion is governed by and is to be construed in accordance with the laws of Ireland as interpreted
by the courts of Ireland at the date hereof. This Opinion speaks only as of its date. We
assume no obligation to update this Opinion at any time in the future or to advise the addressee
of this Opinion of any change in law or change in interpretation of law which may occur after
the date of this Opinion. |
| 1.11 | Save
as set out in paragraph 2.4, no opinion is expressed as to the taxation consequences of any
of the matters referred to in the Registration Statement or the transactions referred to
therein or contemplated thereby. |
| 1.12 | No
assumption or qualification in this Opinion limits any other assumption or qualification
herein. Headings to paragraphs or subparagraphs of this Opinion are for convenience only
and do not affect the construction or interpretation hereof. |
Subject
to the assumptions set out in this Opinion and to any matters not disclosed to us, we are of the opinion that:
| 2.1 | the
Company is a public limited company, is duly incorporated and validly existing under the
laws of Ireland and has the requisite corporate authority to effect the Transaction; |
| 2.2 | the
Shares, when issued by the Company in accordance with the terms of the applicable Documents
(the “Issuance Events”), will have been duly authorised pursuant to resolutions
of the board of directors of the Company or a duly appointed committee thereof; |
| 2.3 | on
the occurrence of the Issuance Events, the Shares will be validly issued, fully paid or credited
as fully paid and non-assessable (which term means that no further sums are required to be
paid by the holders thereof in connection with the issue of the Shares); |
| 2.4 | subject
to the foregoing and the qualifications and limitations set forth in the Registration Statement,
the discussion of the Irish tax consequences described in the Registration Statement under
the heading “Certain Material Irish Tax Considerations To Non-Irish Holders”,
to the extent that it describes Irish tax laws or legal conclusions with respect thereto,
is an accurate summary of the tax consequences described therein in all material respects
and such statements constitute our opinion. |
For
the purpose of giving this Opinion we assume the following, without any responsibility on our part if any assumption proves to have been
untrue as we have not verified independently any assumption:
Registration
Statement
| 3.1 | that
the Registration Statement remains effective under the Securities Act and that the Company
complies with the statements set out therein; |
| 3.2 | that
the relevant parties have paid in full all amounts that they have agreed to subscribe for
the Shares; |
| 3.3 | that
the Shares will be issued in accordance with (i) the appropriate resolutions and authorities
of the shareholders and directors of the Company and (ii) the terms of the Registration Statement; |
| 3.4 | that
there shall be no fraud on the part of the Company and its respective officers, employees,
agents and advisers and that the Company will effect the Transaction in good faith, for its
legitimate and bona fide business purposes; |
| 3.5 | that
(i) the Shares will be quoted on the Nasdaq Capital Market of the Nasdaq Stock Market LLC
at the time of the issuance of the Shares and will continue to be so quoted or (ii) the Shares
will not derive their value or the greater part of their value directly or indirectly from
land in Ireland, minerals in Ireland or any rights, interests or other assets in relation
to mining or minerals or the searching for minerals or exploration or exploitation rights
on the Irish continental shelf; |
Authenticity
and Bona Fides
| 3.6 | regarding
the completeness and authenticity of all Documents submitted to us as originals or copies
of originals (and in the case of copies, conformity to the originals of such copies), the
genuineness of all signatories, stamps and seals thereon and where incomplete or draft Documents
have been submitted to us that the original executed versions of such Documents are identical
to the last draft of the Documents submitted to us; |
| 3.7 | that
the copies produced to us of minutes of meetings and/or resolutions correctly record the
proceedings at such meetings and/or the subject matter which they purport to record and that
any meetings referred to in such copies were duly convened, duly quorate and held, that those
present at any such meetings were entitled to attend and vote at the meeting and acted bona
fide throughout and that no further resolutions have been passed or other action taken
which would or might alter the effectiveness thereof; |
| 3.8 | that
the representations contained in the certificate of a director of the Company dated on or
around the date hereof (the “Corporate Certificate”) are correct as to
questions of fact; |
| 3.9 | that
there is, at the relevant time of the Transaction, no matter affecting the authority of the
directors to effect the Transaction, not disclosed by the constitution or the resolutions
produced to us, which would have any adverse implications in relation to the opinions expressed
in this Opinion; |
Constitution
and Resolutions
| 3.10 | that
the constitution of the Company included at Schedule 2 to this Opinion is the current constitution
of the Company and that there were no other terms governing the Shares other than those set
out in the constitution and the Documents (as applicable); |
| 3.11 | that
all director and shareholder resolutions required to authorise the Transaction have been
validly passed prior to the Transaction, and shall not have been revoked, rescinded or amended; |
Accuracy
of Searches and Warranties
| 3.12 | the
accuracy and completeness of the information disclosed in the searches referred to in section
1.8 above and that such information has not since the time of such search or enquiry been
altered. It should be noted that searches at the Companies Registration Office, Dublin, do
not necessarily reveal whether or not a prior charge has been created or a resolution has
been passed or any other action taken for the winding-up of or the appointment of a receiver
or an examiner to the Company; and |
| 3.13 | regarding
the truth, completeness and accuracy of all representations and statements as to factual
matters contained in the Documents. |
This
Opinion is addressed to you in connection with the Transaction. We hereby consent to the inclusion of this Opinion as an exhibit to the
Registration Statement to be filed with the SEC and to the use of our name in the proxy statement/prospectus that forms part of the Registration
Statement.
Yours
faithfully
ARTHUR
COX LLP
SCHEDULE
1
DOCUMENTS
EXAMINED
1. | The
Registration Statement and the documents incorporated by reference therein. |
2. | The
Stock Purchase Agreement (the “SEPA”) between Security Matters and Generating
Alpha Ltd. dated 19 April 2024. |
3. | The
Ordinary Shares Purchase Warrant dated 11 April 2024. |
4. | The
Securities Purchase Agreement dated 11 April 2024. |
5. | The
Promissory Note dated 11 April 2024. |
6. | The
Registration Rights Agreement dated 11 April 2024. |
7. | The
Form of Warrant Amendment and Inducement Letter dated 11 April 2024. |
8. | The
Warrant to Purchase Ordinary Shares issued by the Company to Steven Wallitt dated 28 February
2024. |
9. | The
constitution of the Company, as appended to this Opinion at Schedule 2. |
10. | The
Corporate Certificate. |
11. | Certificate
of Incorporation of the Company on registration as a public limited company dated 1 July
2022. |
12. | Certificate
of Incorporation on Change of Name of the Company dated 17 February 2023. |
13. | Written
Resolutions of the Board of Directors of the Company approving the Transaction passed on
or prior to the date hereof. |
SCHEDULE
2
CONSTITUTION
Companies
Act 2014
PUBLIC
LIMITED COMPANY
CONSTITUTION
OF
SMX
(SECURITY MATTERS) PUBLIC LIMITED COMPANY
MEMORANDUM
OF ASSOCIATION
1. | The
name of the Company is SMX (SECURITY MATTERS) PUBLIC LIMITED COMPANY. |
2. | The
Company is a public limited company, registered under Part 17 of the Companies Act 2014. |
3. | The
objects for which the Company is established are: |
| 3.1 | To
carry on the business of a holding company and to co-ordinate the administration, finances
and activities of any subsidiary companies or associated companies, to do all lawful acts
and things whatever that are necessary or convenient in carrying on the business of such
a holding company and in particular to carry on in all its branches the business of a management
services company, to act as managers and to direct or coordinate the management of other
companies or of the business, property and estates of any company or person and to undertake
and carry out all such services in connection therewith as may be deemed expedient by the
Company’s board of directors and to exercise its powers as a shareholder of other companies. |
| 3.2 | To
carry on the businesses of manufacturer, distributor, wholesaler, retailer, service provider,
investor, designer, trader and any other business (except the issuing of policies of insurance)
which may seem to the Company’s board of directors capable of being conveniently carried
on in connection with these objects or calculated directly or indirectly to enhance the value
of or render more profitable any of the Company’s property. |
| 3.3 | To
carry on all or any of the businesses as aforesaid either as a separate business or as the
principal business of the Company. |
| 3.4 | To
invest and deal with the property of the Company in such manner as may from time to time
be determined by the Company’s board of directors and to dispose of or vary such investments
and dealings. |
| 3.5 | To
borrow or raise money or capital in any manner and on such terms and subject to such conditions
and for such purposes as the Company’s board of directors shall think fit or expedient,
whether alone or jointly and/or severally with any other person or company, including, without
prejudice to the generality of the foregoing, whether by the issue of debentures or debenture
stock (perpetual or otherwise) or otherwise, and to secure, with or without consideration,
the payment or repayment of any money borrowed, raised or owing or any debt, obligation or
liability of the Company or of any other person or company whatsoever in such manner and
on such terms and conditions as the Company’s board of directors shall think fit or
expedient and, in particular by mortgage, charge, lien, pledge or debenture or any other
security of whatsoever nature or howsoever described, perpetual or otherwise, charged upon
all or any of the Company’s property, both present and future, and to purchase, redeem
or pay off any such securities or borrowings and also to accept capital contributions from
any person or company in any manner and on such terms and conditions and for such purposes
as the Company’s board of directors shall think fit or expedient. |
| 3.6 | To
lend and advance money or other property or give credit or financial accommodation to any
company or person in any manner either with or without security and whether with or without
the payment of interest and upon such terms and conditions as the Company’s board of
directors shall think fit or expedient. |
| 3.7 | To
guarantee, indemnify, grant indemnities in respect of, enter into any suretyship or joint
obligation, or otherwise support or secure, whether by personal covenant, indemnity or undertaking
or by mortgaging, charging, pledging or granting a lien or other security over all or any
part of the Company’s property (both present and future) or by any one or more of such
methods or any other method and whether in support of such guarantee or indemnity or suretyship
or joint obligation or otherwise, on such terms and conditions as the Company’s board
of directors shall think fit, the payment of any debts or the performance or discharge of
any contract, obligation or liability of any person or company (including, without prejudice
to the generality of the foregoing, the payment of any capital, principal, dividends or interest
on any stocks, shares, debentures, debenture stock, notes, bonds or other securities of any
person, authority or company) including, without prejudice to the generality of the foregoing,
any company which is for the time being the Company’s holding company or another subsidiary
(as defined by the Act) of the Company’s holding company or a subsidiary of the Company
or otherwise associated with the Company (including any arrangements of the Company or any
of its subsidiaries), in each case notwithstanding the fact that the Company may not receive
any consideration, advantage or benefit, direct or indirect, from entering into any such
guarantee or indemnity or suretyship or joint obligation or other arrangement or transaction
contemplated herein. |
| 3.8 | To
grant, convey, assign, transfer, exchange or otherwise alienate or dispose of any property
of the Company of whatever nature or tenure for such price, consideration, sum or other return
whether equal to or less than the market value thereof or for shares, debentures or securities
and whether by way of gift or otherwise as the Company’s board of directors shall deem
fit or expedient and where the property consists of real property to grant any fee farm grant
or lease or to enter into any agreement for letting or hire of any such property for a rent
or return equal to or less than the market or rack rent therefor or at no rent and subject
to or free from covenants and restrictions as the Company’s board of directors shall
deem appropriate. |
| 3.9 | To
purchase, take on, lease, exchange, rent, hire or otherwise acquire any property and to acquire
and undertake the whole or any part of the business and property of any company or person. |
| 3.10 | To
develop and turn to account any land acquired by the Company or in which it is interested
and in particular by laying out and preparing the same for building purposes, constructing,
altering, pulling down, decorating, maintaining, fitting out and improving buildings and
conveniences and by planting, paving, draining, farming, cultivating, letting and by entering
into building leases or building agreements and by advancing money to and entering into contracts
and arrangements of all kinds with builders, contractors, architects, surveyors, purchasers,
vendors, tenants and any other person. |
| 3.11 | To
construct, improve, maintain, develop, work, manage, carry out or control any property which
may seem calculated directly or indirectly to advance the Company’s interest and to
contribute to, subsidise or otherwise assist or take part in the construction, improvement,
maintenance, working, management, carrying out or control thereof. |
| 3.12 | To
draw, make, accept, endorse, discount, execute and issue promissory notes, bills of exchange,
bills of lading, warrants, debentures and other negotiable or transferable instruments. |
| 3.13 | To
engage in currency exchange, interest rate and commodity transactions including, but not
limited to, dealings in foreign currency, spot and forward rate exchange contracts, futures,
options, forward rate agreements, swaps, caps, floors, collars and any other foreign exchange,
interest rate or commodity hedging arrangements and such other instruments as are similar
to, or derived from, any of the foregoing whether for the purpose of making a profit or avoiding
a loss or managing a currency, interest rate or commodity exposure or any other exposure
or for any other purpose. |
| 3.14 | As
a pursuit in itself or otherwise and whether for the purpose of making a profit or avoiding
a loss or managing a currency, interest rate or commodity exposure or any other exposure
or for any other purpose whatsoever, to engage in any currency exchange transactions, interest
rate transactions and commodity transactions, derivative and/or treasury transactions and
any other financial or other transactions, including (without prejudice to the generality
of the foregoing) securitisation, treasury and/or structured finance transactions, of whatever
nature in any manner and on any terms and for any purposes whatsoever, including, without
prejudice to the generality of the foregoing, any transaction entered into in connection
with or for the purpose of, or capable of being for the purposes of, avoiding, reducing,
minimising, hedging against or otherwise managing the risk of any loss, cost, expense, or
liability arising, or which may arise, directly or indirectly, from a change or changes in
any interest rate or currency exchange rate or in the price or value of any property, asset,
commodity, index or liability or from any other risk or factor affecting the Company’s
business, including but not limited to dealings whether involving purchases, sales or otherwise
in foreign currency, spot and/or forward rate exchange contracts, futures, options, forward
rate agreements, swaps, caps, floors, collars and/or any such other currency or interest
rate or commodity or other hedging, treasury or structured finance arrangements and such
other instruments as are similar to, or derived from any of the foregoing. |
| 3.15 | To
apply for, establish, create, purchase or otherwise acquire, sell or otherwise dispose of
and hold any patents, trade marks, copyrights, brevets d’invention, registered designs,
licences, concessions and the like conferring any exclusive or non-exclusive or limited rights
to use or any secret or other information and any invention and to use, exercise, develop
or grant licences in respect of or otherwise turn to account or exploit the property, rights
or information so held. |
| 3.16 | To
enter into any arrangements with any governments or authorities, national, local or otherwise
and to obtain from any such government or authority any rights, privileges and concessions
and to carry out, exercise and comply with any such arrangements, rights, privileges and
concessions. |
| 3.17 | To
establish, form, register, incorporate or promote any company or companies or person, whether
inside or outside of Ireland. |
| 3.18 | To
procure that the Company be registered or recognised whether as a branch or otherwise in
any country or place. |
| 3.19 | To
enter into partnership or into any arrangement for sharing profits, union of interests, co-operation,
joint venture, reciprocal concession or otherwise with any person or company carrying on
or engaged in or about to carry on or engage in any business or transaction and to engage
in any transaction in connection with the foregoing. |
| 3.20 | To
acquire or amalgamate with any other company or person. |
| 3.21 | To
acquire and undertake the whole or any part of the business, good-will and assets of any
person, firm or company carrying on or proposing to carry on any of the businesses which
this Company is authorised to carry on, and as part of the consideration for such acquisition
to undertake all or any of the liabilities of such person, firm or company, or to acquire
an interest in, amalgamate with, or enter into any arrangement for sharing profits, or for
co-operation, or for mutual assistance with any such person, firm or company and to give
or accept by way of consideration for any of the acts or things aforesaid or property acquired,
any shares, debentures, debenture stock or securities that may be agreed upon, and to hold
and retain or sell, mortgage or deal with any shares, debentures, debenture stock or securities
so received. |
| 3.22 | To
promote freedom of contract, and to resist, insure against, counteract and discourage interference
therewith, to join any lawful federation, union or association, or do any other lawful act
or thing with a view to preventing or resisting directly or indirectly any interruption of
or interference with the Company’s or any other trade or business or providing or safeguarding
against the same, or resisting or opposing any strike, movement or organisation which may
be thought detrimental to the interests of the Company or its employees and to subscribe
to any association or fund for any such purposes. |
| 3.23 | To
make gifts to any person or company including, without prejudice to the generality of the
foregoing, capital contributions and to grant bonuses to the directors or any other persons
or companies who are or have been in the employment of the Company including substitute directors
and any other officer or employee. |
| 3.24 | To
establish and support or aid in the establishment and support of associations, institutions,
funds, trusts and conveniences calculated to benefit directors, ex-directors, employees or
ex-employees of the Company or any subsidiary of the Company or the dependants or connections
of such persons, and to grant pensions and allowances upon such terms and in such manner
as the Company’s board of directors think fit, and to make payments towards insurance
and to subscribe or guarantee money for charitable or benevolent objects or for any exhibition
or for any public, general or useful object, or any other object whatsoever which the Company’s
board of directors may think advisable. |
| 3.25 | To
establish and contribute to any scheme for the purchase of shares or subscription for shares
in the Company, its holding company or any of its or their respective subsidiaries, to be
held for the benefit of the employees or former employees of the Company or any subsidiary
of the Company including any person who is or was a director holding a salaried employment
or office in the Company or any subsidiary of the Company and to lend or otherwise provide
money to the trustees of such schemes or the employees or former employees of the Company
or any subsidiary of the Company to enable them to purchase shares of the Company, its holding
company or any of its or their respective subsidiaries and to formulate and carry into effect
any scheme for sharing the profits of the Company, its holding company or any of its or their
respective subsidiaries with its employees and/or the employees of any of its subsidiaries. |
| 3.26 | To
remunerate any person or company for services rendered or to be rendered in placing or assisting
to place or guaranteeing the placing of any of the shares of the Company’s capital
or any debentures, debenture stock or other securities of the Company or in or about the
formation or promotion of the Company or the conduct of its business. |
| 3.27 | To
obtain any Act of the Oireachtas or provisional order for enabling the Company to carry any
of its objects into effect or for effecting any modification of the Company’s constitution
or for any other purpose which may seem expedient and to oppose any proceedings or applications
which may seem calculated directly or indirectly to prejudice the Company’s interests. |
| 3.28 | To
adopt such means of making known the products of the Company as may seem expedient and in
particular by advertising in the press, by circulars, by purchase and exhibition of works
of art or interest, by publication of books and periodicals and by granting prizes, rewards
and donations. |
| 3.29 | To
undertake and execute the office of trustee and nominee for the purpose of holding and dealing
with any property of any kind for or on behalf of any person or company; to act as trustee,
nominee, agent, executor, administrator, registrar, secretary, committee or attorney generally
for any purpose and either solely or with others for any person or company; to vest any property
in any person or company with or without any declared trust in favour of the Company. |
| 3.30 | To
pay all costs, charges, fees and expenses incurred or sustained in or about the promotion,
establishment, formation and registration of the Company. |
| 3.31 | To
do all or any of the above things in any part of the world, and as principals, agents, contractors,
trustees or otherwise and by or through trustees, agents or otherwise and either alone or
in conjunction with any person or company. |
| 3.32 | To
distribute the property of the Company in specie among the members or, if there is only one,
to the sole member of the Company. |
| 3.33 | To
do all such other things as the Company’s board of directors may think incidental or
conducive to the attainment of the above objects or any of them. |
NOTE:
it is hereby declared that in this memorandum of association:
| a) | the
word “company”, except where used in reference to this Company, shall be deemed
to include a body corporate, whether a company (wherever formed, registered or incorporated),
a corporation aggregate, a corporation sole and a national or local government or other legal
entity; and |
| b) | the
word “person”, shall be deemed to include any individual, firm, body corporate,
association or partnership, government or state or agency of a state, local authority or
government body or any joint venture association or partnership (whether or not having a
separate legal personality) and that person’s personal representatives, successors
or permitted assigns; and |
| c) | the
word “property”, shall be deemed to include, where the context permits, real
property, personal property including choses or things in action and all other intangible
property and money and all estates, rights, titles and interests therein and includes the
Company’s uncalled capital and future calls and all and every other undertaking and
asset; and |
| d) | a
word or expression used in this memorandum of association which is not otherwise defined
and which is also used in the Companies Act 2014 shall have the same meaning here, as it
has in the Companies Act 2014; and |
| e) | any
phrase introduced by the terms “including”, “include” and “in
particular” or any similar expression shall be construed as illustrative and shall
not limit the sense of the words preceding those terms, whether or not followed by the phrases
“but not limited to”, “without prejudice to the generality of the foregoing”
or any similar expression; and |
| f) | words
denoting the singular number only shall include the plural number and vice versa and references
to one gender includes all genders; and |
| g) | it
is intended that the objects specified in each paragraph in this clause shall, except where
otherwise expressed in such paragraph, be separate and distinct objects of the Company and
shall not be in any way limited or restricted by reference to or inference from the terms
of any other paragraph or the order in which the paragraphs of this clause occur or the name
of the Company. |
4. | The
liability of the members is limited. |
5. | The
authorised share capital of the Company is US$100,000,000 divided into 36,363,636,364 Ordinary
Shares with a nominal value of US$0.0022 each and 200,000,000,000 Preferred Shares with a
nominal value of US$0.0001 each and €25,000 divided into 25,000 Deferred Ordinary Shares
with a nominal value of €1.00 each. |
6. | The
shares forming the capital, may be increased or reduced and be divided into such classes
and issued with any special rights, privileges and conditions or with such qualifications
as regards preference, dividend, capital, voting or other special incidents, and be held
upon such terms as may be attached thereto or as may from time to time be provided by the
original or any substituted or amended articles of association and regulations of the Company
for the time being, but so that where shares are issued with any preferential or special
rights attached thereto such rights shall not be alterable otherwise than pursuant to the
provisions of the Company’s articles of association for the time being. |
SMX
(SECURITY MATTERS) PUBLIC LIMITED COMPANY
ARTICLES
OF ASSOCIATION
(as
amended by Special Resolution dated 7 March 2023)
Interpretation
and general
2. | Sections
83, 84 and 117(9) of the Act shall apply to the Company but, subject to that, the provisions
set out in these Articles shall constitute the whole of the regulations applicable to the
Company and no other “optional provisions” as defined by section 1007(2) of the
Act shall apply to the Company. |
| 2.1 | “Act”
means the Companies Act 2014 and every statutory modification and re-enactment thereof for
the time being in force; |
| 2.2 | “Acting
in Concert” has the meaning given to it in Rule 2.1(a) and Rule 3.3 of Part A of
the Takeover Rules; |
| 2.3 | “Adoption
Date” means the effective date of adoption of these Articles; |
| 2.4 | “Adjourned
Meeting” has the meaning given in Article 115.1; |
| 2.5 | “Agent”
has the meaning given in Article 12.3; |
| 2.6 | “Approved
Nominee” means a person appointed under contractual arrangements with the Company
to hold shares or rights or interests in shares of the Company on a nominee basis; |
| 2.7 | “Article”
means an article of these Articles; |
| 2.8 | “Articles”
means these articles of association as from time to time and for the time being in force; |
| 2.9 | “Auditors”
means the auditors for the time being of the Company; |
| 2.10 | “Board”
means the board of Directors of the Company; |
| 2.11 | “Chairperson”
means the person occupying the position of Chairperson of the Board from time to time; |
| 2.12 | “Chief
Executive Officer” shall include any equivalent office; |
| 2.13 | “Clear
Days” means, in relation to a period of notice, that period excluding the day when
the notice is given or deemed to be given and excluding the day for which notice is being
given or on which an action or event for which notice is being given is to occur or take
effect; |
| 2.14 | “committee”
has the meaning given in Article 187; |
| 2.15 | “Company”
means the company whose name appears in the heading to these Articles; |
| 2.16 | “Company
Secretary” means the person or persons appointed as company secretary or joint
company secretary of the Company from time to time and shall include any assistant or deputy
secretary; |
| 2.17 | “Concert
Party” means, in relation to any person, a party who is deemed or presumed to be
Acting in Concert with that person for the purposes of the Takeover Rules; |
| 2.18 | “contested
election” has the meaning given in Article 159; |
| 2.19 | “Deferred
Shares” means the Deferred Ordinary Shares with a nominal value of €1.00 each
in the capital of the Company; |
| 2.20 | “Directors”
means the directors for the time being of the Company or any of them acting as the Board; |
| 2.21 | “Director’s
Certified Email Address” has the meaning given in Article 190.3; |
| 2.22 | “disponee”
has the meaning given in Article 46.1; |
| 2.23 | “elected
by a plurality” has the meaning given in Article 159; |
| 2.24 | “electronic
communication” has the meaning given to that word in the Electronic Commerce Act
2000 and in addition includes in the case of notices or documents issued on behalf of the
Company, such documents being made available or displayed on a website of the Company (or
a website designated by the Board); |
| 2.25 | “Exchange”
means any securities exchange or other system on which the shares of the Company may be listed
or otherwise authorised for trading from time to time in circumstances where the Company
has approved such listing or trading; |
| 2.26 | “Exchange
Act” means the Securities Exchange Act of 1934 of the United States, as amended; |
| 2.27 | “Group”
means the Company and its subsidiaries from time to time and for the time being; |
| 2.28 | “Independent
Directors” has the meaning given in Article 238.4; |
| 2.29 | “Institutional
Investor” has the meaning given in Article 238.5 |
| 2.30 | “Interest
in a Security” has the meaning given to such term in section 1 of the Irish Takeover
Panel Act 1997; |
| 2.31 | “Interested
Person” has the meaning given in Article 238.6; |
| 2.32 | “member”
means, in relation to any share, the member whose name is entered in the Register as the
holder of the share or, where the context permits, the members whose names are entered in
the Register as the joint holders of shares and shall include a member’s personal representatives
in consequence of his or her death or bankruptcy; |
| 2.33 | “Memorandum”
means the memorandum of association of the Company; |
| 2.34 | “Office”
means the registered office for the time being of the Company; |
| 2.35 | “Ordinary
Shares” means the Ordinary Shares with a nominal value of US$0.0022 each in the
capital of the Company; |
| 2.36 | “Preferred
Shares” means the Preferred Shares with a nominal value of US$0.0001 each in the
capital of the Company; |
| 2.37 | “Proceedings”
has the
meaning given in Article 253; |
| 2.38 | “Redeemable
Shares” means redeemable shares as defined by section 64 of the Act; |
| 2.39 | “Re-designation
Event” means; |
| (a) | the
transfer of Restricted Voting Ordinary Shares from a Restricted Shareholder to a shareholder
or other person who is not a Restricted Shareholder; |
| (b) | an
event whereby a Restricted Shareholder ceases to be restricted from holding an Interest in
Securities, by virtue of Rule 9 of the Takeover Rules, except in these circumstances the
number of Restricted Voting Ordinary Shares which shall be re-designated as Ordinary Shares
shall be the maximum number of Ordinary Shares that can be re-designated without the former
Restricted Shareholder becoming a Restricted Shareholder on the Re-designation Event; or |
| (c) | a
Restricted Shareholder of the Company undertaking a Takeover Rules Event and the Takeover
Panel consenting to some or all of the Restricted Voting Ordinary Shares being re-designated,
in which case only those Restricted Voting Ordinary Shares the re-designation of which has
been consented to by the Takeover Panel shall be re-designated as Ordinary Shares; |
| 2.40 | “Register”
means the register of members of the Company to be kept as required by the Act; |
| 2.41 | “Restricted
Shareholder” means a member of the Company or other person who is restricted from
holding an Interest in Securities without a Takeover Rules Event occurring by virtue of Rule
9 of the Takeover Rules or a member or person who would be so restricted but for the limitations
on voting rights set out under Article 7, provided that where two or more persons are deemed
or presumed (and such presumption has not been rebutted) to be Acting in Concert for the
purpose of Rule 9 of the Takeover Rules, only the person who acquired the Interest in Securities
which, but for the application of Article 7, would trigger the Takeover Rules Event shall
be deemed to be a Restricted Shareholder in respect only of such number of the person’s
Interest in Securities which, but for the application of Article 7, would trigger the Takeover
Rules Event. |
| 2.42 | “Restricted
Voting Ordinary Shares” means |
| (a) | an
Interest in Securities acquired by a Restricted Shareholder where the Restricted Shareholder
has not elected for a Takeover Rules Event to occur; or |
| (a) | Ordinary
Shares the subject of a notification by a Shareholder by at least 10 Business Days’
notice in writing to the Company that such Shareholder wishes for such Ordinary Shares to
be designated as Restricted Voting Ordinary Shares; |
| 2.43 | “Rights”
has the meaning given in Article 242; |
| 2.44 | “Rights
Plan” has the meaning given in Article 241; |
| 2.45 | “SEC”
means the U.S. Securities and Exchange Commission; |
| 2.46 | “Shareholder”
means a holder of shares in the capital of the Company; |
| 2.47 | “Takeover
Panel” means the Irish Takeover Panel established under the Irish Takeover Panel
Act 1997; |
| 2.48 | “Takeover
Rules” means the Takeover Panel Act 1997 Takeover Rules 2013; and |
| 2.49 | “Takeover
Rules Event” means either of the following events: |
| (a) | a
Restricted Shareholder and/or its Concert Parties (if any) extending an offer to the holders
of each class of shares of the Company in accordance with Rule 9 of the Takeover Rules; or |
| (b) | the
Company obtaining approval of the Takeover Panel for a waiver of Rule 9 of the Takeover Rules
in respect of a Restricted Shareholder or any of its Concert Parties (as applicable). |
NOTE:
it is hereby declared that in these Articles:
| a) | the
word “company”, except where used in reference to this Company, shall be deemed
to include a body corporate, whether a company (wherever formed, registered or incorporated),
a corporation aggregate, a corporation sole and a national or local government or other legal
entity; and |
| b) | the
word “person”, shall be deemed to include any individual, firm, body corporate,
association or partnership, government or state or agency of a state, local authority or
government body or any joint venture association or partnership (whether or not having a
separate legal personality) and that person’s personal representatives, successors
or permitted assigns; and |
| c) | the
word “property”, shall be deemed to include, where the context permits, real
property, personal property including choses or things in action and all other intangible
property and money and all estates, rights, titles and interests therein and includes the
Company’s uncalled capital and future calls and all and every other undertaking and
asset; and |
| d) | a
word or expression used in the Articles which is not otherwise defined and which is also
used in the Act shall have the same meaning here, as it has in the Act; and |
| e) | any
phrase introduced by the terms “including”, “include” and “in
particular” or any similar expression shall be construed as illustrative and shall
not limit the sense of the words preceding those terms, whether or not followed by the phrases
“but not limited to”, “without prejudice to the generality of the foregoing”
or any similar expression; and |
| f) | words
denoting the singular number only shall include the plural number and vice versa and references
to one gender includes all genders. |
AUTHORISED
SHARE CAPITAL
4. | The
authorised share capital of the Company is US$100,000,000 divided into 36,363,636,364 Ordinary
Shares with a nominal value of US$0.0022 each and 200,000,000,000 Preferred Shares with a
nominal value of US$0.0001 each and €25,000 divided into 25,000 Deferred Ordinary Shares
with a nominal value of €1.00 each |
RIGHTS
ATTACHING TO THE ORDINARY SHARES
5. | The
Ordinary Shares shall rank pari passu in all respects and shall: |
| 5.1 | subject
to the right of the Company to set record dates for the purposes of determining the identity
of members entitled to notice of and/or to vote at a general meeting and the authority of
the Board and chairperson of the meeting to maintain order and security, include the right
to attend any general meeting of the Company and to exercise one vote per Ordinary Share
held at any general meeting of the Company; |
| 5.2 | include
the right to participate pro rata in all dividends declared by the Company; and |
| 5.3 | include
the right, in the event of the Company’s winding up, to participate pro rata in the
total assets of the Company. |
6. | The
rights attaching to the Ordinary Shares may be subject to the terms of issue of any series
or class of Preferred Shares allotted by the Directors from time to time in accordance with
Article 9. |
RESTRICTED
VOTING ORDINARY SHARES
7. | If
a Restricted Shareholder acquires an Interest in Securities, unless the Restricted Shareholder
elects to acquire such Interest in Securities with a Takeover Rules Event occurring, any
share certificates to be issued in respect of the Ordinary Shares shall bear a legend making
reference to the shares as Restricted Voting Ordinary Shares. A Shareholder may also, by
at least 10 Clear Days’ notice in writing to the Company or such shorter time as the
Company may elect, request that the Company redesignate some or all of its Ordinary Shares
as Restricted Voting Ordinary Shares. |
8. | The
following restrictions shall attach to Restricted Voting Ordinary Shares: |
| 8.1 | from
the time of issue until a Re-designation Event occurs, the Restricted Voting Ordinary Shares
in issue will be designated as Restricted Voting Ordinary Shares and the rights attaching
to such shares shall be restricted as set out in this Article 7; |
| 8.2 | the
Restricted Voting Ordinary Shares shall carry no rights to receive notice of or to attend
or vote at any general meeting of the Company; |
| 8.3 | save
as provided herein, the Restricted Voting Ordinary Shares shall rank pari passu at all times
and in all respects with all other Ordinary Shares; |
| 8.4 | forthwith
upon a Re-designation Event, each holder of Restricted Voting Ordinary Shares that are to
be re-designated shall send to the Company the certificates, if any, in respect of the Restricted
Voting Ordinary Shares held by him or it immediately prior to the Re-designation Event and
thereupon, but subject to receipt of such certificates, the Company shall issue to such holders
respectively replacement certificates for the Ordinary Shares without a legend making reference
to the shares as Restricted Voting Ordinary Shares; and |
| 8.5 | re-designation
of the Restricted Voting Ordinary Shares shall be effected by way of a deemed automatic re-designation
of such shares immediately upon and subject to a Re-designation Event, without the requirement
of any approval by the Board or any shareholders of the Company. |
9. | Any
Restricted Voting Ordinary Shares in issue shall comprise a single class with any other Ordinary
Shares in issue. |
RIGHTS
ATTACHING TO PREFERRED SHARES
10. | The
Board is empowered to cause the Preferred Shares to be issued from time to time as shares
of one or more series of Preferred Shares, and in the resolution or resolutions providing
for the issue of Preferred Shares of each particular series, before issuance, the Board is
expressly authorised to fix: |
| 10.1 | the
distinctive designation of such series and the number of shares which shall constitute such
series, which number may be increased (except as otherwise provided by the Board in creating
such series) or decreased (but not below the number of shares thereof then in issue) from
time to time by resolution of the Board; |
| 10.2 | the
rate of dividends payable on shares of such series, if any, whether or not and upon what
conditions dividends on shares of such series shall be cumulative and, if cumulative, the
date or dates from which dividends shall accumulate and the preference or relation which
such dividends shall bear to the dividends payable on any other class or classes or on any
other series of share capital; |
| 10.3 | the
procedures for, and the terms, if any, on which shares of such series may be redeemed, including
without limitation, the redemption price or prices for such series, which may consist of
a redemption price or scale of redemption prices applicable only to redemption in connection
with a sinking fund (which term as used herein shall include any fund or requirement for
the periodic purchase or redemption of shares), and the same or a different redemption price
or scale of redemption prices applicable to any other redemption; |
| 10.4 | the
terms and amount of any sinking fund provided for the purchase or redemption of shares of
such series; |
| 10.5 | the
amount or amounts which shall be paid to the holders of shares of such series in case of
liquidation, dissolution or winding up of the Company, whether voluntary or involuntary; |
| 10.6 | the
terms, if any, upon which the holders of shares of such series may convert shares thereof
into shares of any other class or classes or of any one or more series of the same class
or of another class or classes; |
| 10.7 | the
voting rights, full or limited, if any, of the shares of such series; and whether or not
and under what conditions the shares of such series (alone or together with the shares of
one or more other series having similar provisions) shall be entitled to vote separately
as a single class, for the election of one or more additional Directors in case of dividend
arrears or other specified events, or upon other matters; |
| 10.8 | whether
or not the holders of shares of such series, as such, shall have any pre-emptive or preferential
rights to subscribe for or purchase shares of any class or series of shares of the Company,
now or hereafter authorised, or any securities convertible into, or warrants or other evidences
of optional rights to purchase or subscribe for, shares of any class or series of the Company,
now or hereafter authorised; |
| 10.9 | the
limitations and restrictions, if any, to be effective while any shares of such series are
outstanding upon the payment of dividends, or the making of other distributions on, and upon
the purchase, redemption or other acquisition by the Company of, any other class or classes
of shares ranking junior to the shares of such series either as to dividends or upon liquidation,
dissolution or winding up; |
| 10.10 | the
conditions or restrictions, if any, upon the creation of indebtedness of the Company or upon
the issuance of any additional shares (including additional shares of such series or of any
other class) ranking on a parity with or prior to the shares of such series as to dividends
or distribution of assets upon liquidation; and |
| 10.11 | such
other rights, preferences and limitations as may be permitted to be fixed by the Board of
the Company under the laws of Ireland as in effect at the time of the creation of such series. |
11. | The
Board is authorised to change the designations, rights, preferences and limitations of any
series of Preferred Shares theretofore established, no shares of which have been issued. |
12. | The
rights conferred upon the member of any pre-existing shares in the share capital of the Company
shall be deemed not to be varied by the creation, issue and allotment of any series of Preferred
Shares in accordance with these Articles. |
RIGHTS
ATTACHING TO DEFERRED SHARES
13. | The
Deferred Shares shall have the rights and privileges and be subject to the restrictions set
out in this Article 12: |
| 13.1 | the
Deferred Shares are non-voting shares and do not convey upon the holder the right to be paid
a dividend or to receive notice of or to attend, vote or speak at a general meeting; |
| 13.2 | the
Deferred Shares confer the right on a return of capital, on a winding-up or otherwise, only
to the repayment of the nominal value paid up on the Deferred Shares after repayment of the
nominal value of the Ordinary Shares; and |
| 13.3 | any
Director (the “Agent”) is appointed the attorney of the holder of a Deferred
Share, with an irrevocable instruction to the Agent to execute all or any forms of transfer
and/or renunciation and/or surrender and/or other documents in the Agent’s discretion
in relation to the Deferred Shares in favour of the Company or as it may direct and to deliver
such forms of transfer and/or renunciation and/or surrender and/or other documents together
with any certificate(s) and/or other documents for registration and to do all such other
acts and things as may in the reasonable opinion of the Agent be necessary or expedient for
the purpose of, or in connection with, the surrender of the Deferred Shares, the purchase
by the Company of the Deferred Shares for nil consideration or such other consideration as
the Board may determine and to vest the said Deferred Shares in the Company. |
14. | Without
prejudice to any special rights conferred on the members of any existing shares or class
of shares and subject to the provisions of the Act, any share may be issued with such rights
or restrictions as the Company may by ordinary resolution determine. |
ALLOTMENT
AND ACQUISITION OF SHARES
15. | The
following provisions shall apply: |
| 15.1 | Subject
to the provisions of these Articles relating to new shares, the shares shall be at the disposal
of the Directors, and they may (subject to the provisions of the Act) allot, grant options
over or otherwise dispose of them to such persons, on such terms and conditions and at such
times as they may consider to be in the best interests of the Company and its members, but
so that no share shall be issued at a discount and so that, in the case of shares offered
to the public for subscription, the amount payable on application on each share shall not
be less than one-quarter of the nominal amount of the share and the whole of any premium
thereon. |
| 15.2 | Without
prejudice to the generality of the powers conferred on the Directors by other paragraphs
of these Articles, and subject to any requirement to obtain the approval of the members under
any laws, regulations or the rules of any Exchange, the Directors may grant from time to
time options to subscribe for the unallotted shares in the capital of the Company to Directors
and other persons in the service or employment of the Company or any subsidiary or associate
company of the Company on such terms and subject to such conditions as may be approved from
time to time by the Directors or by any committee thereof appointed by the Directors for
the purpose of such approval and on the terms and conditions required to obtain the approval
of any statutory authority in any jurisdiction. |
| 15.3 | Subject
to the provisions of these Articles including but not limited to Article 6, the Directors
are hereby generally and unconditionally authorised to exercise all the powers of the Company
to allot relevant securities within the meaning of section 1021 of the Act. The maximum amount
of relevant securities which may be allotted under the authority hereby conferred shall be
the amount of the authorised but unissued share capital of the Company at the Adoption Date.
The authority hereby conferred shall expire on the date which is five (5) years after the
Adoption Date unless and to the extent that such authority is renewed, revoked or extended
prior to such date. The Company may before such expiry make an offer or agreement which would
or might require relevant securities to be allotted after such expiry and the Directors may
allot relevant securities in pursuance of such offer or agreement, notwithstanding that the
authority hereby conferred has expired. |
| 15.4 | The
Directors are hereby empowered pursuant to sections 1022 and 1023 of the Act to allot equity
securities (within the meaning of the said section 1023) for cash pursuant to the authority
conferred by Article 14.3 as if section 1022(1) of the Act did not apply to any such allotment.
The authority conferred by this Article 14.4 shall expire on the date which is five (5) years
after the Adoption Date, unless previously renewed, varied or revoked; provided that the
Company may before the expiry of such authority make an offer or agreement which would or
might require equity securities to be allotted after such expiry and the Directors may allot
equity securities in pursuance of such an offer or agreement as if the power conferred by
this Article 14.4 had not expired. |
| 15.5 | The
Company may issue permissible letters of allotment (as defined by section 1019 of the Act)
to the extent permitted by the Act. |
| 15.6 | Unless
otherwise determined by the Directors or the rights attaching to or by the terms of issue
of any particular shares, or to the extent required by the Act, any Exchange, depository
or any operator of any clearance or settlement system, no person whose name is entered as
a member in the Register shall be entitled to receive a share certificate for any shares
of any class held by him or her in the capital of the Company (nor on transferring part of
a holding, to a certificate for the balance). |
| 15.7 | Any
share certificate, if issued, shall specify the number of shares in respect of which it is
issued and the amount paid thereon or the fact that they are fully paid, as the case may
be, and may otherwise be in such form as shall be determined by the Directors. Such certificates
may be under seal. All certificates for shares in the capital of the Company shall be consecutively
numbered or otherwise identified and shall specify the shares in the capital of the Company
to which they relate. The name and address of the person to whom the shares represented thereby
are issued, with the number of shares and date of issue, shall be entered in the Register.
All certificates surrendered to the Company for transfer shall be cancelled and no new certificate
shall be issued until the former certificate for a like number of shares in the capital of
the Company shall have been surrendered and cancelled. The Directors may authorise certificates
to be issued with the seal and authorised signature(s) affixed by some method or system of
mechanical process. In respect of a share or shares in the capital of the Company held jointly
by several persons, the Company shall not be bound to issue a certificate or certificates
to each such person, and the issue and delivery of a certificate or certificates to one of
several joint holders shall be sufficient delivery to all such holders. If a share certificate
is defaced, worn out, lost or destroyed, it may be renewed on such terms (if any) as to evidence
and indemnity and on the payment of such expenses reasonably incurred by the Company in investigating
such evidence, as the Directors may prescribe, and, in the case of defacement or wearing
out, upon delivery of the old certificate. |
| 16.1 | may
give financial assistance for the purpose of an acquisition of its shares or, where the Company
is a subsidiary, its holding company where permitted by sections 82 and 1043 of the Act,
and |
| 16.2 | is
authorised, for the purposes of section 105(4)(a) of the Act, but subject to section 1073
of the Act, to acquire its own shares. |
17. | The
Directors (and any committee established under Article 186 and so authorised by the Directors
and any person so authorised by the Directors or such committee) may without prejudice to
Article 168: |
| 17.1 | allot,
issue, grant options over and otherwise dispose of shares in the Company; and |
| 17.2 | exercise
the Company’s powers under Article 14,on such terms and subject to such conditions
as they think fit, subject only to the provisions of the Act and these Articles. |
18. | Unless
the Board determines otherwise, any share in the capital of the Company shall be deemed to
be a Redeemable Share on, and from the time of, the existence or creation of an agreement,
transaction or trade between the Company and any person (who may or may not be a member)
pursuant to which the Company acquires or will acquire a share in the capital of the Company,
or an interest in shares in the capital of the Company, from the relevant person, save for
an acquisition for nil consideration pursuant to section 102(1)(a) of the Act. In these circumstances,
the acquisition of such shares by the Company, save where acquired for nil consideration
in accordance with the Act, shall constitute the redemption of a Redeemable Share in accordance
with Chapter 6 of Part 3 of the Act. No resolution, whether special or otherwise, shall be
required to be passed to deem any share in the capital of the Company a Redeemable Share. |
VARIATION
OF CLASS RIGHTS
19. | Without
prejudice to the authority conferred on the Directors pursuant to Article 9 to issue Preferred
Shares in the capital of the Company, where the shares in the Company are divided into different
classes, the rights attaching to a class of shares may only be varied or abrogated if (a)
the holders of 75% in nominal value of the issued shares of that class consent in writing
to the variation, or (b) a special resolution, passed at a separate general meeting of the
holders of that class, sanctions the variation. The quorum at any such separate general meeting,
other than an Adjourned Meeting, shall be two persons holding or representing by proxy at
least one-third in nominal value of the issued shares of the class in question and the quorum
at an Adjourned Meeting shall be one person holding or representing by proxy shares of the
class in question or that person’s proxy. The rights conferred upon the holders of
any class of shares issued with preferred or other rights shall not, unless otherwise expressly
provided by the terms of issue of the shares of that class, be deemed to be varied by a purchase
or redemption by the Company of its own shares or by the creation or issue of further shares
ranking pari passu therewith or subordinate thereto. |
20. | The
redemption or purchase of Preferred Shares or any class or series of Preferred Shares shall
not constitute a variation of rights of the holders of Preferred Shares. |
21. | The
issue, redemption or purchase of any of the Preferred Shares shall not constitute a variation
of the rights of the holders of Ordinary Shares. |
22. | The
issue of Preferred Shares or any class or series of Preferred Shares which rank pari passu
with, or junior to, any existing Preferred Shares or class of Preferred Shares shall not
constitute a variation of the existing Preferred Shares or class of Preferred Shares. |
23. | The
rights conferred upon the holders of the shares of any class issued with preferred or other
rights shall not, unless otherwise expressly provided by the terms of issue of the shares
of that class, be deemed to be varied by the creation or issue of further shares ranking
pari passu therewith. |
TRUSTS
NOT RECOGNISED
24. | Except
as required by law, no person shall be recognised by the Company as holding any share upon
any trust, and the Company shall not be bound by or be compelled in any way to recognise
(even when having notice thereof) any equitable, contingent, future or partial interest in
any share or any interest in any fractional part of a share or (except only as by these Articles
or by law otherwise provided) any other rights in respect of any share except an absolute
right to the entirety thereof in the member. This shall not preclude (i) the Company from
requiring the members or a transferee of shares to furnish the Company with information as
to the beneficial ownership of any share when such information is reasonably required by
the Company, or (ii) the Directors, where they consider it appropriate, providing the information
given to the members of shares to the holders of depositary instruments in such shares. |
CALLS
ON SHARES
25. | The
Directors may from time to time make calls upon the members in respect of any consideration
unpaid on their shares in the Company (whether on account of the nominal value of the shares
or by way of premium), provided that in the case where the conditions of allotment or issuance
of shares provide for the payment of consideration in respect of such shares at fixed times,
the Directors shall only make calls in accordance with such conditions. |
26. | Each
member shall (subject to receiving at least thirty days’ notice specifying the time
or times and place of payment, or such lesser or greater period of notice provided in the
conditions of allotment or issuance of the shares) pay to the Company, at the time or times
and place so specified, the amount called on the shares. |
27. | A
call may be revoked or postponed, as the Directors may determine. |
28. | Subject
to the conditions of allotment or issuance of the shares, a call shall be deemed to have
been made at the time when the resolution of the Directors authorising the call was passed
and may be required to be paid by instalments if specified in the call. |
29. | The
joint holders of a share shall be jointly and severally liable to pay all calls in respect
of it. |
30. | If
the consideration called in respect of a share or in respect of a particular instalment is
not paid in full before or on the day appointed for payment of it, the person from whom the
sum is due shall pay interest in cash on the unpaid value from the day appointed for payment
of it to the time of actual payment of such rate, not exceeding five per cent per annum or
such other rate as may be specified by an order under section 2(7) of the Act, as the Directors
may determine, but the Directors may waive payment of such interest wholly or in part. |
31. | Any
consideration which, by the terms of issue of a share, becomes payable on allotment or issuance
or at any fixed date (whether on account of the nominal value of the share or by way of premium)
shall, for the purposes of these Articles, be deemed to be a call duly made and payable on
the date on which, by the terms of issue, that consideration becomes payable, and in the
case of non-payment of such a consideration, all the relevant provisions of these Articles
as to payment of interest and expenses, forfeiture or otherwise, shall apply as if such consideration
had become payable by virtue of a call duly made and notified. |
32. | The
Directors may, on the issue of shares, differentiate between the holders of different classes
as to the amount of calls to be paid and the times of payment. |
33. | The
Directors may, if they think fit: |
| (a) | receive
from any member willing to advance such consideration, all or any part of the consideration
uncalled and unpaid upon any shares held by him or her; and/or |
| (b) | pay,
upon all or any of the consideration so advanced (until the amount concerned would, but for
such advance, become payable) interest at such rate (not exceeding, unless the Company in
a general meeting otherwise directs, five per cent per annum or such other rate as may be
specified by an order under section 2(7) of the Act) as may be agreed upon between the Directors
and the member paying such consideration in advance. |
| (a) | acting
by its Directors, make arrangements on the issue of shares for a difference between the members
in the amounts and times of payment of calls on their shares; |
| (b) | acting
by its Directors, accept from any member the whole or a part of the amount remaining unpaid
on any shares held by him or her, although no part of that amount has been called up; |
| (c) | acting
by its Directors and subject to the Act, pay a dividend in proportion to the amount paid
up on each share where a larger amount is paid up on some shares than on others; and |
| (d) | by
special resolution determine that any portion of its share capital which has not been already
called up shall not be capable of being called up except in the event and for the purposes
of the Company being wound up; upon the Company doing so, that portion of its share capital
shall not be capable of being called up except in that event and for those purposes. |
LIEN
35. | The
Company shall have a first and paramount lien on every share (not being a fully paid share)
for all consideration (whether immediately payable or not) called, or payable at a fixed
time, in respect of that share. |
36. | The
Directors may at any time declare any share in the Company to be wholly or in part exempt
from Article 34. |
37. | The
Company’s lien on a share shall extend to all dividends payable on it. |
38. | The
Company may sell, in such manner as the Directors think fit, any shares on which the Company
has a lien, but no sale shall be made unless (i) a sum in respect of which the lien exists
is immediately payable; and (ii) the following conditions are satisfied: |
| 38.1 | a
notice in writing, stating and demanding payment of such part of the amount in respect of
which the lien exists as is immediately payable, has been given to the registered holder
of the share for the time being, or the person entitled thereto by reason of his or her death
or bankruptcy; and |
| 38.2 | a
period of 14 days after the date of giving of that notice has expired. |
39. | The
following provisions apply in relation to a sale referred to in Article 37: |
| 39.1 | to
give effect to any such sale, the Directors may authorise some person to transfer the shares
sold to the purchaser of them; |
| 39.2 | the
purchaser shall be registered as the holder of the shares comprised in any such transfer; |
| 39.3 | the
purchaser shall not be bound to see to the application of the purchase consideration, nor
shall his or her title to the shares be affected by any irregularity or invalidity in the
proceedings in reference to the sale; and |
| 39.4 | the
proceeds of the sale shall be received by the Company and applied in payment of such part
of the amount in respect of which the lien exists as is immediately payable, and the residue,
if any, shall (subject to a like lien for sums not immediately payable as existed upon the
shares before the sale) be paid to the person entitled to the shares at the date of the sale. |
FORFEITURE
40. | If
a member of the Company fails to pay any call or instalment of a call on the day appointed
for payment of it, the Directors may, at any time thereafter during such time as any part
of the call or instalment remains unpaid, serve a notice on the member requiring payment
of so much of the call or instalment as is unpaid, together with any interest which may have
accrued. |
41. | The
notice referred to in Article 39 shall: |
| 41.1 | specify
a further day (not earlier than the expiration of 14 days after the date of service of the
notice) on or before which the payment required by the notice is to be made; and |
| 41.2 | state
that, if the amount concerned is not paid by the day so specified, the shares in respect
of which the call was made will be liable to be forfeited. |
42. | If
the requirements of the notice referred to in Article 40 are not complied with, any share
in respect of which the notice has been served may at any time after the day so specified
(but before, should it occur, the payment required by the notice has been made) be forfeited
by a resolution of the Directors to that effect. |
43. | On
the trial or hearing of any action for the recovery of any money due for any call, it shall
be sufficient to prove that the name of the member sued is entered in the Register as the
holder, or one of the holders, of the shares in the capital of the Company in respect of
which such debt accrued, that the resolution making the call is duly recorded in the minute
book and that notice of such call was duly given to the member sued, in pursuance of these
Articles, and it shall not be necessary to prove the appointment of the Directors who made
such call nor any other matters whatsoever, but the proof of the matters aforesaid shall
be conclusive evidence of the debt. |
44. | A
forfeited share may be sold or otherwise disposed of on such terms and in such manner as
the Directors think fit, and at any time before a sale or disposition the forfeiture may
be cancelled on such terms as the Directors think fit. |
45. | A
person whose shares have been forfeited shall cease to be a member of the Company in respect
of the forfeited shares, but shall, notwithstanding, remain liable to pay to the Company
all consideration which, at the date of forfeiture, were payable by him or her to the Company
in respect of the shares, but his or her liability shall cease if and when the Company shall
have received payment in full of all such consideration in respect of the shares. |
46. | A
statement in writing that the maker of the statement is a Director or the Company Secretary,
and that a share in the Company has been duly forfeited on a date stated in the statement,
shall be conclusive evidence of the facts stated in it as against all persons claiming to
be entitled to the share. |
47. | The
following provisions apply in relation to a sale or other disposition of a share referred
to in Article 43: |
| 47.1 | the
Company may receive the consideration, if any, given for the share on the sale or other disposition
of it and may execute a transfer of the share in favour of the person to whom the share is
sold or otherwise disposed of (the “disponee”); |
| 47.2 | upon
such execution, the disponee shall be registered as the holder of the share; and |
| 47.3 | the
disponee shall not be bound to see to the application of the purchase consideration, if any,
nor shall his or her title to the share be affected by any irregularity or invalidity in
the proceedings in reference to the forfeiture, sale or disposal of the share. |
48. | The
provisions of these Articles as to forfeiture shall apply in the case of non-payment of any
sum which, by the terms of issue of a share in the capital of the Company, becomes payable
at a fixed time, whether on account of the nominal value of the share in the capital of the
Company or by way of premium, as if the same had been payable by virtue of a call duly made
and notified. |
49. | The
Directors may accept the surrender of any share in the capital of the Company which the Directors
have resolved to have been forfeited upon such terms and conditions as may be agreed and,
subject to any such terms and conditions, a surrendered share in the capital of the Company
shall be treated as if it has been forfeited. |
VARIATION
OF COMPANY CAPITAL; AMENDMENT OF MEMORANDUM OF ASSOCIATION
50. | Subject
to the provisions of these Articles, the Company may, by ordinary resolution and in accordance
with section 83 of the Act, do any one or more of the following, from time to time: |
| 50.1 | consolidate
and divide all or any of its classes of shares into shares of a larger nominal value than
its existing shares; |
| 50.2 | subdivide
its classes of shares, or any of them, into shares of a smaller nominal value, so however,
that in the subdivision the proportion between the amount paid and the amount, if any, unpaid
on each reduced share shall be the same as it was in the case of the share from which the
reduced share is derived; |
| 50.3 | increase
the nominal value of any of its shares by the addition to them of any undenominated capital; |
| 50.4 | reduce
the nominal value of any of its shares by the deduction from them of any part of that value,
subject to the crediting of the amount of the deduction to undenominated capital, other than
the share premium account; |
| 50.5 | without
prejudice or limitation to Articles 89 to 94 and the powers conferred on the Directors thereby,
convert any undenominated capital into shares for allotment as bonus shares to holders of
existing shares; |
| 50.6 | increase
its share capital by new shares of such amount as it thinks expedient; or |
| 50.7 | cancel
shares of its share capital which, at the date of the passing of the resolution, have not
been taken or agreed to be taken by any person, and diminish the amount of its share capital
by the amount of the shares so cancelled. |
51. | Subject
to the provisions of these Articles, the Company may: |
| 51.1 | without
prejudice to Article 17, by special resolution, and subject to the provisions of the Act
governing the variation of rights attached to classes of shares and the amendment of these
Articles, convert any of its shares into Redeemable Shares; or |
| 51.2 | by
special resolution, and subject to the provisions of the Act (or as otherwise required or
permitted by applicable law) alter or add to the Memorandum with respect to any objects,
powers or other matters specified therein or alter or add to these Articles. |
REDUCTION
OF COMPANY CAPITAL
52. | The
Company may, in accordance with the provisions of sections 84 to 87 of the Act, reduce its
company capital in any way it thinks expedient and, without prejudice to the generality of
the foregoing, may thereby: |
| 52.1 | extinguish
or reduce the liability on any of its shares in respect of share capital not paid up; |
| 52.2 | either
with or without extinguishing or reducing liability on any of its shares, cancel any paid
up company capital which is lost or unrepresented by available assets; or |
| 52.3 | either
with or without extinguishing or reducing liability on any of its shares, pay off any paid
up company capital which is in excess of the wants of the Company. |
Unless
the special resolution provides otherwise, a reserve arising from the reduction of company capital is to be treated for all purposes
as a realised profit in accordance with section 117(9) of the Act. Nothing in this Article 51 shall, however, prejudice or limit the
Company’s ability to perform or engage in any of the actions described in section 83(1) of the Act by way of ordinary resolution
only.
TRANSFER
OF SHARES
53. | Subject
to the Act and to the provisions of these Articles as may be applicable, any member may transfer
all or any of his shares (of any class) by an instrument of transfer in the usual common
form or in any other form which the Board may from time to time approve. The instrument of
transfer may be endorsed on the certificate. |
54. | The
instrument of transfer of a share shall be signed by or on behalf of the transferor and,
if the share is not fully paid, by or on behalf of the transferee. The transferor shall be
deemed to remain the holder of the share until the name of the transferee is entered in the
Register in respect of it. All instruments of transfer may be retained by the Company. |
55. | The
instrument of transfer of any share may be executed for and on behalf of the transferor by
the Company Secretary or any other party designated by the Board for such purpose, and the
Company Secretary or any other party designated by the Board for such purpose shall be deemed
to have been irrevocably appointed agent for the transferor of such share or shares with
full power to execute, complete and deliver in the name of and on behalf of the transferor
of such share or shares all such transfers of shares held by the members in the share capital
of the Company. Any document which records the name of the transferor, the name of the transferee,
the class and number of shares agreed to be transferred, the date of the agreement to transfer
shares and the price per share, shall, once executed by the transferor or the Company Secretary
or any other party designated by the Board for such purpose as agent for the transferor,
be deemed to be a proper instrument of transfer for the purposes of the Act. The transferor
shall be deemed to remain the member holding the share until the name of the transferee is
entered on the Register in respect thereof, and neither the title of the transferee nor the
title of the transferor shall be affected by any irregularity or invalidity in the proceedings
in reference to the sale should the Directors so determine. |
56. | Subject
to the Act, the Company, at its absolute discretion, may, or may procure that a subsidiary
of the Company shall, pay Irish stamp duty arising on a transfer of shares on behalf of the
transferee of such shares of the Company. If stamp duty resulting from the transfer of shares
in the Company which would otherwise be payable by the transferee is paid by the Company
or any subsidiary of the Company on behalf of the transferee, then in those circumstances,
the Company shall, on its behalf or on behalf of its subsidiary (as the case may be), be
entitled to (i) reimbursement of the stamp duty from the transferee, (ii) set-off the stamp
duty against any dividends payable to the transferee of those shares and (iii) to the extent
permitted by section 1042 of the Act, claim a first and paramount lien on the shares on which
stamp duty has been paid by the Company or its subsidiary for the amount of stamp duty paid.
The Company’s lien shall extend to all dividends paid on those shares. |
57. | The
Directors shall have power to permit any class of shares to be held in uncertificated form
and to implement any arrangements they think fit for such evidencing and transfer which accord
with such regulations and in particular shall, where appropriate, be entitled to disapply
or modify all or part of the provisions in these Articles with respect to the requirement
for written instruments of transfer and share certificates (if any), in order to give effect
to such regulations. |
58. | The
Board may, in its absolute discretion and without assigning any reason for its decision,
decline to register any transfer of any share which is not a fully-paid share. The Board
may also decline to register any transfer if: |
| 58.1 | the
instrument of transfer is not duly stamped, if required, and lodged at the Office or any
other place as the Board may from time to time specify for the purpose, accompanied by the
certificate (if any) for the shares to which it relates and such other evidence as the Board
may reasonably require to show the right of the transferor to make the transfer; |
| 58.2 | the
instrument of transfer is in respect of more than one class of share; |
| 58.3 | the
instrument of transfer is in favour of more than four persons jointly; |
| 58.4 | it
is not satisfied that all applicable consents, authorisations, permissions or approvals of
any governmental body or agency in Ireland or any other applicable jurisdiction required
to be obtained under relevant law prior to such transfer have been obtained; or |
| 58.5 | it
is not satisfied that the transfer would not violate the terms of any agreement to which
the Company (or any of its subsidiaries) and the transferor are party or subject. |
59. | Subject
to any directions of the Board from time to time in force, the Company Secretary or any other
party designated by the Board for such purpose may exercise the powers and discretions of
the Board under Article 57, Article 81, Article 88 and Article 90. |
60. | If
the Board declines to register a transfer it shall, within one month after the date on which
the instrument of transfer was lodged, send to the transferee notice of such refusal. |
61. | No
fee shall be charged by the Company for registering any transfer or for making any entry
in the Register concerning any other document relating to or affecting the title to any share
(except that the Company may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed on it in connection with such transfer or entry). |
TRANSMISSION
OF SHARES
62. | In
the case of the death of a member, the survivor or survivors, where the deceased was a joint
holder, and the personal representatives of the deceased where he or she was a sole holder,
shall be the only persons recognised by the Company as having any title to his or her interest
in the shares. |
63. | Nothing
in Article 61 shall release the estate of a deceased joint holder from any liability in respect
of any share which had been jointly held by him or her with other persons. |
64. | Any
person becoming entitled to a share in consequence of the death or bankruptcy of a member
may, upon such evidence being produced as may from time to time properly be required by the
Directors and subject to Article 64, elect either: (a) to be registered himself or herself
as holder of the share; or (b) to have some person nominated by him or her (being a person
who consents to being so registered) registered as the transferee thereof. |
65. | The
Directors shall, in either of those cases, have the same right to decline or suspend registration
as they would have had in the case of a transfer of the share by that member before his or
her death or bankruptcy, as the case may be. |
66. | If
the person becoming entitled as mentioned in Article 63: (a) elects to be registered himself
or herself, the person shall furnish to the Company a notice in writing signed by him or
her stating that he or she so elects; or (b) elects to have another person registered, the
person shall testify his or her election by executing to that other person a transfer of
the share. |
67. | All
the limitations, restrictions and provisions of Articles 61 to 65 shall be applicable to
a notice or transfer referred to in Article 65 as if the death or bankruptcy of the member
concerned had not occurred and the notice or transfer were a transfer signed by that member. |
68. | Subject
to Article 68 and Article 69, a person becoming entitled to a share by reason of the death
or bankruptcy of the holder shall be entitled to the same dividends and other advantages
to which he or she would be entitled if he or she were the registered holder of the share. |
69. | A
person referred to in Article 67 shall not, before being registered as a member in respect
of the share, be entitled in respect of it to exercise any right conferred by membership
in relation to meetings of the Company. |
70. | The
Directors may at any time serve a notice on any such person requiring the person to make
the election provided for by Article 63 and, if the person does not make that election (and
proceed to do, consequent on that election, whichever of the things mentioned in Article
65 is appropriate) within ninety days after the date of service of the notice, the Directors
may thereupon withhold payment of all dividends, bonuses or other moneys payable in respect
of the share until the requirements of the notice have been complied with. |
71. | The
Company may charge a fee not exceeding €10 on the registration of every probate, letters
of administration, certificate of death, power of attorney, notice as to stock or other instrument
or order. |
72. | The
Directors may determine such procedures as they shall think fit regarding the transmission
of shares in the Company held by a body corporate that are transmitted by operation of law
in consequence of a merger or division. |
CLOSING
REGISTER OR FIXING RECORD DATE
73. | For
the purpose of determining members entitled to notice of or to vote at any meeting of members
or any adjournment thereof, or members entitled to receive payment of any dividend, or in
order to make a determination of members for any other proper purpose, the Board may provide,
subject to the requirements of section 174 of the Act, that the Register shall be closed
for transfers at such times and for such periods, not exceeding in the whole thirty days
in each year. If the Register shall be so closed for the purpose of determining members entitled
to notice of, or to vote at, a meeting of members, such Register shall, subject to applicable
law and Exchange rules, be so closed for at least five days immediately preceding such meeting
and the record date for such determination shall be the date of the closure of the Register. |
74. | In
lieu of, or apart from, closing the Register, the Board may fix in advance a date as the
record date (a) for any such determination of members entitled to notice of or to vote at
a meeting of the members, which record date shall not, subject to applicable law and Exchange
rules, be more than sixty days before the date of such meeting, and (b) for the purpose of
determining the members entitled to receive payment of any dividend or other distribution,
or in order to make a determination of members for any other proper purpose, which record
date shall not, subject to applicable law and Exchange rules, be more than sixty days prior
to the date of payment of such dividend or other distribution or the taking of any action
to which such determination of members is relevant. |
75. | If
the Register is not so closed and no record date is fixed for the determination of members
entitled to notice of or to vote at a meeting of members, the date immediately preceding
the date on which notice of the meeting is deemed given under these Articles shall be the
record date for such determination of members. Where a determination of members entitled
to vote at any meeting of members has been made as provided in these Articles, such determination
shall apply to any adjournment thereof; provided, however, that the Directors may fix a new
record date of the Adjourned Meeting, if they think fit. |
DIVIDENDS
76. | The
Company in a general meeting may declare dividends, but no dividends shall exceed the amount
recommended by the Directors. Any general meeting declaring a dividend and any resolution
of the Directors declaring an interim dividend may direct payment of such dividend or interim
dividend wholly or partly by the distribution of specific assets including paid up shares,
debentures or debenture stocks of any other company or in any one or more of such ways, and
the Directors shall give effect to such resolution. |
77. | The
Directors may from time to time: |
| 77.1 | pay
to the members such dividends (whether as either interim dividends or final dividends) as
appear to the Directors to be justified by the profits of the Company, subject to section
117 and Chapter 6 of Part 17 of the Act; |
| 77.2 | before
declaring any dividend, set aside out of the profits of the Company such sums as they think
proper as a reserve or reserves which shall, at the discretion of the Directors, be applicable
for any purpose to which the profits of the Company may be properly applied, and pending
such application may, at the like discretion either be employed in the business of the Company
or be held as cash or cash equivalents or invested in such investments as the Directors may
lawfully determine; and |
| 77.3 | without
placing the profits of the Company to reserve, carry forward any profits which they may think
prudent not to distribute. |
78. | Unless
otherwise specified by the Directors at the time of declaring a dividend, the dividend shall
be a final dividend. |
79. | Where
the Directors specify that a dividend is an interim dividend at the time it is declared,
such interim dividend shall not constitute a debt recoverable against the Company and the
declaration may be revoked by the Directors at any time prior to its payment provided that
the holders of the same class of share are treated equally on any revocation. |
80. | Subject
to the rights of persons, if any, entitled to shares with special rights as to dividend (and
to the rights of the Company under Articles 34 to 38 and Article 81) all dividends shall
be declared and paid such that shares of the same class shall rank equally irrespective of
the premium credited as paid up on such shares. |
81. | If
any share is issued on terms providing that it shall rank for a dividend as from a particular
date, such share shall rank for dividend accordingly. |
82. | The
Directors may deduct from any dividend payable to any member, all sums of money (if any)
immediately payable by him or her to the Company on account of calls or otherwise in relation
to the shares of the Company. |
83. | The
Directors when declaring a dividend or bonus may direct payment of such dividend or bonus
wholly or partly by the distribution of specific assets and, in particular, paid up shares,
debentures or debenture stock of any other company or in any one or more of such ways. |
84. | Where
any difficulty arises in regard to a distribution, the Directors may settle the matter as
they think expedient and, in particular, may: |
| 84.1 | issue
fractional certificates (subject always to the restriction on the issue of fractional shares)
and fix the value for distribution of such specific assets or any part of them; |
| 84.2 | determine
that cash payments shall be made to any members upon the footing of the value so fixed, in
order to adjust the rights of all the parties; and |
| 84.3 | vest
any such specific assets in trustees as may seem expedient to the Directors. |
85. | Any
dividend, interest or other moneys payable in cash in respect of any shares may be paid: |
| 85.1 | by
cheque or negotiable instrument sent by post directed to or otherwise delivered to the registered
address of the holder, or where there are joint holders, to the registered address of that
one of the joint holders who is first named on the register or to such person and to such
address as the holder or the joint holders may in writing direct; or |
| 85.2 | by
transfer to a bank account nominated by the payee or where such an account has not been so
nominated, to the account of a trustee nominated by the Company to hold such moneys,provided
that the debiting of the Company’s account in respect of the relevant amount shall
be evidence of good discharge of the Company’s obligations in respect of any payment
made by any such methods. |
86. | Any
such cheque or negotiable instrument referred to in Article 84 shall be made payable to the
order of the person to whom it is sent. |
87. | Any
one of two or more joint holders may give valid receipts for any dividends, bonuses or other
moneys payable in respect of the shares held by them as joint holders, whether paid by cheque
or negotiable instrument or direct transfer. |
88. | No
dividend shall bear interest against the Company. |
89. | If
the Directors so resolve, any dividend or distribution which has remained unclaimed for twelve
years from the date of its declaration shall be forfeited and cease to remain owing by the
Company. The payment by the Directors of any unclaimed dividend, distribution or other moneys
payable in respect of a share into a separate account shall not constitute the Company a
trustee in respect thereof. |
BONUS
ISSUE OF SHARES
90. | Any
capitalisation provided for in Articles 90 to 94 inclusive will not require approval or ratification
by the members. |
91. | The
Directors may resolve to capitalise any part of a relevant sum (within the meaning of Article
91) by applying such sum in paying up in full unissued shares of a nominal value or nominal
value and premium, equal to the sum capitalised, to be allotted and issued as fully paid
bonus shares, to those members of the Company who would have been entitled to that sum if
it were distributed by way of dividend (and in the same proportions). |
92. | For
the purposes of Article 90, “relevant sum” means: (a) any sum for the time being
standing to the credit of the Company’s undenominated capital; (b) any of the Company’s
profits available for distribution; (c) any sum representing unrealised revaluation reserves;
or (d) a merger reserve or any other capital reserve of the Company. |
93. | The
Directors may in giving effect to any resolution under Article 90 make: (a) all appropriations
and applications of the undivided profits resolved to be capitalised by the resolution; and
(b) all allotments and issues of fully paid shares, if any, and generally shall do all acts
and things required to give effect to the resolution. |
94. | Without
limiting Article 92, the Directors may: |
| 94.1 | make
such provision as they think fit for the case of shares becoming distributable in fractions
(and, again, without limiting the foregoing, may sell the shares represented by such fractions
and distribute the net proceeds of such sale amongst the members otherwise entitled to such
fractions in due proportions); |
| 94.2 | 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 up, of any further
shares to which they may become entitled on the capitalisation concerned or, as the case
may require, for the payment by the application thereto of their respective proportions of
the profits resolved to be capitalised of the amounts remaining unpaid on their existing
shares,and any agreement made under such authority shall be effective and binding on all
the members concerned. |
95. | Where
the Directors have resolved to approve a bona fide revaluation of all the fixed assets of
the Company, the net capital surplus in excess of the previous book value of the assets arising
from such revaluation may be: (a) credited by the Directors to undenominated capital, other
than the share premium account; or (b) used in paying up unissued shares of the Company to
be issued to members as fully paid bonus shares. |
GENERAL
MEETINGS – GENERAL
96. | Subject
to Article 96, the Company shall in each year hold a general meeting as its annual general
meeting in addition to any other meeting in that year, and shall specify the meeting as such
in the notices calling it; and not more than 15 months shall elapse between the date of one
annual general meeting of the Company and that of the next. |
97. | The
Company will hold its first annual general meeting within eighteen months of its incorporation. |
98. | The
annual general meeting shall be held in such place and at such time as the Directors shall
determine. |
99. | All
general meetings of the Company other than annual general meetings shall be called extraordinary
general meetings. |
100. | The
Directors may, whenever they think fit, convene an extraordinary general meeting. An extraordinary
general meeting shall also be convened by the Directors on the requisition of members, or
if the Directors fail to so convene an extraordinary general meeting, such extraordinary
general meeting may be convened by the requisitioning members, in each case in accordance
with section 178(3) to (7) of the Act. |
101. | If
at any time the number of Directors is less than two, any Director or any member that satisfies
the criteria thereunder, may convene an extraordinary general meeting in the same manner
as nearly as possible as that in which meetings may be convened by the Directors. |
102. | An
annual general meeting or extraordinary general meeting of the Company may be held outside
of Ireland. The Company shall make, at its expense, all necessary arrangements to ensure
that members can by technological means participate in any such meeting without leaving Ireland. |
103. | A
general meeting of the Company may be held in two or more venues (whether inside or outside
of Ireland) at the same time using any technology that provides members, as a whole, with
a reasonable opportunity to participate, and such participation shall be deemed to constitute
presence in person at the meeting. |
NOTICE
OF GENERAL MEETINGS
104. | The
only persons entitled to notice of general meetings of the Company are: |
| 104.2 | the
personal representatives of a deceased member, which member would but for his death be entitled
to vote; |
| 104.3 | the
assignee in bankruptcy of a bankrupt member of the Company (being a bankrupt member who is
entitled to vote at the meeting); |
| 104.4 | the
Directors and Company Secretary; and |
| 104.5 | unless
the Company is entitled to and has availed itself of the audit exemption under the Act, the
Auditors (who shall also be entitled to receive other communications relating to any general
meeting which a member is entitled to receive). |
105. | Subject
to the provisions of the Act allowing a general meeting to be called by shorter notice, an
annual general meeting and an extraordinary general meeting called for the passing of a special
resolution shall be called by at least twenty-one days’ notice. Any other extraordinary
general meeting shall also be called by at least twenty-one days’ notice, except that
it may be called by fourteen days’ notice where: |
| 105.1 | all
members, who hold shares that carry rights to vote at the meeting, are permitted to vote
by electronic means at the meeting; and |
| 105.2 | a
special resolution reducing the period of notice to fourteen days has been passed at the
immediately preceding annual general meeting, or at a general meeting held since that meeting. |
106. | Any
notice convening a general meeting shall specify the time and place of the meeting and, in
the case of special business, the general nature of that business and, in reasonable prominence,
that a member entitled to attend, speak, ask questions and vote is entitled to appoint a
proxy to attend, speak, ask questions and vote in his place and that a proxy need not be
a member of the Company. Every notice shall specify such other details as are required by
applicable law or the relevant code, rules and regulations applicable to the listing of the
shares on any Exchange. Subject to any restrictions imposed on any shares, the notice shall
be given to all the members and to the Directors and Auditors. |
107. | The
accidental omission to give notice of a meeting to, or the non-receipt of notice of a meeting
by, any person entitled to receive notice shall not invalidate the proceedings at the meeting. |
108. | In
cases where instruments of proxy are sent out with notices, the accidental omission to send
such instrument of proxy to, or the non-receipt of such instrument of proxy by, any person
entitled to receive such notice shall not invalidate any resolution passed or any proceeding
at any such meeting. A member present, either in person or by proxy, at any general meeting
of the Company or of the holders of any class of shares in the Company will be deemed, subject
to Article 110, to have received notice of that meeting and, where required, of the purpose
for which it was called. |
109. | Where,
by any provision contained in the Act, extended notice is required of a resolution, the resolution
shall not be effective (except where the Directors have resolved to submit it) unless notice
of the intention to move it has been given to the Company not less than twenty-eight days
(or such shorter period as the Act permits) before the meeting at which it is moved, and
the Company shall give to the members notice of any such resolution as required by and in
accordance with the provisions of the Act. |
110. | In
determining the correct period of notice for a general meeting, only Clear Days shall be
counted. |
111. | Whenever
any notice is required to be given by law or by these Articles to any person or persons,
a waiver thereof in writing, signed by the person or persons entitled to the notice whether
before or after the time stated therein, shall be deemed equivalent thereto. Attendance of
a person at a meeting shall constitute a waiver of notice of such meeting, except when the
person attends a meeting for the express purpose of objecting at the beginning of the meeting
to the transaction of any business because the meeting is not lawfully called or convened. |
WRITTEN
RESOLUTIONS OF THE MEMBERS
112. | For
so long as the Company has more than one shareholder, unanimous consent of the holders of
the Ordinary Shares shall be required before the shareholders may act by way of written resolution
in lieu of holding a meeting. |
113. |
113.1 | Except
in the case of the removal of statutory auditors or Directors and subject to the Act and the provisions
of Article 111, anything which may be done by resolution in general meeting of all or any class
may be done by resolution in writing, signed by all of the holders or any class thereof or their
proxies (or in the case of a holder that is a corporation (whether or not a company within the
meaning of the Acts) on behalf of such holder) being all of the holders of the Company or any
class thereof, who at the date of the resolution in writing would be entitled to attend a meeting
and vote on the resolution shall be valid and effective for all purposes as if the resolution
had been passed at a general meeting of the Company or any class thereof duly convened and held,
and if described as a Special Resolution shall be deemed to be a Special Resolution within the
meaning of the Acts. Any such resolution in writing may be signed in as many counterparts as may
be necessary. |
| 113.2 | For
the purposes of any written resolution under Article 112, the date of the resolution in writing
is the date when the resolution is signed by, or on behalf of, the last holder to sign and
any reference in any enactment to the date of passing of a resolution is, in relation to
a resolution in writing made in accordance with this section, a reference to such date. |
| 113.3 | A
resolution in writing made in accordance with Article 112 is valid as if it had been passed
by the Company in general meeting or, if applicable, by a meeting of the relevant class of
holders of the Company, as the case may be. A resolution in writing made in accordance with
this section shall constitute minutes for the purposes of the Act and these Articles. |
114. | At
any time that the Company is a single-member company, its sole member may pass any resolution
as a written decision in accordance with section 196 of the Act. |
QUORUM
FOR GENERAL MEETINGS
115. | Two
members present in person or by proxy and having the right to attend and vote at the meeting
and together holding shares representing more than 50% of the votes that may be cast by all
members at the relevant time shall be a quorum at a general meeting; provided, however, that
at any time when the Company is a single-member company, one member of the Company present
in person or by proxy at a general meeting of it shall be a quorum. |
116. | If
within 15 minutes (or such greater time determined by the chairperson) after the time appointed
for a general meeting a quorum is not present, then: |
| 116.1 | the
meeting shall stand adjourned to the same day in the next week, at the same time and place
or to such other day and at such other time and place as the Directors may determine (the
“Adjourned Meeting”); and |
| 116.2 | if
at the Adjourned Meeting a quorum is not present within half an hour (or such greater time
determined by the chairperson) after the time appointed for the meeting, the members present
shall be a quorum. |
PROXIES
117. | Every
member entitled to attend, speak, ask questions and vote at a general meeting may appoint
a proxy or proxies to attend, speak, ask questions relating to items on the agenda and vote
on his behalf and may appoint more than one proxy to attend, speak, ask questions and vote
at the same general meeting provided that, where a member appoints more than one proxy in
relation to a general meeting, each proxy must be appointed to exercise the rights attached
to different shares held by that member. |
118. | The
appointment of a proxy shall be in writing in any usual form or in any other form which the
Directors may approve and shall be signed by or on behalf of the appointor. The signature
on such appointment need not be witnessed. A body corporate may sign a form of proxy under
its common seal or under the hand of a duly authorised officer thereof or in such other manner
as the Directors may approve. A proxy need not be a member of the Company. A member shall
be entitled to appoint a proxy by electronic means, to an address specified by the Company.
The proxy form must make provision for three-way voting (i.e., to allow votes to be cast
for or against a resolution or to be withheld) on all resolutions intended to be proposed,
other than resolutions which are merely procedural. An instrument or other form of communication
appointing or evidencing the appointment of a proxy or a corporate representative (other
than a standing proxy or representative) together with such evidence as to its due execution
as the Board may from time to time require, may be returned to the address or addresses stated
in the notice of meeting or Adjourned Meeting or any other information or communication by
such time or times as may be specified in the notice of meeting or Adjourned Meeting or in
any other such information or communication (which times may differ when more than one place
is so specified) or, if no such time is specified, at any time prior to the holding of the
relevant meeting or Adjourned Meeting at which the appointee proposes to vote, and, subject
to the Act, if not so delivered the appointment shall not be treated as valid. |
BODIES
CORPORATE ACTING BY REPRESENTATIVES AT MEETINGS
119. | Any
body corporate which is a member, or a proxy for a member, of the Company may by resolution
of its directors or other governing body authorise such person or persons as it thinks fit
to act as its representative or representatives at any meeting of the Company or of any class
of members of the Company and, subject to evidence being furnished to the Company of such
authority as the Directors may reasonably require, any person(s) so authorised shall be entitled
to exercise the same powers on behalf of the body corporate which he represents as that body
corporate could exercise if it were an individual member of the Company or, where more than
one such representative is so authorized, all or any of the rights attached to the shares
in respect of which he is so authorised. Where a body corporate appoints more than one representative
in relation to a general meeting, each representative must be appointed to exercise the rights
attached to different shares held by that body corporate. |
RECEIPT
OF PROXY APPOINTMENTS
120. | Where
the appointment of a proxy and any authority under which it is signed or a copy certified
notarially or in some other way approved by the Directors is to be received by the Company: |
| 120.1 | in
physical form, it shall be deposited at the Office or (at the option of the member) at such
other place or places (if any) as may be specified for that purpose in or by way of note
to the notice convening the meeting; |
| 120.2 | in
electronic form, it may be so received where an address has been specified by the Company
for the purpose of receiving electronic communications: |
| (a) | in
the notice convening the meeting; or |
| (b) | in
any appointment of proxy sent out by the Company in relation to the meeting; or |
| (c) | in
any invitation contained in an electronic communication to appoint a proxy issued by the
Company in relation to the meeting; |
provided
that it is so received by the Company no later than 3 hours, or such other time as may be communicated to the members, before the time
for holding the meeting or Adjourned Meeting or (in the case of a poll taken otherwise than at or on the same day as the meeting or Adjourned
Meeting) for the taking of the poll at which it is to be used, at which the person named in the proxy proposes to vote and in default
shall not be treated as valid or, in the case of a meeting which is adjourned to, or a poll which is to be taken on, a date not later
than the record date applicable to the meeting which was adjourned or the poll, it shall be sufficient if the appointment of a proxy
and any such authority and certification thereof as aforesaid is so received by the Company at the commencement of the Adjourned Meeting
or the taking of the poll. An appointment of a proxy relating to more than one meeting (including any adjournment thereof) having once
been so received for the purposes of any meeting shall not be required to be delivered, deposited or received again for the purposes
of any subsequent meeting to which it relates.
EFFECT
OF PROXY APPOINTMENTS
| 121.1 | Receipt
by the Company of an appointment of a proxy in respect of a meeting shall not preclude a
member from attending and voting at the meeting or at any adjournment thereof. However, if
that member votes at the meeting or at any adjournment thereof, then as regards to the resolution(s)
any proxy notice delivered to the Company by or on behalf of that same member shall on a
poll, be invalid to the extent that such member votes in respect of the shares to which the
proxy notice relates. |
| 121.2 | An
appointment of a proxy shall be valid, unless the contrary is stated therein, as well for
any adjournment of the meeting as for the meeting to which it relates and shall be deemed
to confer authority to speak at a general meeting and to demand or join in demanding a poll. |
122. | A
proxy shall have the right to exercise all or any of the rights of his appointor, or (where
more than one proxy is appointed) all or any of the rights attached to the shares in respect
of which he is appointed as the proxy to attend, and to speak and vote, at a general meeting
of the Company. Unless his appointment provides otherwise, a proxy may vote or abstain at
his discretion on any resolution put to the vote. |
EFFECT
OF REVOCATION OF PROXY OR OF AUTHORISATION
123. | A
vote given or poll demanded in accordance with the terms of an appointment of a proxy or
a resolution authorising a representative to act on behalf of a body corporate shall be valid
notwithstanding the previous death, insanity or winding up of the principal, or the revocation
of the appointment of a proxy or of the authority under which the proxy was appointed or
of the resolution authorising the representative to act or the transfer of the share in respect
of which the proxy was appointed or the authorisation of the representative to act was given,
provided that no notice in writing (whether in electronic form or otherwise) of such death,
insanity, winding up, revocation or transfer is received by the Company at the Office before
the commencement of the meeting. |
124. | The
Directors may send to the members, at the expense of the Company, by post, electronic mail
or otherwise, forms for the appointment of a proxy (with or without reply paid envelopes
for their return) for use at any general meeting or at any class meeting, either in blank
or nominating any one or more of the Directors or any other persons in the alternative. If,
for the purpose of any meeting, invitations to appoint as proxy a person or one of a number
of persons specified in the invitations are issued at the expense of the Company, such invitations
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 thereat by proxy, but the accidental omission to issue such invitations
to, or the non-receipt of such invitations by, any member shall not invalidate the proceedings
at any such meeting. |
THE
BUSINESS OF GENERAL MEETINGS
125. | All
business shall be deemed to be special business that is transacted at an extraordinary general
meeting or that is transacted at an annual general meeting other than, in the case of an
annual general meeting, the business specified in Article 128 which shall be ordinary business. |
126. | At
any meeting of the members, only such business shall be conducted as shall have been properly
brought before such meeting. To be properly brought before an annual general meeting, business
must be: |
| 126.1 | specified
in the notice of meeting (or any supplement thereto) given by or at the direction of the
Board; |
| 126.2 | otherwise
properly brought before the meeting by or at the direction of the Board; or |
| 126.3 | otherwise
properly brought before the meeting by a member. |
127. | Without
prejudice to any procedure which may be permitted under the Act, for business to be properly
brought before an annual general meeting by a member, the member must have given timely notice
thereof in writing to the Company Secretary. To be timely, a member’s notice must be
received not less than 60 days nor more than 90 days prior to the first anniversary of the
preceding year’s annual general meeting; provided, however, that in the event that
the date of the annual general meeting is advanced by more than 30 days or delayed by more
than 60 days from such anniversary, notice by the member to be timely must be so received
not earlier than the 90th day prior to such annual general meeting and not later
than the close of business on the later of (i) the 60th day prior to such annual
general meeting or (ii) the tenth day following the date on which notice of the date of the
annual general meeting was mailed or public disclosure thereof was made by the Company, whichever
event in this clause (ii) first occurs. For the avoidance of doubt, in no event shall the
adjournment or postponement of any general meeting, or the public announcement of such an
adjournment or postponement, commence a new time period (or extend any time period) for the
giving of a member’s notice to the Company Secretary pursuant to this Article 126.
Each such notice shall set forth as to each matter the member proposes to bring before the
annual general meeting: |
| 127.1 | a
brief description of the business desired to be brought before the annual general meeting
and the reasons for conducting such business at the meeting; |
| 127.2 | the
name and address, as they appear on the Register, of the member proposing such business; |
| 127.3 | the
class, series and number of shares of the Company which are beneficially owned by the member; |
| 127.4 | whether
and the extent to which any hedging, derivative or other transaction is in place or has been
entered into within the prior six months preceding the date of delivery of the notice by
or for the benefit of the member with respect to the Company or its subsidiaries or any of
their respective securities, debt instruments or credit ratings, the effect or intent of
which transaction is to give rise to gain or loss as a result of changes in the trading price
of such securities or debt instruments or changes in the credit ratings for the Company,
its subsidiaries or any of their respective securities or debt instruments (or, more generally,
changes in the perceived creditworthiness of the Company or its subsidiaries), or to increase
or decrease the voting power of the member, and if so, a summary of the material terms thereof;
and |
| 127.5 | any
material interest of the member in such business. |
To
be properly brought before an extraordinary general meeting, other than pursuant to Article 125, business must be (i) specified in the
notice of meeting (or any supplement thereto) given by or at the direction of the Board or by the Company Secretary pursuant to the applicable
provisions of these Articles or (ii) otherwise properly brought before the meeting by or at the direction of the Board.
128. | The
chairperson of the meeting shall, if the facts warrant, determine and declare to the meeting
that business was not properly brought before the meeting and in accordance with the provisions
of these Articles, and if he or she should so determine, any such business not properly brought
before the meeting shall not be transacted. Nothing herein shall be deemed to affect any
rights of members to request inclusion of proposals in the Company’s proxy statement
pursuant to Rule 14a-8 under the Exchange Act. |
129. | The
business of the annual general meeting shall include: |
| 129.1 | the
consideration of the Company’s statutory financial statements and the report of the
Directors and the report of the Auditors on those statements and that report; |
| 129.2 | the
review by the members of the Company’s affairs; |
| 129.3 | the
authorisation of the Directors to approve the remuneration of the Auditors (if any); and |
| 129.4 | the
appointment or re-appointment of Auditors. |
PROCEEDINGS
AT GENERAL MEETINGS
130. | The
Chairperson, if any, shall preside as chairperson at every general meeting of the Company,
or if there is no such Chairperson, or if he or she is not present at the time appointed
for the holding of the meeting or is unwilling to act, the Directors present shall elect
one of their number to be chairperson of the meeting. |
131. | If
at any meeting no Director is willing to act as chairperson or if no Director is present
at the time appointed for holding the meeting, the members present shall choose one of their
number to be chairperson of the meeting. |
132. | At
each meeting of members, the chairperson of the meeting shall fix and announce the date and
time of the opening and the closing of the polls for each matter upon which the members will
vote at the meeting and shall determine the order of business and all other matters of procedure. |
133. | The
Directors may adopt such rules, regulations and procedures for the conduct of any meeting
of the members as they deem appropriate. Except to the extent inconsistent with any applicable
rules, regulations and procedures adopted by the Board, the chairperson of any meeting may
adopt such rules, regulations and procedures for the meeting, which need not be in writing,
and take such actions with respect to the conduct of the meeting, as the chairperson of the
meeting deems appropriate, to maintain order and safety and for the conduct of the meeting. |
134. | The
chairperson of the meeting may, with the consent of any meeting at which a quorum is present,
and shall if so directed by the meeting, adjourn the meeting from time to time and from place
to place. |
135. | No
business shall be transacted at any Adjourned Meeting other than the business left unfinished
at the meeting from which the adjournment took place. |
136. | When
a meeting is adjourned for thirty days or more, notice of the Adjourned Meeting shall be
given as in the case of an original meeting but, subject to that, it shall not be necessary
to give any notice of an adjournment or of the business to be transacted at an Adjourned
Meeting. |
137. | Each
Director and the Auditors shall be entitled to attend and speak at any general meeting of
the Company. |
138. | For
business to be properly requested by a member to be brought before a general meeting, the
member must comply with the requirements of the Act or: |
| 138.1 | be
a member at the time of the giving of the notice for such general meeting; |
| 138.2 | be
entitled to vote at such meeting; and |
| 138.3 | have
given timely and proper notice in writing to the Company Secretary in accordance with Article
126. |
139. | Except
where a greater majority is required by the Act or these Articles, any question proposed
for a decision of the members at any general meeting of the Company or a decision of any
class of members at a separate meeting of any class of shares shall be decided by an ordinary
resolution. |
VOTING
140. | At
any general meeting, a resolution put to the vote of the meeting shall be decided on a poll. |
141. | Save
as provided in Article 141 of these Articles, a poll shall be taken in such manner as the
chairperson of the meeting directs and he or she may appoint scrutineers (who need not be
members) and fix a time and place for declaring the result of the poll. The result of the
poll shall be deemed to be the resolution of the meeting at which the poll was demanded. |
142. | A
poll demanded on the election of a chairperson of the meeting or on a question of adjournment
shall be taken forthwith. A poll demanded on any other question shall be taken either forthwith
or at such time and place as the chairperson of the meeting may direct. The demand for a
poll shall not prevent the continuance of a meeting for the transaction of any business other
than the question on which the poll was demanded. |
143. | No
notice need be given of a poll not taken forthwith 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 shall be given specifying the time and place at which the
poll is to be taken. |
144. | If
authorised by the Directors, any vote taken by written ballot may be satisfied by a ballot
submitted by electronic and/or telephonic transmission, provided that any such electronic
or telephonic submission must either set forth or be submitted with information from which
it can be determined that the electronic or telephonic submission has been authorised by
the member or proxy. |
VOTES
OF MEMBERS
145. | Subject
to the provisions of these Articles and any rights or restrictions for the time being attached
to any class or classes of shares in the capital of the Company, every member of record present
in person or by proxy shall have one vote for each share registered in his or her name in
the Register. |
146. | Where
there are joint holders of a share, the vote of the senior who tenders a vote, whether in
person or by proxy, shall be accepted to the exclusion of the votes of the other joint holder
or holders; and for this purpose, seniority shall be determined by the order in which the
names of the joint holders stand in the Register. |
147. | A
member who has made an enduring power of attorney, or a member in respect of whom an order
has been made by any court having jurisdiction in cases of unsound mind, may vote by his
or her committee, donee of an enduring power of attorney, receiver, guardian or other person
appointed by the foregoing court, and any such committee, donee of an enduring power of attorney,
receiver, guardian or other persons appointed by the foregoing court may speak or vote by
proxy. |
148. | No
objection shall be raised to the qualification of any voter except at the general meeting
or adjourned general meeting at which the vote objected to is given or tendered and every
vote not disallowed at such general meeting shall be valid for all purposes. Any such objection
made in due time shall be referred to the chairperson of the general meeting whose decision
shall be final and conclusive. |
149. | A
person shall be entered on the Register by the record date specified in respect of a general
meeting in order to exercise the right of a member to participate and vote at the general
meeting and any change to an entry on the Register after the record date shall be disregarded
in determining the right of any person to attend and vote at the meeting. |
150. | Votes
may be given either personally (including by a duly authorised representative of a corporate
member) or by proxy. On a poll taken at a meeting of the members of the Company or a meeting
of any class of members of the Company, a member, whether present in person or by proxy,
entitled to more than one vote need not, if he votes, use all his votes or cast all the votes
he uses in the same way. |
151. | Subject
to such requirements and restrictions as the Directors may specify, the Company may permit
members to vote by correspondence in advance of a general meeting in respect of one or more
of the resolutions proposed at a meeting. Where the Company permits members to vote by correspondence,
it shall only count votes cast in advance by correspondence, where such votes are received
at the address and before the date and time specified by the Company, provided the date and
time is no more than 24 hours before the time at which the vote is to be concluded. |
152. | Subject
to such requirements and restrictions as the Directors may specify, the Company may permit
members who are not physically present at a meeting to vote by electronic means at the general
meeting in respect of one or more of the resolutions proposed at a meeting. |
153. | Where
there is an equality of votes, the chairperson of the meeting shall not have a second or
casting vote. |
154. | No
member shall be entitled to vote at any general meeting of the Company unless all calls or
other sums immediately payable by him or her in respect of shares in the Company have been
paid. |
CLASS
MEETINGS
155. | The
provisions of these Articles relating to general meetings shall, as far as applicable, apply
in relation to any meeting of any class of member of the Company. |
APPOINTMENT
OF DIRECTORS
156. | The
number of Directors from time to time shall be not less than two nor more than seven. |
157. | The
Board, upon recommendations of the nomination and governance committee (or equivalent committee
established by the Board), shall propose nominees for election to the office of Director
at each annual general meeting. |
158. | The
Directors may be appointed by the members in general meeting, provided that no person other
than a Director retiring at the meeting shall, save where recommended by the Board, be eligible
for election to the office of Director at any general meeting unless the requirements of
Article 164 as to his or her eligibility for that purpose have been complied with. |
159. | The
Directors shall be divided into three classes, designated Class I, Class II and Class III.
The initial division of the Board into classes shall be made by the decision of the affirmative
vote of a majority of the Directors in office and each class need not be of equal size or
number. |
| 159.1 | The
term of the initial Class I directors shall terminate at the conclusion of the Company’s
2023 annual general meeting; the term of the initial Class II directors shall terminate on
the conclusion of the Company’s 2024 annual general meeting; and the term of the initial
Class III directors shall terminate on the conclusion of the Company’s 2025 annual
general meeting. |
| 159.2 | At
each annual general meeting of the Company beginning with the Company’s 2023 annual
general meeting, all of the Directors of the class of directors whose term expires on the
conclusion of that annual general meeting shall retire from office, unless re-elected, and
successors to that class of directors shall be elected for a three-year term. |
| 159.3 | The
resolution appointing any Director must designate the Director as a Class I, Class II or
Class III Director. |
| 159.4 | Every
Director of the class retiring shall be eligible to stand for re-election at an annual general
meeting. |
| 159.5 | If
the number of Directors is changed, any increase or decrease shall be apportioned among the
classes so as to maintain the number of Directors in each class as nearly equal as possible
or as the Chairperson may otherwise direct. In no case will a decrease in the number of Directors
shorten the term of any incumbent Director. |
| 159.6 | A
Director shall hold office until the conclusion of the annual general meeting for the year
in which his term expires and until his successor shall be elected and shall qualify, subject
however, to prior death, resignation, retirement, disqualification or removal from office. |
| 159.7 | Any
vacancy on the Board, including a vacancy that results from an increase in the number of
directors or from the death, resignation, retirement, disqualification or removal of a Director,
shall be deemed a casual vacancy. Subject to the terms of any one or more classes or series
of Preferred Shares, any casual vacancy shall only be filled by the decision of a majority
of the Board then in office, provided that a quorum is present and provided that the appointment
does not cause the number of Directors to exceed any number fixed by or in accordance with
these articles as the maximum number of Directors. |
| 159.8 | Any
Director of such class elected to fill a vacancy resulting from an increase in the number
of Directors of such class shall hold office for a term that shall coincide with the remaining
term of that class. Any Director elected to fill a vacancy not resulting from an increase
in the number of Directors shall have the same remaining term as that of his predecessor
or if there is no such remaining term, the Director shall retire, and be eligible to stand
for re-election, at the annual general meeting immediately following their appointment at
which time, if reelected, the Director shall hold office for a term that shall coincide with
the remaining term of that class. A Director retiring at a meeting shall retain office until
the close or adjournment of the meeting. |
160. | Each
Director shall be elected by an ordinary resolution at such meeting, provided that if, as
of, or at any time prior to, fourteen days before the filing of the Company’s definitive
proxy statement with the SEC relating to such general meeting, the number of Director nominees
exceeds the number of Directors to be elected (a “contested election”),
each of those nominees shall be voted upon as a separate resolution and the Directors shall
be elected by a plurality of the votes of the shares present in person or represented by
proxy at any such meeting and entitled to vote on the election of Directors. |
For
the purposes of this Article, “elected by a plurality” means the election of those director nominees, equalling in
number to the number of positions to be filled at the relevant general meeting, that received the highest number of votes.
161. | Any
nominee for election to the Board who is then serving as a Director and, in an uncontested
election (where the number of Director nominees does not exceed the number of Directors to
be elected), receives a greater number of “against” votes than “for”
votes shall promptly tender his or her resignation following certification of the vote. The
nomination and governance committee of the Board shall then consider the resignation offer
and recommend to the Board whether to accept or reject the resignation, or whether other
action should be taken; provided that any Director whose resignation is under consideration
shall not participate in the nomination and governance committee’s recommendation regarding
whether to accept, reject or take other action with respect to his/her resignation. The Board
shall take action on the nomination and governance committee’s recommendation within
90 days following certification of the vote, and promptly thereafter publicly disclose its
decision and the reasons therefor. |
162. | The
Directors are not entitled to appoint alternate directors. |
163. | The
Company may from time to time, by ordinary resolution, increase or reduce the number of Directors
provided that any resolution to appoint a director approved by the members that would result
in the maximum number of Directors being exceeded shall be deemed to constitute an ordinary
resolution increasing the maximum number of Directors to the number that would be in office
following such a resolution of appointment. |
164. | The
Company may by ordinary resolution, appoint another person in place of a Director removed
from office under section 146 of the Act and, without prejudice to the powers of the Directors
under Article 158.7, the Company in a general meeting may appoint any person to be a Director
either to fill a casual vacancy or as an additional Director. |
DIRECTORS
- MEMBER NOMINATIONS
165. | The
following are the requirements mentioned in Article 157 for the eligibility of a person (the
“person concerned”) for election as a Director at a general meeting, namely,
any member entitled to vote in the election of Directors generally may nominate one or more
persons for election as Directors at an annual general meeting only pursuant to the Company’s
notice of such meeting or if written notice of such member’s intent to make such nomination
or nominations has been received by the Company Secretary at the Company’s Office not
less than 60 nor more than 90 days prior to the first anniversary of the preceding year’s
annual general meeting; provided, however, that in the event that the date of the annual
general meeting is more than 30 days before or more than 60 days after such anniversary,
notice by the member to be timely must be so received not earlier than the 90th day prior
to such annual general meeting and not later than the close of business on the later of (i)
the 60th day prior to such annual general meeting and (ii) the 10th day following the day
on which notice of the date of the annual general meeting was mailed or public disclosure
thereof was made by the Company, whichever event in this clause (ii) first occurs. Each such
member’s notice shall set forth: |
| 165.1 | the
name and address of the member who intends to make the nomination and of the person or persons
to be nominated; |
| 165.2 | a
representation that the member is a holder of record of shares of the Company entitled to
vote at such meeting and intends to appear in person or by proxy at the meeting to nominate
the person or persons specified in the notice; |
| 165.3 | a
description of all arrangements or understandings between the member and each nominee and
any other person or persons (naming such person or persons) relating to the nomination or
nominations; |
| 165.4 | the
class and number of shares of the Company which are beneficially owned by such member and
by any other members known by such member to be supporting such nominees as of the date of
such member’s notice; |
| 165.5 | whether
and the extent to which any hedging, derivative or other transaction is in place or has been
entered into within the prior six months preceding the date of delivery of the notice by
or for the benefit of the member with respect to the Company or its subsidiaries or any of
their respective securities, debt instruments or credit ratings, the effect or intent of
which transaction is to give rise to gain or loss as a result of changes in the trading price
of such securities or debt instruments or changes in the credit ratings for the Company,
its subsidiaries or any of their respective securities or debt instruments (or, more generally,
changes in the perceived creditworthiness of the Company or its subsidiaries), or to increase
or decrease the voting power of the member, and if so, a summary of the material terms thereof; |
| 165.6 | such
other information regarding each nominee proposed by such member as would be required to
be included in a proxy statement filed pursuant to the proxy rules of the SEC; |
| 165.7 | the
consent of each nominee to serve as a Director if so elected; and |
| 165.8 | for
each nominee who is not an incumbent Director: |
| (a) | their
name, age, business address and residential address; |
| (b) | their
principal occupation or employment; |
| (c) | the
class, series and number of securities of the Company that are owned of record or beneficially
by such person; |
| (d) | the
date or dates the securities were acquired and the investment intent of each acquisition; |
| (e) | any
other information relating to such person that is required to be disclosed in proxies for
the election of Directors under any applicable securities legislation; and |
| (f) | any
information the Company may require any proposed director nominee to furnish such as it may
reasonably require to comply with applicable law and to determine the eligibility of such
proposed nominee to serve as a Director and whether such proposed nominee would be considered
independent as a Director or as a member of the audit or any other committee of the Board
under the various rules and standards applicable to the Company. |
VACATION
OF OFFICE BY DIRECTORS
166. | Subject
to the provisions of these Articles and in addition to the circumstances described in sections
146, 148(1) and 196(2) of the Act, the office of Director shall be vacated ipso facto, if
that Director: |
| 166.1 | is
restricted or disqualified to act as a Director under the Act; or |
| 166.2 | resigns
his or her office by notice in writing to the Company or in writing offers to resign and
the Directors resolve to accept such offer; or |
| 166.3 | is
requested to resign in writing by not less than three quarters of the other Directors; or |
| 166.4 | is
appointed in breach of any agreement between the Company and any of its members from time
to time, in which case he or she shall be deemed to have resigned upon any party to any such
agreement having provided notice and evidence of such breach to the Company. |
DIRECTORS’
REMUNERATION AND EXPENSES
167. | The
remuneration of the Directors shall be such as is determined, from time to time, by the Board
and such remuneration shall be deemed to accrue from day to day. The Board may from time
to time determine that, subject to the requirements of the Act, all or part of any fees or
other remuneration payable to any Director shall be provided in the form of shares or other
securities of the Company or any subsidiary of the Company, or options or rights to acquire
such shares or other securities, on such terms as the Board may decide. |
168. | The
Directors may also be paid all travelling, hotel and other expenses properly incurred by
them: (a) in attending and returning from: (i) meetings of the Directors or any committee;
or (ii) general meetings of the Company, or (b) otherwise in connection with the business
of the Company. |
GENERAL
POWER OF MANAGEMENT AND DELEGATION
169. | The
business of the Company shall be managed by its Directors who may pay all expenses incurred
in promoting and registering the Company and may exercise all such powers of the Company
as are not, by the Act or by the Memorandum of these Articles, required to be exercised by
the Company in a general meeting, but subject to: |
| 169.1 | any
regulations contained in these Articles; |
| 169.2 | the
provisions of the Act; and |
| 169.3 | such
directions, not being inconsistent with the foregoing regulations or provisions, as the Company
in a general meeting may (by special resolution) give. |
170. | No
direction given by the Company in a general meeting under Article 168.3 shall invalidate
any prior act of the Directors which would have been valid if that direction had not been
given. |
171. | Without
prejudice to the generality of Article 168, Article 168 operates to enable, subject to a
limitation (if any) arising under any of paragraphs 168.1 to 168.3 of it, the Directors exercise
all powers of the Company to borrow money and to mortgage or charge its undertaking, property
and uncalled capital, or any part thereof. |
172. | Without
prejudice to section 40 of the Act, the Directors may delegate any of their powers (including
any power referred to in these Articles) to such person or persons as they think fit, including
committees; any such person or committee shall, in the exercise of the powers so delegated,
conform to any regulations that may be imposed on it by the Directors. |
173. | Any
reference to a power of the Company required to be exercised by the Company in a general
meeting includes a reference to a power of the Company that, but for the power of the members
to pass a written resolution to effect the first-mentioned power’s exercise, would
be required to be exercised by the Company in a general meeting. |
174. | The
acts of the Board or of any committee established by the Board or any delegee of the Board
or any such committee shall be valid notwithstanding any defect which may afterwards be discovered
in the appointment or qualification of any Director, committee member or delegee. |
175. | The
Directors may appoint a sole or joint company secretary, an assistant company secretary and
a deputy company secretary for such term, at such remuneration and upon such conditions as
they may think fit; and any such person so appointed may be removed by them. |
OFFICERS
AND EXECUTIVES
176. | The
Directors may from time to time appoint one or more of themselves to the office of Chief
Executive Officer (by whatever name called including managing director) or such other office
or position with the Company and/or its subsidiaries and for such period and on such terms
as to remuneration, if any (whether by way of salary, commission, participation in profits
or otherwise) as the Board may determine, and, subject to the terms of any agreement entered
into in any particular case, may revoke such appointment. |
177. | Without
prejudice to any claim the person so appointed under Article 175 may have for damages for
breach of any contract of service between the person and the Company, the person’s
appointment shall cease upon his or her ceasing, for any reason, to be a Director. |
178. | Any
person, whether or not he or she is a Director, may be appointed to hold such executive or
official position with the Company (except that of Auditor) as may be determined from time
to time. The same person may hold more than one office of executive or official position. |
179. | The
Board shall determine from time to time, the powers and duties of any such office holder
or official appointed under Articles 175 and/or Article 177, and subject to the provisions
of the Act and these Articles, the Directors may confer upon an office holder or official
any of the powers exercisable by them upon such terms and conditions and with such restrictions
as they may think fit and in conferring any such powers, the Directors may specify that the
conferral is to operate either: (a) so that the powers concerned may be exercised concurrently
by them and the relevant office holder; or (b) to the exclusion of their own such powers. |
180. | The
Directors may (a) revoke any conferral of powers under Article 178 or (b) amend any such
conferral (whether as to the powers conferred or the terms, conditions or restrictions subject
to which the conferral is made). The use or inclusion of the word “officer” (or
similar words) in the title of any executive or other position shall not be deemed to imply
that the person holding such executive or other position is an “officer” of the
Company within the meaning of the Act. |
MEETINGS
OF DIRECTORS AND COMMITTEES
181. |
181.1 | The
Directors may meet together for the dispatch of business, adjourn and otherwise regulate their
meetings as they think fit. |
| 181.2 | The
Directors may establish attendance and procedural guidelines from time to time about how
their meetings are to be conducted consistent with good corporate governance and applicable
tax requirements. |
| 181.3 | Such
meetings shall take place at such time and place as the Directors may determine. |
| 181.4 | Questions
arising at any such meeting shall be decided by a majority of votes and where there is an
equality of votes, the chairperson of the meeting shall not have a second or casting vote. |
| 181.5 | A
Director may, and the Company Secretary on the requisition of a Director shall, at any time
summon a meeting of the Directors. |
182. | All
Directors shall be entitled to reasonable notice of any meeting of the Directors. |
183. | Nothing
in Article 181 or any other provision of the Act enables a person, other than a Director,
to object to the notice given for any meeting of the Directors. |
184. | The
quorum necessary for the transaction of the business of the Directors may be fixed by the
Directors, and unless so fixed shall be a majority of the Directors in office at the time
when the meeting is convened. |
185. | The
continuing Directors may act notwithstanding any vacancy in their number, provided that if
the number of the Directors is reduced below the prescribed minimum the remaining Director
or Directors shall appoint forthwith an additional Director or additional Directors to make
up such minimum or shall convene a general meeting of the Company for the purpose of making
such appointment and apportion the Directors among the classes so as to maintain the number
of Directors in each class as equal as possible. |
CHAIRPERSON
186. | The
Directors may elect a Chairperson and determine the period for which he or she is to hold
office, but if no such Chairperson is elected, or, if at any meeting the Chairperson is not
present after the time appointed for holding it, the Directors present may choose one of
their members to be chairperson of a Board meeting. The Chairperson shall vacate office if
he or she vacates his or her office as a Director (otherwise than by the expiration of his
or her term of office at a general meeting of the Company at which he or she is re-appointed). |
COMMITTEES
187. | The
Directors may establish one or more committees consisting in whole or in part of members
of the Board. The composition, function, power and obligations of any such committee will
be determined by the Board from time to time. |
188. | A
committee established under Article 186 (a “committee”) may elect a chairperson
of its meetings; if no such chairperson is elected, or if at any meeting the chairperson
is not present after the time appointed for holding it, the members of the committee present
may choose one of their number to be chairperson of the meeting. |
189. | A
committee may meet and adjourn as it thinks proper. Committee meetings shall take place at
such time and place as the relevant committee may determine. Questions arising at any meeting
of a committee shall be determined (subject to Article 186) by a majority of votes of the
members of the committee present, and where there is an equality of votes, the chairperson
of the committee shall not have a second or casting vote. |
190. | Where
any committee is established by the Directors : |
| 190.1 | the
meetings and proceedings of such committee shall be governed by the provisions of these Articles
regulating the meetings and proceedings of the Directors so far as the same are applicable
and are not superseded by any regulations imposed upon such committee by the Directors; and |
| 190.2 | the
Directors may authorise, or may authorise such committee to authorise, any person who is
not a Director to attend all or any meetings of any such committee on such terms as the Directors
or the committee think fit, provided that any such person shall not be entitled to vote at
meetings of the committee. |
WRITTEN
RESOLUTIONS AND TELEPHONIC MEETINGS OF THE DIRECTORS
191. | The
following provision shall apply: |
| 191.1 | A
resolution in writing signed by all the Directors, or by all the Directors being members
of a committee referred to in Article 186, and who are for the time being entitled to receive
notice of a meeting of the Directors or, as the case may be, of such a committee, shall be
as valid as if it had been passed at a meeting of the Directors or such a committee duly
convened and held. |
| 191.2 | A
resolution in writing shall be deemed to have been signed by a Director where the Chairperson,
Company Secretary or other person designated by the Board has received an email from that
Director’s Certified Email Address which identifies the resolution and states, unconditionally,
“I hereby sign the resolution”. |
| 191.3 | A
Director’s Certified Email Address is such email address as the Director has, from
time to time, notified to such person and in such manner as may from time to time be prescribed
by the Board. |
| 191.4 | The
Company shall cause a copy of every email referred to in Article 190.2 to be entered in the
books kept pursuant to section 166 of the Act. |
192. | Subject
to Article 192, where one or more of the Directors (other than a majority of them) would
not, by reason of: |
| 192.1 | the
Act or any other enactment; |
| 192.3 | an
applicable rule of law or an Exchange, |
be
permitted to vote on a resolution such as is referred to in Article 190, if it were sought to pass the resolution at a meeting of the
Directors duly convened and held, then such a resolution, notwithstanding anything in Article 190.1, shall be valid for the purposes
of that subsection if the resolution is signed by those of the Directors who would have been permitted to vote on it had it been sought
to pass it at such a meeting.
193. | In
a case falling within Article 191, the resolution shall state the name of each Director who
did not sign it and the basis on which he or she did not sign it. |
194. | For
the avoidance of doubt, nothing in Articles 190 to 192 dealing with a resolution that is
signed by other than all of the Directors shall be read as making available, in the case
of an equality of votes, a second or casting vote to the one of their number who would, or
might have been, if a meeting had been held to transact the business concerned, chairperson
of that meeting. |
195. | The
resolution referred to in Article 190 may consist of several documents in like form each
signed by one or more Directors and for all purposes shall take effect from the time that
it is signed by the last Director. |
196. | A
meeting of the Directors or of a committee referred to in Article 186 may consist of a conference
between some or all of the Directors or, as the case may be, members of the committee who
are not all in one place, but each of whom is able (directly or by means of telephonic, video
or other electronic communication) to speak to each of the others and to be heard by each
of the others and: |
| 196.1 | a
Director or as the case may be a member of the committee taking part in such a conference
shall be deemed to be present in person at the meeting and shall be entitled to vote (subject
to Article 191) and be counted in a quorum accordingly; and |
| 196.2 | such
a meeting shall be deemed to take place: |
| (a) | where
the largest group of those Directors participating in the conference is assembled; |
| (b) | if
there is no such group, where the chairperson of the meeting then is; or |
| (c) | if
neither subparagraph (a) or (b) applies, in such location as the meeting itself decides. |
DIRECTORS’
DUTIES, CONFLICTS OF INTEREST, ETC.
197. | A
Director may have regard to the interests of any other companies in a group of which the
Company is a member to the full extent permitted by the Act. |
198. | A
Director is expressly permitted (for the purposes of section 228(1)(d) of the Act) to use
vehicles, telephones, computers, aircraft, accommodation and any other Company property where
such use is approved by the Board or by a person so authorised by the Board or where such
use is in accordance with a Director’s terms of employment, letter of appointment or
other contract or in the course of the discharge of the Director’s duties or responsibilities
or in the course of the discharge of a Director’s employment. |
199. | Nothing
in section 228(1)(e) of the Act shall restrict a Director from entering into any commitment
which has been approved by the Board or has been approved pursuant to such authority as may
be delegated by the Board in accordance with these Articles. It shall be the duty of each
Director to obtain the prior approval of the Board, before entering into any commitment permitted
by sections 228(1)(e)(ii) and 228(2) of the Act. |
200. | It
shall be the duty of a Director who is in any way, whether directly or indirectly, interested
(within the meaning of section 231 of the Act) in a contract or proposed contract with the
Company, to declare the nature of his or her interest at a meeting of the Directors. |
201. | Subject
to any applicable law or the relevant code, rules and regulations applicable to the listing
of the shares on any Exchange, a Director may vote in respect of any contract, appointment
or arrangement in which he or she is interested and shall be counted in the quorum present
at the meeting and is hereby released from his or her duty set out in section 228(1)(f) of
the Act and a Director may vote on his or her own appointment or arrangement and the terms
of it. |
202. | The
Directors may exercise the voting powers conferred by the shares of any other company held
or owned by the Company in such manner in all respects as they think fit and, in particular,
they may exercise the voting powers in favour of any resolution: (a) appointing the Directors
or any of them as directors or officers of such other company; or (b) providing for the payment
of remuneration or pensions to the directors or officers of such other company. |
203. | Subject
to any applicable law or the relevant code, rules and regulations applicable to the listing
of the shares on any Exchange, any Director may vote in favour of the exercise of such voting
rights notwithstanding that he or she may be or may be about to become a Director or officer
of the other company referred to in Article 201 and as such or in any other way is or may
be interested in the exercise of such voting rights in the foregoing manner. |
204. | A
Director may hold any other office or place of profit under the Company (other than Auditor)
in conjunction with his or her office of Director for such period and on such terms as to
remuneration and otherwise as the Directors may determine. |
205. | Without
prejudice to the provisions of section 228 of the Act, a Director may be or become a director
or other officer of, or otherwise interested in, any company promoted by the Company or in
which the Company may be interested as member or otherwise. |
206. | A
Director may act by himself or herself, or his or her firm, in a professional capacity for
the Company; and any Director, in such a case, or his or her firm, shall be entitled to remuneration
for professional services as if he or she were not a Director, but nothing in this Article
authorises a Director, or his or her firm, to act as Auditor. |
207. | No
Director or nominee for Director shall be disqualified by his or her office from contracting
with the Company either with regard to his or her tenure of any such other office or place
of profit or as vendor, purchaser or otherwise. |
208. | In
particular, neither shall: |
| 208.1 | any
contract with respect to any of the matters referred to in Article 200 nor any contract or
arrangement entered into by or on behalf of the Company in which a Director is in any way
interested, be liable to be avoided; nor |
| 208.2 | a
Director so contracting or being so interested be liable to account to the Company for any
profit realised by any such contract or arrangement,by reason of such Director holding that
office or of the fiduciary relation thereby established. |
| 209. | A
Director, notwithstanding his or her interest, may be counted in the quorum present at any
meeting at which: |
| 209.1 | that
Director or any other Director is appointed to hold any such office or place of profit under
the Company as is mentioned in Article 203; or |
| 209.2 | the
terms of any such appointment are arranged,and he or she may vote on any such appointment
or arrangement, subject to any applicable law or the relevant code, rules and regulations
applicable to the listing of the shares on any Exchange. |
THE
COMMON SEAL, OFFICIAL SEAL AND SECURITIES SEAL
210. | Any
seal of the Company shall be used only by the authority of the Directors, a committee authorised
by the Directors to exercise such authority or by any one or more persons severally or jointly
so authorised by the Directors or such a committee, and the use of the seal shall be deemed
to be authorised for these purposes where the matter or transaction pursuant to which the
seal is to be used has been so authorised. |
211. | Any
instrument to which a Company’s seal shall be affixed shall be signed by any one of
the following: |
| 211.2 | the
Company Secretary; or |
| 211.3 | any
other person authorised to sign by (i) the Directors or (ii) a committee,and the countersignature
of a second such person shall not be required. |
212. | The
Company may have one or more duplicate common seals or official seals for use in different
locations including for use abroad. |
SERVICE
OF NOTICES ON MEMBERS
213. | A
notice required or authorised to be served on or given to a member of the Company pursuant
to a provision of the Act or these Articles shall, save where the means of serving or giving
it specified in Article 212.4 is used, be in writing and may be served on or given to the
member in one of the following ways: |
| 213.1 | by
delivering it to the member; |
| 213.2 | by
leaving it at the registered address of the member; |
| 213.3 | by
sending it by post in a prepaid letter to the registered address of the member; or |
| 213.4 | subject
to Article 217, by electronic mail or other means of electronic communication approved by
the Directors to the contact details notified to the Company by any such member for such
purpose (or if not so notified, then to the contact details of the member last known to the
Company). A notice or document may be sent by electronic means to the fullest extent permitted
by the Act. |
214. | Without
prejudice or limitation to the foregoing provisions of Article 212.1 to 212.4, for the purposes
of these Articles and the Act, a document shall be deemed to have been sent to a member if
a notice is given, served, sent or delivered to the member and the notice specifies the website
or hotlink or other electronic link at or through which the member may obtain a copy of the
relevant document. |
215. | Any
notice served or given in accordance with Article 212 shall be deemed, in the absence of
any agreement to the contrary between the Company (or, as the case may be, the officer of
it) and the member, to have been served or given: |
| 215.1 | in
the case of its being delivered, at the time of delivery (or, if delivery is refused, when
tendered); |
| 215.2 | in
the case of its being left, at the time that it is left; |
| 215.3 | in
the case of its being posted on any day other than a Friday, Saturday or Sunday, 24 hours
after despatch and in the case of its being posted: |
| (a) | on
a Friday — 72 hours after despatch; or |
| (b) | on
a Saturday or Sunday — 48 hours after despatch; |
| 215.4 | in
the case of electronic means being used in relation to it, twelve hours after despatch,but
this Article is without prejudice to section 181(3) of the Act. |
216. | Every
legal personal representative, committee, receiver, curator bonis or other legal curator,
assignee in bankruptcy, examiner or liquidator of a member shall be bound by a notice given
as aforesaid if sent to the last registered address of such member, or, in the event of notice
given or delivered pursuant to Article 212.4, if sent to the address notified to the Company
by the member for such purpose notwithstanding that the Company may have notice of the death,
his or her being of unsound mind, bankruptcy, liquidation or disability of such member. |
217. | Notwithstanding
anything contained in these Articles to the contrary, the Company shall not be obliged to
take account of or make any investigations as to the existence of any suspension or curtailment
of postal services within or in relation to all or any part of any jurisdiction. |
218. | Any
requirement in these Articles for the consent of a member in regard to the receipt by such
member of electronic mail or other means of electronic communications approved by the Directors,
including the receipt of the Company’s annual report, statutory financial statements
and the Directors’ and Auditor’s reports thereon, shall be deemed to have been
satisfied where the Company has written to the member informing him or her of its intention
to use electronic communications for such purposes and the member has not, within four weeks
of the issue of such notice, served an objection in writing on the Company to such member.
Where a member has given, or is deemed to have given, his/her consent to the receipt by such
member of electronic mail or other means of electronic communications approved by the Directors,
she/he may revoke such consent at any time by requesting the Company to communicate with
him or her in documented form; provided, however, that such revocation shall not take effect
until five days after written notice of the revocation is received by the Company. Notwithstanding
anything to the contrary in this Article 217, no such consent shall be necessary, and to
the extent it is necessary, such consent shall be deemed to have been given, if electronic
communications are permitted to be used under the rules and regulations of any Exchange on
which the shares in the capital of the Company or other securities of the Company are listed
or under the rules of the SEC. |
219. | If
at any time by reason of the suspension or curtailment of postal services in any territory,
the Company is unable effectively to convene a general meeting by notices sent through the
post, a general meeting may be convened by a public announcement (as defined below) and such
notice shall be deemed to have been duly served on all members entitled thereto at noon (Ireland
time) on the day on which the said public announcement is made. In any such case the Company
shall put a full copy of the notice of the general meeting on its website. |
220. | Notice
shall be given by the Company to the joint holders of a share in the capital of the Company
by giving the notice to both such holders whose names stand in the Register in respect of
the share. |
221. |
221.1 | Every
person who becomes entitled to a share in the capital of the Company shall, before his or her
name is entered in the Register in respect of the share, be bound by any notice in respect of
that share which has been duly given to a person from whom he or she derives his or her title. |
| 221.2 | A
notice may be given by the Company to the persons entitled to a share in the capital of the
Company in consequence of the death or bankruptcy of a member by sending or delivering it,
in any manner authorised by these Articles for the giving of notice to a member, addressed
to them at the address, if any, supplied by them for that purpose. Until such an address
has been supplied, a notice may be given in any manner in which it might have been given
if the death or bankruptcy had not occurred. |
222. | The
signature (whether electronic signature, an advanced electronic signature or otherwise) to
any notice to be given by the Company may be written (in electronic form or otherwise) or
printed. |
SERVICE
OF NOTICES ON THE COMPANY
223. | In
addition to the means of service of documents set out in section 51 of the Act, a notice
or other document may be served on the Company by an officer of the Company by email provided,
however, that the Directors have designated an email address for that purpose and notified
that email address to its officers for the express purpose of serving notices on the Company. |
SENDING
STATUTORY FINANCIAL STATEMENTS TO MEMBERS
224. | The
Company may send by post, electronic mail or any other means of electronic communication: |
| 224.1 | the
Company’s statutory financial statements; |
| 224.2 | the
directors’ report; and |
| 224.3 | the
statutory auditors’ report,and copies of those documents shall also be treated, for
the purposes of the Act, as sent to a person where: |
| (a) | the
Company and that person have agreed to his or her having access to the documents on a website
(instead of their being sent to him or her); |
| (b) | the
documents are documents to which that agreement applies; and |
| (c) | that
person is notified, in a manner for the time being agreed for the purpose between him or
her and the Company, of: |
| (i) | the
publication of the documents on a website; |
| (ii) | the
address of that website; and |
| (iii) | the
place on that website where the documents may be accessed, and how they may be accessed. |
| 224.4 | Documents
treated in accordance with Article 223 as sent to any person are to be treated as sent to
him or her not less than 21 days before the date of a meeting if, and only if: |
| (a) | the
documents are published on the website throughout a period beginning at least 21 days before
the date of the meeting and ending with the conclusion of the meeting; and |
| (b) | the
notification given for the purposes of Article 223.3(c) is given not less than 21 days before
the date of the meeting. |
225. | Any
obligation by virtue of section 339(1) or (2) of the Act to furnish a person with a document
may, unless these Articles provide otherwise, be complied with by using electronic communications
for sending that document to such address as may for the time being be notified to the Company
by that person for that purpose. |
ACCOUNTING
RECORDS
226. | The
Directors shall, in accordance with Chapter 2 of Part 6 of the Act, cause to be kept adequate
accounting records, whether in the form of documents, electronic form or otherwise, that: |
| 226.1 | correctly
record and explain the transactions of the Company; |
| 226.2 | will
at any time enable the assets, liabilities, financial position and profit or loss of the
Company to be determined with reasonable accuracy; |
| 226.3 | will
enable the Directors to ensure that any financial statements of the Company, required to
be prepared under sections 290 or 293 of the Act, comply with the requirements of the Act;
and |
| 226.4 | will
enable those financial statements of the Company to be readily and properly audited. |
227. | The
accounting records shall be kept on a continuous and consistent basis and entries therein
shall be made in a timely manner and be consistent from year to year. Adequate accounting
records shall be deemed to have been maintained if they comply with the provisions of Chapter
2 of Part 6 of the Act and explain the Company’s transactions and facilitate the preparation
of financial statements that give a true and fair view of the assets, liabilities, financial
position and profit or loss of the Company and, if relevant, the Group and include any information
and returns referred to in section 283(2) of the Act. |
228. | The
accounting records shall be kept at the Office or, subject to the provisions of the Act,
at such other place as the Directors think fit and shall be open at all reasonable times
to the inspection of the Directors. |
229. | The
Directors shall determine from time to time whether and to what extent and at what times
and places and under what conditions or regulations the accounting records of the Company
shall be open to the inspection of members, not being Directors. No member (not being a Director)
shall have any right of inspecting any financial statement or accounting record of the Company
except as conferred by the Act or authorised by the Directors or by the Company in a general
meeting. |
230. | In
accordance with the provisions of the Act, the Directors shall cause to be prepared and to
be laid before the annual general meeting of the Company from time to time such statutory
financial statements of the Company and reports as are required by the Act to be prepared
and laid before such meeting. |
231. | A
copy of every statutory financial statement of the Company (including every document required
by law to be annexed thereto) which is to be laid before the annual general meeting of the
Company together with a copy of the Directors’ report and Auditors’ report, or
summary financial statements prepared in accordance with section 1119 of the Act, shall be
sent, by post, electronic mail or any other means of electronic communications, not less
than twenty-one Clear Days before the date of the annual general meeting, to every person
entitled under the provisions of the Act to receive them; provided that where the Directors
elect to send summary financial statements to the members, any member may request that he
be sent a copy of the statutory financial statements of the Company. The Company may, in
addition to sending one or more copies of its statutory financial statements, summary financial
statements or other communications to its members, send one or more copies to any Approved
Nominee. For the purposes of this Article, sending by electronic communications includes
the making available or displaying on the Company’s website (or a website designated
by the Board) or the website of the SEC, and each member is deemed to have irrevocably consented
to receipt of every statutory financial statement of the Company (including every document
required by law to be annexed thereto) and every copy of the Directors’ report and
the Auditors’ report and every copy of any summary financial statements prepared in
accordance with section 1119 of the Act, by any such document being made so available or
displayed. |
232. | Auditors
shall be appointed and their duties regulated in accordance with the Act. |
WINDING
UP
233. | Subject
to the provisions of the Act as to preferential payments, the property of the Company on
its winding up shall be distributed among the members according to their rights and interests
in the Company. |
234. | Unless
the conditions of issue of the shares in question provide otherwise, dividends declared by
the Company more than six years preceding the commencement date of a winding up of the Company,
being dividends which have not been claimed within that period of six years, shall not be
a claim admissible to proof against the Company for the purposes of the winding up. |
235. | If
the Company shall be wound up and the assets available for distribution among the members
as such shall be insufficient to repay the whole of the paid up or credited as paid up share
capital, such assets shall be distributed so that, as nearly as may be, the losses shall
be borne by the members in proportion to the capital paid up or credited as paid up at the
commencement of the winding up on the shares in the capital of the Company held by them respectively.
If in a winding up the assets available for distribution among the members shall be more
than sufficient to repay the whole of the share capital paid up or credited as paid up at
the commencement of the winding up, the excess shall be distributed among the members in
proportion to the capital at the commencement of the winding up paid up or credited as paid
up on the said shares held by them respectively; provided that this Article shall be subject
to any specific rights attaching to any class of share capital. |
| 235.1 | In
case of a sale by the liquidator under section 601 of the Act, the liquidator may by the
contract of sale agree so as to bind all the members, for the allotment to the members directly,
of the proceeds of sale in proportion to their respective interests in the Company and may
further, by the contract, limit a time at the expiration of which obligations or shares in
the capital of the Company not accepted or required to be sold shall be deemed to have been
irrevocably refused and be at the disposal of the Company, but so that nothing herein contained
shall be taken to diminish, prejudice or affect the rights of dissenting members conferred
by the said section. |
| 235.2 | The
power of sale of the liquidator shall include a power to sell wholly or partially for debentures,
debenture stock, or other obligations of another company, either then already constituted
or about to be constituted for the purpose of carrying out the sale. |
236. | If
the Company is wound up, the liquidator, with the sanction of a special resolution and any
other sanction required by the Act, may divide amongst the members in specie or kind the
whole or any part of the assets of the Company (whether they shall consist of property of
the same kind or not), and, for such purpose, may value any assets and determine how the
division shall be carried out as between the members or different classes of members. The
liquidator, with the like sanction, may vest the whole or any part of such assets in trustees
upon such trusts for the benefit of the contributories as, with the like sanction, he or
she determines, but so that no member shall be compelled to accept any assets upon which
there is a liability. |
BUSINESS
TRANSACTIONS
237. | In
addition to any affirmative vote or consent required by law or these Articles, and except
as otherwise expressly provided in Article 237, a Business Transaction (as defined in Article
238.3) with, or proposed by or on behalf of, any Interested Person (as defined in Article
238.6) or any Affiliate (as defined in Article 238.1) of any Interested Person or any person
who thereafter would be an Affiliate of such Interested Person shall require approval by
the affirmative vote of members of the Company holding not less than two-thirds (2/3) of
the paid up ordinary share capital of the Company, excluding the voting rights attached to
any shares beneficially owned by such Interested Person. Such affirmative vote shall be required
notwithstanding the fact that no vote may be required, or that a lesser percentage may be
specified, by law or in any agreement with any Exchange or otherwise. |
238. | The
provisions of Article 236 shall not be applicable to any particular Business Transaction,
and such Business Transaction shall require only such affirmative vote, if any, as is required
by law or by any other provision of these Articles, or any agreement with any Exchange, if
either (i) the Business Transaction shall have been approved by a majority of the Board prior
to such Interested Person first becoming an Interested Person or (ii) prior to such Interested
Person first becoming an Interested Person, a majority of the Board shall have approved such
Interested Person becoming an Interested Person and, subsequently, a majority of the Independent
Directors (as hereinafter defined) shall have approved the Business Transaction or (iii)
after such person becomes an Interested Person, a majority of the Independent Directors shall
have approved (A) such person as an Interested Person and (B) the Business Transaction. |
239. | The
following definitions shall apply with respect to Articles 236 to 240: |
| 239.1 | The
term “Affiliate” shall mean a person that directly, or indirectly through one
or more intermediaries, controls, or is controlled by, or is under common control with, a
specified person. |
| 239.2 | A
person shall be a “beneficial owner” of any shares of the Company (a) which such
person or any of its Affiliates beneficially owns, directly or indirectly; (b) which such
person or any of its Affiliates has, directly or indirectly, (i) the right to acquire (whether
such right is exercisable immediately or subject only to the passage of time or the occurrence
of one or more events), pursuant to any agreement, arrangement or understanding or upon the
exercise of conversion rights, exchange rights, warrants or options, or otherwise, or (ii)
the right to vote pursuant to any agreement, arrangement or understanding; provided, however,
that a person shall not be deemed the beneficial owner of any security if the agreement,
arrangement or understanding to vote such security arises solely from a revocable proxy or
consent solicitation made pursuant to and in accordance with the Act; or (c) which is beneficially
owned, directly or indirectly, by any other person with which such person or any of its Affiliates
has any agreement, arrangement or understanding for the purpose of acquiring, holding, voting
or disposing of any shares of the Company (except to the extent permitted by the proviso
of clause (b)(ii) above). For the purposes of determining whether a person is an Interested
Person pursuant to Article 238.6, the number of shares of the Company deemed to be outstanding
shall include shares deemed beneficially owned by such person through application of this
Article 238.2, but shall not include any other shares of the Company that may be issuable
pursuant to any agreement, arrangement or understanding, or upon exercise of conversion rights,
warrants or options, or otherwise. |
| 239.3 | The
term “Business Transaction” shall mean any of the following transactions when
entered into by the Company or a subsidiary of the Company with, or upon a proposal by or
on behalf of, any Interested Person or any Affiliate of any Interested Person: |
| (a) | any
merger or consolidation of the Company or any subsidiary with (i) any Interested Person,
or (ii) any other body corporate which is, or after such merger or consolidation would be,
an Affiliate of an Interested Person; |
| (b) | any
sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction
or a series of transactions), except proportionately as a member of the Company, to or with
the Interested Person of assets of the Company (other than shares of the Company or of any
subsidiary of the Company which assets have an aggregate market value equal to ten percent
(10%) or more of the aggregate market value of all the issued share capital of the Company); |
| (c) | any
transaction that results in the issuance of shares or the transfer of treasury shares by
the Company or by any subsidiary of the Company of any shares of the Company or any shares
of such subsidiary to the Interested Person, except (i) pursuant to the exercise, exchange
or conversion of securities exercisable for, exchangeable for or convertible into stock of
the Company or any such subsidiary which securities were outstanding prior to the time that
the Interested Person became such, (ii) pursuant to a dividend or distribution paid or made,
or the exercise, exchange or conversion of securities exercisable for, exchangeable for or
convertible into shares of the Company or any such subsidiary which security is distributed,
pro rata to all holders of a class or series of shares of the Company subsequent to the time
the Interested Person became such, (iii) pursuant to an exchange offer by the Company to
purchase shares made on the same terms to all holders of said shares, (iv) any issuance of
shares or transfer of treasury shares of the Company by the Company, provided, however, that
in the case of each of the clauses (ii) through (iv) above there shall be no increase of
more than one percent (1%) in the Interested Person’s proportionate share in the shares
of the Company of any class or series or (v) pursuant to a public offering or private placement
by the Company to an Institutional Investor; |
| (d) | any
reclassification of securities, recapitalization or other transaction involving the Company
or any subsidiary of the Company which has the effect, directly or indirectly, of (i) increasing
the proportionate amount of the shares of any class or series, or securities convertible
into the shares of any class or series, of the Company or of any such subsidiary which is
owned by the Interested Person, except as a result of immaterial changes due to fractional
share adjustments or as a result of any purchase or redemption of any shares not caused,
directly or indirectly, by the Interested Person or (ii) increasing the voting power, whether
or not then exercisable, of an Interested Person in any class or series of shares of the
Company or any subsidiary of the Company; |
| (e) | the
adoption of any plan or proposal by or on behalf of an Interested Person for the liquidation,
dissolution or winding-up of the Company; or |
| (f) | any
receipt by the Interested Person of the benefit, directly or indirectly (except proportionately
as a member of the Company), of any loans, advances, guarantees, pledges, tax benefits or
other financial benefits (other than those expressly permitted in subparagraphs (a) through
(e) above) provided by or through the Company or any subsidiary thereof. |
| 239.4 | The
term “Independent Directors” shall mean the members of the Board who are
not Affiliates or representatives of, or associated with, an Interested Person and who were
either Directors prior to any person becoming an Interested Person or were recommended for
election or elected to succeed such directors by a vote which includes the affirmative vote
of a majority of the Independent Directors. |
| 239.5 | The
term “Institutional Investor” shall mean a person that (a) has acquired,
or will acquire, all of its shares in the Company in the ordinary course of its business
and not with the purpose nor with the effect of changing or influencing the control of the
Company, nor in connection with or as a participant in any transaction having such purpose
or effect, including any transaction subject to rule 13d-3(b) under the Exchange Act, and
(b) is a registered broker dealer; a bank as defined in section 3(a)(6) of the Exchange Act;
an insurance company as defined in, or an investment company registered under, the Investment
Company Act of 1940 of the United States; an investment advisor registered under the Investment
Advisors Act of 1940 of the United States; an employee benefit plan or pension fund subject
to the Employee Retirement Income Security Act of 1974 of the United States or an endowment
fund; a parent holding company, provided that the aggregate amount held directly by the parent
and directly and indirectly by its subsidiaries which are not persons specified in the foregoing
subclauses of this clause (b) does not exceed one percent (1%) of the securities of the subject
class; or a group, provided that all the members are persons specified in the foregoing subclauses
of this clause (b). |
| 239.6 | The
term “Interested Person” shall mean any person (other than the Company,
any subsidiary, any profit-sharing, employee share ownership or other employee benefit plan
of the Company or any subsidiary or any trustee of or fiduciary with respect to any such
plan when acting in such capacity) who (a) is the beneficial owner of shares of the Company
representing ten percent (10%) or more of the votes entitled to be cast by the holders of
all the paid up share capital of the Company; (b) has stated in a filing with any governmental
agency or press release or otherwise publicly disclosed a plan or intention to become or
consider becoming the beneficial owner of shares of the Company representing ten percent
(10%) or more of the votes entitled to be cast by the holders of all paid up share capital
of the Company and has not expressly abandoned such plan, intention or consideration more
than two years prior to the date in question; or (c) is an Affiliate of the Company and at
any time within the two-year period immediately prior to the date in question was the beneficial
owner of shares representing ten percent (10%) or more of the votes entitled to be cast by
holders of all the paid up share capital of the Company. |
| 239.7 | The
term “person” shall mean any individual, body corporate, partnership,
unincorporated association, trust or other entity. |
| 239.8 | The
term “subsidiary” has the meaning ascribed to it in section 7 of the Act. |
240. | A
majority of the Independent Directors shall have the power and duty to determine, on the
basis of information known to them after reasonable inquiry, for the purposes of (i) Articles
236 and 237, all questions arising under Articles 236 and 237 including, without limitation
(a) whether a person is an Interested Person, (b) the number of shares of the Company or
other securities beneficially owned by any person; and (c) whether a person is an Affiliate
of another; and (ii) these Articles, the question of whether a person is an Interested Person.
Any such determination made in good faith shall be binding and conclusive on all parties. |
241. | Nothing
contained in Articles 236 to 239 shall be construed to relieve any Interested Person from
any fiduciary obligation imposed by law. |
SHAREHOLDER
RIGHTS PLAN
242. | Subject
to applicable law, the Directors are hereby expressly authorised to adopt any shareholder
rights plan (a “Rights Plan”), upon such terms and conditions as the Directors
deem expedient and in the best interests of the Company, including, without limitation, where
the Directors are of the opinion that a Rights Plan could grant them additional time to gather
relevant information or pursue strategies in response to or anticipation of, or could prevent,
a potential change of control of the Company or accumulation of shares in the Company or
interests therein. |
243. | The
Directors may exercise any power of the Company to grant rights (including approving the
execution of any documents relating to the grant of such rights) to subscribe for ordinary
shares or preferred shares in the share capital of the Company (“Rights”)
in accordance with the terms of a Rights Plan. |
244. | For
the purposes of effecting an exchange of Rights for ordinary shares or preferred shares in
the share capital of the Company (an “Exchange of Rights”), the Directors
may: |
| 244.1 | resolve
to capitalise an amount standing to the credit of the reserves of the Company (including,
but not limited to, the share premium account, capital redemption reserve, any undenominated
capital and profit and loss account), whether or not available for distribution, being an
amount equal to the nominal value of the ordinary shares or preferred shares which are to
be exchanged for the Rights; and |
| 244.2 | apply
that sum in paying up in full ordinary shares or preferred shares and allot such shares,
credited as fully paid, to those holders of Rights who are entitled to them under an Exchange
of Rights effected pursuant to the terms of a Rights Plan. |
245. | The
duties of the Directors to the Company under applicable law, including, but not limited to,
the Act and common law, are hereby deemed amended and modified such that the adoption of
a Rights Plan and any actions taken thereunder by the Directors (if so approved by the Directors)
shall be deemed to constitute an action in the best interests of the Company in all circumstances,
and any such action shall be deemed to be immediately confirmed, approved and ratified. |
UNTRACED
MEMBERS
246. | The
Company shall be entitled to sell at the best price reasonably obtainable any share of a
member or any share to which a person is entitled by transmission if and provided that: |
| 246.1 | for
a period of twelve years no cheque or warrant sent by the Company through the post in a pre-paid
letter addressed to the member or to the person entitled by transmission to the share at
his address on the Register or at the last known address given by the member or the person
entitled by transmission to which cheques and warrants are to be sent has been cashed and
no communication has been received by the Company from the member or the person entitled
by transmission (provided that during such twelve year period at least three dividends shall
have become payable in respect of such share); |
| 246.2 | at
the expiration of the said period of twelve years by advertisement in a national daily newspaper
published in Ireland and in a newspaper circulating in the area in which the address referred
to in Article 245.1 is located the Company has given notice of its intention to sell such
share; |
| 246.3 | during
the further period of three months after the date of the advertisement and prior to the exercise
of the power of sale the Company has not received any communication from the member or person
entitled by transmission; and |
| 246.4 | the
Company has first given notice in writing to the appropriate sections of the Exchanges of
its intention to sell such shares. |
247. | Where
a share, which is to be sold as provided in Article 245, is held in uncertificated form,
the Directors may authorise any person to do all that is necessary to change such share into
certificated form prior to its sale. |
248. | To
give effect to any such sale the Company may appoint any person to execute as transferor
an instrument of transfer of such share and such instrument of transfer shall be as effective
as if it had been executed by the member or the person entitled by the transmission to such
share. The transferee shall be entered in the Register as the member of the shares comprised
in any such transfer and he shall not be bound to see to the application of the purchase
moneys nor shall his title to the shares be affected by any irregularity in or invalidity
of the proceedings in reference to the sale. |
249. | The
Company shall account to the member or other person entitled to such share for the net proceeds
of such sale by carrying all moneys in respect thereof to a separate account which shall
be a permanent debt of the Company and the Company shall be deemed to be a debtor and not
a trustee in respect thereof for such member or other person. Moneys carried to such separate
account may be either employed in the business of the Company or held as cash or cash equivalents,
or invested in such investments as the Directors may think fit, from time to time. |
DESTRUCTION
OF RECORDS
250. | The
Company shall be entitled to destroy all instruments of transfer which have been registered
at any time after the expiration of six years from the date of registration thereof, all
notifications of change of name or change of address however received at any time after the
expiration of two years from the date of recording thereof and all share certificates and
dividend mandates which have been cancelled or ceased to have effect at any time after the
expiration of one year from the date of such cancellation or cessation. It shall be presumed
conclusively in favour of the Company that every entry in the Register purporting to have
been made on the basis of an instrument of transfer or other document so destroyed was duly
and properly made and every instrument duly and properly registered and every share certificate
so destroyed was a valid and effective document duly and properly cancelled and every other
document hereinbefore mentioned so destroyed was a valid and effective document in accordance
with the recorded particulars thereof in the books or records of the Company. Provided always
that: |
| 250.1 | the
provision aforesaid shall apply only to the destruction of a document in good faith and without
notice of any claim (regardless of the parties thereto) to which the document might be relevant; |
| 250.2 | nothing
herein contained shall be construed as imposing upon the Company any liability in respect
of the destruction of any document earlier than as aforesaid or in any other circumstances
which would not attach to the Company in the absence of this Article; and |
| 250.3 | references
herein to the destruction of any document include references to the disposal thereof in any
manner. |
INDEMNIFICATION
251. |
251.1 | Subject
to the provisions of and so far as may be permitted by the Act, each person who is or was a Director,
officer or employee of the Company, and each person who is or was serving at the request of the
Company as a director, officer or employee of another company, or of a partnership, joint venture,
trust or other enterprise, including service with respect to employee benefit plans maintained
or sponsored by the Company (including the heirs, executors, administrators and estate of such
person) shall be entitled to be indemnified by the Company against all costs, charges, losses,
expenses and liabilities incurred by him or her in the execution and discharge of his or her duties
or in relation thereto, including any liability incurred by him or her in defending any proceedings,
civil or criminal, which relate to anything done or omitted or alleged to have been done or omitted
by him or her as a director, officer or employee of the Company or such other company, partnership,
joint venture, trust or other enterprise, and in which judgment is given in his or her favour
(or the proceedings are otherwise disposed of without any finding or admission of any material
breach of duty on his or her part) or in which he or she is acquitted or in connection with any
application under any statute for relief from liability in respect of any such act or omission
in which relief is granted to him or her by the court. |
| 251.2 | In
the case of any threatened, pending or completed action, suit or proceeding by or in the
right of the Company, the Company shall indemnify, to the fullest extent permitted by the
Act, each person indicated in Article 250.1 against expenses, including attorneys’
fees actually and reasonably incurred in connection with the defence or the settlement thereof,
except no indemnification shall be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable for fraud or dishonesty in the performance
of his or her duty to the Company unless and only to the extent that the courts of Ireland
or the court in which such action or suit was brought shall determine upon application that
despite the adjudication of liability, but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses as the Court
shall deem proper. |
| 251.3 | As
far as permissible under the Act, expenses, including attorneys’ fees, incurred in
defending any action, suit or proceeding referred to in this Article shall be paid by the
Company in advance of the final disposition of such action, suit or proceeding upon receipt
of a written affirmation by or on behalf of the Director, officer, employee or other indemnitee
of a good faith belief that the criteria for indemnification have been satisfied and a written
undertaking to repay such amount if it shall ultimately be determined that such Director,
officer or employee or other indemnitee is not entitled to be indemnified by the Company
as authorised by these Articles. |
| 251.4 | It
being the policy of the Company that indemnification of the persons specified in this Article
shall be made to the fullest extent permitted by law, the indemnification provided by this
Article shall not be deemed exclusive of: (a) any other rights to which those seeking indemnification
or advancement of expenses may be entitled under the Memorandum, these Articles, any agreement,
any insurance purchased by the Company, any vote of members or disinterested Directors, or
pursuant to the direction (however embodied) of any court of competent jurisdiction, or otherwise,
both as to action in his or her official capacity and as to action in another capacity while
holding such office, or (b) any amendments or replacements of the Act which permit for greater
indemnification of the persons specified in this Article and any such amendment or replacement
of the Act shall hereby be incorporated into these Articles. As used in this Article 250.4,
references to the “Company” include all constituent companies in a consolidation
or merger in which the Company or any predecessor to the Company by consolidation or merger
was involved. The indemnification provided by this Article shall continue as to a person
who has ceased to be a Director, officer or employee and shall inure to the benefit of the
heirs, executors, and administrators of such Directors, officers, employees or other indemnitees. |
| 251.5 | The
Directors shall have power to purchase and maintain for any Director, the Company Secretary
or other officers or employees of the Company insurance against any such liability as referred
to in section 235 of the Act. |
| 251.6 | The
Company may additionally indemnify any agent of the Company or any director, officer, employee
or agent of any of its subsidiaries to the fullest extent provided by law, and purchase and
maintain insurance for any such person as appropriate. |
252. | No
person shall be personally liable to the Company or its members for monetary damages for
breach of fiduciary duty as a Director, provided, however, that the foregoing shall not eliminate
or limit the liability of a Director: |
| 252.1 | for
any breach of the Director’s duty of loyalty or duty of care to the Company or its
members; |
| 252.2 | for
acts or omissions not in good faith or which involve intentional misconduct or a knowing
violation of law; or |
| 252.3 | for
any transaction from which the Director derived an improper personal benefit. |
If
any applicable law or the relevant code, rules and regulations applicable to the listing of the Company’s shares on any Exchange
is amended hereafter to authorise corporate action further eliminating or limiting the personal liability of Directors, then the liability
of a Director shall be eliminated or limited to the fullest extent permitted by the relevant law, as so amended. Any amendment, repeal
or modification of this Article 251 shall not adversely affect any right or protection of a Director existing hereunder with respect
to any act or omission occurring prior to such amendment, repeal or modification.
GOVERNING
LAW AND JURISDICTION
253. | This
constitution and any dispute or claim arising out of or in connection with it or its subject
matter, formation, existence, negotiation, validity, termination or enforceability (including
non-contractual obligations, disputes or claims) will be governed by and construed in accordance
with the laws of Ireland. |
254. | Subject
to Article 254, the courts of Ireland are to have exclusive jurisdiction to settle any dispute
arising out of or in connection with this constitution and, for such purposes, the Company
and each shareholder irrevocably submit to the exclusive jurisdiction of such courts. Any
proceeding, suit or action arising out of or in connection with this Constitution (the “Proceedings”)
will therefore be brought in the courts of Ireland. Each shareholder irrevocably waives any
objection to Proceedings in the courts referred to in this Article on the grounds of venue
or on the grounds of forum non conveniens. |
255. | Unless
the Company consents in writing to the selection of an alternative forum, the federal district
courts of the United States of America shall, to the fullest extent permitted by law, be
the exclusive forum for the resolution of any complaint asserting a cause of action arising
under the Exchange Act or the Securities Act of 1933 of the United States. Any person or
entity purchasing or otherwise acquiring any interest in any security of the Company shall
be deemed to have notice of and consented to this provision. |
SMX Security Matters Pub... (NASDAQ:SMXWW)
Historical Stock Chart
Von Jun 2024 bis Jul 2024
SMX Security Matters Pub... (NASDAQ:SMXWW)
Historical Stock Chart
Von Jul 2023 bis Jul 2024