- Title:
Circular to Shareholders - Time:
07:00:05 - Date:
11 May 2020 - Category:
Miscellaneous - ID:
3472M
SHAREHOLDER ACTION REQUIRED
CIRCULAR AND NOTICE OF
EXTRAORDINARY GENERAL MEETING TO THE SHAREHOLDERS OF
HANetf ICAV
(the ICAV)
_______________________________________________________________________________
THIS CIRCULAR AND NOTICE IS SENT TO YOU AS A SHAREHOLDER IN HANETF ICAV. IT IS IMPORTANT AND REQUIRES YOUR IMMEDIATE ATTENTION. IF YOU ARE IN ANY DOUBT AS TO THE ACTION TO BE TAKEN, YOU SHOULD IMMEDIATELY CONSULT YOUR STOCKBROKER, BANK MANAGER, SOLICITOR OR ATTORNEY OR OTHER PROFESSIONAL ADVISOR.
If you have transferred your holding in the ICAV, please send this document and the accompanying proxy form to the stockbroker, bank manager or other agent through whom the transfer was effected for transmission to the transferee.
Unless otherwise indicated, all defined terms in this Circular shall have the same meaning as described in the prospectus for the ICAV dated 1 April 2019 (the Prospectus).
Dated 8 May 2020
HANetf ICAV
(an umbrella fund with segregated liability between sub-funds)
25/28 North Wall Quay
Dublin 1
Ireland
8 May 2020
To: All Shareholders in the ICAV
Dear Shareholder
1 Introduction
1.1 We are writing to you as a Shareholder to inform you that the Directors of the ICAV (the Directors) have resolved to convene an extraordinary general meeting (EGM) of the Shareholders to be held on 3 June 2020 at 10am at the ICAV's registered office, 25/28 North Wall Quay, Dublin 1, Ireland.
1.2 The purpose of this Circular is to describe:
1.2.1 certain proposed amendments to the Instrument of Incorporation of the ICAV (the Instrument) to facilitate the transition of the settlement of shares in the ICAV from the current domestic central securities depositary model (CSD Model) to the International Central Securities Depositary (the ICSD Model) (the Transition); and
1.2.2 the reasons for the proposed Transition in order to seek your approval for the Directors to effect the Proposed Transition.
1.3 For the Transition to be effective, the Shareholders are required to pass the resolutions set out in the notice of EGM in Appendix I attached hereto. A form of proxy in order for you to cast your votes on the matters outlined above is attached hereto in Appendix II.
2 Proposed Changes To the Instrument
2.1 It is proposed to amend the Instrument to include a provision which facilitates the implementation of the Transition by the Directors. The proposed paragraph to be inserted is set out in Appendix III attached hereto.
3 In addition, amendments are proposed to the Instrument to reflect that under the ICSD Model, the sole registered shareholder on the register of members (the Register) (with the exception of the subscriber shareholders) will be the nominee of the common depositary (as detailed further below under the heading entitled Proposed Transition to the ICSD Model). As a result, it is proposed to amend the Instrument to reduce the quorum requirements for general meetings and the minimum number of shareholders required to demand a poll from two Shareholders to one Shareholder, together with certain consequential amendments as set out in Appendix III hereto. It is also proposed to update the definition of "Relevant System" and include a new clause dealing with transfers of shares in dematerialised form, which will also facilitate the Transition.
3.1 These amendments to the Instrument must be passed as an ordinary resolution of the ICAV and will therefore require a simple majority of the votes cast by Shareholders entitled to vote in person or by proxy at the EGM to be voted in favour.
3.2 Copies of the existing Instrument together with a marked up version to show changes are available for inspection by the Shareholders on request from the date hereof at the registered office of the ICAV, 25-28 North Wall Quay, Dublin 1, Ireland.
4 Proposed Transition to the ICSD Model
4.1 If the proposed amendments to the Instrument described at paragraph 2 above (and as set out in Appendix III are passed), Shareholders will be requested to resolve, by way of special resolution, to give effect to the Transition.
4.2 As you may be aware, the ICAV currently settles trades in all Shares using the CSD Model. The sub-funds of the ICAV (the Funds) are issued on multiple local CSDs and, in the UK, settlement is through Euroclear UK & Ireland Limited (the CREST system). The ICAV will lose the ability to use the CREST system as an issuing CSD from 29 March 2021, when the extended period of equivalency currently agreed to by the UK and European Union will end.
4.3 The key advantage of the Transition is that it would ensure that trading in the Shares can continue across multiple European exchanges when the extended period of equivalency currently agreed to by the UK and European Union ends on 29 March 2021, and in doing so, would bring the ICAV in line with the broader European ETF market, which is increasingly migrating to the ICSD Model. Euroclear Bank S.A./N.V. (Euroclear) and Clearstream Banking S.A., Luxembourg (Clearstream and, together with Euroclear, the ICSDs) provide centralised settlement mechanism for Shares traded across multiple stock exchanges in Europe. The ICSD Model also offers the following benefits:
4.3.1 improved secondary market tradability for investors by creating a more efficient settlement infrastructure;
4.3.2 improved settlement process efficiency through longer operating hours of the ICSDs, increasing the time in which trades can match and settle, thereby minimising operational complexity;
4.3.3 reduction in inventory requirements and lower capital charges and overheads for market makers and broker dealers;
4.3.4 enhanced liquidity for investors in the Funds with less fragmentation across multiple settlement systems;
4.3.5 the ability to pool inventory, reducing failed settlement and settlement delays;
4.3.6 streamlined dividend record date methodologies across Europe; and
4.3.7 improved foreign exchange functionality on dividend payments.
5 Under the existing CSD Model, only those investors holding accounts in the CREST system can be registered as Shareholders on the ICAV's Register. The Register therefore consists of nominee accounts of authorised participants and other account holders in the CREST system (typically other nominee companies and custodian banks and a limited number of individuals). Investors whose ownership of Shares in recorded on the Register have legal title to the Shares.
6 Investors who do not have accounts in the CREST system hold their Shares through nominees and other intermediaries. The majority of these investors are therefore beneficial owners, i.e., they are entitled the benefits of Share ownership (potential for capital growth and distributions, voting rights, etc.) but do not hold legal title to Shares.
7 Under the ICSD Model, Shares are evidenced by a global share certificate and registered in the Register in the name of the nominee of BNY Mellon London Branch (the Common Depositary), which acts as the common depositary of Euroclear, the applicable ICSD in respect of the Shares. While the Common Depositary's nominee benefits from the rights of being a registered Shareholder, it passes all benefits of such rights on to the Common Depositary, which means that the Common Depositary's nominee passes any notices of Shareholder meetings of the ICAV and notices issued by the ICAV and any distributions received from the ICAV to the Common Depositary and votes the Shares it holds in accordance with voting instructions received from the Common Depositary. The Common Depositary, in turn, passes the benefit of such rights to the ICSD, which passes it on to its participants, under the terms of the ICSD's contractual arrangements with its participants.
8 Under the ICSD Model, investors who are not participants in the ICSD will need to use a broker, nominee, custodian bank or other intermediary which is a participant in the ICSD to trade and settle Shares, similar to the way investors under the CSD Model use a broker or other intermediary which is a participant in the CSD. The chain of beneficial holding in the ICSD model is therefore similar to existing nominee arrangements under the CSD Model.
9 For existing Shareholders who are registered on the Register, in the event that the Transition is approved, your current ownership of Shares will change from legal ownership to ownership of a beneficial entitlement through the nominee of the Common Depositary, as detailed above. If you wish, you may move your Shares held in the CREST system to the ICSD, if you already hold or choose to open an account with the ICSD. Alternatively, you may continue holding a beneficial entitlement to the Shares in the CREST system by means of CREST depositary interests.
10 Investors who are not registered as Shareholders on the Register but have a beneficial entitlement to Shares will continue to hold a beneficial entitlement to the same number of Shares in the Fund upon the adoption of the ICSD Model.
10.1 The Transition will not change an investor's entitlement to the beneficial ownership of its Shares in the ICAV and that under the ICSD model, investors will still be able to, for example, exercise voting rights, receive dividends and realise the value of their Shares. Adoption of the ICSD Model will also not change the manner in which the ICAV's investments are managed or have any impact on the investment policy of any Fund.
11 Key Dates for the EGM
| Last date for receipt of proxies in relation to the EGM |
1 June 2020 at 10am |
| Date of EGM |
3 June 2020 at 10am |
| Last date for receipt of proxies in relation to an adjourned EGM |
8 June 2020 at 10am |
| Date of Adjourned EGM |
10 June 2020 at 10am |
| Results of EGM |
The results of the EGM or any adjourned EGM will be published on the business day following the EGM or any adjourned EGM. |
| Transition Date |
31 July 2020 or other such later date as may be determined by the Directors and notified in advance to the shareholders. |
12 Shareholders' Approval - Action to be taken
12.1 The changes to the Instrument described in paragraph 2 above may not be made without the approval by an ordinary resolution of the Shareholders, meaning that they cannot be passed unless they receive the support of a simple majority of the total number of votes cast by the Shareholders being entitled to vote in person or by proxy. If the resolution is passed by the requisite majority, it will be binding on all shareholders irrespective of how (or whether) they voted.
12.2 The resolution to give effect to the Transition will be proposed as a special resolution, meaning that it cannot be passed unless it receives the support of a majority of not less than 75% of the total number of votes cast by the Shareholders entitled to vote in person or by proxy. Shareholders should note that, if the Transition is approved, all Shares in the ICAV will be transitioned to the ICSD Model, regardless of how or whether their respective shareholders voted at the EGM.
12.3 The quorum for the EGM is two persons entitled to vote upon the business to be transacted, each being a Shareholder or a duly authorised representative of a corporate Shareholder.
12.4 If a quorum is not present within half an hour from the time appointed for the EGM, or if during the EGM a quorum ceases to be present, the meeting shall be adjourned to the same day in the next week at the same time and place, or to such other day, time and place as the Directors may determine. If at the adjourned meeting, the quorum is not present within half an hour from the time appointed for the meeting, one person entitled to be counted in a quorum present at the meeting shall be a quorum.
13 Travel Restrictions under COVID 19 and Proposed Action to be Taken
13.1 Please note that there are currently significant travel restrictions in place due to COVID 19. Depending on what travel restrictions (if any) may be in place by the date of the EGM, physical attendance at the EGM may not be possible. Please refer to below link issued by the Irish Health Service Executive in respect of such travel restrictions: https://www2.hse.ie/conditions/coronavirus/coronavirus.html#travel
13.2 Accordingly, should you wish to vote at the EGM, we would strongly recommend that you complete the proxy form attached hereto at Appendix II and return a completed and signed proxy form by email to [email protected]. Please also refer to the "Notes to the Proxy Form" on page 10 of this Circular.
14 Proxy Forms
You may vote in person at the EGM or appoint a proxy to do so on your behalf. A form to enable you to vote by proxy at the EGM is included at Appendix II. Please read the notes printed on the form, which will assist you in completing and returning the form. To be valid, your form of proxy must be received by the secretary of the ICAV of the EGM not less than 48 hours before the time appointed for the holding of the EGM or any adjourned EGM in accordance with the instructions set out in the proxy form. You may attend and vote at the EGM even if you have appointed a proxy, but in such circumstances, the proxy is not entitled to vote.
15 Costs
The costs associated with the implementation of the Transition, if approved by the shareholders and the Central Bank, including all costs associated with the preparation and issue of this circular will be borne by HANetf Management Limited.
16 Recommendation and next steps
16.1 The Directors are of the opinion that the passing of the proposed amendment to the Instrument and Transition are in the best interests of shareholders as a whole and accordingly recommend that you vote in favour of the resolutions set out in the attached notice of EGM in Appendix I hereto.
16.2 Given the current external environment and COVID 19 related travel restrictions, the Directors recommend that you do not attend the EGM in person. The Directors would be grateful of your support for the resolutions by completing the proxy form enclosed in Appendix II and returning it by email to [email protected] 48 hours before the EGM is due to be held in order to ensure that the EGM may progress as in the normal course.
16.3 Should you have any questions in relation to the above, please do not hesitate to contact HANetf Management Limited at [email protected].
16.4 The Directors accept responsibility for the information contained in this circular.
We thank you for your continuing support of the ICAV.
Yours sincerely
_______________________________
Director
HANetf ICAV
APPENDIX I
NOTICE OF EXTRAORDINARY GENERAL MEETING
OF
HANetf ICAV
NOTICE IS HEREBY GIVEN that an extraordinary general meeting of HANetf ICAV will be held at the offices of Goodbody Secretarial Limited, 25-28 North Wall Quay, Dublin 1, Ireland on 3 June 2020 at 10am and at any adjournment thereof, to consider and, if thought fit, to pass the following resolutions of the ICAV:
As Ordinary Resolutions:
1 That the ICAV's instrument of incorporation be amended in the manner described in Appendix III of the EGM circular dated 8 May 2020.
As a Special Resolution:
2 Subject to the resolution at 1 being approved, the following resolution will be considered:
That, in accordance with the provisions of paragraph 7.11 of the ICAV's instrument of incorporation, the Directors be and they are hereby authorised to transfer the settlement of trading in all Shares of the ICAV from the Central Securities Depositary model to an International Central Securities Depositary (ICSD) model.
And to transact any other business which may properly be brought before the meeting.
By Order of the Board
___________________________
For and on behalf of
HANetf ICAV
APPENDIX II
FORM OF PROXY
FOR EXTRAORDINARY GENERAL MEETING OF
HANetf ICAV
(the ICAV)
I/We …………………… of …………………… being a shareholder / shareholders of the above named ICAV hereby appoint the Chairman of the Meeting (or any individual nominated by the Chairman or any employees of A&L Goodbody or Goodbody Secretarial Limited), or failing any of these any representatives,
…………………………………………of …………………………………………or
…………………………………………of …………………………………………or
as my / our proxy to vote for me / us on my / our behalf at an extraordinary general meeting of the ICAV to be held on 3 June 2020, at 10am at the ICAV's registered office, 25-28 North Wall Quay, Dublin 1, Ireland and at any adjournment thereof.
Signed this …………………… day of …………………… 20……………………
PLEASE INDICATE WITH AN 'X' IN THE SPACES BELOW HOW YOU WISH YOUR VOTE TO BE CAST
| Number or description of resolution: |
No. of Shares Held |
In Favour |
Abstain |
Against |
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| As Ordinary Resolutions: |
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| 1. That the ICAV's instrument of incorporation be amended in the manner described in Appendix III of the EGM circular dated 8 May 2020 |
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| As a Special Resolution: |
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| 2. Subject to the resolution at 1 above being approved, the following resolution will be considered:
That, in accordance with the provisions of paragraph 7.9 of the ICAV's instrument of incorporation, the Directors be and are hereby authorised to transfer the settlement of trading in all Shares of the ICAV from the Central Securities Depositary model to an International Central Securities Depositary (ICSD) model. |
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Unless otherwise instructed the proxy will vote as he or she thinks fit. |
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Signature of Shareholder…………………………………………………………………………………………………………
Dated:…………………………………………………………………………………………………………………………. |
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Notes:
1 To be valid this proxy form and any power of attorney under which it is signed must reach the Secretary of the ICAV c/o A&L Goodbody, 25/28 North Wall Quay, IFSC, Dublin 1, Ireland not less than 24 hours before the time fixed for the meeting (or any adjourned meeting). Shareholders may send their proxies by email to [email protected].
2 If you wish to appoint a proxy other than the Chairman of the meeting, please insert his/her name and address.
3 Please insert your name(s) and address in BOLD TYPE and sign and date the form.
4 Indicate by placing a cross in the appropriate box how you wish your votes to be cast in respect of each resolution. If no mark is made, your proxy may vote or abstain at his/her discretion. On any other business not specified in the Notice of Meeting and arising at the Meeting, the proxy will act at his or her discretion.
5 If this proxy is signed and returned without any indication of how the person appointed proxy will vote, he / she will exercise his / her discretion as to how he / she votes and whether or not he / she abstains from voting.
6 Where there are joint shareholders, the vote of the senior who tenders a vote, whether in person or by proxy, in respect of a share shall be accepted to the exclusion of the votes of the other joint shareholders and for this purpose seniority shall be determined by the order in which the names of the shareholders stand in the Register in respect of the share.
7 If any amendments are made to this form must be initialled.
APPENDIX III
PROPOSED AMENDMENTS TO INSTRUMENT OF INCORPORATION
IRISH COLLECTIVE ASSET-MANAGEMENT VEHICLES ACT 2015
AND
THE EUROPEAN COMMUNITIES (UNDERTAKINGS FOR COLLECTIVE INVESTMENT IN TRANSFERABLE SECURITIES) REGULATIONS, 2011 (AS AMENDED)
A BODY CORPORATE LIMITED BY SHARES
A COLLECTIVE ASSET-MANAGEMENT VEHICLE WITH VARIABLE CAPITAL
AN UMBRELLA FUND WITH SEGREGATED LIABILITY BETWEEN SUB FUNDS
INSTRUMENT OF INCORPORATION
OF
HANetf ICAV
REGISTERED ON 19 FEBRUARY 2018
AMENDED BY WRITTEN ORDINARY RESOLUTION ON 29 AUGUST 2018[ ] 2020
TABLE OF CONTENTS
1. DEFINITIONS .......................................................................................................................................... 6
2. INTERPRETATION ........................................................................................................................... 1112
3. CONSTITUTION .................................................................................................................................... 12
4. OBJECT AND POWERS ...................................................................................................................... 12
5. SHARE CAPITAL ................................................................................................................................. 16
6. UMBRELLA FUND AND SEGREGATED LIABILITY .......................................................................... 16
7. ISSUE OF SHARES .............................................................................................................................. 16
8. VARIATION OF RIGHTS ...................................................................................................................... 17
9. TRUSTS NOT RECOGNISED .............................................................................................................. 17
10. DISCLOSURE OF INTERESTS ............................................................................................................ 18
11. PAYMENT OF COMMISSION .............................................................................................................. 19
12. RIGHT OF REDEMPTION .................................................................................................................... 19
13. RIGHT OF EXCHANGE ........................................................................................................................ 19
14. ENTRY IN THE REGISTRY OF HOLDERS/SHARE CERTIFICATES ................................................ 19
15. BALANCE AND EXCHANGE CERTIFICATES ................................................................................... 20
16. SHARE WARRANTS ............................................................................................................................ 20
17. REPLACEMENT OF SHARE CERTIFICATES AND SHARE WARRANTS ....................................... 20
18. OTHER METHODS OF RECORDING TITLE ....................................................................................... 21
19. FORM OF INSTRUMENT OF TRANSFER ........................................................................................... 21
20. EXECUTION OF INSTRUMENT OF TRANSFER ................................................................................ 21
21. PAYMENT OF TAXATION UPON TRANSFER ................................................................................... 21
22. REFUSAL TO REGISTER TRANSFERS ............................................................................................. 21
23. PROCEDURE ON REFUSAL ............................................................................................................... 22
24. CLOSING OF TRANSFER BOOKS ..................................................................................................... 22
25. REGISTRATION FEES ......................................................................................................................... 23
26. RETENTION OF TRANSFER INSTRUMENTS .................................................................................... 23
27. RENUNCIATION OF ALLOTMENT ...................................................................................................... 23
28. COMPULSORY TRANSFER OF SHARES .......................................................................................... 23
29. DEATH OF HOLDER ............................................................................................................................ 23
30. TRANSMISSION ON DEATH OR BANKRUPTCY/MINORS ........................................................... 2324
31. RIGHTS BEFORE REGISTRATION ................................................................................................. 2324
32. INCREASE OF CAPITAL ..................................................................................................................... 24
33. CONSOLIDATION, SUB-DIVISION AND CANCELLATION OF CAPITAL ........................................ 24
34. ANNUAL GENERAL MEETINGS ..................................................................................................... 2425
35. EXTRAORDINARY GENERAL MEETINGS ......................................................................................... 25
36. CONVENING GENERAL MEETINGS .................................................................................................. 25
37. NOTICE OF GENERAL MEETINGS .................................................................................................... 25
38. QUORUM FOR GENERAL MEETINGS ........................................................................................... 2526
39. SPECIAL BUSINESS ............................................................................................................................ 26
40. CHAIRMAN OF GENERAL MEETINGS .............................................................................................. 26
41. DIRECTORS' AND AUDITORS' RIGHT TO ATTEND GENERAL MEETINGS .................................. 26
42. ADJOURNMENT OF GENERAL MEETINGS .................................................................................. 2627
43. DETERMINATION OF RESOLUTIONS ........................................................................................... 2627
44. ENTITLEMENT TO DEMAND POLL .................................................................................................... 27
45. TAKING OF A POLL ............................................................................................................................. 27
46. VOTES OF HOLDERS ...................................................................................................................... 2728
47. WRITTEN RESOLUTIONS ................................................................................................................... 28
48. CHAIRMAN'S CASTING VOTE ............................................................................................................ 28
49. VOTING BY JOINT HOLDERS............................................................................................................. 28
50. VOTING BY INCAPACITATED HOLDERS .......................................................................................... 28
51. RESTRICTION OF VOTING RIGHTS ............................................................................................... 2829
52. TIME FOR OBJECTION TO VOTING .................................................................................................. 29
53. APPOINTMENT OF PROXY ................................................................................................................. 29
54. BODIES CORPORATE ACTING BY REPRESENTATIVES AT MEETINGS ...................................... 29
55. DEPOSIT OF PROXY INSTRUMENTS ............................................................................................ 2930
56. ELECTRONIC PROXY ...................................................................................................................... 2930
57. EFFECT OF PROXY INSTRUMENTS .................................................................................................. 30
58. EFFECT OF REVOCATION OF PROXY OR OF AUTHORISATION .................................................. 30
59. CLASS MEETINGS ........................................................................................................................... 3031
60. NUMBER OF DIRECTORS................................................................................................................... 31
61. SHARE QUALIFICATION ..................................................................................................................... 31
62. APPOINTMENT OF DIRECTORS BY THE BOARD ........................................................................... 31
63. APPOINTMENT OF DIRECTORS AT A GENERAL MEETING .......................................................... 31
64. ORDINARY REMUNERATION OF DIRECTORS................................................................................. 31
65. SPECIAL REMUNERATION OF DIRECTORS .................................................................................... 31
66. EXPENSES OF DIRECTORS ........................................................................................................... 3132
67. ALTERNATE DIRECTORS............................................................................................................... 3132
68. DIRECTORS' POWERS........................................................................................................................ 32
69. POWER TO DELEGATE TO A COMMITTEE .................................................................................. 3233
70. APPOINTMENT OF ATTORNEYS / AGENTS / DELEGATES / CUSTODIAN ............................... 3233
71. BORROWING POWERS ...................................................................................................................... 33
72. NO RETIREMENT BY ROTATION ................................................................................................... 3334
73. ELIGIBILITY FOR APPOINTMENT .................................................................................................. 3334
74. NO RETIREMENT ON ACCOUNT OF AGE ........................................................................................ 34
75. APPOINTMENT OF ADDITIONAL DIRECTORS ................................................................................. 34
76. DISQUALIFICATION OF DIRECTORS ................................................................................................ 34
77. DIRECTORS' INTERESTS ................................................................................................................... 35
78. RESTRICTION ON DIRECTORS' VOTING ...................................................................................... 3536
79. CONVENING AND REGULATION OF DIRECTORS' MEETINGS .................................................. 3637
80. QUORUM FOR DIRECTORS' MEETINGS....................................................................................... 3637
81. VOTING AT DIRECTORS' MEETINGS ................................................................................................ 37
82. TELECOMMUNICATION MEETINGS .................................................................................................. 37
83. CHAIRMAN OF THE BOARD OF DIRECTORS .............................................................................. 3738
84. VALIDITY OF ACTS OF DIRECTORS ............................................................................................. 3738
85. DIRECTORS' RESOLUTIONS OR OTHER DOCUMENTS IN WRITING ............................................ 38
86. APPOINTMENT OF SECRETARY ....................................................................................................... 38
87. BINDING CONTRACTS .................................................................................................................... 3839
88. COMMON SEAL ................................................................................................................................... 39
89. USE OF THE SEAL .............................................................................................................................. 39
90. OFFICIAL SEAL FOR SHARE CERTIFICATES .................................................................................. 39
91. EXECUTION OF NEGOTIABLE INSTRUMENTS ............................................................................ 3940
92. DECLARATION OF DIVIDENDS ...................................................................................................... 3940
93. ELIGIBILITY FOR DIVIDENDS ........................................................................................................ 4041
94. DEDUCTION FROM DIVIDEND ........................................................................................................... 41
95. UNCLAIMED DIVIDENDS .................................................................................................................... 41
96. CURRENCY OF DIVIDEND .................................................................................................................. 41
97. PAYMENT OF DIVIDEND ..................................................................................................................... 41
98. JOINT HOLDERS ............................................................................................................................. 4142
99. ACCOUNTS ...................................................................................................................................... 4142
100. NOTICES IN WRITING ..................................................................................................................... 4243
101. SERVICE OF NOTICES .................................................................................................................... 4243
102. SERVICE OF NOTICE ON JOINT HOLDERS ..................................................................................... 44
103. SERVICE OF NOTICE ON TRANSFER OR TRANSMISSION OF SHARES ...................................... 44
104. SIGNATURE TO NOTICES .................................................................................................................. 44
105. DEEMED RECEIPT OF NOTICES ................................................................................................... 4445
106. WINDING UP FOLLOWING FAILURE TO APPOINT A SUCCESSOR DEPOSITARY...................... 45
106107. DISTRIBUTION ON WINDING UP ................................................................................................... 4445
107108. DISTRIBUTION IN SPECIE .................................................................................................................. 45
108109. STRIKE OFF ..................................................................................................................................... 4546
109110. MINUTES OF MEETINGS ................................................................................................................. 4546
110111. INSPECTION AND SECRECY ............................................................................................................. 46
111112. DESTRUCTION OF RECORDS ........................................................................................................... 46
112113. UNTRACED HOLDERS ........................................................................................................................ 47
113114. INDEMNITY ........................................................................................................................................... 47 114115. OVERRIDING PROVISIONS ............................................................................................................ 4748
115116. SCHEMES OF RECONSTRUCTION OR AMALGAMATION .............................................................. 48
116117. RESTRICTION ON MODIFICATIONS TO THE INSTRUMENT OF INCORPORATION ..................... 48
117118. ASSETS AND SEGREGATION OF LIABILITY ................................................................................... 48
118119. CROSS INVESTMENT .......................................................................................................................... 49
SCHEDULE 1 ..................................................................................................................................................... 50
SCHEDULE 2 ..................................................................................................................................................... 71
Electronic Communication has the same meaning as under the Electronic Commerce Act 2000, and "electronic" and "electronically" shall be construed accordingly.
Encumbrance means any mortgage, pledge, lien, charge, assignment, hypothecation or other agreement or arrangement which has the same or a similar effect to the granting of security.
Equalisation Account means an equalisation account which may in the discretion of the Directors be maintained in respect of any Fund in accordance with clause 26 of Schedule 1.
Equalisation Payment means an amount paid in accordance with clause 26 of Schedule 1 (subject to any determination of the Directors to the contrary) calculated at such rate per Share of a class of Shares as shall be determined by the Directors by reference to their estimate from time to time of the next dividend to be declared in respect of the relevant class Fund(s) the portfolio(s) maintained in accordance with clause 26 of Schedule 1 which shall be kept separate in respect of each class of Share or the relevant classes of Share (where more than one class of Share has been created to participate in a Fund) to which all assets and liabilities, income and expenditure attributable or allocated to each such Fund shall be applied and charged.
EU Member State means any member state of the European Union;
Euronext Dublin means The Irish Stock Exchange plc, trading as Euronext Dublin or any successor entity thereto;
FATCA means Foreign Account Tax Compliance Act Subtitle A of Title V of the Hiring Incentives to Restore Employment Act which enacts Chapter 4 of, and makes other modifications to, the Internal Revenue Code in the United States (as amended, consolidated or supplemented from time to time), including any regulations issued pursuant thereto.
Foreign Person has the meaning given to that term in the Prospectus.
Funds mean the portfolio(s) maintained in accordance with clause 9 of Schedule 1 which shall be kept separate in respect of each class of Share or the relevant classes of Share (where more than one class of Share has been created to participate in a Fund) to which all assets and liabilities, income and expenditure attributable or allocated to each such Fund shall be applied and charged. Additional Funds may be created with the prior approval of the Central Bank.
Hedged Currency Share Class means a Currency Share Class in respect of which the relevant Fund will conduct currency hedging transactions the benefits and costs of which will accrue solely to Holders of Shares of that class.
Holder or Shareholder means in relation to any Share or Subscriber Share, as the case may be, the member whose name is entered in the Register as the holder of such Share and in the case of a share warrant the holder of such warrant.
ICAV means the Irish collective asset-management vehicle whose name appears in the heading to this Instrument of Incorporation.
Initial Offer Period means any period determined by the Directors during which any class of Shares in the relevant Fund may be offered for subscription at a fixed price.
Instrument of Incorporation means the Instrument of Incorporation of this ICAV and the Schedules appended thereto as amended from time to time and for the time being in force.
Investment means an Investment acquired by the ICAV pursuant to clause 21 of Schedule 1.
IOSCO means the International Organisation of Securities Commissions.
Irish Stock Exchange means The Irish Stock Exchange Limited and any successor thereof.
Market means in relation to any Investment, any stock exchange, over the counter market or other regulated securities market which meets with the regulatory criteria of the Competent Authority and which is listed in the Prospectus on which an Investment is listed and/or traded.
Minimum Additional Investment Amount means such minimum cash amount or minimum number of Shares as the case may be (if any) as the Directors may from time to time require to be invested in any Fund by each Holder (after investing an initial amount).
Minimum Fund Size means such amount (if any) as the Directors may from time to time prescribe as the minimum fund size for each Fund.
Minimum Holding means such number or value of Shares of any class (if any) as the Directors may, from time to time, prescribe, as the minimum permitted holding of Shares of that class.
Minimum Initial Investment Amount means such amount as the Directors may from time to time prescribe as the minimum initial subscription for Shares of any class.
Minimum Redemption Amount means such minimum number or minimum value of Shares of any class as the case may be (if any) which may be redeemed at any time by a Holder.
Month means a calendar month.
Net Asset Value means the net asset value of the ICAV or of any Fund or any class (or any series thereof) of any Share being the value of the Assets after deduction of liabilities of the ICAV or of any Fund or attributable to any class or Share, as the case may be, which shall be calculated as at a Valuation Point in accordance with the provisions of Schedule 2.
OECD means the Organisation for Economic Co-Operation and Development;
OECD Member State means a member state of the Organisation for Economic Co-operation and Development;
Office means the registered office for the time being of the ICAV.
Operator means an operator of a Relevant System.
ordinary resolution means a resolution passed by a simple majority of the votes cast by the members of the ICAV as, being entitled to do so, vote in person or by proxy at a general meeting of the ICAV.
par value means the nominal value assigned to a security (which term includes loans) by the issuer of such security.
Permitted Investor means any person not disqualified from holding Shares by virtue of clause 20 of Schedule 1.
Prospectus means the prospectus issued from time to time by this ICAV as same may be amended, supplemented, consolidated, substituted or otherwise modified from time to time.
Register means the register of Holders to be kept as required by the Act.
Relevant System means a computer-based system and procedures, permitted by applicable law, which enables titles to units of a security to be evidenced and transferred without a written instrument and which facilitate supplementary and incidental matters and includes, without limitation, the relevant system of which Euroclear UK & Ireland (or any successor thereto) is the Operator.
Related Person means, with respect to any individual person:
(a) any direct lineal ancestor, direct lineal descendant (by birth or adoption) or sibling of such person; or
(b) the spouse or same-sex partner of such person; or
(c) a trust or custodial account solely for the benefit of such person and/or such person's direct lineal ancestors, direct lineal descendant (by birth or adoption), sibling and/or spouse or same-sex partner; or
(d) any other legal entity owned beneficially solely by and for the benefit of such person, such person's direct lineal descendant (by birth or adoption), sibling and/or spouse or same-sex partner.
Redemption Price means the redemption price of Shares calculated and determined in accordance with clauses 12 to 16 of Schedule 1.
Schedule or Schedules means the Schedule or Schedules which is/are attached to and form(s) part of the Instrument of Incorporation.
Seal means the common seal of the ICAV or (where relevant) the official securities seal kept by the ICAV pursuant to the Act.
Secretary means any person appointed to perform the duties of the secretary of the ICAV.
Settlement Date means the latest date(s) as may be determined by the Directors from time to time by which payment of the Issue Price or the Redemption Price of shares of any class must be received or made. In the case of the Redemption Price, the latest date will normally be ten Business Days after the relevant Dealing Deadline.
Share or Shares means participating shares in the ICAV representing interests in a Fund and where the context so permits or requires, any class or series in a class of participating Shares representing interests in a Fund.
special resolution means a resolution passed by not less than 75% of the votes cast by the Holders of the ICAV as, being entitled to do so, vote in person or by proxy at a general meeting of the ICAV.
Specific Investment means (a) any Investment issued or guaranteed by, the government or local authorities of a EU Member State, non-EU Member States or public international bodies of which one or more EU Member States are members; and
(b) any Investment issued anywhere in the world by any of the following:
OECD Member States excluding those listed above (provided the relevant issues are investment grade)
Government of the People's Republic of China
Government of Brazil (provided the issues are of investment grade)
Government of India (provided the issues are of investment grade)
Government of Singapore
European Investment Bank
European Bank for Reconstruction and Development
International Finance Corporation
International Monetary Fund
Euratom
The Asian Development Bank
European Central Bank
Council of Europe
Eurofima
African Development Bank
The International Bank for Reconstruction & Development
The World Bank
The Inter American Development Bank
European Union
European Central Bank
Federal National Mortgage Association (Fannie Mae)
Federal Home Loan Mortgage Corporation (Freddie Mac)
Government National Mortgage Association(Ginnie Mae)
Student Loan Regulated Marketing Association (Sallie Mae)
Federal Home Loan Bank
Federal Farm Credit Bank
Tennessee Valley Authority
Straight-A Funding LLC
Provided further that the relevant Fund holds securities from at least six different issues and that securities from any one issue may not account for more than 30% of the net assets.
State or Ireland means the Republic of Ireland.
Subscriber Share means a non-participating share in the capital of the ICAV issued in accordance with this Instrument of Incorporation and with the rights provided for under this Instrument of Incorporation.
Subscription Price means the issue price of shares calculated and determined by the Directors in accordance with clause 2 of Schedule 1.
Supplement means any supplement to the Prospectus issued on behalf of the ICAV in relation to a Fund from time to time.
Taxable Irish Person has the meaning given to it in the Prospectus.
TCA means the Taxes Consolidation Act, 1997, as amended.
UCITS Regulations means the European Communities (Undertakings for Collective Investment in Transferable Securities) Regulations 2011, as amended or supplemented from time to time, and every regulation or other provision of law modifying or extending them.
Unhedged Currency Share Class means a class of Shares where, typically, Shares may be subscribed for and dividends calculated and paid and redemption proceeds paid in a currency other than the base currency of the relevant Fund on the basis of a currency conversion at the prevailing spot currency exchange rate of the relevant base currency for the currency of the relevant Share class but in respect of which no hedging will be made other than at the Fund level.
United States means the United States of America (including each of the states, the District of Columbia and the Commonwealth of Puerto Rico) its territories, possessions and all other areas subject to its jurisdiction.
U.S. Person has the meaning given in Regulation S under the United States Securities Act of 1933, as amended.
Valuation Point means such point in time, in such place or places as the Directors may, from time to time determine, by reference to which the Net Asset Value is calculated as is specified in the relevant
price of €1.00 per share and shall be known as Subscriber Shares. Subscriber Shares may be redeemed by the ICAV upon request at a price of €1.00 per share and Subscriber Shares so redeemed shall be cancelled. Subscriber Shares may at the discretion of the Directors be transferred to investors who apply for shares during the Initial Offer Period of a Fund and (in such circumstances) prior to the expiration of such Initial Offer Period will be re-classified as shares of the relevant Fund.
7.8. Notwithstanding any other provision of this Instrument of Incorporation, the Directors may permit title to the shares to be transferred by means of a computer based system and the Directors shall have the power to implement any arrangements they think fit for evidencing title and arranging transfer of such ancillary arrangements (including any anti-money laundering requirements) which seem to them necessary or desirable in respect of shares to be transferred in such a system.
7.9. Notwithstanding any other provision in this Instrument of Incorporation, in accordance with the requirements of the Competent Authority, and where provided for in the relevant Supplement, the Directors may issue shares in a Fund in series (which may be issued at a set amount per Share and redeemed at their own Net Asset Value per Share) for the purposes of the separate calculation of performance fees (or equivalent), or for any other reason permitted by the Competent Authority, and reference to class or classes in this Instrument of Incorporation will be construed accordingly including, without limitation, as regards subscriptions, redemptions and distributions. Such series may be consolidated or converted into other series of Shares in the same Fund or provided for in the Prospectus or the relevant Supplement.
7.10. The Directors may in their absolute discretion at any time, without notice, discontinue the issue and sale of Shares of any Fund.
7.11. Notwithstanding anything to the contrary contained herein, the Directors may, with the authority of a special resolution transfer the settlement of trading in all Shares of the ICAV from the Central Securities Depositary model to an International Central Securities Depositary (ICSD) model. Any such resolution shall be effective in respect of all Shares, regardless of whether the Holders thereof voted in favour of the resolution or at all.
8. VARIATION OF RIGHTS
8.1. Whenever the share capital is divided into different classes of shares, the rights attached to any class may be varied or abrogated with the consent in writing of the Holders of three-fourths in number of the issued shares of that class, or with the sanction of a special resolution passed at a separate general meeting of the Holders of the shares of the class, and may be so varied or abrogated either whilst the ICAV is a going concern or during or in contemplation of a winding-up but such consent or sanction will not be required in the case of a variation, amendment or abrogation of the rights attached to any shares of any class if, in the view of the Directors, such variation, amendment or abrogation does not materially prejudice the interests of the relevant Holders or any of them. Any such variation, amendment or abrogation will be set out in a supplement to (or re-statement of) the Prospectus or relevant Supplement originally issued in connection with the relevant shares, a copy of which will be sent to the relevant Holders entered on the Register on the date of issue of such document and will be binding on the relevant Holders. 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 of the issued shares of the class in question and the quorum at an adjourned meeting shall be one person holding shares of the class in question or his shall be one Holder of issued shares of the relevant class present in person or by proxy.
TRANSFER OF SHARES
19. FORM OF INSTRUMENT OF TRANSFER
Subject to such of the restrictions of this Instrument of Incorporation and to such of the conditions of issue as may be applicable, the Shares of any Holder may be transferred by instrument in writing in any usual or common form or any other form which the Directors may approve.
19A TRANSFER OF SHARES IN DEMATERIALISED FORM
Notwithstanding any other provision of this Instrument of Incorporation, a transfer of a Share in dematerialised form shall be made in accordance with and subject to the applicable law and the facilities and requirements of the Relevant System and in accordance with any arrangements made by the Directors pursuant to clause 14.
20. EXECUTION OF INSTRUMENT OF TRANSFER
The instrument of transfer of any Share shall be executed by or on behalf of the transferor Holder. 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 thereof.
21. PAYMENT OF TAXATION UPON TRANSFER
The Directors may redeem and cancel a sufficient portion of the transferor's Shares to discharge any taxation payable to any tax authorities in respect of a transfer of Shares by a Holder.
22. REFUSAL TO REGISTER TRANSFERS
22.1. The Directors in their absolute discretion and without assigning any reason therefor may decline to register any transfer of Shares including in the following circumstances:
22.1.1. any transfer of a Share to a person who is not a Permitted Investor;
22.1.2. any transfer to or by a minor or person of unsound mind;
22.1.3. any transfer unless the transferee of such Shares would following such transfer be the holder of Shares with a value at the then current Subscription Price equal to or greater than the Minimum Initial Investment Amount;
22.1.4. any transfer in circumstances where as a result of such transfer the transferor or transferee would hold less than the Minimum Shareholding;
PROCEEDINGS AT GENERAL MEETINGS
38. QUORUM FOR GENERAL MEETINGS
38.1. No business other than the appointment of a chairman shall be transacted at any general meeting unless a quorum of Holders is present at the time when the meeting proceeds to business. Except as provided in relation to an adjourned meeting, two persons one (1) person entitled to vote upon the business to be transacted, each being a Holder or a proxy for a Holder or a duly authorised representative of a corporate Holder, shall be a quorum.
38.2. If such a quorum is not present within half an hour from the time appointed for the meeting, or if during a meeting a quorum ceases to be present, the meeting shall stand adjourned to the same day in the next week at the same time and place, or to such other day, time and place as the Directors may determine. If at the adjourned meeting such a quorum is not present within half an hour from the time appointed for the meeting, the meeting, if convened otherwise than by resolution of the Directors, shall be dissolved, but if the meeting shall have been convened by resolution of the Directors, one person entitled to be counted in a quorum present at the meeting shall be a quorum.
39. SPECIAL BUSINESS
All business shall be deemed special that is transacted at an extraordinary general meeting. All business that is transacted at an annual general meeting shall also be deemed special, with the exception of declaring a dividend, the consideration of the accounts, balance sheets and reports of the Directors and Auditors, the re-appointment of the retiring Auditors and the fixing of the remuneration of the Auditors.
40. CHAIRMAN OF GENERAL MEETINGS
40.1. The chairman of the board of Directors or, in his absence, the deputy chairman (if any) or, in his absence, some other Director nominated by the Directors shall preside as chairman at every general meeting of the ICAV. If at any general meeting none of such persons shall be present within fifteen minutes after the time appointed for the holding of the meeting and willing to act, the Directors present shall elect one of their number to be chairman of the meeting and, if there is only one Director present and willing to act, he shall be chairman.
40.2. If at any meeting no Director is willing to act as chairman or if no Director is present within fifteen minutes after the time appointed for holding the meeting, the Holders present (in person or by proxy or by representative) and entitled to vote shall choose one of the Holders (including his proxy or its duly authorised representative) personally present to be chairman of the meeting.
41. DIRECTORS' AND AUDITORS' RIGHT TO ATTEND GENERAL MEETINGS
A Director shall be entitled, notwithstanding that he is not a Holder, to attend and speak at any general meeting and at any separate meeting of the Holders of any class of Shares in the ICAV. The Auditors shall be entitled to attend any general meeting and to be heard on any part of the business of the meeting which concerns them as the Auditors.
42. ADJOURNMENT OF GENERAL MEETINGS
The chairman, with the consent of a meeting at which a quorum is present, may (and if so directed by the meeting, shall) adjourn the meeting from time to time (or without assigning a day for the adjourned meeting) and from place to place, but no business shall be transacted at any adjourned meeting other than business which might properly have been transacted at the meeting had the adjournment not taken place. Where a meeting is adjourned without assigning a day for the adjourned meeting, the time and place for the adjourned meeting shall be fixed by the Directors. When a meeting is adjourned for fourteen days or more or without assigning a day for the adjourned meeting, at least seven Clear Days' notice shall be given specifying the time and meeting and the general nature of the business to be transacted. Save as aforesaid it shall not be necessary to give any notice of an adjourned meeting.
43. DETERMINATION OF RESOLUTIONS
At any general meeting a resolution put to the vote of the meeting shall be decided on a show of hands unless before, or on the declaration of the result of, the show of hands a poll is duly demanded. Unless a poll is so demanded a declaration by the chairman that a resolution has been carried or carried unanimously, or by a particular majority, or lost, or not carried by a particular majority and an entry to that effect in the minutes of the meeting shall be conclusive evidence of the fact without proof of the number or proportion of the votes recorded in favour of or against the resolution. The demand for a poll may be withdrawn before the poll is taken but only with the consent of the chairman, and a demand so withdrawn shall not be taken to have invalidated the result of a show of hands declared before the demand was made.
44. ENTITLEMENT TO DEMAND POLL
44.1. A poll may be demanded:
44.1.1. by the chairman of the meeting;
44.1.2. by at least two Holders one Holder present (in person or by proxy) having the right to vote at the meeting; or
44.1.3. by any Holder or Holders present (in person or by proxy) representing not less than onetenth of the total voting rights of all the Holders having the right to vote at the meeting.
19. Notification of suspension to competent authority, stock exchanges and holders
Any such suspension of the determination of the Net Asset Value of a Fund shall be notified to the Competent Authority immediately and in any event within the same Business Day on which such suspension occurred. If the Shares are listed on the official list and trading on the main securities market of the Irish Stock Exchange Euronext Dublin or any other exchange any such suspension shall be notified to the Irish Stock Exchange Euronext Dublin and such other exchange within the time frame specified above. Details of any such suspension will also be notified to all Holders if in the opinion of the Directors, it is likely to exceed 14 days.
This announcement has been issued through the Companies Announcement Service of Euronext Dublin.
Circular to Shareholders 07:00:0511 May 2020Miscellaneous3472M