REG - HSBC ETFs PLC - Notice of EGM
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RNS Number : 5673R HSBC ETFs PLC 18 July 2025
NOTICE OF EXTRAORDINARY GENERAL MEETING
OF THE SHAREHOLDERS OF
HSBC ETFs PLC
(THE "COMPANY")
THIS DOCUMENT IS IMPORTANT AND REQUIRES YOUR IMMEDIATE ATTENTION. If you are
in any doubt about the course of action to take, you should consult your
stockbroker, solicitor, accountant or other professional advisor.
NOTICE IS HEREBY GIVEN that an Extraordinary General Meeting ("EGM") will be
held at the registered office of the Company at 25 North Wall Quay, Dublin
1 on 15 August 2025 at 12.00pm (Irish time) to consider and, if thought fit,
pass the resolution set out below as a special resolution. Also enclosed is a
proxy appointment form in order for you to cast your votes on the matters to
be voted on at the EGM.
Special Resolution: That the constitution of the Company is updated with the
proposed changes appended to this notice at Appendix 1 in red.
__________________________________
For and on behalf of the Board
Registered Office
25 North Wall Quay
Dublin 1
Ireland
Company Number 467896
18 July 2025
Notes:
1. Please note that you are only entitled to attend and vote at the
EGM (or any adjournment thereof) if you are a registered Shareholder on 13
August 2025 (or on the day that is two days prior to the adjourned meeting).
As the Company uses the International Central Securities Depositary (ICSD)
model of settlement and HSBC Issuer Services Common Depositary Nominee (UK)
Limited is the sole registered Shareholder of Shares, investors in the Company
should submit their voting instructions through the relevant ICSD or the
relevant participant in an ICSD (such as a local central securities
depositary, broker or nominee). If any investor has invested in the Company
through a broker/dealer/other intermediary, the investor should contact this
entity to provide voting instructions.
2. Proxies must be sent to the Company Secretary, c/o Goodbody Secretarial
Limited, 25 North Wall Quay, Dublin 1, Ireland. Alternatively, proxies may
be sent by fax to the Company Secretary at +353 (0) 1 649 2649 for the
attention of Jacquie Verner or by email to jverner@algoodbody.com
(mailto:jverner@algoodbody.com) or gslfunds@algoodbody.com
(mailto:gslfunds@algoodbody.com) . To be valid, proxies and any powers of
attorney under which they are signed must be received by the Company Secretary
not less than 48 hours before the time appointed for the holding of the
meeting.
3. The share classes and ISINs can be found in Appendix 2.
FORM OF PROXY
extraordinary GENERAL MEETING OF SHAREHOLDERS OF
HSBC ETFs PLC
(THE "COMPANY")
I/We...............................................................................................................................................
(Block letters)
of....................................................................................................………………….....................................................
being (a) member(s) of HSBC ETFs PLC, appoint the Chairperson of the meeting
or failing him/her appoint an authorised representative of Goodbody
Secretarial Limited OR failing him/her (see note (h))
...................................................................................................………………….........................................................
(Block letters)
of....................................................................................................................................................
as my/our proxy to vote for me/us and on my/our behalf at the Extraordinary
General Meeting of the Company to be held at the registered office of the
Company at 25 North Wall Quay, Dublin 1 on 15 August 2025 at 12.00pm (Irish
time) and at any adjournment thereof.
Please indicate with a tick (P) in the spaces provided how you wish your votes
to be cast, otherwise your proxy will vote as he/she thinks fit. In the event
that an authorised representative of Goodbody Secretarial Limited is appointed
as a proxy, such proxy will vote as indicated above and the shareholder hereby
indemnifies the authorised representative of Goodbody Secretarial Limited for
any losses or liability such representative of Goodbody Secretarial Limited
may suffer as a result of it acting in good faith in the exercise of this
proxy.
SPECIAL RESOLUTION FOR ABSTAIN AGAINST
That the constitution of the Company is updated with the proposed changes
appended to this notice at Appendix 1.
Dated:
_______________________________
______________________
Name and Address of
Shareholder
Signature of Shareholder
Notes:
(a) Please note that you are only entitled to attend and vote at
the EGM (or any adjournment thereof) if you are a registered Shareholder on 13
August 2025 (or on the day that is two days prior to the adjourned meeting).
As the Company uses the International Central Securities Depositary (ICSD)
model of settlement and HSBC Issuer Services Common Depositary Nominee (UK)
Limited is the sole registered Shareholder of Shares, investors in the Company
should submit their voting instructions through the relevant ICSD or the
relevant participant in an ICSD (such as a local central securities
depositary, broker or nominee). If any investor has invested in the Company
through a broker/dealer/other intermediary, the investor should contact this
entity to provide voting instructions.
(b) The proxy form must be given either under seal or signed on
behalf of HSBC Issuer Services Common Depositary Nominee (UK) Limited by an
attorney or by a duly authorised officer of the Shareholder.
(c) To be valid this proxy form and any power of attorney under
which it is signed must reach the Company Secretary, c/o Goodbody Secretarial
Limited, 25 North Wall Quay, IFSC, Dublin 1, Ireland. Alternatively, proxies
may be sent by fax to the Company Secretary at +353 (0) 1 649 2649 for the
attention of Jacquie Verner or by email to jverner@algoodbody.com or
gslfunds@algoodbody.com. To be valid, proxies and any powers of attorney under
which they are signed must be received by the Company Secretary not less than
48 hours before the time appointed for the holding of the meeting.
(d) In the event that an authorised representative of Goodbody
Secretarial Limited is appointed as a proxy, such proxy will vote as indicated
above. In the absence of any direction the proxy will vote in favour of the
resolutions. The shareholder hereby indemnifies Goodbody Secretarial Limited
and its authorised representatives for any losses or liability incurred as a
result of acting in good faith in the exercise of this proxy.
Appendix I
THE COMPANIES ACT 2014
A PUBLIC COMPANY LIMITED BY SHARES
MEMORANDUM OF ASSOCIATION
-of-
HSBC ETFs PUBLIC LIMITED COMPANY
(An investment company with variable capital constituted as an umbrella fund
with segregated liability between sub-funds).
(as amended and adopted by all special resolutions up to and including 15
August 2025)
1. The name of the Company is "HSBC ETFs Public Limited Company".
2. The Company is a public limited company being an investment company
with variable capital structured as an umbrella fund with segregated liability
between sub-funds having as its sole object the collective investment in
either or both transferable securities and other liquid financial assets of
capital raised from the public operating on the principle of risk-spreading in
accordance with the European Communities (Undertakings for Collective
Investment in Transferable Securities) Regulations 2011 (S.I. No. 352 of 2011)
(as amended and as may be further amended, consolidated or substituted from
time to time).
3. The powers of the Company to attain the said object are:
3.1. To carry on business as an investment company and for that purpose to
acquire, dispose of, invest in and hold by way of investment, either in the
name of the Company or in that of any nominee, any shares, stocks, warrants,
units, participation certificates, debentures, debenture stock, bonds,
obligations, collateralized obligations, loans, loan stock, notes, loan notes,
promissory notes, structured notes, structured bonds, structured debentures,
commercial paper, certificates of deposit, bills of exchange, trade bills,
treasury bills, futures contracts, swap contracts, contracts for differences,
commodities of every description (including precious metals and oil), variable
or floating rate securities, securities in respect of which the return and/or
redemption amount is calculated by reference to any index, price or rate,
options contracts, forward rate agreements, policies of assurance and
insurance, currencies, money market instruments and financial instruments and
securities of whatsoever nature created, issued or guaranteed by any company
wherever incorporated or carrying on business or by any partnership, trust,
unit trust, mutual fund or other collective investment scheme of whatsoever
nature wherever formed or registered or carrying on business or issued or
guaranteed by any government, government instrumentality, political
subdivisions, sovereign ruler, commissioners, public body or authority
supreme, dependant, state, territorial, commonwealth, municipal, local or
otherwise in any part of the world, units of or participation in any unit
trust scheme, mutual fund or other collective investment scheme in any part of
the world and whether or not fully paid up, and any present or future rights
and interest to or in any of the foregoing, and from time to time to acquire,
invest in, and vary, exchange, grant, sell and dispose of options over any of
the foregoing and to subscribe for the same subject to such terms and
conditions (if any) as may be thought fit and to exercise and enforce all
rights and powers conferred by or incidental to the ownership or holding of
any of the foregoing or of any legal or equitable interest therein and to
deposit money (or place money on current account) with such persons in such
currencies and otherwise on such terms as may seem expedient.
3.2. To deposit money, securities and any other property of whatsoever nature
to or with such person, and on such terms as may seem expedient and to
discount, buy and sell bills, notes, warrants, coupons and other negotiable or
transferable instruments, securities or documents of whatsoever nature.
3.3. To employ derivative instruments and techniques of all kinds for
investment purposes and for the efficient management of the Company's assets
and, in particular, but without prejudice to the generality of the foregoing,
to enter into, accept, issue and otherwise deal with sale and repurchase
agreements, futures contracts, options, securities lending agreements, short
sales agreements, when-issued, delayed delivery and forward commitment
agreements, foreign currency spot and forward rate exchange contracts, forward
rate agreements, swaps, collars, floors and caps and other foreign exchange or
interest rate hedging and investment arrangements.
3.4. Where required for the direct pursuit of the business of the Company, to
acquire by purchase, lease, exchange, fee farm grant, hire or otherwise any
estate or interest, whether immediate or reversionary and whether vested or
contingent, in any lands, tenements or hereditaments of any tenure and
wheresoever situate, and whether subject or not to any charges or encumbrances
and whether or not such acquisition be by way of investment or otherwise, and
to hold, manage and deal with the said lands, tenements or hereditaments and
to carry out any works thereto and to sell, lease, let, mortgage or otherwise
dispose of any estate or interest therein.
3.5. Where required for the direct pursuit of the business of the Company, to
acquire by purchase, lease, exchange, hire or otherwise any personal property
of whatsoever nature wheresoever situate or any interest therein and to hold,
manage and deal with the said property and sell, lease, let, mortgage or
otherwise dispose of the said property.
3.6. To carry on all kinds of financial, trust, agency, broking and other
operations including the underwriting, issuing on commission or otherwise of
stock and securities of all kinds.
3.7. To accumulate capital for any of the purposes of the Company, and to
appropriate any of the Company's assets to specific purposes, either
conditionally or unconditionally and to admit any class or section of those
who have any dealings with the Company to any share in the profits thereof or
to any other special rights, privileges, advantages or benefits.
3.8. To receive money on loan and to borrow or raise money in any currency in
any manner and to secure or discharge any debt or obligation of or binding on
the Company in any manner and to secure with or without consideration the
repayment of any money borrowed, raised or owing by mortgage, charge, lien or
security of whatsoever nature against the whole or any part of the Company's
undertaking, property or assets (whether present or future) and also by a
similar mortgage, charge, lien or security of whatsoever nature to secure or
guarantee the performance of any obligation or liability undertaken by the
Company or by any other company or person.
3.9. To guarantee the payment of money by or the performance of any contracts,
liabilities, obligations, or engagements of any company, firm or person
(including, without limitation, any unincorporated association, partnership,
limited partnership, trust, unit trust, mutual fund or other collective
investment scheme in any part of the world) and to grant guarantees and
indemnities of every description, and to undertake obligations of every
description.
3.10. To create, maintain, invest and deal with any
reserve or sinking funds for redemption of obligations of the Company or for
any other purpose of the Company.
3.11. To enter into any arrangements with any government
or authority supreme, dependent, municipal, local or otherwise in any part of
the world and to obtain from any such government or authority any rights,
concessions and privileges that may seem conducive to the objects of the
Company or any of them.
3.12. To employ any person for the purposes of the
business carried on by the Company or to employ or enter into any contract for
services with any person, firm, company or other body to investigate and
examine the conditions, prospects, values, character and circumstances of any
business concern or undertaking and generally of any assets, concessions,
properties or rights and to provide administration, depositary, investment
management and advisory and distribution services to the Company.
3.13. To take out, acquire, surrender and assign policies
of assurance with any insurance company or companies it may think fit payable
at fixed or uncertain dates or upon the happening of any contingency
whatsoever and to pay the premiums thereon.
3.14. To promote and aid in the promoting, constitute,
form or organise companies, unincorporated associations, syndicates,
partnerships, limited partnerships, trusts, unit trusts, mutual funds or
collective investment schemes of all kinds in any part of the world and to
subscribe for shares or units therein or other securities thereof for the
purpose of carrying on any business which the Company is authorised to carry
on and/or for the purpose of its or their acquiring all or any of the
property, rights and liabilities of the Company and/or for the purpose of
advancing directly or indirectly the objects of the Company, and/or for any
other purpose which may seem directly or indirectly calculated to benefit the
Company and to pay any or all of the expenses of or incidental thereto.
3.15. To amalgamate or enter into partnership or into any
arrangement for sharing profits, union of interest, joint venture, reciprocal
concessions or co-operation with any person or company carrying on, engaged
in, or about to carry on or engage in any business or transaction which the
Company is authorised to carry on or engage in, or any business or transaction
capable of being conducted so as directly or indirectly to benefit the
Company.
3.16. To establish and/or carry on any other business or
businesses which may seem to the Company capable of being conveniently carried
on in connection with any business which the Company is authorised to carry
on, or may seem to the Company calculated directly or indirectly to benefit
the Company or to enhance the value of or render profitable any of the
Company's properties or rights.
3.17. To acquire and carry on all or any part of the
business, goodwill or property, and to undertake any liabilities of any
person, firm, association, company, unincorporated association, partnership,
limited partnership, trust, unit trust or other collective investment scheme
possessed of property suitable for any of the purposes of the Company, or
carrying on or proposing to carry on any business which the Company is
authorised to carry on, and as the consideration for the same to pay cash or
to issue any fully or partly paid up shares or obligations of the Company or
undertake all or any of the liabilities of such person, firm association,
company, unincorporated association, partnership, limited partnership, trust,
unit trust or other collective investment scheme
3.18. To create, issue, make, draw, accept, endorse,
discount, negotiate and otherwise deal with redeemable debentures or bonds or
other obligations, bills of exchange, promissory notes, letters of credit or
other negotiable or mercantile instruments.
3.19. To the extent provided by law to obtain and hold,
either alone or jointly with any person or company in any part of the world,
insurance cover in respect of any risk of the Company, its directors,
officers, employees and agents.
3.20. To distribute among the members of the Company in
specie any assets of the Company or any proceeds of sale or disposal of any
assets of the Company and in particular to repay any surplus or premiums on
any shares of the Company.
3.21. To sell, let, lend, develop, dispose of or otherwise
deal with the undertaking, property or assets of the Company or any part
thereof or all or any part of the property, rights or privileges of the
Company upon such terms as the Company may think fit, with power to accept as
the consideration, any shares, stocks, units, debentures, mortgages,
indemnities, liens, pledges, hypothecations, securities or obligations of
whatsoever nature of or interest in any other company, unincorporated
association, partnership, limited partnership, trust, unit trust or other
collective investment scheme or any mortgage, pledge or hypothecation of such
interests.
3.22. To remunerate any companies, firms or persons for
services rendered or to be rendered to the Company including in particular,
but without limitation, services rendered or to be rendered in placing or
assisting to place or guaranteeing the placing of any of the shares in the
Company's capital or any debentures or other securities of the Company or in
or about the promotion of the Company or the conduct of its business and
whether by cash payment or by the allotment to him or them of stocks, shares,
debentures, bonds or other securities of the Company, credited as paid up in
full in part or otherwise.
3.23. To pay out of the funds of the Company all expenses
of or incidental to or incurred in connection with the formation and
incorporation of the Company and the promotion of the Company and the raising
of money for the Company and the issue of its capital or any class thereof,
including brokerage and commissions for obtaining applications for or taking,
placing or procuring the underwriting of shares or other securities of the
Company and any other expenses which the Directors shall consider to be in the
nature of preliminary expenses.
3.24. To pay for any property or rights acquired by the
Company either in cash or by the issue of fully or partly paid shares of the
Company.
3.25. To procure the Company to be registered or
recognised in any part of the world.
3.26. To exercise all or any of the powers aforesaid in
any part of the world through branches or offices or otherwise and as
principals, agents, contractors, trustees or otherwise, and by or through
trustees, agents, attorneys, sub-contractors or otherwise, and either alone or
in conjunction with others and to contract for the carrying on of any
operation connected with the Company's business by any person or company in
any part of the world.
3.27. Subject to the requirements of law, to convert to an
Irish collective asset-management vehicle ("ICAV") and apply to the Central
Bank to be registered as an ICAV by way of continuation.
3.28. To do all such other things as the Company may deem
incidental or conducive to the attainment of any of the objects of the
Company.
3.29. Each of the powers of the Company (whether
enumerated or not) is to be interpreted and exercised as ancillary to the main
object but separate from and ranking equally to any other ancillary power.
And it is hereby declared that in the construction of this clause the word
"company" except where used in reference to this Company, shall be deemed to
include any person or partnership or other body of persons, whether
incorporated or not incorporated, and whether domiciled in Ireland or
elsewhere, and words denoting the singular number only shall include the
plural number and vice versa and the intention is that the powers specified in
each paragraph of this clause shall, except where otherwise expressed in such
paragraph, be in no way restricted by reference to or inference from the terms
of any other paragraph or the name of the Company.
4. The liability of the members is limited.
5. The minimum authorised share capital of the Company is €2.00
represented by 2 (two) Subscriber Shares of no par value issued at €1.00
each and the maximum authorised share capital of the Company is 2 (two)
Subscriber Shares of no par value issued at €1.00 each, 300,000 (three
hundred thousand) Capitalisation Shares of no par value to be issued at
€1.00 each and 500,000,000,000 (five hundred billion) Shares of no par
value, designated as unclassified shares.
We, the several persons whose names, addresses and descriptions are
subscribed, wish to be formed into a company in pursuance of this Memorandum
of Association, and we agree to take the number of Shares in the capital of
the Company set opposite our respective names.
Names, Addresses and Description Number of Shares taken
of subscribers by each Subscriber
(written in full)
Matsack Trust Limited One Share
70 Sir John Rogerson's Quay
Dublin 2
Matsack Nominees Limited One Share
70 Sir John Rogerson's Quay
Dublin 2
Total No. of Shares taken: Two Shares
Dated the 23 day of February 2009.
Witness to the above Signatures:
Donnchadh Galvin
Company Secretarial Assistant
70 Sir John Rogerson's Quay
Dublin 2
THE COMPANIES ACT 2014
A PUBLIC COMPANY LIMITED BY SHARES
ARTICLES OF ASSOCIATION
OF
HSBC ETFs Public Limited Company
(An investment company with variable capital constituted as an umbrella fund
with segregated liability between sub-funds).
(as amended and adopted by all special resolutions up to and including 15
August 2025)
INDEX
CONTENTS
Article Description
Page No
1. (#_Toc531687736) ........ (#_Toc531687736) Interpretation (#_Toc531687736)
.................................................................................................................
(#_Toc531687736) (#_Toc531687736) 8 (#_Toc531687736)
2. (#_Toc531687737) ........ (#_Toc531687737) Preliminary (#_Toc531687737)
...................................................................................................................
(#_Toc531687737) (#_Toc531687737) 16 (#_Toc531687737)
3. (#_Toc531687738) ........ (#_Toc531687738) Depositary, Manager,
Administrator and Investment Manager (#_Toc531687738)
.................................. (#_Toc531687738) (#_Toc531687738) 17
(#_Toc531687738)
4. (#_Toc531687739) ........ (#_Toc531687739) Share Capital (#_Toc531687739)
................................................................................................................
(#_Toc531687739) (#_Toc531687739) 20 (#_Toc531687739)
5. (#_Toc531687740) ........ (#_Toc531687740) Funds (#_Toc531687740)
...........................................................................................................................
(#_Toc531687740) (#_Toc531687740) 22 (#_Toc531687740)
6. (#_Toc531687741) ........ (#_Toc531687741) Share Certificates
(#_Toc531687741)
.........................................................................................................
(#_Toc531687741) (#_Toc531687741) 22 (#_Toc531687741)
7. (#_Toc531687742) ........ (#_Toc531687742) Permitted Investments
(#_Toc531687742)
.................................................................................................
(#_Toc531687742) (#_Toc531687742) 24 (#_Toc531687742)
8. (#_Toc531687743) ........ (#_Toc531687743) Allotment and Issue of Shares
(#_Toc531687743)
.....................................................................................
(#_Toc531687743) (#_Toc531687743) 26 (#_Toc531687743)
9. (#_Toc531687744) ........ (#_Toc531687744) Subscription Price
(#_Toc531687744)
........................................................................................................
(#_Toc531687744) (#_Toc531687744) 28 (#_Toc531687744)
10. (#_Toc531687745) ...... (#_Toc531687745) Qualified Holders
(#_Toc531687745)
........................................................................................................
(#_Toc531687745) (#_Toc531687745) 29 (#_Toc531687745)
11. (#_Toc531687746) ...... (#_Toc531687746) Redemption of Shares
(#_Toc531687746)
.................................................................................................
(#_Toc531687746) (#_Toc531687746) 31 (#_Toc531687746)
12. (#_Toc531687747) ...... (#_Toc531687747) Total Redemption (#_Toc531687747)
........................................................................................................
(#_Toc531687747) (#_Toc531687747) 35 (#_Toc531687747)
13. (#_Toc531687748) ...... (#_Toc531687748) Series Conversions
(#_Toc531687748)
.......................................................................................................
(#_Toc531687748) (#_Toc531687748) 36 (#_Toc531687748)
14. (#_Toc531687749) ...... (#_Toc531687749) Determination of Net Asset Value
(#_Toc531687749)
..............................................................................
(#_Toc531687749) (#_Toc531687749) 37 (#_Toc531687749)
15. (#_Toc531687750) ...... (#_Toc531687750) Valuation of Assets
(#_Toc531687750)
.....................................................................................................
(#_Toc531687750) (#_Toc531687750) 39 (#_Toc531687750)
16. (#_Toc531687751) ...... (#_Toc531687751) Transfer and Transmission of
Shares (#_Toc531687751)
...........................................................................
(#_Toc531687751) (#_Toc531687751) 42 (#_Toc531687751)
17. (#_Toc531687752) ...... (#_Toc531687752) Hedging Powers (#_Toc531687752)
..........................................................................................................
(#_Toc531687752) (#_Toc531687752) 44 (#_Toc531687752)
18. (#_Toc531687753) ...... (#_Toc531687753) General Meetings (#_Toc531687753)
.........................................................................................................
(#_Toc531687753) (#_Toc531687753) 44 (#_Toc531687753)
19. (#_Toc531687754) ...... (#_Toc531687754) Notice of General Meetings
(#_Toc531687754)
.........................................................................................
(#_Toc531687754) (#_Toc531687754) 44 (#_Toc531687754)
20. (#_Toc531687755) ...... (#_Toc531687755) Proceedings at General Meetings
(#_Toc531687755)
................................................................................
(#_Toc531687755) (#_Toc531687755) 45 (#_Toc531687755)
21. (#_Toc531687756) ...... (#_Toc531687756) Votes of Shareholders
(#_Toc531687756)
.................................................................................................
(#_Toc531687756) (#_Toc531687756) 46 (#_Toc531687756)
22. (#_Toc531687757) ...... (#_Toc531687757) Directors (#_Toc531687757)
......................................................................................................................
(#_Toc531687757) (#_Toc531687757) 48 (#_Toc531687757)
23. (#_Toc531687758) ...... (#_Toc531687758) Transactions with Directors
(#_Toc531687758)
.........................................................................................
(#_Toc531687758) (#_Toc531687758) 50 (#_Toc531687758)
24. (#_Toc531687759) ...... (#_Toc531687759) Powers of Directors
(#_Toc531687759)
.....................................................................................................
(#_Toc531687759) (#_Toc531687759) 52 (#_Toc531687759)
25. (#_Toc531687760) ...... (#_Toc531687760) Borrowing Powers (#_Toc531687760)
.......................................................................................................
(#_Toc531687760) (#_Toc531687760) 53 (#_Toc531687760)
26. (#_Toc531687761) ...... (#_Toc531687761) Proceedings of Directors
(#_Toc531687761)
.............................................................................................
(#_Toc531687761) (#_Toc531687761) 53 (#_Toc531687761)
27. (#_Toc531687762) ...... (#_Toc531687762) Managing Director
(#_Toc531687762)
.......................................................................................................
(#_Toc531687762) (#_Toc531687762) 54 (#_Toc531687762)
28. (#_Toc531687763) ...... (#_Toc531687763) Secretary (#_Toc531687763)
......................................................................................................................
(#_Toc531687763) (#_Toc531687763) 55 (#_Toc531687763)
29. (#_Toc531687764) ...... (#_Toc531687764) The Seal (#_Toc531687764)
.......................................................................................................................
(#_Toc531687764) (#_Toc531687764) 55 (#_Toc531687764)
30. (#_Toc531687765) ...... (#_Toc531687765) Dividends and Participation
(#_Toc531687765)
........................................................................................
(#_Toc531687765) (#_Toc531687765) 55 (#_Toc531687765)
31. (#_Toc531687766) ...... (#_Toc531687766) Accounts (#_Toc531687766)
......................................................................................................................
(#_Toc531687766) (#_Toc531687766) 58 (#_Toc531687766)
32. (#_Toc531687767) ...... (#_Toc531687767) Audit (#_Toc531687767)
............................................................................................................................
(#_Toc531687767) (#_Toc531687767) 59 (#_Toc531687767)
33. (#_Toc531687768) ...... (#_Toc531687768) Notices (#_Toc531687768)
.........................................................................................................................
(#_Toc531687768) (#_Toc531687768) 59 (#_Toc531687768)
34. (#_Toc531687769) ...... (#_Toc531687769) Winding Up (#_Toc531687769)
.................................................................................................................
(#_Toc531687769) (#_Toc531687769) 60 (#_Toc531687769)
35. (#_Toc531687770) ...... (#_Toc531687770) Indemnity (#_Toc531687770)
....................................................................................................................
(#_Toc531687770) (#_Toc531687770) 61 (#_Toc531687770)
36. (#_Toc531687771) ...... (#_Toc531687771) Destruction of Documents
(#_Toc531687771)
...........................................................................................
(#_Toc531687771) (#_Toc531687771) 62 (#_Toc531687771)
37. (#_Toc531687772) ...... (#_Toc531687772) Untraced Shareholders
(#_Toc531687772)
................................................................................................
(#_Toc531687772) (#_Toc531687772) 63 (#_Toc531687772)
38. (#_Toc531687773) ...... (#_Toc531687773) Variation of Share Capital
(#_Toc531687773)
...........................................................................................
(#_Toc531687773) (#_Toc531687773) 64 (#_Toc531687773)
39. (#_Toc531687774) ...... (#_Toc531687774) Dealings by the Manager,
Administrator, Investment Manager and Depositary (#_Toc531687774) ........
(#_Toc531687774) (#_Toc531687774) 65 (#_Toc531687774)
40. (#_Toc531687775) ...... (#_Toc531687775) Restriction on Modification to
Articles (#_Toc531687775)
.......................................................................
(#_Toc531687775) (#_Toc531687775) 65 (#_Toc531687775)
41. (#_Toc531687776) ...... (#_Toc531687776) Irish Taxation (#_Toc531687776)
...............................................................................................................
(#_Toc531687776) (#_Toc531687776) 65 (#_Toc531687776)
42. (#_Toc531687778) ...... (#_Toc531687778) Conversion to an ICAV
(#_Toc531687778)
...............................................................................................
(#_Toc531687778) (#_Toc531687778) 66 (#_Toc531687778)
COMPANIES ACT 2014
COMPANY LIMITED BY SHARES
ARTICLES OF ASSOCIATION
OF
HSBC ETFs Public Limited Company
(An investment company with variable capital constituted as an umbrella fund
with segregated liability between sub-funds).
(as amended and adopted by all special resolutions up to and including 15
August 2025)
1. Interpretation
1.1 In these Articles, any reference to an "Article" shall be
deemed to be reference to the specified Article of these Articles.
1.2 In these Articles the words standing in the first column of
the table next hereinafter contained, shall bear the meanings set opposite to
them respectively in the second column thereof if not inconsistent with the
subject or context:
Words Meanings
"Accounting Date" 31 December in each year or such other date as the Directors may from time to
time decide.
"Accounting Period" A financial year of the Company ending on an Accounting Date and being the
period in respect of which the accounts of the Company to be laid before it in
general meeting are made up and commencing from the date of incorporation and
ending on 31 December 2009 and in any other case commencing on the date
immediately succeeding the last day of the last financial year.
"Act" The Companies Act 2014 and every modification, consolidation, re-enactment or
amendment thereof for the time being in force and every applicable regulation
made thereunder and for the time being in force.
"Administration Agreement" Any agreement for the time being subsisting to which the Company and the
Administrator are parties and relating to the appointment and duties of the
Administrator.
"Administrator" Any person appointed by the Company in accordance with the requirements of the
Central Bank, from time to time and for the time being responsible for the
provision of administration, fund accounting and related services to the
Company.
"Articles" These Articles of Association as amended from time to time and for the time
being in force.
"Auditors" The auditors for the time being of the Company.
"Base Currency" In relation to each Series, the currency of account in which that Series is
designated.
"Board" The Board of Directors of the Company for the time being and any duly
constituted committee thereof.
"Business Day" Such day or days as the Directors may determine in relation to any Fund and
disclose in the Prospectus.
"Capitalisation Shares" The capitalisation shares entitling the holder or holders thereof to attend
and vote at general meetings of the Company but not to participate in the
profits or assets of the Company except for a return of paid-up capital on
redemption or on a winding-up of the Company.
"Capitalisation Shareholder" A person registered as a holder of Capitalisation Shares.
"Central Bank" The Central Bank of Ireland or such other authority designated as such
pursuant to the Regulations.
"Central Bank UCITS Regulations" The Central Bank (Supervision and Enforcement) Act 2013 (Section 48(1))
(Undertakings for Collective Investment in Transferable Securities)
Regulations 2015 as may be amended from time to time and all applicable
Central Bank guidance or question and answer documents issued, conditions
imposed or derogations granted thereunder.
"certificated" or "certificated form" In relation to a Share is a reference to a Share, title to which is recorded
on the Register as being held in certificated form.
"Class" Shares of a particular Series representing an interest in the Fund maintained
in respect of such Series but designated as a class of Shares within such
Series for the purposes of attributing different proportions of the Net Asset
Value of the relevant Series to such Shares to accommodate different
subscription, conversion and redemption charges, dividend arrangements, base
currencies, hedging or financial transactions and/or fee arrangements specific
to such Shares.
"Clear Days" In relation to a period of a notice, that period excluding the day when the
notice was given or deemed to be given and the day for which it is given or on
which it is to take effect.
"Closing Date" Such Business Day, if any, as the Directors may determine in relation to any
Series and disclose in the Prospectus.
"Company" HSBC ETFs Public Limited Company being the company whose name appears on the
heading to these Articles.
"Computerised Security" A share, title to units of which is permitted by an Operator to be transferred
by means of a Relevant System.
"Depositary" Any person appointed by the Company from time to time and for the time being
responsible for safe keeping of all of the assets of the Company.
"Depositary Agreement" Any agreement for the time being subsisting between the Company and the
Depositary and relating to the appointment and duties of the Depositary.
"Dealing Day" Such day or days as the Directors may determine in relation to any Fund and
specify in the Prospectus provided that there shall be a Dealing Day at least
fortnightly.
"Declaration" Means the appropriate declaration set out in Schedule 2B TCA 1997 or as
otherwise required pursuant to Section 739D TCA 1997.
"dematerialised" or "dematerialised form" in relation to a share is a reference to a share, title to which is recorded
on the Register as being held in uncertificated form, and title to which, by
virtue of the Securities Regulations, may be transferred by an Operator by
means of a Relevant System.
"Directors" The directors of the Company for the time being or, as the case may be, the
directors assembled as a Board or committee of the Board in accordance with
the provisions of these Articles.
"Distributor" Any person appointed by the Company from time to time and for the time being
responsible for the marketing and distribution of Shares.
"Duties and Charges" All stamp duties and other duties, taxes, governmental charges, imposts,
levies, exchange costs and commissions (including foreign exchange spreads),
depositary and sub-custodian charges, transfer fees and expenses, agents'
fees, brokerage fees, commissions, bank charges, registration fees and other
duties and charges, whether payable in respect of the constitution, increase
or reduction of the cash and other assets of the Company or the creation,
acquisition, issue, conversion, exchange, purchase, holding, repurchase,
redemption, sale or transfer of Shares or Investments by or on behalf of the
Company and, if appropriate, any provision for the spread or difference
between the price at which any Investment was valued for the purpose of
calculation of the Net Asset Value per Share of any Fund and the estimated or
actual price at which any such Investment may be purchased, in the case of
subscriptions to the relevant Fund, or sold, in the case of redemptions from
the relevant Fund, including, for the avoidance of doubt, any charges or costs
arising from any adjustment to any swap or other derivative contract required
as a result of a subscription or redemption, or in respect of the issue or
cancellation of Share Certificates or otherwise which may have become or will
become payable in respect of or prior to or upon the occasion of any
transaction, dealing or valuation.
"ETF Shares" A Class issued by the Company which is a Class that is traded throughout the
day on at least one regulated market or multilateral trading facility with at
least one market maker which takes action to ensure that the stock exchange
value of the Class does not vary significantly from its Net Asset Value.
"Euro" The lawful currency from time to time of those Member States participating in
European Monetary Union as envisaged by the Treaty of Rome.
"Exempt Investor" any of the following Irish Residents:
(i) a qualifying management company within the meaning of
Section 739B TCA 1997;
(ii) an investment limited partnership within the meaning of Section
739J TCA 1997;
(iii) an investment undertaking within the meaning of Section 739B(1)
TCA 1997;
(iv) a company carrying on life business within the meaning of
Section 706 TCA 1997;
(v) a unit trust to which Section 731(5)(a) TCA 1997 applies;
(vi) the Courts Service;
(vii) a company within the charge to corporations tax under
Section 739(G)(2) 1997, but only where the fund is a money market fund;
(viii) a person who is entitled to exemption from income tax and
capital gains tax by virtue of Section 784A(2) TCA 1997 in circumstances where
the Shares held are assets of an approved retirement fund or an approved
minimum retirement fund;
(ix) a credit union within the meaning of Section 2 of the Credit
Union Act, 1997;
(x) a person who is entitled to exemption from income tax and
capital gains tax by virtue of Section 787I TCA 1997 and the Shares are assets
of a PRSA;
(xi) a pension scheme which is an exempt approved scheme within the
meaning of Section 774 TCA 1997 or a retirement annuity contract or a trust
scheme to which Section 784 or Section 785 TCA 1997 applies;
(xii) a special investment scheme within the meaning of Section 737
TCA 1997;
(xiii) a charity being a person referred to in Section 739D(6)(f)(i)
TCA 1997;
(xiv) a person exempt from income tax and capital gains tax by virtue
of Section 848E TCA 1997 where the Shares held are assets of a special savings
incentive account;
(xv) the National Pensions Reserve Fund;
(xvi) the National Asset Management Agency;
(xvii) the National Treasury Management Agency or a fund investment
vehicle within the meaning of Section 739D(6)(K6) TCA 1997;
(xviii) a company that is or will be within the charge to corporation tax
in accordance with Section 110(2) TCA 1997 in respect of payments made to it
by the Fund;
(xix) any other person resident in Ireland who is permitted to own
Shares under Irish taxation legislation or by practice or concession of the
Revenue Commissioners without giving rise to a charge to tax in the Company or
jeopardising tax exemptions associated with the Company giving rise to a
charge to tax in the Company;
provided that a valid Declaration is in place.
"Fractional Share" A fractional Share issued in accordance with Article 8.5.
"Fund" A portfolio of assets maintained and kept separate in respect of each Series
in accordance with Article 5 hereof to which all assets and liabilities,
income and expenditure of the Company attributable or allocated to each such
Series shall be applied or charged.
"ICAV" Irish Collective Asset-management Vehicle as defined in the Irish Collective
Asset-management Vehicles Act 2015.
"ICAV Act" The Irish Collective Asset-management Vehicles Act 2015 and every
modification, consolidation, re-enactment or amendment thereof for the time
being in force and every applicable regulation made thereunder and for the
time being in force.
"Initial Offer Period" The period (if any) during which Shares of any Series or Class (other than
Subscriber Shares) may be offered by the Company for purchase or subscription
at the Initial Price.
"Initial Price" The initial price determined by the Directors at which any Shares (other than
Subscriber Shares) may be offered for purchase or subscription during an
Initial Offer Period.
"Investment Management Agreement" Any agreement for the time being subsisting between the Company and an
Investment Manager and in relation to the appointment and duties of that
Investment Manager.
"Investment Manager" Each and any person or persons appointed by the Company and/or the Manager
from time to time in accordance with the requirements of the Central Bank and
for the time being responsible for the provision of investment management
and/or investment advisory services to the Company with respect to the Company
and/or any Fund.
"Investments" Any investment or other asset of any description in which the Company is
entitled to trade or invest in accordance with the provisions of these
Articles or the Memorandum of Association of the Company.
"in writing" Written, printed, lithographed, photographed, telexed, e-mailed, telefaxed or
represented by any other substitute for writing or partly one and partly
another.
"Irish Resident" Any company resident, or other person resident or ordinarily resident, in
Ireland for the purposes of Irish tax.
"Manager" Each and any person or persons appointed by the Company from time to time in
accordance with the requirements of the Central Bank and for the time being
responsible to provide management services to the Company and/or any Fund.
"Member State" Any member state of the European Union.
"Minimum Holding" A holding of Shares of any Series or Class in the Company the number of which
or the value of which by reference to the Redemption Price for such Shares is
not less than such amount as may be determined by the Directors from time to
time provided that the minimum subscription for Shares in the Company or of
any Series shall be such amount as is specified in the Prospectus.
"Month" A calendar month.
"Net Asset Value" The amount determined as being the net asset value of a Series on any
particular Business Day pursuant to Article 14.00.
"Net Asset Value per Share" The amount determined as being the net asset value per Share of a Share of any
Series or Class of Shares for any particular Business Day pursuant to Article
14.00.
"Non-ETF Shares" A Class issued by the Company in respect of a Fund which is not a Class of ETF
Shares and not a Subscriber Share.
"Office" The registered office of the Company.
"Official Seal" A seal kept by the Company in accordance with the provisions of Section 1017
of the Act.
"Operator" A person approved pursuant to the Securities Regulations as an operator of a
Relevant System.
"Ordinary Resolution" A resolution passed by a simple majority of the votes cast by Shareholders
entitled to vote thereon in general meeting or a resolution in writing signed
by the Shareholders entitled to vote thereon.
"Paid Up" Shall include credited as paid up.
"Preliminary Expenses" The preliminary expenses incurred in connection with the incorporation of the
Company, the obtaining by the Company of authorisation and designation from
the Central Bank under the Regulations, the initial offer of Shares pursuant
to the Prospectus, the listing of Shares on any stock exchange, including
costs and expenses of preparing, publishing and distributing the Prospectus
and all professional and legal fees and costs incurred in connection
therewith.
"Prospectus" The Prospectus of the Company prepared in connection with the promotion of the
Shares to the public and including, where the context so admits or requires,
any supplement to the Prospectus produced in relation to any Series or
otherwise, and as same may be modified or supplemented from time to time.
"Recognised Market" Any stock exchange or market specified in the Prospectus provided that, with
the exception of permitted investments in unlisted securities, and
off-exchange derivative instruments, investment in securities or financial
derivative instruments will be made only in securities or financial derivative
instruments listed or traded on an exchange or market (including derivative
markets) which meets the regulatory criteria (regulated, operating regularly,
recognised and open to the public) and which is listed in the Prospectus.
"Redemption Dividend" a dividend payable in respect of Shares to be redeemed in accordance with
Article 11.
"Redemption Price" The price at which Shares shall be redeemed by the Company at the request of
Shareholders pursuant to Article 11.00 and calculated in accordance with
Article 11.04.
"Register" The register in which the names of Shareholders are listed.
"Regulations" The European Communities (Undertakings for Collective Investment in
Transferable Securities) Regulations 2011 (S.I. No. 352 of 2011) as amended
and as may be further amended, consolidated or substituted from time to time.
"Relevant System" A computer-based system and procedures, permitted by the Securities
Regulations, which enables titles to units of a security to be evidenced and
transferred without a written instrument, and which facilitate supplementary
and incidental matters.
"Seal" The common seal of the Company.
"Secretary" Any person, firm or corporation appointed by the Directors from time to time
and for the time being performing any of the duties of the secretary of the
Company.
"Securities Regulations" Part 17, Chapter 7 of the Act as same may be amended from time to time and any
conditions imposed thereunder from time to time which may affect the Company.
"Series" Shares designated as a particular series of Shares representing an interest in
a particular Fund which shall be maintained and kept separate in respect of
such series of Shares in accordance with Article 5 hereof and which may be
further sub-divided into Classes.
"Shareholder" A person who is registered as the holder of Shares or Subscriber Shares or
Capitalisation Shares in the Register for the time being kept by or on behalf
of the Company, as the context may require.
"Shares" Shares of no par value of any Series or Class in the capital of the Company
entitling the holder thereof to participate in the profits and assets of the
Company as provided for in these Articles.
"Signed" A signature, mark or representation of a signature, affixed by mechanical or
other means.
"Special Resolution" A resolution passed by not less than 75% of the votes cast by the Shareholders
entitled to vote thereon in general meeting or a resolution in writing signed
by the Shareholders entitled to vote thereon.
"Subscriber Shareholder" A person holding Subscriber Shares.
"Subscriber Shares" The subscriber shares for which the subscribers to the Memorandum and Articles
of Association of the Company agree to subscribe as more particularly
hereinbefore set forth after their names and entitling the holders thereof to
attend and vote at general meetings of the Company as provided for in these
Articles but not to participate in the profits and assets of the Company
except for a return of paid up capital on a redemption or on a winding-up of
the Company as provided for in these Articles.
"Subscription Price" The price at which Shares shall be allotted pursuant to Article 8.00 of these
Articles and calculated in accordance with Article 9.00 of these Articles.
"Swing Pricing" An adjustment to the Net Asset Value of a Fund to mitigate the effect of
dealing costs on the Net Asset Value per Share of a Fund incurred by net
subscriptions or net redemptions on a Dealing Day.
"UCITS" An undertaking for collective investment in transferable securities within the
meaning of the Regulations.
"United States" or "US" The United States of America, its territories and possessions including the
States and the District of Colombia.
"US Dollars" The lawful currency of the United States.
"U.S. Person" Such person or entity as the Directors may from time to time determine and
disclose in the Prospectus.
"Valuation Point" The time at which the Net Asset Value of a Fund is determined which shall be
specified in the Prospectus.
1.3 In these Articles, reference to enactments and to articles and
sections of enactments shall include reference to any modifications or
re-enactments thereof for the time being in force.
1.4 In these Articles, unless there is something in the subject or
context inconsistent with such construction:
(a) words importing the singular number shall include the
plural number and vice versa;
(b) words importing the masculine gender only shall include
the feminine gender;
(c) words importing persons only shall include companies or
associations or bodies of persons, whether corporate or not and whether
incorporated, registered, formed, resident, domiciled or carrying on business
in Ireland or elsewhere;
(d) the word "may" shall be construed as permissive and the
word "shall" shall be construed as imperative; and
(e) reference to times of day are to the local time in
Ireland.
1.5 Where for the purposes of these Articles or for any other
purpose any amount in one currency is required to be transferred into another
currency, the Directors may effect such transfer using such official rates as
are quoted by Irish associated banks or such other banks as they may determine
at the relevant time except where otherwise in these Articles specifically
provided.
2. Preliminary
2.1 The business of the Company shall be commenced as soon after
the incorporation of the Company as the Directors think fit.
2.2 The Preliminary Expenses shall be payable by the Company and
the amount so payable may in the accounts of the Company be carried forward
and amortised in such manner and over such period as the Directors may
determine and the Directors may at any time and from time to time determine to
lengthen or shorten any such period.
2.3 The Company may also bear the following expenses:
(a) all taxes and expenses which may be incurred in connection
with the acquisition and disposal of Investments and all other assets of the
Company;
(b) all taxes which may be payable on the assets, income and
expenses chargeable to the Company;
(c) all brokerage, bank and other charges incurred by the
Company;
(d) all remuneration, fees, costs and expenses due to the
Manager, the Depositary, the Investment Manager, the Administrator, the
Distributor, the Auditors and the legal advisers to the Company and any other
person, firm or corporation providing services to the Company;
(e) all expenses incurred in connection with publication and
supply of information to Shareholders and in particular, but without
limitation, the cost of printing and distributing the half yearly financial
statements and the annual audited financial statements as well as any other
reports to the Central Bank or to any other regulatory authority or the
Shareholders and the cost of preparing, publishing and distributing the
Prospectus and any other offering documents for Shares (including the costs of
developing and enhancing computer software and electronic transmission
techniques to distribute such documents or information), the cost of all
stationery, printing and postage costs in connection with the preparation and
distribution of information to Shareholders, the expense of publishing daily
price and yield information in relevant media and all marketing and
promotional expenses;
(f) all expenses incurred in registering the Company with any
governmental agencies or regulatory authorities and maintaining the
registration of the Company with such governmental agencies or regulatory
authorities including any levy applied by the Central Bank, (including local
Securities Dealers Associations) and the cost of listing and maintaining a
listing of Shares on any stock exchange;
(g) all costs and expenses arising from any licensing or other
fees payable to any index provider or other licensor of intellectual property,
trademarks or service marks used by the Company;
(h) all expenses incurred in connection with the operation and
management of the Company, including, without limitation to the generality of
the foregoing, all Directors' fees, all costs incurred in organising
Directors' meetings and Shareholders' meetings and obtaining proxies in
relation to such meetings, all insurance premiums and association membership
dues and all non-recurring and extraordinary items of expenditure as may
arise; and
(i) any and all expenses arising in respect of legal or
administrative proceedings concerning the Company including any costs of
winding-up or liquidation of the Company.
2.4 All recurring expenses will be charged against current income
or against realised capital gains, and, if need be, against assets of the
Company as the Directors may from time to time decide.
3. Depositary, Manager, Administrator and Investment Manager
3.1 Without prejudice to the generality of Article 24, the
Directors may, subject to the consent of the Central Bank, appoint a Manager,
Investment Manager/adviser, Depositary, Administrator and/or other similar
officer to provide services in respect of the Company, on such terms and
conditions as the Directors may deem fit. The remuneration and expenses of
such appointees may be charged to the Company.
Depositary
3.2 The Company shall forthwith after its incorporation and before
the issue of any Shares (other than the Subscriber Shares and Capitalisation
Shares) and subject to the prior approval of the Central Bank appoint a
Depositary with responsibility for the safe custody of all of the assets of
the Company and to perform such other duties upon such terms, including a
right of indemnity, as the Directors may from time to time determine pursuant
to the provisions of the Depositary Agreement.
3.3 Any contract or agreement entered into by the Company with any
Depositary (other than the initial Depositary Agreement entered into by the
Company in accordance with the provisions of Article 3.1) and any variation to
any such contract or agreement then in force made after the issue of Shares
(other than the Subscriber Shares) shall be subject to prior approval by the
Central Bank.
3.4 The terms of appointment of any Depositary shall include the
right to remuneration payable by the Company and may authorise such Depositary
to appoint (with powers of sub-delegation) sub-custodians, nominees, agents or
delegates at the expense of the Company or otherwise provided that any such
appointment shall terminate forthwith on termination of the appointment of the
Depositary.
3.5 In the event of the Depositary desiring to retire or the
Company desiring to remove the Depositary from office the Directors shall use
their best endeavours to find a corporation willing to act as Depositary and
having the qualifications to act as Depositary under the Regulations and being
approved by the Central Bank and upon so doing the Directors shall appoint
such corporation to be Depositary in place of the former Depositary. Save as
provided in Article 3.6 hereof, the Depositary may not retire or be removed
from office until the Directors shall have found a corporation willing to act
as Depositary and such corporation shall have been appointed Depositary in
place of the former Depositary and shall have been approved by the Central
Bank.
3.6 If within a period of ninety days from the date on which the
Depositary notifies the Company of its desire to retire in accordance with the
terms of the Depositary Agreement, or from the date on which notice of the
termination of the appointment of the Depositary is served on the Depositary
by the Company in accordance with the terms of the Depositary Agreement, or
from the date on which the Depositary ceases to be qualified to act as
Depositary under the Regulations, no new Depositary shall have been appointed:
(j) the Company shall redeem all Shares in issue (other than
the Subscriber Shares and Capitalisation Shares) in accordance with the
provisions of Article 12 hereof; and
(k) the Secretary at the request of the Directors or the
Depositary shall forthwith convene an extraordinary general meeting of the
Company at which there shall be proposed a Special Resolution to wind up the
Company and, if such Special Resolution is passed in accordance with the Act,
the liquidator shall distribute the assets of the Company in accordance with
the provisions of Article 34 hereof; and
(l) the Depositary's appointment will terminate with effect
from the date on which the authorisation of the Company as a UCITS under the
Regulations is revoked by the Central Bank after redemption of the Shares.
The Manager
3.7 The Directors may subject to the prior approval of the Central
Bank appoint a duly qualified corporation to act as Manager to the Company in
accordance with the terms of a management agreement and may entrust to and
confer upon the Manager so appointed any of the relevant powers, duties,
discretions and/or functions exercisable by them as Directors, upon such terms
and conditions as they think fit.
3.8 In consideration of its services as Manager, the Manager shall
be entitled to be paid by or on behalf of the Company out of the property of
each Fund a fee of such amount as may be outlined in the management agreement
together with reasonable expenses and disbursements incurred by the Manager in
the performance of its functions and all other charges or fees expressly
authorised by the management agreement. The maximum fee that may be charged
shall not be increased without approval of the affected Shareholders on the
basis of a simple majority of votes cast in general meeting or with the prior
written approval of all affected Shareholders and reasonable notice will be
given to those Shareholders in such case to enable them to redeem some or all
of their Shares prior to the implementation of the increase.
3.9 Where a Manager has been appointed by the Company, the Company
will be entitled to terminate such appointment on the giving of such notice
and subject to any Central Bank requirements as will be provided for in the
management agreement in question. In addition, the Company will be entitled to
terminate the appointment of the Manager in question if so required by law or
by any competent regulatory authority, in the event of a material breach of
the terms of the management agreement (subject to notice), if the Manager goes
into liquidation (except a voluntary liquidation for the purpose of
reconstruction or amalgamation upon terms previously approved in writing by
the Company), in the event of the Manager's inability to pay its debts, if the
Manager is incapable of performing its duties or obligations, on the
appointment of an examiner or similar officer in respect of the Manager, if
the Manager has a receiver appointed over any of its assets, or has any
appropriate authorisation revoked. The Manager will be obliged to serve as
Manager until the termination date in question and to provide reasonable
assistance to the Company in the event of termination. Any new Manager
appointed must be approved by the Central Bank in advance of such appointment.
3.10 Subject to the prior approval of the Central Bank, and in
accordance with the terms of the management agreement, the Manager may be
removed or retire and a new Manager appointed in the manner specified in the
paragraph below.
3.11 In the event of the Manager desiring to retire or on being
removed in accordance with the paragraph above, the Company may, with the
prior approval of the Central Bank, appoint a duly qualified corporation which
is approved by the Central Bank to be the Manager in place of the Manager so
retiring or being removed on or before the date on which such retirement or
removal is to take effect.
Investment Manager
3.12 The Company, or the Manager on behalf of the Company, in
accordance with the requirements of the Central Bank, may appoint a person,
firm or corporation to act as Investment Manager to the Company and the
Directors, or the Manager on behalf of the Company, may delegate and entrust
to and confer upon that Investment Manager so appointed any of the powers,
duties, discretions and/or functions exercisable by them as Directors, upon
such terms and conditions (including the right to remuneration payable by the
Company and a right of indemnity) and with such powers of delegation and such
restrictions as they think fit and either collaterally with or to the
exclusion of their own powers provided that in the event that the Investment
Manager shall resign or its appointment shall otherwise terminate under the
terms of the Investment Management Agreement the Directors and/or the Manager
shall use their best endeavours to procure that some other person, firm or
corporation to act as Investment Manager in accordance with the requirements
of the Central Bank. The exercise by the Investment Manager of any or all of
the powers from time to time entrusted to or conferred upon the Investment
Manager in accordance with this Article 3.12 shall at all times remain subject
to the supervision of the Directors and/or the Manager and the Directors
and/or the Manager shall at all times retain the right to issue directions to
the Investment Manager regarding the exercise by the Investment Manager of the
said powers.
3.13 The terms of appointment of any Investment Manager may
authorise such Investment Manager to appoint (with powers of sub-delegation)
one or more sub-investment managers or other agents at the expense of the
Investment Manager or otherwise and to delegate any of its functions and
duties to any person or persons so appointed, provided that such appointment
or appointments shall be in accordance with the requirements of the Central
Bank and provided further that any such appointment shall terminate forthwith
on termination of the appointment of the Investment Manager.
4. Share Capital
4.1 The paid up share capital of the Company shall at all times be
equal to the Net Asset Value of the Company which shall be equal to the
aggregate of the Net Asset Value of each Series as determined in accordance
with Article 14 hereof.
4.2 The minimum authorised share capital of the Company is €2.00
represented by 2 (two) Subscriber Shares of no par value issued at €1.00
each and the maximum authorised share capital of the Company is 2 (two)
Subscriber Shares of no par value issued at €1.00 each, 300,000 (three
hundred thousand) Capitalisation Shares of no par value to be issued at
€1.00 each and 500,000,000,000 (five hundred billion) Shares of no par
value, designated as unclassified shares.
4.3 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 Shares which may be issued under the authority hereby conferred shall be
500,000,000,000 (five hundred billion) Shares provided however that any Shares
which have been redeemed shall be deemed never to have been issued for the
purpose of calculating the maximum amount of Shares which may be issued under
the authority hereby conferred. The maximum amount of Capitalisation Shares
which may be issued under the authority hereby conferred shall be 300,000
(three hundred thousand) provided however that any Capitalisation Shares which
have been redeemed shall be deemed never to have been issued for the purpose
of calculating the maximum amount of Capitalisation Shares which may be issued
under the authority hereby conferred.
4.4 The unclassified Shares are available for issue as Shares of
any Series or Class. The Directors may designate the Shares into such Series
or Classes as they may from time to time determine with such rights or
restrictions attaching thereto as they may from time to time determine in
accordance with the requirements of the Central Bank. On or before the issue
of any Shares the Directors shall determine the currency in which and the
Series in relation to which such Shares shall be designated, and the Shares
shall be divided into one or more Series or Classes and may be designated in
the same currency or in different currencies. All money payable on or in
respect of a Share (including without limitation the subscription and
repurchase money in respect thereof) shall be paid in the currency in which
such Share is designated or in such other currency as the Directors shall
determine either generally or in relation to a particular Series or Class of
Shares or in any specific case. Foreign exchange hedging may be utilised for
the benefit of a particular Class within a Series, its cost and related
liabilities and/or benefits shall be for the account of that Class only.
Accordingly, such costs and related liabilities and/or benefits will be
reflected in the Net Asset Value per Share for Shares of any such Class.
4.5 Financial instruments may be used on behalf of specific
Classes or Classes in a Series in accordance with the provisions of this
Article, the Prospectus and the requirements of the Central Bank.
4.6 Where (i) a Class or Classes denominated in different
currencies are created within a Series and currency hedging transactions are
entered into in order to hedge any relevant currency exposure; (ii) interest
rate hedging transactions are entered into in respect of a specific Class or
Classes; or (iii) financial instruments are utilised on behalf of a specific
Class or Classes in accordance with the requirements of the Central Bank, in
each case such transactions will be clearly attributable to a specific Class
and any costs and any resultant gains/losses of the relevant hedging
transactions and/or financial instruments will accrue solely to the relevant
Class.
4.7 The Directors are hereby authorised from time to time to
re-designate any existing Series or Class of shares and merge any Class of
Shares with any other Class of Shares, provided that Shareholders in such
Series or Classes are first notified by the Company. Subject to the
Regulations, the Directors may also resolve to merge a Series or Class of
Shares with a Series or Class of Shares in any other UCITS whether authorised
by the Central Bank under the Regulations or in any other Member State of the
European Union, provided that such merger or transfer occurs at the Net Asset
Value per Share at the relevant Valuation Point.
4.8 For the purpose of enabling Shares of one Series or Class to
be re-designated or converted into Shares of another Series or Class, the
Company may take such action as may be necessary to vary or abrogate the
rights attached to Shares of one Series or Class to be converted so that such
rights are replaced by the rights attached to the other Series or Class into
which the Shares of the original Series or Class are to be converted.
4.9 All monies payable on or in respect of a Share (including
without limitation, the subscription and redemption monies and dividends in
respect thereof) shall be paid in the currency in which such Share is
designated or in such other currency or currencies as the Directors may
determine either generally or in relation to a particular Series or Class of
Shares or in any specific case.
4.10 The Directors may delegate to any duly authorised Director or
officer of the Company, or to any duly authorised person including, without
limitation, the Administrator, the duties of accepting the subscription for,
receiving payment for, and allotting and issuing new Shares.
4.11 The Directors may in their absolute discretion refuse to accept
any application for Shares or accept any application in whole or in part
without assigning any reason therefor.
4.12 The Company may pay any brokerage or commission in connection
with the allotment or issue of Shares.
4.13 No person shall be recognised by the Company as holding any
Shares on trust and the Company shall not be bound by or required to recognise
(even when having notice thereof) any equitable, contingent, future or partial
interest in any Shares or (except only as these Articles otherwise provide or
as by law required) any other right in respect of any Share, except an
absolute right of title thereto in the registered holder.
4.14 In these Articles, the "Scheme" means the scheme of arrangement
dated the 18 November 2019 between the Company and the Holders of the Scheme
Shares under Chapter 1 of Part 9 of the Act in its original form or with or
subject to any modification(s), addition(s) or condition(s) approved or
imposed by the Irish High Court and expressions defined in the Scheme, and (if
not so defined) in the document containing the explanatory statement
circulated with the Scheme under Chapter 1 of Part 9 of the Act, shall have
the same meanings in this Article 4.
4.15 Notwithstanding any other provisions of these Articles, with
effect from the Effective Date, if any new Participating Shares have been or
are allotted or issued to any person (after the Voting Record Date), such
Participating Shares shall be allotted and issued subject to the terms of the
Scheme and the Holder or Holders of those shares shall be bound by the Scheme
accordingly.
5. Funds
5.1 The Company is an umbrella fund with segregated liability
between Funds and, subject to that principle, all consideration other than the
initial charge or transaction fee (if any) payable pursuant to the provisions
of Article 8.10 for the allotment or issue of Shares of each Series, together
with all Investments in which such consideration is invested or reinvested,
all income, earnings, profits and proceeds thereof shall be segregated and
kept separate in the accounts of the Depositary from all other assets of the
Company. New Funds may be established with the prior approval of the Central
Bank. The following provisions shall apply to each such Fund:
(a) the Company shall keep separate records and books of
account for each Fund. The proceeds from the issue of Shares of each Series
shall be applied to the Fund established for that Series and the assets and
liabilities and income and expenditure attributable thereto shall be applied
to such Fund subject to the provisions of this Article and the assets of each
Fund shall belong exclusively to that Fund and shall not be used to discharge
directly or indirectly the liabilities of or claims against any other Fund and
shall not be available for any such purpose;
(b) any asset derived from another asset comprised in a Fund
shall be applied to the same Fund as the asset from which it was derived and
any increase or diminution in the value of such an asset shall be applied to
the relevant Fund;
(c) in the case of any asset which the Directors do not
consider as readily attributable to a particular Fund or Funds, the Directors
shall have discretion to determine, with the consent of the Depositary, the
basis upon which any such asset shall be allocated between Funds and the
Directors shall have the power to and may at any time and from time to time
vary such basis;
(d) subject to the principle that there is segregated
liability between Funds, any liability shall be attributable to the Series to
which, in the opinion of the Directors, it relates or if such liability is not
readily attributable to any particular Series the Directors shall have
discretion to determine, with the consent of the Depositary, the basis upon
which any liability shall be attributed between Series and shall have power at
any time and from time to time to vary such basis;
(e) the Directors may with the consent of the Depositary
transfer any assets to and from Funds if, as a result of a creditor proceeding
against certain of the assets of the Company or otherwise, a liability would
be borne in a different manner from that in which it would have been borne
under paragraph (d) above, or in any similar circumstances; and
(f) where the assets of the Company (if any) attributable to
the Subscriber Shares or Capitalisation Shares give rise to any net profit,
the Directors may allocate assets representing such net profits to such Fund
or Funds as they may deem appropriate.
6. Share Certificates
6.1 A Shareholder in the Company shall have his title to Shares
evidenced by having his name, address and the number of Shares held by him
entered in the Register. The Directors may refuse to make any entry on the
Register in respect of any Shares held by any person whose name has not
already been entered on the Register where such person holds a number of
Shares less than the Minimum Holding.
6.2 Written confirmation confirming entry on the Register shall be
issued to all applicants for Shares following the issue of the relevant
Shares. A Shareholder shall not be entitled to be issued with a share
certificate unless the Directors otherwise determine in relation to the Shares
in certificated form of any Series or Class.
6.3 The share certificates, if any, issued pursuant to Article 6.2
shall be in such form as the Directors and the Depositary shall agree from
time to time.
6.4 A Shareholder, to whom share certificates have been issued,
shall be entitled to surrender any or all of his share certificates and have
issued in lieu thereof one or more share certificates representing in the
aggregate a like number of Shares.
6.5 The Company shall from time to time decide the denomination in
which Shares will be issued.
6.6
(a) The Company shall not be bound to register more than four persons as
the joint holders of any Share or Shares. In the case of a Share in
certificated form held jointly by several persons, and in respect of which the
Directors have determined that share certificates may be issued, the Company
shall not be bound to issue therefor more than one share certificate and
delivery of a share certificate to one of several joint holders shall be
sufficient delivery to all.
(b) Where two or more persons are registered as the holders of
any Shares they shall be deemed to hold the same as joint tenants, subject to
the following provisions:
(i) the joint holders of any Shares shall be jointly and
severally liable in respect of all payments which are to be made in respect of
such Shares;
(ii) any one of several joint holders of a Share may give
effectual receipts for any dividend, bonus or return of capital payable in
respect of such Share to the joint holder;
(iii) any notice given to one of several joint holders of
Shares shall be deemed notice given to all the joint holders; and
(iv) the vote of any one of several joint holders of the Share
who tenders a vote whether by person or by proxy shall be accepted to the
exclusion of votes of the other joint holders.
6.7 If a share certificate shall be damaged or defaced or alleged
to have been lost, stolen or destroyed, a new share certificate representing
the same Shares may be issued to the Shareholder upon request subject to
delivery up of the old share certificate or (if alleged to have been lost,
stolen or destroyed) on compliance with such conditions as to evidence and
indemnity and the payment of the expenses of the Company in connection with
the request as the Directors may think fit.
6.8 No share certificates may be issued until the full purchase
price has been paid to the Company and a confirmation note has been issued to
the Shareholder.
6.9 Share certificates may be issued under the seal of the Company
or under hand by a Director (whose signature may be reproduced mechanically)
and shall be signed by a duly authorised signatory of the Depositary (whose
signature may be reproduced mechanically).
6.10 Subject to the Securities Regulations, the Directors may
(without consulting the holders of any Class of Shares) determine that a Share
or Shares of any Class of Shares is or are to be become a Computerised
Security or Securities or that any such Share or Shares must cease to be a
Computerised Security or Computerised Securities. Subject to the Securities
Regulations and the facilities and requirements of the Relevant System, the
Directors may implement any arrangements in relation to the holding of shares
of a Class in dematerialised form and the transfer of the title to the shares
of that class by means of a Relevant System.
6.11 Subject to the Securities Regulations, the facilities and
requirements of the Relevant System and the consent of the Directors, a Member
may change a share which is a Computerised Security from a share held in
certificated form to a share held in dematerialised form and vice versa.
6.12 While a Class of Shares is a Computerised Security, these
Articles only apply to a share of that Class to the extent that they are
consistent with the holding of shares of that Class in dematerialised form,
the transfer of title to shares of that Class by means of a Relevant System
and the Securities Regulations.
6.13 While a Class of Shares is a Computerised Security, the Company
shall enter on the Register the number of shares each Shareholder holds in
dematerialised form and certificated form and shall maintain the Register in
accordance with the Securities Regulations and the Relevant System.
6.14 Notwithstanding any provision of these Articles, a Class of
Shares is not to be treated as two Classes by virtue only of that Class
comprising both shares in certificated form and dematerialised form or as a
result of any provision of these Articles of the Securities Regulations
applying only in respect of Shares in certificated form or in dematerialised
form.
6.15 The Register may be kept on magnetic tape or in accordance with
some other mechanical or electrical system provided legible evidence can be
produced therefrom to satisfy the requirements of applicable law and of these
Articles.
6.16 The Directors shall cause to be entered in the Register in
addition to the particulars required to be so entered by the law the following
particulars
(a) the name and address of each Member (save that in the case
of joint holders, the address of the first named holder only need be entered)
and a statement of the shares of each class held by him;
(b) the date on which each person was entered in the Register
as a Member, and
(c) the date on which any person ceased to be a Member.
6.17
(a) The Register shall be
kept in such manner as to show at all times the Members of the Company for the
time being and the shares respectively held by them;
(b) The Register shall be open for inspection at the registered office of
the Company in accordance with the law;
(c) The Company may close the Register for any time or times
not exceeding, in the whole, thirty days in each year.
7. Permitted Investments
7.1 A Fund shall invest only in Investments permitted under the
Regulations and subject to the restrictions and limits set out in the
Regulations and outlined in the Prospectus.
7.2 Without prejudice to the generality of Article 7.1, the
Directors may decide to invest in:
(a) transferable securities and money market instruments which
are either admitted to official listing on a stock exchange in a Member State
or non-Member State or which are dealt on a market which is regulated,
operates regularly, is recognised and open to the public in a Member State or
non-Member State;
(b) recently issued transferable securities which will be
admitted to official listing on a stock exchange or other market (as described
above) within a year;
(c) money market instruments, as defined in the Central Bank
UCITS Regulations, other than those dealt on a regulated market:
(d) units of UCITS;
(e) units of non-UCITS as set out in the Central Bank UCITS
Regulations;
(f) deposits with credit institutions as prescribed in the
Central Bank UCITS Regulations; and
(g) financial derivative instruments as prescribed in the
Central Bank UCITS Regulations.
7.3 Subject to the restrictions and limits set out in the
Regulations and to the approval of the Central Bank, a Fund may invest up to
100% of its net assets in different transferable securities and money market
instruments issued or guaranteed by any Member State, its local authorities,
non-Member States or by any of the following supranational or public
international bodies of which one or more Member States are members: OECD
Governments (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,
International Bank for Reconstruction and Development (The World Bank), The
Inter American Development Bank, European Union, Federal National Mortgage
Association (Fannie Mae), Federal Home Loan Mortgage Corporation (Freddie
Mac), Government National Mortgage Association (Ginnie Mae), Student Loan
Marketing Association (Sallie Mae), Federal Home Loan Bank, Federal Farm
Credit Bank, Tennessee Valley Authority or Straight-A Funding LLC and such
other governments, local authorities and public bodies as the Central Bank may
permit pursuant to the Regulations. A Fund must hold securities from at least
6 different issues, with securities from any one issue not exceeding 30% of
net assets.
7.4 A Fund may invest in collective investment schemes of the
open-ended type within the meaning of article 3(2) of the Regulations provided
that the investment policies of such collective investment undertakings are
consistent with the policies of the Fund.
7.5 Where a Fund invests in the units of other collective
investment scheme that are managed directly or by delegation by a UCITS
management company or by any other company with which that management company
is linked by common management or control, or by a substantial direct or
indirect holding, that management company or other company may not charge
subscription, conversion or redemption fees on account of the Fund's
investment in the shares of the other collective investment scheme.
7.6 Where a commission (including a rebated commission) is
received by the Investment Manager by virtue of an investment in the units of
another collective investment scheme, this commission must be paid into the
assets of the relevant Fund.
7.7 A Fund may invest up to 20% of net assets in shares and/or
debt securities issued by the same body where the investment policy of the
Fund is to replicate an index. The index must be recognised by the Central
Bank on the basis that it is:
(a) sufficiently diversified;
(b) represents an adequate benchmark for the market to which
it refers; and
(c) is published in an appropriate manner.
7.8 The limit in article 7.7 may be raised to 35%, and applied to
a single issuer, where this is justified by exceptional market conditions.
7.9 Except where otherwise disclosed in the Prospectus, a Fund may
not invest more than 10% of its net assets in aggregate in other collective
investment schemes.
8. Allotment and Issue of Shares
8.1 All allotments and all issues of Shares pursuant to
subscriptions received on or prior to the relevant Closing Date and/or prior
to the initial issue of Shares of any Series on any Business Day, shall be
effected or made with effect from that Closing Date or from the relevant
Business Day, as the case may be, and all issues of Shares thereafter shall be
effected or made with effect from any Dealing Day provided that the Company
may provisionally allot and/or issue Shares on a Dealing Day on the basis that
the Shares shall be issued on receipt by the Company or its authorised agent
of cleared funds or consideration in the form of Investments from the
subscriber for the relevant Shares or, if issued, shall be cancelled in the
event that the Company or its authorised agent does not receive cleared funds
or consideration in the form of Investments from the subscriber for the
relevant Shares within a reasonable time.
8.2 Subject as hereinafter provided, on receipt by the Company or
its authorised agent during the Initial Offer Period and/or prior to the
initial issue of Shares of any Series of:
(a) an application for Shares in such form as the Directors
may from time to time determine;
(b) such information and declarations as to the applicant's
identity, status, residence and otherwise as the Directors or their authorised
agent may from time to time require; and
(c) consideration for the Shares in such manner and at such
time and place as the Directors from time to time may specify, provided that
if payment is made in cash in a currency other than the currency designated
for the Shares, the Company may convert or arrange for the conversion of the
monies received into the currency designated for the Shares and shall be
entitled to deduct therefrom all expenses incurred in connection with the
conversion;
the Company may allot and issue such Shares on the relevant Closing Date or on
the relevant Dealing Day, as the case may be, at the Initial Price for each
such Share provided that if any such application is received after such time
on that Closing Date or Business Day, as appropriate, as the Directors may
determine, the Company will refuse the application or defer the allotment or
issue of such Shares until the next succeeding Business Day and provided
further that if the information and declarations required pursuant to
sub-paragraph (b) of this Article 8.2 and consideration in respect of the
Shares and the original application form are not received by the Company
within such period as the Directors may determine the Directors shall cancel
any provisional allotment and/or issue of Shares in respect thereof and if so
cancelled the relevant consideration shall be returnable to the applicant at
his risk (after deducting such amount, if any, as the Directors may in their
absolute discretion think fit, any such amount so deducted being retained by
the Company for its own benefit) and until return it may be made use of by the
Company for its own benefit.
8.3 Subject as hereinafter provided, on receipt by the Company or
its authorised agent after the Initial Offer Period and/or after the initial
issue of Shares of any Series of:
(a) an application for Shares in such form as the Directors
may from time to time determine;
(b) such information and declarations as to the applicant's
identity, status, residence and otherwise as the Directors or their authorised
agent may from time to time require; and
(c) consideration for the Shares in such manner and at such
time and place as the Directors from time to time may specify, provided that
if payment is made in cash in a currency other than the currency designated
for the Shares, the Company may convert or arrange for the conversion of the
monies received into the currency designated for the Shares and shall be
entitled to deduct therefrom all expenses incurred in connection with the
conversion,
the Company may allot and issue such Shares on the relevant Dealing Day at the
Subscription Price for each such Share on terms that if the Company receives
payment for the Shares in cash in a currency other than the Base Currency, the
Company shall convert or arrange for the conversion of monies received into
the currency designated for the Shares and shall be entitled to deduct
therefrom all expenses incurred in the conversion and on terms that the
allotment and/or issue of Shares may take place provisionally if consideration
has not been received by the Company or its authorised agent, provided that
the application referred to in sub-paragraph (a) of this Article 8.3 has been
received by the Company or its authorised agent and provided further that if
the information and declarations required pursuant to sub-paragraph (b) of
this Article 8.3 and consideration in respect of the Shares and the original
application form are not received by the Company within such period and at
such time and place as the Directors may determine the Directors shall cancel
any provisional allotment of Shares in respect thereof and if so cancelled the
relevant consideration shall be returnable to the applicant at his risk (after
deducting such amount, if any, as the Directors may in their absolute
discretion think fit, any such amount so deducted being retained by the
Company for its own benefit) and until return it may be made use of by the
Company for its own benefit. Applications received by or on behalf of the
Company up to such time on a Business Day as the Directors may determine
shall, unless the Directors determine otherwise, be deemed to have been
received on that Business Day. Such applications as are received by or on
behalf of the Company after such time on a Business Day as the Directors may
determine shall be deemed to have been received by or on behalf of the Company
on the following Business Day.
8.4 Payment for Shares shall be made at such time and place and to
such person on behalf of the Company as the Directors may from time to time
determine and, if payment is made in cash, in such currency or currencies as
the Directors may determine to be appropriate to receive subscriptions.
8.5 The Directors shall be entitled, but not obliged, to issue
Fractional Shares up to such number of decimal places as the Directors may
determine and disclose in the Prospectus where the net consideration received
by the Company is insufficient to purchase an integral number of Shares,
provided however that Fractional Shares shall not carry any voting rights and
provided further that the Net Asset Value per Share of a Fractional Share of
any Series or Class shall be adjusted by the amount which such Fractional
Share bears to an integral Share of such Series or Class at the time of issue
of such Fractional Share and any dividend payable on such Fractional Shares
shall be adjusted in like manner.
8.6 The Company may (at the option of the Directors) satisfy any
application for the allotment or issue of Shares by procuring the transfer to
the applicant of fully paid Shares. In any such case, references in these
Articles to allotting and issuing Shares shall, where appropriate, be taken as
references to procuring the transfer of Shares.
8.7 The Company shall be entitled to receive any Investments from
an applicant for Shares and to hold such Investments or to sell, dispose of or
otherwise convert such Investments into cash and to apply such cash (net of
any expenses incurred in the conversion) for the purpose of allotting and
issuing Shares in the Company in accordance with the provisions of these
Articles.
8.8 Subject to the provisions of the Act and the Regulations, the
Directors may in their absolute discretion allot and issue Shares in
consideration for, or on terms providing for settlement to be made by, the
vesting in the Depositary, on behalf of the Company, of any Investments
provided that the Directors are satisfied that:
(a) the nature of the Investments is such that the Investments
would qualify as Investments for the relevant Fund in accordance with the
investment objective, policies and restrictions of the relevant Fund;
(b) the number of Shares of the relevant Series to be issued
will be not more than the number which would have been issued for settlement
in cash having valued the assets to be exchanged in accordance with Article
15.1;
(c) all fiscal duties and charges arising in connection with
the vesting of such Investments in the Depositary are paid by the person to
whom the Shares are to be issued or, at the discretion of the Directors,
partly by such person and partly or wholly out of the assets of the Company;
and
(d) the assets have been vested in, or arrangements have been
made to vest the assets in, the Depositary or its sub-custodian, nominee or
agent and the Depositary is satisfied that there is unlikely to be any
material prejudice to the Shareholders of the relevant Series.
8.9 No Shares of any Series shall be allotted or issued on any
Dealing Day on which the determination of Net Asset Value of the relevant
Series is suspended pursuant to Article 14.6.
8.10 The Directors may require any person to whom Shares are to be
allotted to pay to the Company an initial charge and/or transaction fee in
respect of each Share to be allotted of such amount as may be determined by
the Directors but not exceeding in respect of each Share to be allotted such
amount as the Directors may determine for any Series or Class of Shares and
disclose in the Prospectus. The Directors may on any Dealing Day differentiate
between applicants as to the amount of initial charge or transaction fee to be
levied on any Shares or Series or Class of Shares.
9. Subscription Price
9.1 The Initial Price per Share at which the allotment of Shares
shall be made shall be determined by the Directors and there may be added
thereto such sum as the Directors in their absolute discretion may from time
to time determine as an appropriate provision for Duties and Charges in
respect of the allotment and issue of the Shares and making such other
adjustment thereto as the Directors may from time to time determine subject
always to the resulting total being adjusted up to the nearest unit of the
currency in which such Shares are designated where the amount so determined is
equal to or greater than half of the relevant unit or down to the nearest unit
where the said amount is less than half of that unit ("unit" for these
purposes being the smallest fraction of the relevant currency which is legal
tender in the country of issue of that currency).
9.2 The Subscription Price per Share at which the allotment of
Shares shall be made following the Initial Offer Period shall be ascertained
by determining the Net Asset Value per Share of the relevant Share in
accordance with Articles 14 and 15 on the relevant Dealing Day and: (i) adding
thereto such sum as the Directors in their absolute discretion may from time
to time determine as an appropriate provision for Duties and Charges in
respect of the allotment and issue of the Shares; and/or (ii) adding thereto
such sum as the Directors determine to be an anti-dilution levy necessary to
cover dealing costs and to preserve the value of the underlying assets of the
relevant Fund in accordance with the requirements of the Central Bank; and/or
(iii) where there are net subscriptions, applying Swing Pricing; and (iv)
making such other adjustment thereto as the Directors may from time to time
determine, subject always to the aggregate amount payable on a subscription
for Shares being adjusted up to the nearest unit of the currency in which such
Shares are designated where the amount so determined is equal to or greater
than half of the relevant unit or down to the nearest unit where the said
amount is less than half of that unit ("unit" for these purposes being the
smallest fraction of the relevant currency which is legal tender in the
country of issue of that currency). If the Subscription Price of a Share
includes an amount which reflects the accrued income of the relevant Fund,
then such amount shall, as from the time at which the consideration
representing the Subscription Price is recognised as an asset of the Company
for the purposes of these Articles, be treated as income of that Fund.
10. Qualified Holders
10.1 No Shares shall be issued to or transferred to or be
beneficially owned, except with the consent of the Directors, by any US
Person. Each subscriber for Shares of the Company shall be required to
certify that he is not, nor is he acquiring such Shares, except with the
consent of the Directors, on behalf of or for the benefit of a US Person, and
that such subscriber will not sell or offer to sell or transfer, hypothecate
or otherwise assign such Shares in the United States to, or for the benefit
of, a US Person.
10.2 The Directors may determine to permit the private sale of
Shares in the United States or to U.S. Persons in accordance with any and all
applicable securities laws, which may require the presentation by investors,
prior to the delivery to them of Shares, of a letter containing specified
representations and agreements. Each applicant for Shares who is in the United
States or a U.S. Person will be required to provide such representations,
warranties or documentation as may be required by the Directors to ensure that
such requirements are met prior to approval of such sale or transfer by the
Directors.
10.3 The Directors may not authorise the purchase by or transfer of
Shares to or on behalf of a U.S. Person unless, in the opinion of the
Directors,
(a) such purchase or transfer does not result in a violation
of the 1933 Act or the securities laws of any state of the United States;
(b) such purchase or transfer would not require the Company or
any Fund to register under the 1940 Act; and
(c) there will be no adverse regulatory, tax or fiscal
consequences or material administrative disadvantage to the Company, any Fund
or any of their respective Shareholders as a result of such a purchase or
transfer.
The Directors shall have power (but shall not be under any duty) to impose
such restrictions (other than a restriction on transfer which is not expressly
referred to in these Articles) as they may think necessary for the purposes of
ensuring that no Shares in the Company are acquired or held by any person in
breach of the law or requirements of any country or governmental authority
including without limitation of the foregoing any exchange control regulations
applicable thereto or by a US Person or by any person in the circumstances
described in paragraph (c) of Article 10.3.
10.4 Shareholders are required to notify the Company immediately in
the event that: (a) they become Irish Residents; (b) they become U.S. Persons;
(c) they cease to be Exempt Investors; (d) the Declaration made by or on their
behalf is no longer valid; (e) they hold Shares for the account or benefit of
(i) Irish Residents; (ii) U.S. Persons; or (iii) otherwise hold Shares in
breach of any law or regulation or otherwise in circumstances having or which
may have adverse regulatory, tax or fiscal consequences for the Company or the
Shareholders as a whole; or (f) any information provided or representations
made by the Shareholders on any subscription application form is no longer
correct.
10.5 The Directors may upon an application for Shares or at any
other time and from time to time require such evidence to be furnished to them
in connection with the matters stated in Article 10.1 as they shall in their
discretion deem sufficient and if such evidence is not forthcoming may refuse
to accept such application or, if Shares have already been issued to any
person of whom such a request is made, such person shall be deemed upon the
expiration of thirty days from the making of such request, to have requested
the redemption of all of his Shares whereupon if he shall have been issued
with a certificate for his Shares he shall be bound to deliver the certificate
to the Company forthwith and the Directors shall be entitled to appoint any
person to sign on his behalf such documents as may be required for the purpose
of the redemption. To any such redemption the provisions of Article 11 shall
apply subject to Article 10.9 below and save that the deemed request to redeem
the Shares may not be withdrawn notwithstanding that the determination of the
relevant Net Asset Value may have been suspended under Article 14.
10.6 If a person becomes aware that he is holding or owning Shares
in contravention of Article 10 he shall forthwith in writing request the
Company to redeem such Shares in accordance with Article 11 or shall transfer
such Shares to a person duly qualified to hold the same unless he has already
received a notice under Article 10.7.
10.7 Where the Company becomes aware that a Shareholder is (i) a US
Person or is holding Shares for the account or benefit of a US Person and such
person is not an "accredited investor" (as defined in Rule 501(a) of
Regulation D under the 1933 Act) and a "qualified purchaser" (as defined in
Section 2(a)(51) of the 1940 Act; (ii) holding Shares in breach of any law or
regulation or otherwise in circumstances having or which may have adverse
regulatory, legal, pecuniary or tax consequences or material administrative
disadvantage for the Company or the Shareholders as a whole; or (iii) not
holding Shares equal to or greater than the minimum initial subscription
amount specified in the Prospectus, the Directors, at their absolute
discretion, may: (a) direct the Shareholder to dispose of those Shares to a
person who is entitled to own the Shares within such time period as the
Company stipulates; or (b) redeem the Shares at their Net Asset Value per
Share as at the next Business Day after the date of notification to the
Shareholder or following the end of the period specified for disposal pursuant
to (a) above.
10.8 If any such person upon whom such a notice is served as
aforesaid does not within thirty days after such notice has been served
transfer such Shares or request in writing the Company to redeem the Shares he
shall be deemed forthwith upon the expiration of the said thirty days to have
so requested the redemption of all his Shares the subject of such notice
whereupon if he shall have been issued with a certificate for his Shares he
shall be bound to deliver the certificate to the Company forthwith and the
Directors shall be entitled to appoint any person to sign on his behalf such
documents as may be required for the purpose of the redemption. To any such
repurchase the provisions of Article 11.00 shall apply subject to Article
10.09 below and save that the deemed request to redeem the Shares may not be
withdrawn notwithstanding that the determination of the relevant Net Asset
Value may have been suspended under Article 14.07.
10.9 Settlement shall be effected (subject to any requisite official
consents first having been obtained) by depositing the redemption monies or
proceeds of sale in a bank for payment to the person entitled upon such
consents being obtained and, if relevant, against production of the
certificate or certificates representing the Shares previously held by such
person with the redemption request on the reverse of each duly signed. Upon
deposit of such redemption monies as aforesaid such person shall have no
further interest in such Shares or any of them or any claim in respect thereof
except the right to claim without recourse to the Company the redemption
monies so deposited (without interest) upon such consents being obtained and
against the production of the said certificate or certificates with the
redemption request on the reverse of each duly signed as aforesaid.
10.10 Any person or persons to whom Article 10.01, 10.02, 10.04, 10.05,
10.06 and 10.07 shall apply shall indemnify the Directors, the Company, the
Manager, the Administrator, the Depositary, the Investment Manager and the
Shareholders (each an "Indemnified Party") from any claims, demands,
proceedings, liabilities, damages, losses, costs and expenses directly or
indirectly suffered or incurred by such Indemnified Party arising out of or in
connection with the failure of such person to comply with his obligations
pursuant to this Article 10.00.
11. Redemption of Shares
11.1 Subject to the provisions of the Act and as hereinafter
provided, the Company may redeem its own outstanding fully paid Shares at any
time in accordance with the rules and procedures set out herein.
11.2 Subject to the provisions of the Act and as hereinafter
provided, a Shareholder may at any time irrevocably request the Company to
redeem all or any part of his Shares at the Redemption Price for each such
Share as hereinafter determined and the Company shall on receipt by it or by
its authorised agent of such request redeem or procure the redemption of such
Shares at not less than the Redemption Price provided always that any such
redemption shall be effected on the following terms and conditions:
(a) a request for redemption of Shares shall be in such form
as the Company shall prescribe and shall be delivered by the Shareholder to
the Office or to such office of such person from time to time designated by
the Company as its agent for the redemption of Shares on or before such time
as shall from time to time be designated by the Board whether on or prior to
the relevant Dealing Day and shall be accompanied by the share certificate (if
any) duly endorsed by the Shareholder in relation to such Shares or by such
proper evidence as the Directors may at their absolute discretion require in
relation to succession or assignment, if applicable;
(b) subject as hereinafter provided the Shareholder shall not
be entitled to revoke or withdraw a request for redemption of his Shares duly
given in accordance with this Article 11.2;
(c) the redemption of Shares pursuant to this Article 11.2
shall be effected on the Dealing Day determined in accordance with procedures
specified in the Prospectus or on such other day as the Directors may
determine and specify in the Prospectus or on such earlier Business Day as the
Directors at the request of such Shareholder may in their absolute discretion
agree provided that the redemption of Shares shall not be effected unless the
period designated by the Directors for the delivery of the redemption request
pursuant to Article 11.2(a) shall have expired and the certificate or
certificates (if any) in respect of such Shares and in proper form has or have
been returned to the Company and duly endorsed by the Shareholder subject
always to the power of the Directors at their absolute discretion to dispense
with the production of any certificate which shall become lost or destroyed on
compliance with such conditions as to evidence and indemnity and the payment
of the expenses of the Company in connection therewith as the Directors think
fit. Redemption requests received by or on behalf of the Company up to such
time on a Business Day as the Directors may determine shall, unless the
Directors determine otherwise, be deemed to have been received on that
Business Day. Such redemption requests as are received by or on behalf of the
Company after such time on a Business Day as the Directors may determine shall
be deemed to have been received by or on behalf of the Company on the
following Business Day;
(d) the Redemption Price (less any fees and expenses due and
owing by the Company and appropriate provision for Duties and Charges in
respect of the Shares being redeemed) shall be despatched to the Shareholder
by the Company or its duly authorised agent within such number of Business
Days after the day on which redemption of the relevant Shares is effected as
the Directors may determine and as shall be specified in the Prospectus and
which will not, in any event, be greater than ten Business Days;
(e) any amount payable to a Shareholder in connection with the
redemption of Shares under this Article 11 shall, at the discretion of the
Directors, be satisfied by the transfer of Investments in accordance with
Article 11.7 or by payment in cash or partly by a transfer of Investments and
partly by payment in cash and, for this purpose, any payment in cash shall be
made in the Base Currency of the relevant Shares or in such other currency as
the Directors shall have determined as appropriate at the rate of exchange for
conversion on the date of payment provided that the certificate of the
Directors as to the conversion rate applicable and as to the cost of
conversion shall be conclusive and binding on all persons and provided further
that the cost of conversion, if any, shall be debited from the converted
payment and any such amount shall unless otherwise agreed with the Company or
its duly authorised agent be paid by electronic bank transfer to the account
designated by the relevant Shareholder;
(f) if the determination of the Net Asset Value per Share is
suspended on any Business Day by reason of a declaration or notice by the
Directors pursuant to Article 14.6 hereof the right of the applicant
Shareholder to have his Shares redeemed pursuant to this Article 11.2 shall be
similarly suspended and during the period of suspension he may, with the
approval of the Company, withdraw the request for redemption of his Shares (if
any). Any withdrawal of a request for redemption under the provisions of
this Article 11.2 shall be made in writing and shall only be effective if
actually received by the Company or its duly authorised agent before
termination of the suspension. If the request is not withdrawn the
redemption of the Shares shall be made on the Business Day next following the
end of the suspension or on such other Business Day following the end of the
suspension as the Directors at the request of the applicant may agree; and
(g) on a redemption of Shares, the Company shall be entitled
to charge such redemption fee, transaction fee or contingent deferred sales
charge as may be specified in the Prospectus in an amount to be determined by
the Manager or the Company with the approval of the Depositary but not to
exceed such amount as the Company may determine in respect of any Series or
Class of Shares and disclose in the Prospectus. The maximum redemption fee
which may be charged by the Company is 3%. The maximum redemption fee of 3%
may only be increased with the prior approval of Shareholders given on the
basis of a simple majority of votes cast in a general meeting or the prior
written approval of all Shareholders or such other requirement imposed by the
Central Bank. In the event of an increase in the redemption fee, a reasonable
notification period will be provided by the Company to enable Shareholders to
redeem their Shares prior to the implementation of the increase;
(h) The redemption proceeds payable upon the redemption of a
Share of any class shall be the Net Asset Value per Share less any Redemption
Dividend payable under paragraph (i) below.
(i) The Company may pay a Redemption Dividend in respect of
any Share accepted for redemption. Such dividend, which will reflect accrued
income attributable to the Share, will become due immediately prior to the
redemption of the Shares and shall be paid to the relevant shareholder on the
same day as the redemption proceeds.
11.3 Shares which are redeemed by the Company shall be cancelled.
11.4 The Redemption Price for a Share of any Series or Class shall
be the Net Asset Value per Share on the relevant Dealing Day (as determined in
accordance with Article 14.1) and: (i) less such sum as the Directors, in
their absolute discretion, may from time to time determine as an appropriate
provision for Duties and Charges in relation to realisation or cancellation of
the Share to be redeemed; and/or (ii) less such sum as the Directors determine
to be an anti-dilution levy necessary to cover dealing costs and to preserve
the value of the underlying assets of the relevant Fund in accordance with the
requirements of the Central Bank as at the relevant Business Day; and/or (iii)
in the case of net redemptions, applying Swing Pricing, subject always to the
aggregate amount payable on a redemption of Shares being adjusted up to the
nearest unit of the currency in which such Shares are designated where the
amount so determined is equal to or greater than half of the relevant unit or
down to the nearest unit where the said amount is less than half of that unit
("unit" for these purposes being the smallest fraction of the relevant
currency which is legal tender in the country of issue of that currency).
11.5 Upon the redemption of Shares being effected pursuant to this
Article 11, the applicant Shareholder shall cease to be entitled to any rights
in respect thereof (excepting always the right to receive a dividend which has
been declared in respect thereof prior to such redemption being effected) and
accordingly his name shall be removed from the Register with respect thereto
and such Shares shall be treated as cancelled and the amount of the issued
share capital shall be reduced accordingly.
11.6 On redemption of part only of the Shares comprised in any
certificate the Directors shall procure that, on request, a balance
certificate be issued for the balance of such Shares free of charge.
11.7 If any Shareholder requests the redemption of Shares for which
consideration was provided entirely in the form of cash, and (i) the consent
of the redeeming Shareholder is obtained or (ii) the value of such Shares is
equal to 5% or more of the number of Shares of a particular Fund on any the
relevant Dealing Day, the Directors may at their absolute discretion,
distribute underlying investments rather than cash provided that any such
distribution shall not materially prejudice the interest of other
Shareholders. The asset allocation is subject to the approval of the
Depositary. In such circumstances, the relevant Shareholder will have the
right to instruct the Directors to procure the sale of such underlying
investments on their behalf in which case the Shareholder will receive the
proceeds net of all fiscal duties and charges incurred in connection with the
sale of such underlying investments. In all other cases, the Directors have
absolute discretion to determine whether the redemption will be satisfied by
way of transfer of Investments or payment in cash in accordance with Article
11.2 (e) and, if the redemption is satisfied by a transfer of Investments, the
asset allocation will be subject to the approval of the Depositary.
11.8 If outstanding redemption requests from all holders of Shares
of a particular Fund on any Business Day total an aggregate of more than 10%
of all the Shares of such Fund on such Business Day, the Company shall be
entitled at its discretion to refuse to redeem such number of Shares in issue
in that Fund on that Business Day in respect of which redemption requests have
been received as the Directors shall determine. If the Company refuses to
redeem Shares for this reason, the requests for redemption on such date shall
be reduced rateably and the Shares to which each request relates which are not
redeemed shall be redeemed on each subsequent Business Day pro rata with any
request received thereafter, provided that the Company shall not be obliged to
redeem more than 10% of the number of Shares of a particular Fund outstanding
on any Business Day, until all the Shares of the Fund to which the original
request related have been redeemed. A Shareholder may withdraw his redemption
request by notice in writing to the Administrator if the Directors exercise
their discretion to refuse to redeem any Shares to which the request relates.
11.9 Requests for redemption which have been carried forward from an
earlier Dealing Day pursuant to these Articles shall (subject always to the
foregoing limits) be complied with in priority to later requests.
11.10 Notwithstanding any other provision of these Articles, the Company
shall be entitled at any time and from time to time to repurchase any or all
of the Subscriber Shares and the Capitalisation Shares at a price of Euro 1.00
per Subscriber Share or Capitalisation Share, as the case may be.
11.11 If a redemption of Shares by the Company would result in the
number of Shareholders falling below two or such other number stipulated by
any applicable statute or regulation from time to time to be the minimum
number of Shareholders in the Company or where a redemption of Shares by the
Company would result in the issued share capital of the Company falling below
such minimum amount as the Company may be obliged from time to time to
maintain pursuant to any applicable statute or law the Company shall be
entitled to defer the redemption of the minimum number of Shares sufficient to
ensure compliance by the Company with the applicable statute or law.
Redemption of such Shares may be deferred until such time as the Company is
being wound up, or until the Company procures the issue of sufficient Shares
to ensure that the redemption can be effected. The Directors shall be entitled
to select the Shares in respect of which redemption is to be deferred in
accordance with this Article 11.11 in such manner as shall appear to the
Directors, with the approval of the Depositary, to be fair and reasonable.
11.12 Where satisfaction of a redemption request would result in a
Shareholder holding a number of Shares of a particular Series less than or
with a value less than the Minimum Holding for that Series, the Directors
shall be entitled, at their discretion, to treat the application for
redemption as an application for the redemption of all of that Shareholder's
Shares of the relevant Series or to offer the Shareholder an opportunity to
amend or withdraw the said redemption request.
11.13 The Company may, subject to the prior consent of the relevant
Shareholder if the consideration for the Shares to be redeemed by that
Shareholder was provided entirely in the form of cash, satisfy any redemption
request by the distribution in specie of assets of the Company on such basis
as the Directors shall be satisfied does not prejudice the redeeming
Shareholder or the remaining Shareholders. The asset allocation is subject
to the approval of the Depositary.
11.14 Notwithstanding anything in these Articles to the contrary, the
Company may at its absolute discretion refuse to satisfy a redemption request
or make any other payment to a Shareholder or at the direction of a
Shareholder if such payment would result in a breach of the guidelines in
operation from time to time in relation to the detection and prevention of
money-laundering.
12. Total Redemption
12.1 The Company may (but is not obliged to) redeem all (but not
some) of the Shares of any Series or Class then in issue in a Fund if (a) the
Shareholders of the relevant Fund shall have passed a Special Resolution to
approve the redemption of all the Shares of that Series or Class; (b) the
redemption of the Shares in that Series or Class is approved by a resolution
in writing signed by all of the holders of the Shares in that Series or Class
in the relevant Fund (c) the Directors deem it appropriate because of adverse,
political, economic, fiscal or regulatory changes affecting the relevant
Series or Class (d) the Net Asset Value of the relevant Fund falls
below such amount as the Directors may determine and specify in the Prospectus
(e) the Shares in the relevant Fund cease to be listed on any stock exchange
on which they are listed (f) the Directors deem it appropriate for any
other reason; or (g) a period of ninety days has expired since the date on
which the Depositary served notice of retirement on the Company or the date on
which notice of the termination of the appointment of the Depositary is served
on the Depositary by the Company or since the date on which the Depositary
ceases to be qualified to act as Depositary under the Regulations and no
replacement Depositary has been appointed by the Company.
In each such case, the Shares of the relevant Series or class shall be
redeemed after giving such days prior notice as may be required by law to all
holders of such Shares or such longer period as the directors may determine.
The redemption of the Shares by the Company pursuant to this Article 12.1
shall be effected at the repurchase price calculated in accordance with
Article 12.2 hereof and for the purposes of the calculation of the said
Redemption Price the Business Day on which the Shares are repurchased shall be
the relevant Business Day for the purposes of Article 12.2 hereof.
12.2 The redemption price per Share at which Shares shall be
redeemed by the Company pursuant to this Article 12 shall be the Net Asset
Value per Share as at the relevant Business Day (as determined in accordance
with Article 14) less such sum as the Directors in their absolute discretion
may from time to time determine as an appropriate provision for Duties and
Charges in relation to the realisation or cancellation of the Share to be
repurchased and subject always to the aggregate amount payable on a redemption
of Shares being adjusted up to the nearest unit of the currency in which such
Shares are designated where the amount so determined is equal to or greater
than half of the relevant unit or down to the nearest unit where the said
amount is less than half of that unit ("unit" for these purposes being the
smallest fraction of the relevant currency which is legal tender in the
country of issue of that currency). Subscriber Shares and Capitalisation
Shares may be redeemed by the Company pursuant to this Article 12 for Euro1.00
per Subscriber Share or Capitalisation Share.
12.3 If all the Shares of a Series are to be redeemed as aforesaid
the Directors may, at their absolute discretion divide amongst the
Shareholders of that Series in specie all or part of the assets of the Company
attributable to that Series according to the number of the Shares then held by
each person holding Shares of that Series provided however that if any
Shareholder so requests the Directors shall liquidate or otherwise dispose of
sufficient assets in order to enable the Company to distribute the cash
proceeds thereof, net of liabilities, to such Shareholder instead of a
distribution of assets in specie.
12.4 If all the Shares are to be repurchased as aforesaid and the
whole or any part of the business or property of the Company or any of the
assets of the Company are proposed to be transferred or sold to another
company (hereinafter called the "Transferee") the Directors may, with the
sanction of a Special Resolution conferring either a general authority on the
Directors or an authority in respect of any particular arrangement, receive in
compensation or part compensation for such transfer or sale shares, units,
policies or other like interests or property in or of the Transferee for
distribution among the Shareholders, or may enter into any other arrangement
whereby the said Shareholders may in lieu of receiving cash or property or in
addition thereto participate in the profits of or receive any other benefit
from the Transferee.
13. Series Conversions
13.1 Subject to Articles 11 and 14 hereof and as hereinafter
provided a holder of Shares of any Series or any Class (the "Original Series
or Class") on any Business Day shall have the right to exchange any or all
such Shares for Shares of another Series or Class (the "New Series or Class")
(such Series or Class being either an existing Series or Class or a Series or
Class agreed by the Directors to be brought into existence with effect from
that Business Day) on the following terms:
(a) A Shareholder may effect a conversion by notice in writing
to the Company in such form as the Directors may from time to time determine
or approve (a "Conversion Notice").
(b) Conversion of the Shares specified in the Conversion
Notice pursuant to this Article shall occur with effect from the Business Day
on which the Conversion Notice is accepted by the Company or the Administrator
as its authorised agent (or such other times as the Directors may, determine
either generally or in relation to a particular Series or Class of Shares and
specify in the Prospectus, or permit in any specific case).
(c) Conversion of the Shares of the Original Series or Class
specified in the Conversion Notice shall be effected by treating the
Conversion Notice as a redemption request form in respect of the Shares of the
Original Series or Class and as an application form in respect of Shares of
the new Series or Class provided always that the right of a Shareholder to
convert its Shares into Shares of another Series or Class conferred by this
Article shall be conditional upon the Company having sufficient available
share capital to enable the conversion to be implemented in accordance with
the provisions of this Article.
(d) The Directors shall be entitled to impose an exchange
charge relating to the conversion in an amount not greater than the sum of:
(i) any initial charge or transaction fee which the Company
would be entitled to charge under Article 8.10 in relation to the Shares of
the New Series or Class; and
(ii) any redemption fee, transaction fee or contingent
deferred sales charge which the Company would be entitled to charge under
Article 11.2(g) in relation to the Shares of the Original Series or Class;
(e) The conversion of the Shares of the Original Series or
Class specified in the Conversion Notice into Shares of the New Series or
Class shall take place on the relevant Business Day as determined in
accordance with Article 12.00 (b), and the Shareholder's entitlement to Shares
as recorded in the Register shall be altered accordingly with effect from that
date.
(f) On conversion, the Directors will redeem, cancel and issue
share certificates where appropriate in accordance with the Shareholder's
entitlement to Shares in certificated form of each Series.
(g) The Directors shall, at their discretion, be entitled to
refuse an application for conversion where such conversion would result in a
Shareholder holding Shares of any Series with a value less than the Minimum
Holding for that Series and where the value of any holding of Shares of any
Class falls below the Minimum Holding for that Class, the Directors may
require the mandatory conversion of that holding into Shares of another Class
in that Series.
(h) If the number of Shares of the New Series of Class to be
issued on conversion is not an integral number of Shares, the Company may
issue fractional new Shares or return the surplus arising to the Shareholder
seeking to convert the Shares of the Original Series or Class.
14. Determination of Net Asset Value
14.1 The Company or its duly appointed agent shall determine the Net
Asset Value per Share in each Fund expressed in the Base Currency of the
relevant Series to such number of decimal places as the Directors may in their
discretion determine, by ascertaining on each Dealing Day the value of the
assets of the Fund to which the Series relates calculated pursuant to Article
15.1 hereof, and deducting from such amount the liabilities of the relevant
Fund to which the Series relates calculated pursuant to Article 15.2 hereof.
14.2 The Net Asset Value of the Shares shall be expressed in the
Base Currency of the relevant Series of Shares or in such other currency as
the Directors may determine either generally or in relation to a particular
Series of Shares or in a specific case, and shall be determined, subject to
Article 14.6 hereof, in accordance with the valuation rules set out hereafter,
on each Dealing Day subject to the Regulations. Where the Directors have
created different Classes within a Series in accordance with Article 4.4 and
have determined that (i) each Class or Classes will incur different levels of
fees (the details of which shall be set out in the Prospectus); (ii) currency
hedging transactions may be entered into in order to hedge any relevant
currency exposure of any Class or Classes denominated in a currency other than
the Base Currency; (iii) interest rate hedging transactions may be are entered
into in respect of a specific Class or Classes; or (iv) financial instruments
may be utilised on behalf of a specific Class or Classes in accordance with
the requirements of the Central Bank, in each case the Administrator shall
adjust the relevant Net Asset Value per Class in order to reflect such
different levels of fees payable in respect of each such Class and/or the
costs and resultant gains/losses of such hedging transactions and/or financial
instruments.
14.3 In the event that the Shares in any Fund are divided into
different Classes of Shares, the amount of the Net Asset Value of the Company
attributable to a Class shall be determined by establishing the number of
Shares issued in the Class at the relevant Valuation Point and by allocating
the relevant fees and Class expenses to the class, making appropriate
adjustments to take account of distribution, subscriptions, redemptions, gains
and expenses of that Class and apportioning the Net Asset Value of the Company
accordingly. The Net Asset Value per Share in respect of a Class will be
calculated by dividing the Net Asset Value of the relevant Class by the number
of Shares of the relevant Class in issue. The Net Asset Value of the Company
attributable to a Class and the Net Asset Value per Share in respect of a
Class will be expressed in the class currency of such Class if it is different
to the Base Currency.
14.4 In calculating the Net Asset Value of the Shares:
(a) where Investments have been agreed to be purchased or sold
by the Company but such purchase or sale has not been completed, such
Investments shall be included or excluded and the gross purchase or net sale
consideration excluded or included as the case may require as if such purchase
or sale had been duly completed;
(b) every Share agreed to be issued or allotted but not
issued by the Company on the relevant Business Day shall be deemed to be in
issue and the assets of the Company shall be deemed to include any cash or
other property to be received in respect of such Share;
(c) every Share in respect of which a valid redemption request
has been received in accordance with such procedures as are specified in the
Prospectus shall be deemed to have been redeemed on the relevant Dealing Day
and the assets of the Company shall be reduced by the amount payable to the
Shareholders upon such redemption;
(d) there shall be added to the Company's assets any actual or
estimated amount of any taxation of a capital nature which may be recoverable
by the Company;
(e) there shall be added to the Company's assets a sum
representing any interest or dividends or other income accrued but not
received in respect of such assets;
(f) there shall be added to the Company's assets the total
amount (whether actual or estimated by the Directors) of any claims for
repayment of any taxation levied on income of the Company and for double
taxation relief in relation to the assets of the Company;
(g) there shall be added to the Company's assets, the total
amount (whether actual or estimated by the Directors) of any realised and/or
unrealised gains of the Company in respect of such assets; and
(h) there shall be added to the Company's liabilities, the
total amount (whether actual or estimated by the Directors) of any realised
and/or unrealised losses of the Company in respect of such assets.
14.5 In calculating the number of Shares in issue:
(a) every Share agreed to be issued or allotted but not issued
by the Company on the Business Day shall be deemed to be in issue; and
(b) where notice of a reduction of the share capital by
cancellation of Shares has been given by the Directors to the Administrator
but such cancellation has not been completed prior to or on the relevant
Business Day, the Shares to be cancelled shall be deemed not to be in issue.
14.6 The Directors may at any time, with prior notification to the
Depositary, temporarily suspend the issue, valuation, sale, purchase,
redemption or conversion of Shares of any Fund, or the payment of redemption
proceeds, during:
(a) any period when any Recognised Market on which a
substantial portion of the investments for the time being comprised in the
Company are quoted, listed or dealt in is closed otherwise than for ordinary
holidays, or during which dealings on any such Recognised Market are
restricted or suspended;
(b) any period when, as a result of political, military,
economic or monetary events or other circumstances beyond the control,
responsibility and power of the Directors, the disposal or valuation of
investments for the time being comprised in the Company cannot, in the opinion
of the Directors, be effected or completed normally or without prejudicing the
interests of Shareholders;
(c) any breakdown in the means of communication normally
employed in determining the value of any investments for the time being
comprised in the Company or during any period when for any other reason the
value of investments for the time being comprised in the Company cannot, in
the opinion of the Directors, be promptly or accurately ascertained;
(d) any period when the Company is unable to repatriate funds
for the purposes of making redemption payments or during which the realisation
of investments for the time being comprised in the Company, or the transfer or
payment of funds involved in connection therewith cannot, in the opinion of
the Directors, be effected at normal prices or normal rates of exchange;
(e) any period when, as a result of adverse market conditions,
the payment of redemption proceeds may, in the opinion of the Directors, have
an adverse impact on the Company or the remaining Shareholders in the Company;
(f) any period when the Directors determine that it is in the
best interests of the Shareholders to do so.
14.7 Notice of any such suspension shall be published by the Company
at its registered office and in such newspapers and through such other media
as the Directors may from time to time determine, if in the opinion of the
Directors, it is likely to exceed thirty days, and shall be transmitted
immediately to the Central Bank and the Shareholders. Shareholders who have
requested the issue or redemption of Shares of any Series or Class will have
their subscription or redemption request dealt with on the first Business Day
after the suspension has been lifted unless applications or redemption
requests have been withdrawn prior to the lifting of the suspension. Where
possible, all reasonable steps will be taken to bring any period of suspension
to an end as soon as possible.
15. Valuation of Assets
15.1 The value of the assets of the Company shall be determined as
follows:
(a) Each asset which is quoted, listed or traded on or under the rules of
any Recognised Market shall be valued using the index method of stock
valuations in respect of that particular asset which may be the closing bid;
last bid; last traded; closing mid-market; or latest mid-market price on the
relevant Recognised Market at the relevant Valuation Point. If the investment
is normally quoted, listed or traded on or under the rules of more than one
Recognised Market, the relevant Recognised Market shall be that which is the
main market for the investment. If prices for an investment quoted, listed or
traded on the relevant Recognised Market are not available at the relevant
time, or are unrepresentative in the opinion of the Directors, such investment
shall be valued at such value as shall be estimated with care and in good
faith as the probable realisation value of the investment by a competent
professional person, firm or corporation appointed for such purpose by the
Directors and approved for the purpose by the Depositary. If the investment is
quoted, listed or traded on a Recognised Market but acquired or traded at a
premium or discount outside of or off the Recognised Market, the investment
shall be valued taking into account the level of premium or discount as of the
date of valuation of the instrument and the Depositary must ensure the
adoption of such a procedure is justifiable in the context of establishing the
probable realisation value of the security. Neither the Directors or their
delegates nor the Depositary shall be under any liability if a price
reasonably believed by them to be the last known market price may be found not
to be such.
(b) The value of any investment which is not normally quoted, listed or
traded on or under the rules of a Recognised Market, shall be valued at its
probable realisation value estimated with care and in good faith by the
Directors or by a competent person, firm or corporation appointed for such
purpose by the Directors and approved by the Depositary.
(c) Cash in hand or on deposit shall be valued at face value together with
accrued interest unless in the opinion of the Directors (in consultation with
the Administrator and the Depositary) any adjustment should be made to reflect
the fair value thereof.
(d) Derivative instruments including swaps, interest rate futures contracts
and other financial futures contracts which are traded on a Recognised Market
shall be valued at the settlement price as determined by the relevant
Recognised Market at the relevant Valuation Point, provided that where it is
not the practice of the relevant Recognised Market to quote a settlement
price, or if a settlement price is not available for any reason, such
instruments shall be valued at their probable realisation value estimated with
care and in good faith by the Directors or by a competent person, firm or
corporation appointed for such purpose by the Directors and approved by the
Depositary. The value of forward foreign exchange contracts which are dealt in
on a Recognised Market shall be calculated by reference to freely available
market quotations.
(e) Derivative instruments and forward exchange contracts not traded on a
Recognised Market shall be valued by the counterparty at least daily.
Alternatively, if so disclosed in the Prospectus, derivative instruments not
traded on a Recognised Market and forward foreign exchange contracts may be
valued daily using an alternative valuation provided by a competent person
appointed for the purpose by the Directors and approved for that purpose by
the Depositary.
(f) Certificates of Deposit shall be valued by reference to the latest
available sale price for certificates of deposit of like maturity, amount and
credit risk on each Business Day or, if such price is not available, at the
latest bid price or, if such price is not available or is unrepresentative of
the value of such certificate of deposit in the opinion of the Directors, at
probable realisation value estimated with care and in good faith by a
competent person appointed by the Directors and approved for the purpose by
the Depositary. Treasury bills and bills of exchange shall be valued with
reference to prices ruling in the relevant markets for such instruments of
like maturity, amount and credit risk at close of business on such markets on
the relevant Business Day.
(g) Units or shares in collective investment schemes shall be valued on the
basis of the latest available net asset value per unit as published by the
collective investment scheme. If units or shares in such collective investment
schemes are quoted, listed or traded on or under the rules of any Recognised
Market then such units or shares will be valued in accordance with the rules
set out above for the valuation of assets which are quoted, listed or traded
on or under the rules of any Recognised Market. If such prices are
unavailable, the units will be valued at their probable realisation value
estimated with care and good faith by the Directors or by a competent person,
firm or corporation appointed for such purpose by the Directors and approved
for such purpose by the Depositary.
(h) Notwithstanding the above provisions the Directors may (a)
adjust the valuation of any listed investment where such an adjustment is
considered necessary to reflect the fair value in the context of currency,
applicable rate of interest, maturity, marketability and/or such other
considerations as they deem relevant or (b) in relation to a specific asset
permit some other method of valuation approved by the Depositary to be used if
they deem it necessary.
(i) Values of assets and liabilities initially expressed in
foreign currencies will be converted into the base currency of the relevant
Fund using the market rates prevailing at the Valuation Point. If such
quotations are not available, the rate of exchange will be determined in
accordance with policies established in good faith by the Directors.
15.2 The liabilities of the Company shall be deemed to include any
and all actual or estimated liabilities of whatsoever nature of the Company
(except liabilities taken into account in determining the value of the assets
of the Company under Article 15.1 above) including, without limitation to the
generality of the foregoing:
(a) all administrative and professional fees and expenses
payable and/or accrued including, without prejudice to the generality of the
foregoing, all remuneration, fees, costs and expenses payable by the Company
and/or accrued and/or estimated to be payable by the Company to the
Depositary, the Administrator and the legal advisers of the Company and to any
other person, firm or corporation providing services to the Company and all
other projected expenses as the Directors consider fair and reasonable and
properly payable out of the assets of the Company and all value added tax
chargeable, if any, in respect of the provision of any of the foregoing
services to the Company;
(b) any and all outstanding borrowings and all accrued
interest payable thereon including, without prejudice to the generality of the
foregoing, an amount representing the aggregate maximum amount payable by the
Company in respect of any debentures, debenture stock, loan stock, loan notes,
bonds or other debt obligations created or issued by the Company;
(c) all bills, notes and accounts payable;
(d) the total amount of any actual or estimated liabilities
for any and all tax of whatsoever nature and howsoever arising on the income
or deemed income and realised capital gains of the Company as at the relevant
Business Day;
(e) the total amount of any actual or estimated liabilities
for withholding tax (if any) payable on any of the Investments in respect of
the current Accounting Period;
(f) an appropriate provision for all taxes and contingent
liabilities as determined from time to time by the Directors; and
(g) the total amount (whether actual or estimated by the
Directors) of any other liabilities properly payable out of the assets of the
Company.
15.3 Without prejudice to their general powers to delegate their
functions, the Directors may delegate any of their functions in relation to
the calculation of Net Asset Values and Net Asset Values per Share to the
Administrator or to any duly authorised person. In the absence of bad faith
or manifest error, every decision taken by the Directors or any duly
authorised person on behalf of the Company in calculating a Net Asset Value or
Net Asset Value per Share, shall be final and binding on the Company and on
present, past and future Shareholders.
16. Transfer and Transmission of Shares
16.1 All transfers of certificated shares shall be effected by a
transfer in writing in any usual or common form and every form of transfer
shall state the full name and address of the transferor and transferee.
16.2 The instrument of transfer of a certificated share shall be
signed by or on behalf of the transferor and need not be signed by 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
thereof.
16.3 A transfer of certificated Shares may not be registered if in
consequence of such transfer the transferor or the transferee would hold a
number of Shares less than the Minimum Subscription.
16.4 The Directors may decline to register any transfer of
certificated Shares unless the instrument of transfer is deposited at the
registered office of the Company or at such other place as the Directors may
reasonably require, with such other evidence as the Directors may reasonably
require to show the right of the transferor to make the transfer. The
Directors may decline to register a transfer where the transferee would be
precluded from holding shares in the Company under the provisions herein
contained or where the transferee fails to provide the necessary declarations
as to tax residency as may be requested by the Company.
16.5 The Directors may decline to register any transfer of
certificated Shares unless:
(a) such purchase or transfer is exempt from registration under, and does
not result in a violation of, the 1933 Act or the applicable laws of the US or
any US state and otherwise complies with the applicable requirements of any US
state;
(b) any purchaser or transferee that is a US Person is a
"qualified purchaser" as defined in the 1940 Act and the rules promulgated
thereunder and an "accredited investor" as defined in Regulation D under the
1933 Act;
(c) such purchase or transfer would not be reasonably expected
to result in the Company or any fund being required to register under the 1940
Act;
(d) there will be no adverse tax, pecuniary, legal, regulatory
or material administrative disadvantage to the Company (including any Fund) or
its shareholders as a whole as a result of such a purchase or transfer;
(e) such purchase or transfer would not cause a violation of,
or require the Company or any fund to register under the 1934 Act;
(f) such transferee has supplied the relevant information or
declarations required by the Directors within seven (7) days of a request to
do so being sent by the Directors (as provided in Article 9 hereto); and
(g) as a result of such transfer, the transferee shall hold
shares with a value which is equal to or more than the Minimum Subscription.
16.6 If the Directors decline to register a transfer of any Share
they shall, within one month after the date on which the transfer was lodged
with the Company, send to the transferee notice of the refusal.
16.7 A transfer of a Share in dematerialised form shall be made in
accordance with and subject to the Securities Regulations and the facilities
and requirements of the Relevant System and in accordance with any
arrangements made by the Board pursuant to Article 6.
16.8 The registration of any transfers may be suspended at such
times and for such periods as the Directors from time to time may determine,
PROVIDED ALWAYS that such registration of transfers shall not be suspended for
more than thirty days in any year.
16.9 All instruments of transfer which shall be registered shall be
retained by the Company, but any instrument of transfer which the Directors
may decline to register shall (except in the case of fraud) be returned to the
person depositing the same.
16.10 In the case of the death of a Member, the survivors or survivor
where the deceased was a joint holder, and the executors or Administrators of
the deceased where he was a sole or surviving holder, shall be the only person
recognised by the Company as having title to his interest in the shares, but
nothing in this Article shall release the estate of the deceased holder
whether sole or joint from any liability in respect of any share solely or
jointly held by him.
16.11 Any guardian of an infant Member and any guardian or other legal
representative of a Member under legal disability and any person entitled to a
share in consequence of the death, insolvency or bankruptcy of a Member shall,
upon producing such evidence of his title as the Directors may require, have
the right either to be registered himself as the holder of the share or to
make such transfer thereof as the deceased or bankrupt Member could have made,
but the Directors shall, in either case, have the same right to refuse or
suspend registration as they would have had in the case of a transfer of the
share by the infant or by the deceased, insolvent or bankrupt Member before
the death, insolvency or bankruptcy or by the Member under legal disability
before such disability.
16.12 A person so becoming entitled to a share in consequence of the
death, insolvency or bankruptcy of a Member shall have the right to receive
and may give a discharge for all monies payable or other advantages due on or
in respect of the share, but he shall not be entitled to vote at meetings of
the Company, nor save as aforesaid, to any of the rights or privileges of a
Member unless and until he shall be registered as a Member in respect of the
share PROVIDED ALWAYS that the Directors may at any time give notice requiring
any such person to elect either to be registered himself or to transfer the
share and if the notice is not complied with within ninety days the Directors
may thereafter withhold all moneys payable or other advantages due in respect
of the share until the requirements of the notice have been complied with.
17. Hedging Powers
17.1 Subject to the provisions of the Regulations, the Directors may
exercise all the powers of the Company to employ techniques and instruments
for hedging and efficient portfolio management purposes in relation to the
Investments or any of them or any other assets or any borrowing by the
Company.
17.2 Without limitation to the generality of Article 17.1, the
Directors, on behalf of the Company, may, subject to the provisions of the
Regulations, employ techniques and instruments intended to provide protection
against exchange risks in the context of the management of its assets and
liabilities.
18. General Meetings
18.1 General meetings of the Company may be held in Ireland or
elsewhere in accordance with Section 176 of the Act.
18.2 The Company shall in each year hold a general meeting as its
annual general meeting in addition to any other meeting in that year. Not more
than fifteen months shall elapse between the date of one annual general
meeting of the Company and that of the next provided that so long as the
Company holds its first annual general meeting within eighteen months of its
incorporation it need not hold it in the year of its incorporation.
18.3 All general meetings (other than annual general meetings) shall
be called extraordinary general meetings.
18.4 The Directors may call an extraordinary general meeting
whenever they think fit and extraordinary general meetings shall be convened
on such requisition, or in default may be convened by such requisitionists
being holders of Subscriber Shares, and in such manner as provided by the Act.
19. Notice of General Meetings
19.1 At least twenty one Clear Days' notice specifying the place,
the day and the hour of the meeting, and in the case of special business the
general nature of such business (and in the case of an annual general meeting
specifying the meeting as such) shall be given in the manner hereinafter
mentioned to such persons as are under the provisions of the Act or the
conditions of issue of the Shares held by them entitled to receive notices
from the Company, provided however that an extraordinary general meeting at
which no Special Resolution is to be considered may be convened on not less
than fourteen Clear Days' notice.
19.2 The Directors, the Manager, the Depositary, the Administrator,
the Investment Manager and the Auditors shall be entitled to receive notice of
and attend and speak at any general meeting of the Company.
19.3 In every notice calling a meeting of the Company, there shall
appear with reasonable prominence a statement that a Shareholder entitled to
attend and vote is entitled to appoint one or more proxies to attend and vote
instead of him and that a proxy need not also be a Shareholder.
19.4 The accidental omission to give notice to or the non-receipt of
notice by any person entitled to receive notice shall not invalidate the
proceedings at any general meeting.
19.5 Notices of general meeting may be sent to Shareholders by post,
telefax, e-mail or any other such means.
20. Proceedings at General Meetings
20.1 All business shall be deemed special that is transacted at an
extraordinary general meeting, and also all business that is transacted at an
annual general meeting with the exception of the consideration of the accounts
and the reports of the Directors and Auditors, the election of Directors in
the place of those retiring, the re-appointment of the Auditors and the fixing
of the remuneration of the Auditors.
20.2 No business shall be transacted at any general meeting unless a
quorum is present.
20.3 In respect of a general meeting of the Company, provided that
both ETF Shares and Non-ETF Shares are in issue and except as provided in
relation to an adjourned meeting in Article 20.5 below, two persons entitled
to vote upon the business to be transacted, each being a Shareholder or a
proxy for a Shareholder or a duly authorised representative of a corporate
Shareholder, shall be a quorum. In the event that only ETF Shares are in
issue, one person present in person or by proxy shall be a quorum. In the
event that only Non-ETF Shares are in issue, two people present in person or
by proxy shall be a quorum.
20.4 In respect of a general meeting of a Fund: (a) for a Fund with
only ETF Shares in issue, one person present in person or by proxy shall be a
quorum; (b) for a Fund with both ETF and Non-ETF Shares in issue, two persons
present in person or by proxy shall be a quorum, except as provided in
relation to an adjourned meeting in Article 20.5 below; (c) for a Fund with
only Non-ETF Shares in issue, two persons present in person or by proxy shall
be a quorum, except as provided in relation to an adjourned meeting in Article
20.5 below.
20.5 If within half an hour after the time appointed for a meeting a
quorum is not present, the meeting, if convened on the requisition of or by
Shareholders, shall be dissolved. In any other case it 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. One
Shareholder present either in person or by proxy shall be a quorum for any
such adjourned meeting. If within half an hour from the adjourned meeting, a
quorum is not present, the meeting shall be dissolved.
20.6 The chairman or, if absent, the deputy chairman of the
Directors, or failing him, some other Director nominated by the Directors
shall preside as chairman at every general meeting of the Company, but if at
any meeting neither the chairman nor the deputy chairman nor such other
Director be present within fifteen minutes after the time appointed for
holding the meeting, or, if none of them be willing to act as chairman, the
Directors present shall choose some Director present to be chairman or if no
Directors be present, or if all the Directors present decline to take the
chair, the Shareholders present either in person or by proxy shall choose some
other person present to be chairman.
20.7 The Chairman 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 but no business shall be
transacted at any adjourned meeting except business which might lawfully have
been transacted at the meeting from which the adjournment took place. When a
meeting is adjourned for fourteen days or more than ten Clear Days' notice at
the least specifying the place, the day and the hour of the adjourned meeting,
shall be given as in the case of the original meeting but it shall not be
necessary to specify in such notice the nature of the business to be
transacted at the adjourned meeting. Save as aforesaid, it shall not be
necessary to give any notice of an adjournment or of the business to be
transacted at the adjourned meeting.
20.8 At any general meeting, a resolution put to the vote of the
meeting shall be decided on a show of hands unless a poll is (before or on the
declaration of the result of the show of hands) demanded by the Chairman or by
any Shareholder present in person or by proxy. Unless a poll is so demanded,
a declaration by the Chairman that a resolution has, on a show of hands, been
carried or carried unanimously, or by a particular majority, or lost, and an
entry to that effect in the book containing the minutes of the proceedings of
the Company shall be conclusive evidence of the fact without proof of the
number or proportion of the votes recorded in favour of or against such
resolution. A demand for a poll may be withdrawn.
20.9 If a poll is demanded, a poll shall be taken in such manner and
at such place as the chairman may direct (including the use of ballot or
voting papers or tickets) and the result of a poll shall be deemed to be the
resolution of the meeting at which the poll was demanded.
20.10 The chairman may, in the event of a poll, appoint scrutineers and
may adjourn the meeting to some place and time fixed by him for the purpose of
declaring the result of the poll.
20.11 In the case of an equality of votes the chairman of the meeting at
which the poll takes place shall be entitled to a second or casting vote.
20.12 A poll on the election of a chairman and a poll on a question of
adjournment shall be taken forthwith. A poll on any other question shall be
taken at such time and place as the chairman directs not being more than
thirty days from the date of the meeting or adjourned meeting at which the
poll was demanded.
20.13 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 has been demanded.
20.14 A demand for a poll may be withdrawn and no notice need be given
of a poll not taken immediately.
20.15 Subject to Section 193 of the Act, a resolution in writing signed
by all the Shareholders for the time being entitled to attend and vote on such
resolution at a general meeting (or being bodies corporate by their duly
appointed representatives) shall be as valid and effective for all purposes as
if the resolution had been passed at a general meeting of the Company duly
convened and held and, if described as a Special Resolution, shall be deemed
to be a special resolution within the meaning of the Act. Any such may
consist of several documents in the like form each signed by one or more of
the Shareholders.
21. Votes of Shareholders
21.1 Subject to any special rights or restrictions for the time
being attached to any Series or Class of Shares with the prior approval of the
Central Bank, on a poll, each Shareholder shall be entitled to such number of
votes as shall be produced by dividing the aggregate net asset value of that
Shareholder's shareholding (expressed or converted into US Dollars and
calculated as of the relevant record date) by one. The Subscriber Shareholders
and Capitalisation Shareholders shall have one vote for each Subscriber Share
or Capitalisation Share held respectively. The "relevant record date" for
these purposes shall be a date being not more than thirty days prior to the
date of the relevant general meeting or written resolution as determined by
the Directors. On a show of hands, every Shareholder present in person or by
proxy or, if the Shareholder is a body corporate, present by a duly authorised
representative, shall have one vote. In relation to a resolution which in
the opinion of the Directors affects more than one Series or Class of Shares,
such resolution shall be deemed to have been duly passed only if, in lieu of
being passed through a single meeting of the Shareholders of such Series or
Class of Shares, such resolution shall have been passed at a separate meeting
of the Shareholders of each such Series or Classes.
21.2 In the case of 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 holders, and for this purpose
seniority shall be determined by the order in which the names stand in the
Register in respect of the Shares.
21.3 No objection shall be raised to the qualification of any voter
except at the meeting or adjourned meeting at which the vote objected to is
given or tendered, and every vote not disallowed at such meeting shall be
valid for all purposes. Any such objection made in due time shall be referred
to the chairman of the meeting, whose decision shall be final and conclusive.
21.4 On a poll votes may be given either personally or by proxy.
21.5 On a poll, a Shareholder entitled to more than one vote need
not, if he votes, cast all his votes or cast all the votes he is entitled to
in the same way.
21.6 The instrument appointing a proxy shall be in writing under the
hand of the appointor or of his attorney duly authorised in writing, or if the
appointor is a corporation, either under its common seal or under the hand of
an officer or attorney so authorised. An instrument of proxy shall be in the
usual form or in such form as the Directors may approve provided always that
such form shall give the holder the choice of authorising his/her proxy to
vote for or against each resolution.
21.7 Any person (whether a Shareholder or not) may be appointed to
act as a proxy. A Shareholder may appoint more than one proxy to attend on the
same occasion.
21.8 The instrument appointing a proxy and the power of attorney or
other authority (if any) under which it is signed or a notarially certified
copy of such power or authority, shall be deposited at the Office either by
post, telefax, e-mail or any other such means or at such other place as is
specified for that purpose in the notice of meeting or in the instrument of
proxy issued by the Company not less than forty-eight hours before the time
appointed for holding the meeting or adjourned meeting or the taking of a poll
at which the person named in the instrument proposes to vote and in default
the instrument of proxy shall not be treated as valid.
21.9 No instrument appointing a proxy shall be valid after the
expiration of twelve months from the date named in it as the date of its
execution, except at an adjourned meeting in cases where the meeting was
originally held within twelve months from such date.
21.10 The Directors may, at the expense of the Company, send, by post or
otherwise, to the Shareholders instruments of proxy (with or without prepaid
postage for their return) for use at any general meeting or at any meeting of
any Class of Shareholders, either in blank or nominating in the alternative
any one or more of the Directors or any other persons. 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
Shareholders entitled to be sent a notice of the meeting and to vote thereat
by proxy.
21.11 A vote given in accordance with the terms of an instrument of
proxy shall be valid notwithstanding the death or insanity of the principal or
the revocation of the instrument of proxy, or of the authority under which the
instrument of proxy was executed, or the transfer of the Shares in respect of
which the instrument of proxy is given, provided that no intimation in writing
of such death, insanity, revocation or transfer shall have been received by
the Company at the Office before the commencement of the meeting or adjourned
meeting at which the instrument of proxy is used.
21.12 Any body corporate which is a Shareholder or creditor of the
Company may authorise by resolution of its directors or other governing body
such person as it thinks fit to act as its representative at any meeting of
the Company and the person 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 Shareholder and such body
corporate shall for the purposes of these Articles be deemed to be present in
person at any such meeting if a person so authorised is present thereat.
21.13 With regard to the respective rights and interests of Shareholders
of different Series and/or different Classes, the foregoing provisions of
these Articles shall have effect subject to the following modifications:
(a) a resolution which in the opinion of the Directors affects
one Series or Class of Shares shall be deemed to have been duly passed if
passed at a separate meeting of the Shareholders of that Series or Class;
(b) a resolution which in the opinion of the Directors affects
more than one Series or Class of Shares but does not give rise to a conflict
of interests between the Shareholders of the respective Series or Classes
shall be deemed to have been duly passed if passed at a single meeting of the
Shareholders of those Series or Classes;
(c) a resolution which in the opinion of the Directors affects
more than one Series or Class of Shares and gives or may give rise to a
conflict of interests between the Shareholders of the respective Series or
Classes shall be deemed to have been duly passed only if, in lieu of being
passed at a single meeting of the Shareholders of those Series or Classes,
such resolution shall have been passed at a separate meeting of Shareholders
of each such Series or Class; and
(d) to all such meetings as aforesaid all the provisions of
these Articles shall, mutatis mutandis, apply as though references therein to
Shares and Shareholders were references to the Shares of the Series or Class
in question and to the Shareholders for the time being of such Series or
Classes respectively.
22. Directors
22.1 Unless otherwise determined by the Shareholders by Ordinary
Resolution, the number of the Directors shall not be less than two nor more
than nine. The first Directors shall be appointed by the subscribers to
these Articles.
22.2 A Director need not be a Shareholder.
22.3 The Directors shall have power at any time and from time to
time to appoint any person in accordance with the requirements of the Central
Bank to be a Director, either to fill a casual vacancy or as an addition to
the existing Directors.
22.4 The Directors shall be entitled to such remuneration in
relation to the performance of their duties as the Directors may from time to
time determine provided always that the amount of the remuneration payable to
the Directors in accordance with this Article 22.4 in any one year shall not
exceed €40,000 per annum per Director (or its equivalent) or such other
amount as the Directors may from time to time determine (with each Director
abstaining in respect of any resolution relating to that Director's
remuneration) and disclose to the Shareholders. Such remuneration shall be
deemed to accrue from day to day. The Directors and any alternate Directors
may also be paid all travelling, hotel and other expenses properly incurred by
them in attending and returning from meetings of the Directors or any
committee of the Board or general meetings or Class meetings of the Company or
any other meetings in connection with the business of the Company.
22.5 The Directors may in addition to such remuneration as is
referred to in Article 22.4 of these Articles grant special remuneration to
any Director who, being called upon, shall perform any special or extra
services to or at the request of the Company in general meeting.
22.6 Any Director may at any time by writing under his hand and
deposited at the Office, or delivered at a Board meeting, appoint any person
(including another Director) to be his alternate Director and may in like
manner at any time terminate such appointment.
22.7 The appointment of an alternate Director shall terminate on the
happening of any event which if he were a Director would cause him to vacate
such office or if his appointor ceases to be a Director.
22.8 An alternate Director shall be entitled to receive notices of
meetings of the Directors and shall be entitled to attend and vote as a
Director at any such meeting at which the Director appointing him is not
personally present and generally at such meeting to perform all functions of
his appointor as a Director and for the purposes of the proceedings at such
meeting the provisions of these Articles shall apply as if he, instead of his
appointor, were a Director. If he shall be himself a Director or shall
attend any such meeting as an alternate for more than one Director his voting
rights shall be cumulative provided however that he shall count as one for the
purposes of determining a quorum. If his appointor is for the time being
temporarily unable to act his signature to any resolution in writing of the
Directors and for the purposes of affixing the Seal or the Official Seal shall
be as effective as the signature of his appointor. To such extent as the
Directors may from time to time determine in relation to any committee of the
Board, the foregoing provisions of this Article 22.8 shall also apply mutatis
mutandis to any meeting of any such committee of which his appointor is a
member. An alternate Director shall not, save as aforesaid or as otherwise
in these Articles provided, have power to act as a Director nor shall he be
deemed to be a Director for the purposes of these Articles. If the Director
appointing an alternate shall die or otherwise cease to hold the office of
director, the appointment of the alternate hereunder shall thereupon cease and
terminate.
22.9 An alternate Director shall be entitled to contract and be
interested in and benefit from contracts or arrangements or transactions and
to be repaid expenses and to be indemnified to the same extent mutatis
mutandis as if he were a Director but he shall not be entitled to receive from
the Company in respect of his appointment as alternate Director any
remuneration except only such part (if any) of the remuneration otherwise
payable to his appointor as such appointor may by notice in writing to the
Company from time to time direct.
22.10 The office of a Director shall be vacated on any of the following
events namely:
(a) if he resigns his office by notice in writing signed by him and left at
the Office;
(b) if he becomes bankrupt or makes any arrangement or composition with his
creditors generally;
(c) if he becomes of unsound mind;
(d) a declaration of restriction is made in relation to the
Director and the Company does not satisfy the capital requirements prescribed
in section 819 of the Act;
(e) a declaration of restriction is made in relation to the
Director and, notwithstanding that the Company satisfies the capital
requirements prescribed in section 819 of the Act, his or her co-Directors
resolve at any time during the currency of the declaration that his or her
office be vacated;
(f) if he ceases to be a Director by virtue of, or becomes
prohibited from being a Director by reason of, an order made under the
provisions of any law or enactment;
(g) if he be requested by a majority of the other Directors (not
being less than two in number) to vacate office; or
(h) if he is removed from office by an Ordinary Resolution,
and
(i) the application of section 148(2) of the Act shall be
modified accordingly.
22.11 Subject to the provisions of Section 235 of the Act no Director or
other officer of the Company shall be liable for the acts, receipts, neglects
or defaults of any other Director or officer or for joining in any receipt or
other act for conformity or for any loss of expenses happening to the Company
through the insufficiency or deficiency of title to any property acquired for
or on behalf of the Company or for the insufficiency or deficiency of any
security in or upon which any of the monies of the Company shall be invested
or for any loss or damage arising from the bankruptcy, insolvency or tortious
act of any person with whom any monies, securities or effects shall be
deposited or any other loss, damage or misfortune whatsoever which may happen
in the execution of the duties of his office or in relation thereto.
23. Transactions with Directors
23.1 A Director may hold any other office or place of profit under
the Company (other than the office of Auditor) in conjunction with his office
of Director and may act in a professional capacity to the Company, on such
terms as to remuneration and otherwise as the Directors may determine.
23.2 Subject to the provisions of the Act, and provided that he has
disclosed to the Directors the nature and extent of any material interest of
his prior to the conclusion of such transaction, a Director notwithstanding
his office:
(a) may be a party to, or otherwise interested in, any
transaction or arrangement with the Company or in which the Company is
interested; and
(b) shall not be accountable, by reason of his office, to the
Company for any benefit which he derives from any such office or employment or
from any such transaction or arrangement or from any interest in any body
corporate which enters into any such transaction or arrangement and no such
transaction or arrangement shall be liable to be avoided on the ground of any
such interest or benefit.
23.3 No Director or intending Director shall be disqualified by his
office from contracting with the Company either as vendor, purchaser,
professional adviser or otherwise, nor shall any such contract or any contract
or arrangement entered into by or on behalf of the Company in which any
Director is in any way interested be liable to be avoided, nor shall any
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 relationship thereby
established, but the nature of his interest must be declared by him at the
Board meeting at which the question of entering into the contract or
arrangement is first taken into consideration, or if the Director was not at
the date of that meeting interested in the proposed contract or arrangement,
then at the next Board meeting held after he becomes so interested, and in a
case where the Director becomes interested in a contract or arrangement after
it is made, then at the first Board meeting held after he becomes so
interested. A general notice in writing given to the Directors by any
Director to the effect that he is a shareholder, officer or employee of any
specified company or a partner or employee in any specified firm, and is to be
regarded as interested in any contract or arrangement which may thereafter be
made with that company or firm, shall be deemed a sufficient declaration of
interest in relation to any contract or arrangement made.
23.4 For the purposes of this Article 23:
(a) a general notice in writing given to the Directors that a
Director is to be regarded as having an interest of the nature and extent
specified in the notice in any transaction or arrangement in which a specified
person or class of persons is interested shall be deemed to be a disclosure
that the Director has an interest in any such transaction of the nature and
extent so specified;
(b) an interest of which a Director has no knowledge and of
which it is unreasonable to expect him to have knowledge shall not be treated
as an interest of his; and
(c) an interest of a person who is the spouse or a minor child
of a Director shall be treated as an interest of the Director and, in relation
to an alternate Director, an interest of his appointor shall be treated as an
interest of the alternate Director.
23.5 Save as otherwise provided by the provisions of this Article 23
and unless the majority of the Directors acting through the Board otherwise
determine, a Director shall be entitled to vote at any Board meeting or a
committee of the Board in respect of any contract or arrangement or any
proposal whatsoever in which he has any material interest and be counted in
the quorum in respect of any resolution concerning any such contract,
arrangement or proposal including, without limitation to the generality of the
foregoing, any resolution concerning any of the following matters, namely:
(a) the giving of any security, guarantee or indemnity to him
in respect of money lent or obligations incurred by him at the request of or
for the benefit of the Company or any of its subsidiaries;
(b) the giving of any security, guarantee or indemnity to a
third party in respect of a debt or obligation of the Company or any of its
subsidiaries for which he himself has assumed responsibility in whole or in
part under a guarantee or indemnity or by the giving of security;
(c) any proposal concerning an offer of Shares or other
securities of or by the Company or any of its subsidiaries for subscription,
purchase or exchange in which offer he is or is to be interested as a
participant in the underwriting or sub-underwriting thereof; or
(d) any proposal concerning any other company or firm in which
he is interested, directly or indirectly and whether as an officer,
shareholder, partner, employee, agent or otherwise howsoever.
23.6 Where proposals are under consideration concerning the
appointment (including fixing or varying the terms of appointment) of two or
more Directors to offices or employment with the Company or any company in
which the Company is interested, such proposals may be divided and considered
in relation to each Director separately and in such case each of the Directors
concerned shall be entitled to vote and be counted in the quorum in respect of
each resolution except that concerning his own appointment.
23.7 If any question shall arise at any Board meeting or of a
committee of Board as to the materiality of a Director's interest or as to the
entitlement of any Director to vote and such question is not resolved by his
voluntarily agreeing to abstain from voting, such question shall be referred
to the chairman of the meeting and his ruling in relation to any Director
other than himself shall be final and conclusive except in a case where the
nature or extent of the interests of the Director concerned has not been
fairly disclosed.
23.8 The Shareholders may by Ordinary Resolution suspend or relax
the provisions of Articles 23.5 to 23.7 inclusive to any extent or ratify any
transaction not duly authorised by reason of a contravention thereof.
23.9 Any Director may act by himself or through his firm in a
professional capacity for the Company, and he or his firm shall be entitled to
remuneration for professional services as if he were not a Director, provided
that nothing herein contained shall authorise a Director or his firm to act as
Auditor.
23.10 The Directors may from time to time appoint one or more of their
body to be the holder of any executive office on such terms and for such
period as they may determine and, without prejudice to the terms of any
contract entered into in any particular case, may at any time revoke such
appointment.
23.11 The Directors may entrust to and confer upon any Director holding
any executive office any of the powers exercisable by them as Directors upon
such terms and conditions and with such restrictions as they think fit, and
either collaterally with or to the exclusion of their own powers, and may from
time to time revoke, withdraw, alter or vary all or any of such powers.
23.12 Any Director may continue to be or become a director, managing
director, manager or other officer or shareholder of any company promoted by
the Company or in which the Company may be interested or associated in
business, and no such Director shall be accountable for any remuneration or
other benefits received by him as a director, managing director, manager, or
other officer or shareholder of any such other company. The Directors may
exercise the voting power conferred by the shares in any other company held or
owned by the Company or exercisable by them as directors of such other
company, in such manner in all respects as they think fit (including the
exercise thereof in favour of any resolution appointing themselves or any of
them directors, managing directors, managers or other officers of such
company, or voting or providing for the payment of remuneration to the
directors, managing directors, managers or other officers of such company).
24. Powers of Directors
24.1 The business of the Company shall be managed by the Directors,
who may exercise all such powers of the Company as are not by the Act or by
these Articles required to be exercised by the Company in general meeting, but
no regulations made by the Company in general meeting shall invalidate any
prior act of the Directors which would have been valid if such regulations had
not been made. The general powers given by this Article shall not be limited
or restricted by any special authority or power given to the Directors by this
or any other Article.
24.2 All cheques, promissory notes, drafts, bills of exchange and
other negotiable or transferable instruments drawn on the Company, and all
other receipts for moneys paid to the Company shall be signed, drawn,
accepted, endorsed or otherwise executed, as the case may be, in such manner
as the Directors shall from time to time by resolution determine.
24.3 Subject to the Regulations, the Directors may exercise all the
powers of the Company to invest all or any funds of the Company as authorised
by these Articles.
24.4 The Directors, on behalf of the Company may, with the prior
approval of the Central Bank, and subject to the Regulations form one or more
wholly-owned companies (a "Subsidiary" or "Subsidiaries") in relation to a
Fund:
(a) to invest its assets mainly in the securities of issuing
bodies having their registered offices in a State which is not a Member State,
where under the legislation of that State such a holding represents the only
way in which the Company can invest in the securities of issuing bodies of
that State. This derogation, however, shall apply only if the Subsidiary is
incorporated in that State and its investment policy complies with the limits
laid down in the Regulations; or
(b) to carry on only the business of management, advice or
marketing in the country where the subsidiary is located, in regard to the
redemption of units at unit-holders' request exclusively on their behalf.
(c) All of the shares of a Subsidiary shall be held by the
Depositary or its nominee for the account of the Company and all assets of the
Subsidiary shall be held by the Depositary or its nominee for the account of
the Subsidiary.
25. Borrowing Powers
25.1 The Directors may exercise all the powers of the Company to
borrow money (including the power to borrow for the purpose of repurchasing
Shares) and to charge its undertaking, property and assets or any part
thereof.
25.2 Nothing herein contained shall permit the Directors or the
Company to borrow other than in accordance with the provisions of the
Regulations and the limits and conditions laid down by the Central Bank.
26. Proceedings of Directors
26.1 The Company shall be managed and controlled in Ireland and, so
far as practicable, all Board meetings of the Company shall be held in
Ireland.
26.2 The Directors may meet together for the dispatch of business,
adjourn and otherwise regulate their meetings as they think fit. Questions
arising at any meeting shall be determined by a majority of votes. A
Director may, and the Secretary on the requisition of a Director shall, at any
time summon a Board meeting.
26.3 The quorum necessary for the transaction of business of the
Directors may be fixed by the Directors and, unless so fixed at any other
number, shall be two.
26.4 The continuing Directors or a sole continuing Director may act
notwithstanding any vacancies in their number but if and so long as the number
of Directors is not reduced below the minimum number fixed by or in accordance
with the provisions of this Article 26.00. The continuing Directors or
Director may act for the purpose of filling up vacancies in their number or of
summoning general meetings of the Company, but not for any other purpose. If
there be no Directors or Director able or willing to act, then any two
Subscriber Shareholders may summon a general meeting for the purpose of
appointing Directors.
26.5 The Directors may from time to time elect and remove a chairman
and, if they think fit, a deputy chairman and determine the period for which
they respectively are to hold office.
26.6 The chairman or, failing him, the deputy chairman shall preside
at all meetings of the Directors, but if there be no chairman or deputy
chairman, or if at any meeting the chairman or deputy chairman be not present
within thirty minutes after the time appointed for holding the same, the
Directors present may choose one of their number to be chairman of the
meeting.
26.7 A resolution in writing signed by all the Directors for the
time being entitled to receive notice of a Board meeting and to vote thereat
shall be as valid and effectual as a resolution passed at a Board meeting duly
convened. Any such resolution may consist of several documents in the like
form each signed by one or more of the Directors, and for the purposes of the
foregoing signature by any alternate Director shall be as effective as the
signature of the Director by whom he is appointed.
26.8 A Board meeting for the time being at which a quorum is present
shall be competent to exercise all powers and discretions for the time being
exercisable by the Directors.
26.9 The Directors may delegate any of their powers to committees
consisting of such members of their body as they think fit. The meetings and
proceedings of any such committee shall conform to the requirements as to
quorum imposed under the provisions of Article 26.3 and shall be governed by
the provisions of the Act and 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 on them by the Directors.
26.10 The Directors may, whether by standing resolution or otherwise,
delegate their powers relating to the issue and re-purchase of Shares and the
calculation of Net Asset Value and Net Asset Values per Share and all
management and administrative duties in relation to the Company to the
Administrator or to any duly authorised officer or other person subject to
such terms and conditions as the Directors in their absolute discretion may
resolve.
26.11 All acts done by any meeting of Directors, or of a committee of
Directors or by any person acting as a Director or authorised by the Directors
shall, notwithstanding it be afterwards discovered that there was some defect
in the appointment of any such Directors or person acting as aforesaid, or
that they or any of them were disqualified, or had vacated office, or were not
entitled to vote, be as valid as if every such person had been duly appointed,
and was qualified and had continued to be a Director and had been entitled to
vote.
26.12 The Directors shall cause minutes to be made of:
(a) all appointments of officers made by the Directors;
(b) the names of the Directors present at each Board meeting
and of any committee of Directors; and
(c) all resolutions and proceedings of all meetings of the
Company and of the Directors and of committees of Directors.
26.13 Any such minutes as are referred to in Article 26.12, if
purporting to be signed by the chairman of the meeting at which the
proceedings took place, or by the chairman of the next succeeding meeting,
shall, until the contrary be proved, be conclusive evidence of their
proceedings.
26.14 Any Director may participate in a Board meeting by means of a
conference telephone or other telecommunication equipment by means of which
all persons participating in the meeting can hear each other speak and such
participation in a meeting shall constitute presence in person at the meeting
and such meeting shall be deemed to have been convened in the place from which
the conference telephone call or similar telecommunication is initiated
provided always that the quorum must be constituted in accordance with Article
26.3.
27. Managing Director
27.1 The Directors may from time to time appoint one or more of
their body to the office of "Managing Director" to act as managing director of
the Company and (subject to the restriction on the maximum aggregate
remuneration payable to the Directors under Article 22.4) may fix his or their
remuneration.
27.2 Every Managing Director shall be liable to be dismissed or
removed from his position as Managing Director by the Directors and another
person appointed in his place. The Directors may, however, enter into an
agreement with any person who is or is about to become a Managing Director
with regard to the length and terms of his employment, but so that the remedy
of any such breach of such agreement shall be in damages only and he shall
have no right or claim to continue in such office contrary to the will of the
Directors or of the Company in general meeting.
27.3 The Directors may from time to time entrust to and confer upon
the Managing Director or Managing Directors all or any of the powers of the
Directors (not including the power to borrow money or issue debentures) that
they may think fit. But the exercise of all powers by the Managing Director
or Managing Directors shall be subject to all such regulations and
restrictions as the Directors may from time to time make and impose and the
said powers may at any time be withdrawn, revoked or varied.
28. Secretary
28.1 The Secretary shall be appointed by the Directors. Anything
required or authorised to be done by or to the Secretary may, if the office is
vacant or there is for any other reason no Secretary capable of acting, be
done by or to any assistant or deputy Secretary or if there is no assistant or
deputy Secretary capable of acting, by or to any officer of the Company
authorised generally or specially in that behalf by the Directors provided
that any provisions of the Act or these Articles requiring or authorising
anything to be done by or to a Director and the Secretary shall not be
satisfied by its being done by or to the same person acting both as Director
and as, or in the place of, the Secretary.
29. The Seal
29.1 The Directors shall provide for the safe custody of the Seal.
The Seal shall be used only by the authority of the Directors or of a
committee of Directors authorised by the Directors in that behalf or a
Director and the Depositary where the Seal is being affixed to share
certificates. The Directors may from time to time as they see fit determine
the persons and the number of such persons who shall authenticate the affixing
of the Seal, and until otherwise so determined the affixing of the Seal shall
be authenticated by two Directors or by one Director and the Secretary, or
some other person duly authorised by the Directors, and the Directors may
authorise different persons for different purposes. In the case of affixing
the Seal to share certificates, this may be done by one Director and the
Depositary.
29.2 Every certificate of title to shares, stocks, debenture stock
or any other security of the Company (other than letters of allotment, scrip
certificates and other like documents) shall be issued under the Seal or under
the Official Seal kept by the Company.
29.3 The Directors may by resolution determine either generally or
in any particular case or cases that the signature of any such person
authenticating the affixing of the Seal or the Official Seal may be affixed by
some mechanical means to be specified in such resolution or that such
certificate shall bear no signatures provided always that the signature of the
Depositary shall not be affixed by mechanical means.
30. Dividends and Participation
30.1 The Company may in general meeting declare dividends on the
Shares, or on any Class of Shares, but no dividend shall exceed the amount
recommended by Directors and no dividends shall be payable in respect of the
Subscriber Shares or Capitalisation Shares. The Company may establish
different dividend policies for different Classes within any Series of Shares
and the Company may create both accumulating and distributing Classes in any
Series of Shares.
30.2 Notwithstanding anything to the contrary in these Articles or
in the Memorandum of Association of the Company, the Subscriber Shares and
Capitalisation Shares shall not entitle the holders thereof to participate in
all or any part of the profits or assets of the Company or to receive any
dividends or other distributions from the Company provided always that,
notwithstanding any other provision of these Articles, on the winding-up or
other dissolution of the Company, the Company shall redeem all of the
Subscriber Shares and Capitalisation Shares then in issue at Euro 1.00 per
Subscriber Share or Capitalisation Shares, as the case may be.
30.3 The Directors may from time to time if they think fit pay such
interim dividends on Shares of any Class as appear to the Directors to be
justified by the profits of the Company.
30.4 Subject to Article 30.1 the amount available for distribution
by the Company in respect of any Accounting Period shall be a sum equal to the
net income (including dividend and interest income) received by the Company in
respect of Investments attributable to the relevant Series and the excess, if
any, of realised and unrealised capital gains over realised and unrealised
capital losses of the Company and the capital of the Company, subject to such
adjustments as may be appropriate under the following headings:
(a) addition or deduction of a sum by way of adjustment to
allow for the effect of sales or purchases, cum or ex-dividend;
(b) addition of a sum representing any interest or dividend or
other income accrued but not received by the Company at the end of the
Accounting Period and deduction of a sum representing (to the extent that an
adjustment by way of addition has been made in respect of any previous
Accounting Period) interest or dividends or other income accrued at the end of
the previous Accounting Period;
(c) addition of the amount (if any) available for distribution
in respect of the last preceding Accounting Period but not distributed in
respect thereof;
(d) addition of a sum representing the estimated or actual
repayment of tax resulting from any claims in respect of corporation tax
relief or double taxation relief or otherwise;
(e) deduction of the amount of any tax or other estimated or
actual liability properly payable out of the income of the Company;
(f) deduction of a sum representing participation in income
paid upon the cancellation of Shares during the Accounting Period;
(g) deduction of such sum as the Company with the approval of
the Auditors may think appropriate in respect of the Preliminary Expenses and
Duties and Charges, including, without limitation, all fees and expenses
payable to the Manager, Administrator, the Depositary and the Investment
Manager and all expenses of and incidental to any amendments to the Memorandum
and Articles of Association for the purpose of securing that the Company
conforms to legislation coming into force after the date of incorporation
hereof and any other amendments made pursuant to a resolution of the Company,
expenses comprising all costs, charges, professional fees and disbursements
bona fide incurred in respect of the computation, claiming or reclaiming of
all taxation reliefs and payments, and any interest paid or payable on
borrowings provided always that the Company shall not be responsible for any
error in any estimates of corporation tax repayments or double taxation relief
expected to be obtained or of any sums payable by way of taxation or of income
receivable, and if the same shall not prove in all respects correct, the
Directors shall ensure that any consequent deficiency or surplus shall be
adjusted in the Accounting Period in which a further or final settlement is
made of such tax repayment or liability or claim to relief or in the amount of
any such estimated income receivable, and no adjustment shall be made to any
dividend previously declared;
(h) deduction of any amounts declared as a distribution but
not yet distributed; and
(i) deduction of any amounts which the Directors in their
sole and absolute discretion determine to be re-invested in Investments for
the benefit of the Company.
30.5 The Directors may, with the sanction of an Ordinary Resolution,
distribute in kind among Shareholders, by way of dividend or otherwise, any of
the assets of the Company.
30.6 All Shares shall, unless otherwise determined by the Directors,
rank for dividend as from the beginning of the Accounting Period in which they
are issued and the Directors may introduce, if they so determine, equalisation
arrangements designed to ensure an appropriate treatment of dividends payable
on Shares. Such equalisation arrangements may require Shareholders, upon
subscription, to make an equalisation payment, to be distributed to such
Shareholders at a subsequent distribution date.
30.7 Any resolution of the Directors declaring a dividend may
specify that the same shall be payable to the persons registered as the
holders of those Classes of Shares entitling the holders thereof to receipt of
such a dividend at the close of business on a particular date, notwithstanding
that it may be a date prior to that on which the resolution is passed, and
thereupon the dividend shall be payable to them in accordance with their
respective holdings so registered, but without prejudice to the right inter se
in respect of such dividend of transferors and transferees of Shares.
30.8 The Company may transmit any dividend or other amount payable
in respect of any Share by electronic means or by cheque or warrant sent by
ordinary post to the registered address of the holder, or, in the case of
joint holders, of one of them or to such person and address as the holder or
joint holders may direct, and shall not be responsible for any loss arising in
respect of such transmission. A dividend or other amount payable in respect
of a share in dematerialised form may also be paid by means of the Relevant
System if the Directors decide and the person or persons entitled to the
payment has or have given written authority for the payment to be made by the
Relevant System.
30.9 No dividend or other amount payable to any holder of Shares
shall bear interest against the Company. All unclaimed dividends and other
amounts payable as aforesaid may be invested or otherwise made use of for the
benefit of the Company until claimed. Payment by the Company of any
unclaimed dividend or other amount payable in respect of a Share into a
separate account shall not constitute the Company a trustee in respect
thereof. Any dividend unclaimed after six years from the date when it first
became payable shall be forfeited automatically, without the necessity for any
declaration or other action by the Company.
30.10 At the option of any Shareholder entitled to dividends, the
Directors may apply all dividends declared on the Shares held by such
Shareholder towards the issue of additional Shares in the Company to that
Shareholder at their Net Asset Value per Share as at the date on which such
dividends are declared and on such terms as the Directors from time to time
may resolve.
30.11 The Directors may provide that Shareholders will be entitled to
elect to receive in lieu of any dividend (or part thereof) an issue of
additional Shares credited as fully paid and subject to the following
provisions:
(a) the number of additional Shares (excluding any fractional
entitlement) to be issued in lieu of any amount of dividend shall be equal in
value to the amount of such dividend at the date the dividend was declared;
(b) the dividend (or that part of the dividend in respect of
which a right of election has been accorded) shall not be payable on Shares in
respect of which the Share election has been duly exercised ("Elected
Shares"), and in lieu thereof additional Shares shall be issued to the holders
of the Elected Shares on the basis determined aforesaid and for such purpose
the Directors shall capitalise a sum equal to the aggregate value of the
dividend in respect of which elections have been made and apply the same in
paying up in full the appropriate amount of unissued Shares;
(c) the additional Shares so issued shall rank pari passu in
all respects with the fully-paid Shares of the relevant Class then in issue
save only as regards participation in the relevant dividend (or Share election
in lieu);
(d) the Directors may do all acts and things considered
necessary or expedient to give effect to any such capitalisation, with full
power to the Directors to make such provision as they think fit in the case of
Shares becoming distributable in fractions so that fractional entitlements are
disregarded or rounded up or the benefit of fractional entitlements accrues to
the Company or the Company issues Fractional Shares; and
(e) the Directors may on any occasion determine that rights
for election shall not be made available to any Shareholder with registered
addresses in any territory where in the absence of a registration statement or
other special formalities the circulation of an offer of rights of election
would or might be unlawful, and in any such event, the provisions aforesaid
shall be read and construed subject to such determination.
31. Accounts
31.1 The Directors shall cause to be kept such books of account as
are necessary in relation to the conduct of its business or as are required by
the Act and the Regulations so as to enable the accounts of the Company to be
prepared.
31.2 The books of account shall be kept at the Office, or at such
other place or places as the Directors shall think fit, and shall at all times
be open to the inspection of the Directors, but no person, other than a
Director or Auditor shall be entitled to inspect the books, accounts,
documents or writings of the Company, except as provided by the Act or
authorised by the Directors or by the Company in general meeting.
31.3 A balance sheet and a profit and loss account of the Company
shall be made out as at each Accounting Date and shall be audited by the
Auditors and laid before the annual general meeting of the Shareholders of the
relevant Series in each year, and such balance sheet shall contain a general
summary of the assets and liabilities of the Company. The balance sheet of the
Company shall be accompanied by a report of the Directors as to the financial
state and condition of the Company, and the amount (if any) which they have
carried or propose to carry to reserve, together with a profit and loss
account. The balance sheet and the report of the Directors and the profit
and loss account shall be signed on behalf of the Directors by at least two of
the Directors. The Auditors' report shall be attached to the balance
sheet. The Auditors' report shall be read at the annual general meeting.
31.4 Once at least in every year the Directors shall cause to be
audited and certified by the Auditors an Annual Report relating to the
management of the Company. The Annual Report shall include the balance sheet
and profit and loss account of the Company and each Fund duly audited by the
Auditors and the Directors' Report and the Auditors' Report as provided for in
Article 31.3 and shall be in a form approved by the Central Bank and shall
contain such information required by it.
31.5 The Annual Report shall be published not later than four months
after the end of the period to which it relates.
31.6 The Auditor's certificate appended to the Annual Report and
statement referred to in herein shall declare that the accounts or statement
attached respectively thereto (as the case may be) have been examined with the
books and records of the Company in relation thereto and that the Auditors
have obtained all the information and explanations they have required and the
Auditors shall report whether the accounts are in their opinion properly drawn
up in accordance with such books and records and present a true and fair view
of the state of affairs of the Company, and whether the accounts are in their
opinion properly drawn up in accordance with the provisions hereof.
31.7 The Company shall prepare for submission to the Central Bank
half yearly financial statements, which should consist of a statement of
assets under management and a profit and loss account for the period and such
other information as the Central Bank may from time to time require and the
half yearly statements shall be published not later than two months from the
end of the period to which they relate.
32. Audit
32.1 The Company shall at each annual general meeting appoint an
Auditor or Auditors to hold office until the conclusion of the next annual
general meeting, unless the Auditor or Auditors are automatically re-appointed
pursuant to Section 383 of the Act.
32.2 If an appointment of Auditors is not made at an annual general
meeting, the Director of Corporate Enforcement for the time being may appoint
Auditors to the Company for the current year and fix or authorise the
remuneration to be paid to the Auditors by the Company for their services.
32.3 A Director or officer of the Company shall not be capable of
being appointed as an Auditor.
32.4 A person, other than a retiring Auditor, shall not be capable
of being appointed Auditor at an annual general meeting unless notice of an
intention to nominate that person to the office of Auditor has been given by a
Shareholder to the Company not less than twenty eight days before the annual
general meeting and the Directors shall send a copy of any such notice to the
retiring Auditor and shall give notice thereof to the Shareholders in
accordance with Section 396 of the Act.
32.5 The first Auditors shall be appointed by the Directors before
the first general meeting, and they shall hold office until the conclusion of
the first annual general meeting unless previously removed by a resolution of
the Company in general meeting, in which case the Subscriber Shareholders at
such meeting may appoint Auditors.
32.6 The Directors may fill any casual vacancy in the office of
Auditor, but while any such vacancy continues the surviving or continuing
Auditor or Auditors (if any) may act.
32.7 The remuneration of the Auditors shall be approved by the
Company in general meeting or in such manner as the Directors may determine.
32.8 The Auditors shall examine such books, accounts and vouchers as
may be necessary for the performance of their duties.
32.9 The report of the Auditors to the Shareholders on the audited
accounts of the Company shall state whether, in the Auditors' opinion, the
balance sheet and profit and loss account give a true and fair view of the
state of the Company's affairs and on its profit and loss for the period in
question.
32.10 The Company shall furnish the Auditors with a list of all books
kept by the Company and the Auditors shall at all reasonable times have the
right of access to the books and accounts and vouchers of the Company and
shall be entitled to require from the Directors and officers of the Company
such information and explanations as may be necessary for the performance of
their duties.
32.11 The Auditors shall be entitled to attend any general meeting of
the Company at which any accounts which have been examined or reported on by
them are to be laid before the Company and to make any statement or
explanations they may desire with respect to the accounts and notice of every
such meeting shall be given to the Auditors in the manner prescribed for the
Shareholders.
32.12 The Auditors shall be eligible for re-election.
33. Notices
33.1 Any notice or other document required to be served upon or sent
to a Shareholder may be served by the Company on a Shareholder either
personally or by sending it through the post in a pre-paid letter addressed to
such Shareholder at his address as appearing in the Register or by telefax,
email or any other means approved by the Directors. In the case of joint
holders of a Share, all notices shall be given to that one of the joint
holders whose name stands first in the Register in respect of the joint
holding, and notice so given shall be sufficient notice to all the joint
holders. Any notice or other document, served by post, shall be deemed to
have been served twenty four hours after the time that the letter containing
the same is posted and in proving such service, it shall be sufficient to
prove that the letter containing the notice or document was properly addressed
and duly posted. Any notice or other document, served by delivery, shall be
deemed to have been served at the time of delivery and in proving such
service, it shall be sufficient to prove that the letter containing the notice
or document was properly addressed and duly delivered. Notice may also be
given by way of advertisement containing the full text of the notice in at
least one leading international newspaper and one daily newspaper in Dublin,
Ireland or such other publication as the Directors may from time to time
determine circulating in any country where the Shares of the Company are being
issued and such notice shall be deemed to have been served at noon on the day
on which such advertisement appears.
33.2 Any notice or document sent by post to or left at the
registered address of a Shareholder shall notwithstanding that such
Shareholder be then dead or bankrupt and whether or not the Company has notice
of his death or bankruptcy be deemed to have been duly served or sent and such
service shall be deemed a sufficient service on receipt by all persons
interested (whether jointly with or as claiming through or under him) in the
Shares concerned.
33.3 Any certificate or notice or other document which is sent by
post to or left at the registered address of the Shareholder named therein or
dispatched by the Company, the Manager, the Depositary, the Administrator or
the Investment Manager, in accordance with his instructions shall be so sent
left or dispatched at the risk of such Shareholder.
33.4 Any notice in writing or other document in writing required to
be served upon or sent to the Company shall be deemed to have been duly given
if sent by post to the Office or left at the Office.
34. Winding Up
34.1
(a) If the Company shall be wound up the liquidator shall
subject to the provisions of the Act apply the assets of the Company in such
manner and order as he thinks fit in satisfaction of creditors' claims. The
liquidator shall, in relation to the assets available for distribution among
the Shareholders, make in the books of the Company such transfers thereof as
may be necessary in order that the effective burden of such creditors' claims
may be shared between the holder of Shares of different classes in such
proportions as the liquidator in his absolute discretion may think equitable.
(b) The assets available for distribution among the
Shareholders shall then be applied in the following priority:
(i) First, in the payment to the holders of the Shares of
each series of a sum in the currency in which that series is designated (or in
any other currency selected by the liquidator) as nearly as possible equal (at
a rate of exchange determined by the liquidator) to the Net Asset Value of the
Shares of such series held by such holders respectively as at the date of
commencement to wind up provided that there are sufficient assets available in
the Company to enable such payment to be made. In the event that, as regards
any series of Shares, there are insufficient assets available in the Company
to enable such payment to be made recourse shall be had to the payment to the
holders of each series of Shares of any balance then remaining in the Company,
such payment being made in proportion to the number of Shares of that series
held.
(ii) Secondly, in the payment to the holders of the Subscriber
Shares and Capitalisation Shares of sums up to the nominal amount paid thereon
out of the assets of the Company not comprised remaining after any recourse
thereto under sub-paragraph (i) above. In the event that there are
insufficient assets as aforesaid to enable such payment in full to be made, no
recourse shall be had to the assets of the Company.
(iii) Thirdly, in the payment to the holders of each series of
Shares of any balance then remaining in the Company, such payment being made
in proportion to the number of Shares of that series held.
34.2 If the Company shall be wound up (whether the liquidation is
voluntary, under supervision or by the Court) the liquidator may, with the
authority of a special resolution and any other sanction required by the Act,
divide among the Shareholders in specie the whole or any part of the assets of
the Company, and whether or not the assets shall consist of property of a
single kind, and may for such purposes set such value as he deems fair upon
any one or more class or classes of property, and may determine how such
division shall be carried out as between the Shareholders or different classes
of Shareholders. Shareholders may request that assets which are to be
distributed to them in specie will be first liquidated to cash and, in such
circumstances, the costs of any sale of assets can be charged to the relevant
Shareholders. The liquidator may, with the like authority, vest any part of
the assets in trustees upon such trusts for the benefit of Shareholders as the
liquidator, with the like authority, shall think fit, and the liquidation of
the Company may be closed and the Company dissolved, but so that no
Shareholder shall be compelled to accept any assets in respect of which there
is liability.
35. Indemnity
35.1 The Company shall indemnify its Directors, Officers, employees
and any person who serves at the request of the Company as a director,
officer, employee of another company, partnership, joint venture, trust or
other enterprise as follows:
(a) Every person who is or has been a Director, Secretary, or
employee of the Company and every person who serves at the Company's request
as a director, officer or employee of another company, partnership, joint
venture, trust or other enterprise shall be indemnified by the Company to the
fullest extent permitted by law against liability and against all expenses
reasonably incurred or paid by him in connection with any debt, claim, action,
demand, suit, proceeding, judgment, decree, liability or obligation of any
kind in which he becomes involved as a party or otherwise by virtue of his
being or having been a Director, Secretary or employee of the Company or a
director, officer or employee of another company, partnership, joint venture,
trust or other enterprise at the request of the Company and against amounts
paid or incurred by him in the settlement thereof except where any of the
foregoing is attributable to any negligence, default, breach of duty or breach
of trust on his part;
(b) The words "claim," "action," "suit" or "proceedings" shall
apply to all claims, actions, suits or proceedings (civil, criminal,
administrative, legislative, investigative or other, including appeals) and
shall include, without limitation, legal fees, costs, judgments, amounts paid
in settlement, fines, penalties and other liabilities;
(c) The rights of indemnification herein provided may be
insured against by policies maintained by the Company, shall be severable,
shall not affect any other rights to which any Director, Secretary, employee
or agent may now or hereafter be entitled, shall continue as to a person who
has ceased to be such a Director, Secretary, employee or agent and shall enure
to the benefit of the heirs, executors and administrators of such a person;
(d) The Company may make advances of expenses incurred in the
defence of any claim, action, suit or proceedings against any person whom the
Company is obliged to indemnify pursuant to Article 35.1 hereof; and
(e) The Company may indemnify the Manager, Administrator, the
Investment Manager and any agent of the Company to the extent permitted by law
and subject to the provisions in relation to indemnification set out in
Article 35.1 hereof.
35.2 The Manager, the Depositary, the Administrator, the Investment
Manager and any other service provider to the Company shall be entitled to
such indemnity from the Company upon such terms and subject to such conditions
and exceptions and with such entitlement to have recourse to the assets of the
Company with a view to meeting and discharging the costs thereof as shall be
provided under its agreement with the Company.
35.3 The Company, the Manager, the Directors, the Depositary, the
Administrator, the Investment Manager and any other service provider to the
Company shall each be entitled to rely absolutely on any declaration received
from a Shareholder or his agent as to the residence or otherwise of such
Shareholder and shall not incur liability in respect of any action taken or
thing suffered by any of them in good faith in reliance upon any paper or
document believed to be genuine and to have been sealed or signed by the
proper parties nor be in any way liable for any forged or unauthorised
signature on or any common seal affixed to any such document or for acting on
or giving effect to any such forged or unauthorised signature or common seal
but shall be entitled, though not bound, to require the signature of any
person to be verified by a banker, broker or other responsible person or
otherwise authenticated to its or their satisfaction.
35.4 The Company, the Manager, the Directors, the Depositary, the
Administrator, the Investment Manager and any other service provider to the
Company shall each incur no liability to the Shareholders for doing or (as the
case may be) failing to do any act or thing which by reason of any provision
of any present or future law or regulation made pursuant thereto, or of any
decree, order or judgment of any court, or by reason of any request,
announcement or similar action (whether of binding legal effect or not) which
may be taken or made by any person or body acting with or purporting to
exercise the authority of any government (whether legally or otherwise) either
they or any of them shall be directed or requested to do or perform or to
forbear from doing or performing. If for any reason it becomes impossible or
impracticable to carry out any of the provisions hereof neither the Company,
the Manager, the Depositary, the Administrator, the Investment Manager nor any
other service provider shall be under any liability therefor or thereby. This
Article shall not, however, exempt the Company, the Manager, the Depositary,
the Administrator or the Investment Manager from any liability any of them may
incur as a result of a failure to adhere to their obligations as set out in
the Regulations or any liability incurred as a result of any fraud on the part
of the Company, the Manager, the Administrator, the Investment Manager or the
Depositary.
35.5 For the avoidance of doubt no Director shall be liable for the
acts or omissions of any other Director.
36. Destruction of Documents
36.1 The Company may destroy:
(a) any share certificate which has been cancelled at any time
after the expiry of one year from the date of such cancellation;
(b) any dividend mandate or any variation or cancellation
thereof or any notification of change of name or address at any time after the
expiry of two years from the date such mandate, variation, cancellation or
notification was recorded by the Company;
(c) any instrument of transfer of Shares which has been
registered at any time after the expiry of six years from the date of
registration thereof; and
(d) any other document on the basis of which an entry in the
Register is made at any time after the expiry of ten years from the date an
entry in the Register was first made in respect of it; and it shall
conclusively be presumed in favour of the Company that every share certificate
so destroyed was a valid and effective certificate duly and properly cancelled
and that every instrument of transfer so destroyed was a valid and effective
instrument duly and properly registered and that 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:
(i) the foregoing provisions of this Article shall apply
only the destruction of a document in good faith and without express notice to
the Company that the preservation of such document was relevant to a claim;
(ii) nothing contained in this Article shall be construed as
imposing upon the Company any liability in respect of the destruction of any
such document earlier than as aforesaid or in any case where the conditions of
proviso (a) above are not fulfilled; and
(iii) reference in this Article to the destruction of any
document includes references to its disposal in any manner.
37. Untraced Shareholders
37.1 The Company shall be entitled to repurchase any Share of a
Shareholder or any Share to which a person is entitled by transmission and to
forfeit any dividend which is declared and remains unpaid for a period of six
years if and provided that:
(a) for a period of six years no cheque, Share certificate or
confirmation of ownership of Shares sent by the Company through the post in a
pre-paid letter addressed to the Shareholder or to the person entitled by
transmission to the Share at his address on the Register or the last known
address given by the Shareholder or the person entitled by transmission to
which cheques, Share certificates or confirmations of the ownership of Shares
are to be sent, has been cashed or acknowledged and no communication has been
received by the Company from the Shareholder or the persons entitled by
transmission;
(b) at the expiration of the said period of six years by
notice sent by pre-paid letter addressed to the Shareholder or to the person
entitled by transmission to the Share at his address on the Register or to the
last known address given by the Shareholder or the person entitled by
transmission or by advertisement in a national daily newspaper published in
Ireland or in a newspaper circulating in the area in which the address
referred to in Article 37.01(a) is located the Company has given notice of its
intention to repurchase such Share;
(c) during the period of three months after the date of the
advertisement and prior to the exercise of the power of repurchase the Company
has not received any communication from the Shareholder or person entitled by
transmission; and
(d) if the Shares are quoted on a stock exchange the Company
has first given notice in writing to the appropriate section of such stock
exchange of its intention to repurchase such Share, if it is required to do so
under the rules of such stock exchange.
37.2 The proceeds of such repurchase and forfeited dividends shall
form part of the assets of the Fund in respect of which such Shares were
issued.
37.3 If in the event that the voluntary winding up of the Company
there are undistributable or unapplied balances or dividends which have been
declared but unclaimed the provisions of section 623 of the Act should apply
and in accordance thereto the liquidator shall lodge to the Company's
liquidation account (the "Liquidation Account") the whole of such unpaid
dividends and undistributable or unapplied balances. The Liquidation Account
shall be under the control of the High Court of Ireland and any claim to
monies in the Liquidation Account by a Shareholder shall be made through the
High Court of Ireland in accordance with, and subject to, the provisions of
section 623 of the Act.
38. Variation of Share Capital
38.1 The Company may from time to time by Ordinary Resolution
increase its capital, consolidate its Shares or any of them into a smaller
number of Shares, sub-divide Shares or any of them into a larger number of
Shares or cancel any Shares not taken or agreed to be taken by any person.
38.2 All new Shares shall be subject to the provisions of these
Articles with respect to transfer, transmission and otherwise.
38.3 In addition to any right of the Company specifically conferred
by these Articles to reduce its share capital the Company may be Special
Resolution from time to time reduce its share capital in any way permitted by
law, and in particular, without prejudice to the generality of the foregoing
power may:
(a) extinguish or reduce the liability on any of its Shares in
respect of share capital not paid up; or
(b) with or without extinguishing or reducing liability on any
of its Shares:
(i) cancel any paid-up share capital which is lost, or which
is not represented by available assets; or
(ii) pay off any paid-up share capital which is in excess of
the requirements of the Company.
38.4 The Company may by Ordinary Resolution from time to time alter
(without reducing) its share capital by:
(a) consolidating and dividing all or any of its share capital
into Shares of larger amount than its existing Shares;
(b) sub-dividing its Shares, or any of them, into Shares of
smaller amount than that fixed by its Memorandum of Association so, however,
that in the sub-division 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; or
(c) cancelling any Shares which, at the date of the passing of
the Ordinary Resolution in that behalf 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.
38.5 The rights attaching to any Series or Class of Shares in the
capital of the Company may only (unless otherwise provided by the terms of the
issue of the Shares of that Series or Class and by these Articles) whether or
not the Company is being wound up, be varied or abrogated with the consent in
writing of the holders of three quarters of the issued Shares of that Series
or Class, or with the sanction of a resolution passed by a majority of
three-quarters of the votes cast by the members of that Series or Class who
attend at a separate general meeting of the holders of the Shares of the
relevant Series or Class. The provisions of these Articles relating to general
meetings shall apply to every such separate general meeting. The necessary
quorum at any such meeting other than an adjourned meeting shall be one person
holding issued Shares of the Series or Class in question and, at an adjourned
meeting, one person holding Shares of the Series or Class in question or his
proxy.
38.6 The rights conferred upon the holders of the Shares of any
Series or Class issued with preferred or other rights shall not, unless
otherwise expressly provided by the terms of issue of the Shares of that
Series or Class, be deemed to be varied by the creation or issue of further
Shares ranking pari passu therewith.
39. Dealings by the Manager, Administrator, Investment Manager and
Depositary
39.1 Any person being the Manager, Investment Manager, the
Depositary or the Administrator and any associate or affiliate of the Manager,
the Investment Manager, the Depositary or the Administrator may:
(a) subject to Article 10, become the owner of Shares and
hold, dispose or otherwise deal with Shares;
(b) deal in property of any description on its own
notwithstanding the fact that property of that description is included in the
property of the Company; or
(c) act as principal or agent in the sale or purchase of
property to or from the Company without having to account to the Company, to
the Shareholders or to any other person for any profits or benefits made by or
derived from or in connection with any such transaction, provided that such
transaction is conducted at arm's length and is in the best interest of
Shareholders and:
(i) a certified valuation of such transaction by a person
approved by the Depositary (or the Manager in transactions involving the
Depositary) as independent and competent has been obtained;
(ii) such transaction has been executed on best terms on an
organised investment exchanges under the rules of the relevant exchange; or
(iii) where (i) and (ii) are not practical, such transaction
has been executed on terms which the Depositary (or the Manager in cases of a
transaction involving the Depositary) is satisfied conform with the principle
that such transactions are conducted at arm's length and in the best interest
of Shareholders.
40. Restriction on Modification to Articles
40.1 No modification shall be made to the Memorandum or Articles of
Association of the Company which would result in the Company ceasing to comply
with the terms of the Regulations. In any case, no modification shall be
made to the Memorandum and Articles of Association of the Company without the
prior approval of the Central Bank.
41. Irish Taxation
In the event of any payment, cancellation, redemption, repurchase, transfer or
deemed chargeable event, in respect of Shares held by an Irish Resident who is
not an Exempt Investor or any Shareholder, whether an Irish Resident or not,
in respect of which a valid Declaration is not in place, the Company shall be
entitled to deduct from any payment an amount equal to the tax chargeable
pursuant to Section 739E of the Irish Taxes Consolidation Act 1997 or any
other provision of Irish tax law applicable to the Company or the Shareholders
(hereinafter the "appropriate tax") or redeem, appropriate or cancel such
number of Shares as are required to meet the appropriate tax of such
Shareholder and to account for such appropriate tax to the Irish tax
authorities. In the event that the Company is not required to pay such
appropriate tax to the Irish tax authorities immediately the Company shall
arrange for the appropriate tax to be lodged to an account in the name of the
Depositary for the account of the Company pending payment to the Irish tax
authorities.
42. Conversion to an ICAV
The Directors are hereby authorised, subject to Shareholder approval and
pursuant to Part 8 of the ICAV Act, to apply to the Central Bank or the
relevant competent authority for registration of the Company as an ICAV by way
of continuation within the meaning of the ICAV Act.
Names addresses and descriptions of subscribers
Matsack Trust Limited Matsack Nominees Limited
70 Sir John Rogerson's Quay 70 Sir John Rogerson's Quay
Dublin 2 Dublin 2
Dated the 23 day of February, 2009
Witness to the above Signatures:
Donnchadh Galvin
Company Secretarial Assistant
70 Sir John Rogerson's Quay
Dublin 2
Appendix 2
Share Class Name ISIN
HSBC ASIA PACIFIC EX JAPAN SCREENED EQUITY UCITS ETF USD (Acc) IE00BKY58G26
HSBC ASIA PACIFIC EX JAPAN SCREENED EQUITY UCITS ETF USD (Dist) IE000P1WR081
HSBC BLOOMBERG GLOBAL ESG AGGREGATE 1-3 YEAR BOND UCITS ETF IE000XGNMWE1
HSBC DEVELOPED WORLD SCREENED EQUITY UCITS ETF USD (Acc) IE00BKY59K37
HSBC DEVELOPED WORLD SCREENED EQUITY UCITS ETF USD (Dist) IE000ZGT8JM8
HSBC EMERGING MARKET SCREENED EQUITY UCITS ETF USD (Acc) IE00BKY59G90
HSBC EMERGING MARKET SCREENED EQUITY UCITS ETF USD (Dist) IE000XYBMEH0
HSBC EUROSTOXX 50 UCITS ETF EUR (Dist) IE00B4K6B022
HSBC EUROSTOXX 50 UCITS ETF EUR (Acc) IE000MWUQBJ0
HSBC EUROPE EX UK SCREENED EQUITY UCITS ETF EUR (Dist) IE00BKY58625
HSBC EUROPE SCREENED EQUITY UCITS ETF EUR (Acc) IE00BKY55W78
HSBC EUROPE SCREENED EQUITY UCITS ETF EUR (DIST) IE000WARATZ3
HSBC FTSE 100 UCITS ETF IE00B42TW061
HSBC FTSE 250 UCITS ETF IE00B64PTF05
HSBC FTSE EPRA NAREIT DEVELOPED CLIMATE PARIS ALIGNED UCITS ETF USD (Acc) IE00096S6AV7
HSBC FTSE EPRA NAREIT DEVELOPED CLIMATE PARIS ALIGNED UCITS ETF USD (Dist) IE000SPKU8M9
HSBC FTSE EPRA NAREIT DEVELOPED ISLAMIC UCITS ETF USD (Acc) IE000U679IT9
HSBC FTSE EPRA NAREIT DEVELOPED UCITS ETF USD (Dist) IE00B5L01S80
HSBC FTSE EPRA NAREIT DEVELOPED UCITS ETF CHF Hedged (Acc) IE0009YEDMC6
HSBC FTSE EPRA NAREIT DEVELOPED UCITS ETF USD (Acc) IE000G6GSP88
HSBC HANG SENG TECH UCITS ETF IE00BMWXKN31
HSBC JAPAN SCREENED EQUITY UCITS ETF USD (Acc) IE00BKY55S33
HSBC JAPAN SCREENED EQUITY UCITS ETF USD (DIST) IE000J3F4J90
HSBC MSCI AC ASIA PACIFIC EX JAPAN CLIMATE PARIS ALIGNED UCITS ETF IE000XFORJ80
HSBC MSCI AC FAR EAST ex JAPAN UCITS ETF USD (Acc) IE00BBQ2W338
HSBC MSCI AC FAR EAST EX-JAPAN UCITS ETF USD (Dist) IE00022VXYM7
HSBC MSCI CANADA UCITS ETF IE00B51B7Z02
HSBC MSCI CHINA A UCITS ETF USD (Dist) IE00BF4NQ904
HSBC MSCI CHINA A UCITS ETF USD (Acc) IE000Z4OYPZ6
HSBC MSCI CHINA A UCITS ETF USD Hedged (Acc) IE0007HPIXG8
HSBC MSCI CHINA UCITS ETF USD (Dist) IE00B44T3H88
HSBC MSCI CHINA UCITS ETF USD (Acc) IE0007P4PBU1
HSBC MSCI EMERGING MARKETS CLIMATE PARIS ALIGNED UCITS ETF IE000FNVOB27
HSBC MSCI EMERGING MARKETS ISLAMIC SCREENED CAPPED UCITS ETF USD (Acc) IE0009BC6K22
HSBC MSCI EMERGING MARKETS SMALL CAP SCREENED UCITS ETF USD (Acc) IE000W080FK3
HSBC MSCI EMERGING MARKETS UCITS ETF USD (Dist) IE00B5SSQT16
HSBC MSCI EMERGING MARKETS UCITS ETF USD (ACC) IE000KCS7J59
HSBC MSCI EMERGING MARKETS VALUE SCREENED UCITs ETF USD (Acc) IE000NVVIF88
HSBC MSCI EUROPE CLIMATE PARIS ALIGNED UCITS ETF IE00BP2C0316
HSBC MSCI EUROPE ISLAMIC SCREENED UCITS ETF EUR (Acc) IE000AGFZM58
HSBC MSCI EUROPE UCITS ETF EUR (Dist) IE00B5BD5K76
HSBC MSCI EUROPE UCITS ETF EUR (Acc) IE000ZQOIPB1
HSBC MSCI INDONESIA UCITS ETF IE00B46G8275
HSBC MSCI JAPAN CLIMATE PARIS ALIGNED UCITS ETF IE000UU299V4
HSBC MSCI JAPAN ISLAMIC SCREENED UCITS ETF USD (Acc) IE0001XCFC82
HSBC MSCI JAPAN UCITS ETF USD (Dist) IE00B5VX7566
HSBC MSCI JAPAN UCITS ETF USD (Acc) IE0006RFB3X2
HSBC MSCI KOREA CAPPED UCITS ETF IE00B3Z0X395
HSBC MSCI PACIFIC ex JAPAN UCITS ETF USD (Dist) IE00B5SG8Z57
HSBC MSCI PACIFIC ex JAPAN UCITS ETF USD (Acc) IE000SGVQIZ9
HSBC MSCI TAIWAN CAPPED UCITS ETF IE00B3S1J086
HSBC MSCI USA CLIMATE PARIS ALIGNED UCITS ETF USD (Acc) IE00BP2C1S34
HSBC MSCI USA CLIMATE PARIS ALIGNED UCITS ETF USD (Dist) IE000O0KDG23
HSBC MSCI USA ISLAMIC SCREENED UCITS ETF USD (Acc) IE000I5NV504
HSBC MSCI USA QUALITY UCITS ETF IE00B5WFQ436
HSBC MSCI WORLD CLIMATE PARIS ALIGNED UCITS ETF IE00BP2C1V62
HSBC MSCI WORLD ISLAMIC SCREENED UCITS ETF USD (Acc) IE000X9FTI22
HSBC MSCI WORLD SMALL CAP SCREENED UCITS ETF USD (Acc) IE000C692SN6
HSBC MSCI WORLD UCITS ETF USD (Dist) IE00B4X9L533
HSBC MSCI WORLD UCITS ETF CHF Hedged (Acc) IE000WMRNBB0
HSBC MSCI WORLD UCITS ETF EUR Hedged (Acc) IE000QMIHY81
HSBC MSCI WORLD UCITS ETF USD (Acc) IE000UQND7H4
HSBC MSCI WORLD VALUE SCREENED UCITS ETF USD (Acc) IE000LYBU7X5
HSBC MULTI FACTOR WORLDWIDE EQUITY UCITS ETF USD (Dist) IE00BKZGB098
HSBC MULTI FACTOR WORLDWIDE EQUITY UCITS ETF USD (Acc) IE0000378O66
HSBC NASDAQ GLOBAL CLIMATE TECH UCITS ETF USD (Acc) IE000XC6EVL9
HSBC NASDAQ GLOBAL SEMICONDUCTOR UCITS ETF IE000YDZG487
HSBC PLUS USA EQUITY QUANT ACTIVE UCITS ETF USD (Acc) IE0008JXFQK8
HSBC PLUS WORLD EQUITY INCOME QUANT ACTIVE UCITS ETF USD (Dist) IE000KL4O2Z8
HSBC PLUS WORLD EQUITY QUANT ACTIVE UCITS ETF USD (Acc) IE000ZURGSV2
HSBC S&P 500 UCITS ETF USD (Dist) IE00B5KQNG97
HSBC S&P 500 UCITS ETF CHF Hedged (Acc) IE000WMIYI33
HSBC S&P 500 UCITS ETF USD (Acc) IE000JZ473P7
HSBC S&P INDIA TECH UCITS ETF EUR (Acc) IE0008119MO8
HSBC UK SCREENED EQUITY UCITS ETF GBP (Acc) IE00BKY53D40
HSBC UK SCREENED EQUITY UCITS ETF GBP (Dist) IE00046S3PW1
HSBC USA SCREENED EQUITY UCITS ETF USD (Acc) IE00BKY40J65
HSBC USA SCREENED EQUITY UCITS ETF USD (Dist) IE000YFGN231
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. END NOGBLGDRSSBDGURRecent news on HSBC Holdings
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