TIDMBOCH
RNS Number : 6173L
Bank of Cyprus Holdings PLC
13 January 2021
THIS CIRCULAR AND THE ACCOMPANYING FORM OF PROXY ARE IMPORTANT
AND REQUIRE YOUR IMMEDIATE ATTENTION.
If you are in any doubt about the contents of this Circular and
what action you should take, you are recommended to consult your
independent professional adviser, who is authorised or exempted
under the European Union (Markets in Financial Instruments)
Regulations 2017 (as amended) or the Investment Intermediaries Act
1995 (as amended), if you are resident in Ireland, or who is
authorised under the Financial Services and Markets Act 2000 (as
amended), if you are resident in the United Kingdom, or from
another appropriately authorised independent financial adviser if
you are resident in a territory outside Ireland or the United
Kingdom.
If you have sold or otherwise transferred all of your Bank of
Cyprus Holdings plc ("BOCH") shares ("Shares") or Depository
Interests representing Shares of BOCH ("DIs"), please forward this
document and the accompanying Form of Proxy or DI Holder Form of
Proxy to the purchaser or transferee of such Shares or DIs or to
the stockbroker, or other agent through or by whom the sale or
transfer is/was effected for onward transmission to the purchaser
or transferee.
BANK OF CYPRUS HOLDINGS PLC
NOTICE OF EXTRAORDINARY GENERAL MEETING
Replacement of CREST with Euroclear Bank for electronic
settlement of trading in Bank of Cyprus Holdings plc's Shares
Amendment of the Articles of Association
Your attention is drawn to the letter from the Chairman of the
Company which is set out on pages 5 to 14 of this Circular, which
contains the recommendation of the Board to Shareholders to vote in
favour of the Resolutions to be proposed at the Extraordinary
General Meeting referred to below. You should read this Circular in
its entirety and consider whether or not to vote in favour of the
Resolutions in light of the information contained in this
Circular.
Notice of the Extraordinary General Meeting of Bank of Cyprus
Holdings plc to be held at 51 Stassinos Street, Ayia Paraskevi,
2002 Strovolos, Nicosia, Cyprus on Friday, 5 February 2021 at 11:00
a.m. (Cyprus time) / 9:00 a.m. (Irish time) is set out in this
Circular.
Your attention is drawn to the special arrangements for the EGM
in response to the Coronavirus (COVID--19) pandemic, which are set
out in this Circular.
A Form of Proxy and a DI Form of Proxy for use at the
Extraordinary General Meeting is enclosed. If Shareholders wish to
validly appoint a proxy, the Form of Proxy should be completed and
signed in accordance with the instructions printed thereon, and
returned by post to, together with any power of attorney or other
authority under which it is executed or a notarially certified copy
thereof, the Company's Registrar, Link Registrars Limited, either
to P.O. Box 1110, Maynooth, Co. Kildare, Ireland (if delivered by
post) or to Link Registrars Limited, Block C, Maynooth Business
Campus, Maynooth, Co. Kildare, W23 F854, Ireland (if delivered by
hand) , or delivered to the Company at its registered office
address, Ten Earlsfort Terrace, Dublin 2, D02 T380, Ireland, as
soon as possible but in any event so as to be received no later
than 9:00 p.m. (Cyprus time) / 7:00 p.m. (Irish time) on Wednesday,
3 February 2021 (or, in the case of an adjournment of the
Extraordinary General Meeting, no later than 48 hours before the
time fixed for holding the adjourned meeting).
Depository Interest Holders ("DI Holders") wishing to appoint a
proxy should use a DI Form of Proxy. To be valid, DI Forms of Proxy
must be completed, signed and returned, together with any power of
attorney or other authority under which it is executed, or a
notarially certified copy thereof, to the Investor Relations
Department of the Company at 51 Stassinos Street, Ayia Paraskevi,
2002 Strovolos, Nicosia, Cyprus or P.O. Box 21472, 1599 Nicosia,
Cyprus or by e-mail to: shares@bankofcyprus.com, or by fax to: +
357 22 120265 or +357 22 120245, so as to reach such address no
later than 9:00 p.m. (Cyprus time) / 7:00 p.m. (Irish time) on 3
February 2021.
The completion and return of a Form of Proxy or Form of DI Proxy
will not preclude you from attending and voting in person at the
Extraordinary General Meeting, or any adjournment thereof, should
you wish to do so, subject to compliance with the latest guidance
of the Government of the Republic of Cyprus, the Government of
Ireland and the Department of Health (of Ireland) to minimise any
potential risks posed to attendees as a result of the COVID--19
pandemic.
Alternatively, electronic proxy appointment is also available
for the Extraordinary General Meeting. This facility enables
shareholders to appoint a proxy by electronic means by logging on
to www.signalshares.com and entering the Company name: Bank of
Cyprus Holdings plc. If you have not registered previously, you
will need to firstly register for Signal Shares by clicking on
"registration section" and following the instructions therein.
For those shareholders who hold shares in CREST, a shareholder
may appoint a proxy by completing and transmitting a CREST Proxy
Instruction to Link Registrars Limited (CREST Participant ID
7RA08). In each case the proxy appointment must be received
electronically by no later than 9:00 p.m. (Cyprus time) / 7:00 p.m.
(Irish time) on Wednesday 3 February 2021. The completion of either
an electronic proxy appointment or a CREST Proxy Instruction (as
the case may be) will not prevent you from attending and voting in
person at the Extraordinary General Meeting, or any adjournment
thereof, should you wish to do so, subject to compliance with the
latest guidance of the Government of the Republic of Cyprus, the
Government of Ireland and Department of Health (of Ireland) to
minimise any potential risks posed to attendees as a result of the
Coronavirus (COVID--19) pandemic. A proxy need not be a shareholder
of the Company.
Further instructions on how to appoint a proxy are set out in
the notes to the Notice of EGM and on the Form of Proxy.
Important Note
This Circular contains (or may contain) certain forward-looking
statements with respect to certain of the Company's current
expectations and projections about future events, including
relating to the Migration, as well as certain statements regarding
the Company's future financial condition and performance. These
statements, which sometimes use words such as "aim", "anticipate",
"believe", "may", "will", "should", "intend", "plan", "assume",
"estimate", "expect" (or the negative thereof) and words of similar
meaning, reflect the directors' current beliefs and expectations
and involve known and unknown risks, uncertainties and assumptions,
many of which are outside the Company's control and are difficult
to predict (certain of which are set out in this Circular with
respect to the Migration).
Due to such uncertainties and risks, readers are cautioned not
to place undue reliance on such forward-looking statements, which
speak only as of the date hereof. In light of these risks,
uncertainties and assumptions, the events described in the
forward-looking statements in this Circular may not occur. The
information contained in this Circular, including the
forward-looking statements, speaks only as of the date of this
Circular and is subject to change without notice and the Company
does not assume any responsibility or obligation to, and does not
intend to, update or revise publicly or review any of the
information contained herein save where indicated in this Circular,
whether as a result of new information, future events or otherwise,
except to the extent required by the UK Financial Conduct Authority
("FCA"), the London Stock Exchange ("London Stock Exchange"),
Cyprus Stock Exchange ("Cyprus Stock Exchange"), Cyprus Securities
and Exchange Commission ("CySEC") or by applicable law.
Information in this Circular in relation to the process of the
Migration and/or Market Migration is based on information contained
in the Euroclear Bank SA/NV ("Euroclear Bank") Migration Guide
(Version 2, October 2020) ("EB Migration Guide"), to which the
attention of all Shareholders holding Migrating Shares is
specifically drawn. The EB Migration Guide has been made available
for inspection, in the manner outlined in section 8 of Part 1 of
this Circular.
In addition, information in this Circular in relation to the
service offering available following the Migration from Euroclear
Bank in the case of Participants ("EB Participants") in the central
securities depository operated by Euroclear Bank ("Euroclear
System") and from Euroclear UK & Ireland Limited ("EUI") in the
case of CREST Depository Interests ("CDI") holders is based on
information contained in the EB Services Description, the EB Rights
of Participants Document and the CREST International Manual
respectively. All three documents have been made available for
inspection, in the manner outlined in section 8 of Part 1 of this
Circular outlined below.
In all cases, the versions of the documents from which
information contained in this Circular is drawn is the last
published document as of the Latest Practicable Date.
Shareholders intending to hold their interests in Migrating
Shares via the Euroclear System or CREST should carefully review
the EB Migration Guide, the EB Services Description, the EB Rights
of Participants Document and the CREST International Manual
(including any updated versions thereof to the extent they are
published after the date of this Circular), together with the
additional documentation made available for inspection as set out
in section 8 of Part 1 of this Circular and should consider those
documents and consult with their stockbroker or other intermediary
in making their decisions with respect to their Migrating
Shares.
If a DI Holder wishes to continue holding DIs representing
Shares following the Migration, no action is required to be taken
by that DI Holder in advance of the Migration (other than voting in
respect of the Resolutions, should a DI Holder wish to do so).
The Company is not making any recommendation with respect to the
manner in which Shareholders should hold their interests in the
Company prior to, on, or subsequent to, the Migration (as defined
below). No reliance should be placed on the contents of this
Circular for the purposes of any decision in that regard.
The date of this Circular is 13 January 2021.
TABLE OF CONTENTS
Page(s)
EXPECTED TIMETABLE OF PRINCIPAL EVENTS 2
LETTER FROM THE CHAIRMAN OF BANK OF CYPRUS
PART 1: HOLDINGS PLC 5
QUESTIONS AND ANSWERS IN RELATION TO
PART 2: THE MIGRATION 15
FURTHER INFORMATION PROVIDED FOR THE
PURPOSE OF SECTION 6(1) OF THE MIGRATION
PART 3 ACT 23
COMPARISON OF EUROCLEAR BANK AND EUI
PART 4 SERVICE OFFERING 37
PART 5 OVERVIEW OF BELGIAN LAW RIGHTS 45
PART 6 OVERVIEW OF CREST DEPOSITORY INTERESTS 50
PART 7: TAX INFORMATION IN RESPECT OF THE MIGRATION 54
PROPOSED AMMENTS TO THE ARTICLES OF
PART 8: ASSOCIATION 66
PART 9: DEFINITIONS 70
APPIX
I: NOTICE OF EXTRAORDINARY GENERAL MEETING 77
RIGHTS OF MEMBERS OF IRISH INCORPORATED
PLCs UNDER THE COMPANIES ACT 2014 THAT
APPIX ARE NOT DIRECTLY EXERCISABLE UNDER THE
II: EUROCLEAR BANK SERVICE OFFERING 87
EXPECTED TIMETABLE OF PRINCIPAL EVENTS
EGM Timetable
Publication of this Circular and Notice of 13 January 2021
EGM
Latest time and date for receipt of Forms 9:00 p.m. (Cyprus
of Proxy / DI Forms of Proxy in respect of time) / 7:00 p.m.
Extraordinary General Meeting (Irish time) on
3 February 2021
-------------------
Record Date for EGM 9:00 p.m. (Cyprus
time) / 7:00 p.m.
(Irish time) on
3 February 2021
-------------------
Time and date of Extraordinary General Meeting 11:00 a.m. (Cyprus
time) / 9:00 a.m.
(Irish time) on
5 February 2021
-------------------
Indicative Timetable for Key Migration Steps
The further dates below, which relate to the Migration, are
indicative only, are subject to change, and will depend, amongst
other things, on the date to be appointed by Euronext Dublin as the
Live Date in accordance with the provisions of the Migration of
Participating Securities Act 2019 ("Migration Act").
The Company will give notice of confirmed dates, when known, by
issuing an announcement through a Regulatory Information Service.
All times relating to the Migration in this timetable are subject
to subsequent clarification and announcement.
If the Company fails to meet all required conditions to
participate in the Migration, including that it has consented to
the Migration (which requires the prior approval of the Migration
Resolutions by Shareholders), all of the Shares will no longer be
eligible for settlement in the CREST System, nor will they be
eligible in Euroclear Bank. According to the EB Migration Guide,
EUI will cease to provide Issuer CSD services in respect of
ineligible securities, and will suspend and remove ineligible
securities from the CREST System, as of the close of business on
Thursday, 11 March 2021 and such ineligible securities will
thereupon be rematerialised (i.e. re--certificated). In the absence
of an alternative electronic settlement system, this would be
expected to adversely impact trading and liquidity in the Shares
and put continued admission to trading and listing of the Shares on
the London Stock Exchange at risk, as referred to in section 2 of
Part 2 of this Circular.
It is not expected that the Migration will directly impact DI
Holders who continue to hold their Shares as Depository Interests
on the Cyprus Stock Exchange. These Shares are outside the remit of
the Migration as they are not settled within CREST and will
continue to be settled in the Cyprus Central Securities Depository
following Migration. If a DI Holder wishes to continue holding DIs
representing Shares following the Migration, no action is required
to be taken by that DI Holder in advance of the Migration (other
than voting in respect of the Resolutions, should a DI Holder wish
to do so).
EUI and Euroclear Bank to announce the Migration February / March
timetable.(1) 2021
Euronext Dublin to announce Live Date. Prior to Friday,
It should be noted that the Company has no control 12 March 2021
over the selection of the Live Date and the
timetable for the Migration consequent upon
it.
-------------------------
Expected latest time and date for Shareholders Unless otherwise
who hold their Shares in uncertificated (i.e. notified, by 02:00
dematerialised) form and who do not want their p.m. (Cyprus time)
Shares to be subject to the Migration to withdraw / 12.00 noon (Irish
the relevant Shares from the CREST System and time) on Thursday,
hold them in certificated (i.e. paper) form. 11 March 2021
Shareholders wishing to hold their Shares in at the latest
certificated (i.e. paper) form prior to the (the "Latest Withdrawal
Migration taking effect should make arrangements Date")
with their stockbroker or custodian in good
time so as to allow their stockbroker or custodian
sufficient time to withdraw their Shares from
the CREST System prior to the closing date set
out above for such CREST withdrawals.
-------------------------
Expected latest time and date for Shareholders Expected to be
who hold their Shares in certificated (i.e. no less than two
paper) form and who do want to deposit the relevant (2) business days
Shares into the CREST System and hold them in prior to the Live
uncertificated (i.e. dematerialised) form so Date
as to ensure that such Shares are subject to
the Migration.(2)
Shareholders wishing to hold their Shares in
uncertificated (i.e. dematerialised) form prior
to the Migration taking effect should make arrangements
with their stockbroker or custodian in good
time so as to allow their stockbroker or custodian
sufficient time to deposit their Shares into
the CREST System prior to the time and date
for such CREST deposits.
-------------------------
Expected latest time holders of Shares can transfer Any time before
their Shares from their account in EUI to an and until close
account in Euroclear Bank in which the Shares of business on
will be held under Euroclear Bank's investor Friday, 12 March
central securities depository service until 2021
the Migration. The services described in the
EB Services Description will however only become
applicable as of the Live Date.
-------------------------
Latest date for allotments directly to CREST Friday, 12 March
members. 2021
-------------------------
EUI to stop settlement of trades in Irish Securities 8.00 p.m. (Cyprus
pursuant to the Irish CREST Regulations time) / 6:00 p.m.
(Irish time) on
Friday, 12 March
2021
-------------------------
Migration Record Date. 9:00 p.m. (Cyprus
time) / 7:00 p.m.
(Irish time) on
Friday, 12 March
2021
-------------------------
Live Date. Expected to be
Monday, 15 March
2021
-------------------------
All trades conducted on the London Stock Exchange 2 business days
from, and including this date, will settle in prior to
CDI form via CREST.(3) Live Date
-------------------------
All Participating Securities in the Company Commencement of
at the Migration Record Date enabled as CDIs trading on the
in CREST. Live Date
-------------------------
CREST members who wish to move all or Part of Following start
a CDI holding to an EB Participant can do so of business on
by way of a cross-border delivery free of payment.(4) the Live Date
-------------------------
Expiry of EUI's temporary equivalence pursuant 30 June 2021
to Implementing Decision 2020/1766.(5)
-------------------------
Notes:
(1) The dates specified in this table are indicative dates which
the Company currently reasonably anticipates will be the Live Date
and the date Migrating Shares are enabled as CDIs in the CREST
System. The actual Live Date will be specified by Euronext Dublin
in accordance with the provisions of the Migration Act and EUI
and/or Euroclear Bank will confirm the timing of consequent steps.
Should the Live Date change or not be as expected, the dates for
other actions will change accordingly.
(2) As at the Latest Practicable Date, the expected latest time
and date for Shareholders who hold their Shares in certificated
form to deposit the relevant Shares into the CREST System and hold
them in uncertificated (i.e. dematerialised) form so as to ensure
that such Shares are subject to the Migration, is not yet
available, but is expected to be a number of days prior to the Live
Date. As set out in the EB Migration Guide, the process for stock
deposits made into the CREST System prior to the Migration will be
dependent on the outcome of the review of the CREST Courier and
Sorting Service ("CCSS"), as EUI's current arrangements with TNT
(owned by FedEx) for the CCSS are due to terminate in December
2020. EUI has indicated that it will share further information on
when the ultimate deadline will be for a stock deposit into EUI
prior to the Migration.
(3) EUI required the consent of the European Central Bank to
continue to offer euro settlement after 29 March 2021. As such
consent was not forthcoming, EUI announced, on 2 December 2020,
that it will not be able to continue to settle in euro under the
current arrangements from Monday, 29 March 2021. This means that,
unless alternative arrangements can be secured beforehand, the
final date for euro settlement in CREST will be Friday, 26 March
2021 and all trades carried out on the London Stock Exchange will
then settle in pounds sterling or US dollars only. This could
therefore impact holders of CDIs who wish to receive dividends in
euro.
(4) In regard to trades entered into on Thursday, 11 March 2021
and Friday, 12 March 2021, it is expected that these will settle in
CDI on Monday, 15 March 2021 and Tuesday, 16 March 2021
respectively. Please refer to section 3.5.9 of the EB Migration
Guide in respect of unsettled trades as at close of business on
Friday, 12 March 2021.
(5) On 25 November 2020 the European Commission issued
Implementing Decision 2020/1766, which determined that the legal
and supervisory arrangements governing central securities
depositaries established in the United Kingdom shall be considered
to be equivalent to the requirements laid down in CSDR for a period
of six months from 1 January 2021 to 30 June 2021. The European
Securities and Markets Authority announced on 11 December 2020 that
it will recognise EUI as a third country CSD at the end of the
Brexit transition period.
Part 1
BANK OF CYPRUS HOLDINGS PLC
(Registered in Ireland No. 585903)
DIRECTORS
Michael Heger
Maksim Goldman
Ioannis Zographakis
Sten Arne Berggren
Lyn Mary Grobler
Maria Philippou
Paula Hadjisotiriou
Efstratios-Georgios Arapoglou
Panicos Nicolaou
GROUP SECRETARY
Katia Santis
Bradwell Limited (Assistant-Secretary)
REGISTERED OFFICE
10 Earlsfort Terrace,
Dublin 2,
D02 T380
Chairman's letter to Shareholders
13 January 2021
Dear Shareholder,
Replacement of CREST with Euroclear Bank for electronic
settlement of trading in Bank of Cyprus Holdings plc's Shares
Amendment of the Articles of Association
Notice of the Extraordinary General Meeting of Bank of Cyprus
Holdings plc to be held at 51 Stassinos Street, Ayia Paraskevi,
2002 Strovolos, Nicosia, Cyprus on 5 February 2021 at 11:00 a.m.
(Cyprus time) / 9:00 a.m. (Irish time)
1. Introduction
The purpose of this Circular is to convene an extraordinary
general meeting of the Company ("EGM") in order to seek shareholder
approval for certain resolutions which are necessary to ensure the
Company's Shares that are listed on the London Stock Exchange can
continue to be settled electronically when they are traded on the
London Stock Exchange and remain eligible for continued admission
to trading and listing on the London Stock Exchange. If approved,
these resolutions will have a direct impact on shareholdings which
are held in uncertificated (i.e. dematerialised/non-paper) form in
CREST. There will be no immediate impact on shareholdings which are
held in uncertificated form. It is not expected that the Shares
listed on the Cyprus Stock Exchange representing the Depository
Interests ("DIs") will be impacted by the Migration.
The Board of Directors believes that the continued trading and
listing of the Shares on the London Stock Exchange are important to
enable continued liquidity in the Company's Shares, and therefore
the approval of the Resolutions set out in the Notice of EGM
enclosed in Appendix I to this Circular, are crucial to the
interests of the Company and its Shareholders as a whole. The Board
strongly urges Shareholders and DI Holders to review the contents
of this Circular in their entirety and consider the Board's
recommendation to vote in favour of the proposed resolutions as set
out in paragraph 12 below.
2. Background to the proposed migration of securities to the
Euroclear Bank settlement system
It is a requirement of the continued admission of the Shares to
trading and listing on the London Stock Exchange, that adequate
procedures are available for the clearing and settlement of trades
in the Shares on this venue, including that the Shares are eligible
for electronic settlement.
In order for trading in Shares to be settled electronically, the
Shares must be held in uncertificated (i.e.
dematerialised/non-paper) form. Approximately 60.13% of the
Company's issued share capital is listed on the London Stock
Exchange and held in uncertificated form in CREST. These
uncertificated shares ("Participating Securities", as more fully
defined in Part 9 of this Circular) are not represented by any
share certificates and nor do they need to be transferred by the
execution of a written stock transfer form. Instead, they are
currently transferred by operator instructions issued pursuant to
the Irish Companies Act 1990 (Uncertificated Securities)
Regulations 1996 (as amended) (the "Irish CREST Regulations") via
the CREST System which is the London-based securities settlement
system (the "CREST System") operated by Euroclear UK & Ireland
Limited ("EUI").
As of the Latest Practicable Date, approximately 39.86% of the
issued share capital of the Company is listed on the Cyprus Stock
Exchange and such Shares are held by the DI Depository (on trust on
behalf of DI Holders) in certificated form. Each DI represents an
entitlement to one Share listed on the Cyprus Stock Exchange. This
arrangement facilitates settlement of the interests in the Shares
listed on the Cyprus Stock Exchange through the DSS. The Migration
will have no immediate impact on the Depository or the DI Holders
as the DIs are held by the DI Depository (on behalf of the DI
Holders) in certificated form.
The regulation of central securities depositories ("CSDs") which
operate securities settlement systems, is harmonised across the EU
under the EU Central Securities Depositories Regulation (Regulation
(EU) No. 909/2014) ("CSDR"). As a result of the withdrawal of the
United Kingdom from the EU ("Brexit"), with effect from the end of
the Brexit transition period on 31 December 2020, EUI is no longer
subject to EU law. On 25 November 2020, the European Commission
issued Implementing Decision 2020/1766, which determined that the
legal and supervisory arrangements governing CSDs established in
the United Kingdom shall be considered to be equivalent to the
requirements laid down in CSDR for a period of six months from 1
January 2021 to 30 June 2021. ESMA announced on 11 December 2020
that it will recognise EUI as a third country CSD at the end of the
Brexit transition period.
In December 2018, Euronext Dublin announced that, based on the
analysis it had carried out of four possible alternative central
securities depository options for the settlement of trades in Irish
Securities post-Brexit, it had selected the CSD operated by
Euroclear Bank SA/NV, an international CSD incorporated in Belgium
("Euroclear Bank") (the "Euroclear System"), to replace the CREST
System as the long-term CSD for electronic settlement of trades in
securities of Irish companies (the "Market Migration"). At the date
of this Circular, no alternative securities settlement system
authorised to provide settlement services in respect of Irish
Securities has been actively engaging with Irish market
Participants to facilitate the transition of Irish shares to its
settlement system. As a result, no alternative securities
settlement system to the Euroclear System is expected to be
available for the electronic settlement of trades in the Company's
Shares on or before 30 June 2021. Accordingly, the Migration of
those Shares which are held in uncertificated form on a designated
Live Date from the CREST System to the Euroclear System is being
proposed in order to preserve the continued listing and admission
to trading of the Shares on the London Stock Exchange.
To facilitate a common migration procedure from the CREST System
to an alternative CSD which is authorised for the purposes of CSDR
for all Irish listed companies whose shares are currently held and
settled through the CREST System, the Oireachtas (the "Irish
Parliament") enacted the Migration Act. To participate in the
migration procedure under the Migration Act, eligible companies
must, among other requirements, pass certain shareholder
resolutions prior to 24 February 2021 at a general meeting of its
shareholders.
As it is essential for the Company that electronic settlement of
trading of its Shares can continue in order to ensure ongoing
compliance with the electronic share settlement requirements for
listing on the London Stock Exchange, the purpose of the EGM is to
consider and, if thought fit, approve a number of resolutions (the
"Migration Resolutions") which are intended to facilitate the
migration of the Company's Participating Securities from the CREST
System to the Euroclear System in the manner described in this
Circular (the "Migration") and to make certain other changes to the
Company's Articles of Association.
Subject to the approval of the Migration Resolutions by the
requisite majority of Shareholders, at the EGM, it is intended that
the Migration will occur as Part of the Market Migration, which is
expected to occur in mid-March 2021. Only those Shares which are
Participating Securities (i.e. Shares which are held in
uncertificated form through the CREST System, which, for the
avoidance of doubt, does not include the Shares listed on the
Cyprus Stock Exchange representing the DIs) on the designated
Migration Record Date will be subject to the Migration. Shares
which are held in certificated (i.e. paper) form on the Migration
Record Date will not be subject to the Migration and can continue
to be held in certificated (i.e. paper) form, at the option of the
Shareholder. Shareholders holding their Shares in certificated
(i.e. paper) form at the Migration Record Date will, at their
discretion, be entitled to deposit their Shares into the Euroclear
System following the Migration, subject to compliance with
Euroclear Bank's deposit procedures.
If the Migration Resolutions are not passed, and the Company
does not participate in the Migration, all Participating Securities
in the Company will be required to be re-materialised into
certificated (i.e. paper) form once CREST ceases to be authorised
to provide settlement services in respect of the Company's Shares
and Shareholders and other investors will no longer be able to
settle London Stock Exchange trades in the Shares electronically.
This could materially and adversely impact on trading and liquidity
in the Shares as it would result in significant delays for
Shareholders and investors wishing to sell or acquire Shares on the
London Stock Exchange. It would also put at risk the continued
admission to trading and listing of the Shares on the London Stock
Exchange as the absence of electronic settlement of Shares would
mean that the Company would cease to meet the eligibility criteria
for admission to trading on this exchange. The Company believes
that the failure to participate in the Migration would have a
material adverse impact on liquidity in, and could have a material
adverse impact on the market value of, the Shares and the DIs as
well as the relative attractiveness of the Shares and the DIs for
investors. The DIs are not subject to the Migration.
Shareholders are advised that, in accordance with the
requirements of the Migration Act, the quorum for the Extraordinary
General Meeting shall be at least three (3) persons holding or
representing by proxy at least one-third in nominal value of the
issued Shares of the Company. As this is significantly higher than
the usual quorum for a general meeting under the Articles of
Association, the Board strongly urges all Shareholders and DI
Holders to participate in the Extraordinary General Meeting by
submitting a Form of Proxy / DI Form of Proxy.
3. Key aspects of the proposed migration of securities to the
Euroclear Bank settlement system
The Migration will entail all Participating Securities (i.e. all
uncertificated Shares which are held in electronic form through the
CREST System) on the Migration Record Date ("Migrating Shares")
moving from CREST to the Euroclear System. The Euroclear System is
structured as an 'intermediated' or 'indirect' settlement system.
As a result, following Migration, legal title to all Shares which
are admitted to the Euroclear System will be held by a single
nominee shareholder, Euroclear Nominees Limited ("Euroclear
Nominees"), subject to the rules and procedures of the Euroclear
System. Euroclear Nominees will be recorded in the Company's
Register of Members as the holder of all Shares admitted to the
Euroclear System from time to time and trades in those securities
will instead be reflected by a change in Euroclear Bank's
book-entry system, as detailed in Part 5 of this Circular. This
structure is similar to other intermediated settlement systems in
operation worldwide, including in the United States and other EU
Member States.
Under the Euroclear System, pursuant to Royal Decree No. 62
Belgian Law Rights representing the Shares admitted to the
Euroclear System will automatically be granted to Participants in
the Euroclear System ("EB Participants"). The Belgian Law Rights
will entitle EB Participants to indirectly exercise certain rights
relating to the Shares in accordance with the terms of the EB
Services Description and Belgian law. Existing Shareholders that
are entitled to become EB Participants will be able to hold the
Belgian Law Rights directly. Existing Shareholders that are not
entitled to become EB Participants but who wish for their Shares to
be admitted to the Euroclear System will either need to make
arrangements for an existing EB Participant to hold the Belgian Law
Rights as a custodian on their behalf, or hold their Shares through
CDIs, as described below (in which case CIN (Belgium) Limited (the
"CREST Nominee") will act as EB Participant). Further information
on the Belgian Law Rights is set out in Part 5 of this
Circular.
On Migration, CREST Depository Interests ("CDIs") will be issued
in respect of all Migrating Shares to the CREST members registered
as holders of those Shares on the Migration Record Date. While the
underlying Shares will be admitted to the Euroclear System, the
CDIs will entitle CREST members to indirectly exercise certain
rights relating to the Shares, through the interface of the CREST
System, in accordance with the EB Services Description and the
CREST International Manual. Paragraph 4(a) of Part 3 and Part 6 of
this Circular contain further information concerning CDIs. CREST
members who have been issued CDIs will be able to either continue
to hold via CDIs or, subject to being, becoming, or having a
custody relationship with, an EB Participant, will be able to hold
via Belgian Law Rights in the Euroclear System.
Shareholders are advised that the manner in which Shares are
held in the Euroclear System and the extent to which rights in
respect of those Shares can be exercised differs from the manner in
which Shares are held and rights can currently be exercised in the
CREST System. In Particular, it is a key difference between the
Euroclear System and the CREST System that the Euroclear System is
an 'intermediated' or 'indirect' settlement system, similar to
other intermediated settlement systems in operation worldwide,
under which the rights of EB Participants are governed by Belgian
law. For so long as securities remain in the Euroclear System,
Euroclear Bank's nominee, Euroclear Nominees, will be recorded in
the Company's Register of Members as the holder of the relevant
Shares and trades in the securities will instead be reflected by a
change in Euroclear Bank's book-entry system. Shareholders are
advised to review Part 3 of this Circular in Particular for further
information in relation to:
(a) the background relating to the Migration;
(b) how the Migration will affect the form through which
interests in the Shares are held and the manner in which owners
directly and indirectly exercise rights attached to the Shares;
(c) the range of services available via the Euroclear System;
(d) how the services accessible to uncertificated shareholders
following the Migration (provided via the Euroclear System and via
CREST in respect of CDIs) differ from those currently provided
under the CREST System;
(e) the implementation of the Migration; and
(f) certain regulatory matters, including certain company law
provisions relevant to the Migration.
Shareholders that currently hold interests in Shares through a
custodian, stockbroker or other nominee should consult that
custodian, stockbroker or nominee to determine the effect of the
Migration on their interests and the manner in which they intend to
hold those interests following the Migration.
Neither the Migration, nor the proposed changes to the Articles
of Association, are expected to impact on the on-going business
operations of the Company. The Company will remain incorporated in
Ireland and headquartered and resident for tax purposes in Cyprus.
The nature and venue of the stock exchange listings of the Company
will not change in connection with the Migration. The Company does
not expect that the Migration will result in any change in the
eligibility of the Company for any indices of which it is a
constituent as of the date of this Circular. In addition, the ISIN
relating to the Shares will be unchanged.
4. Proposed amendments to the Articles of Association
As noted in paragraph 2 above, certain amendments to the
Articles of Association will be required in connection with the
Migration. These include amendments to enable the Company to
satisfy the eligibility requirements for admission of the Shares to
the Euroclear System as well as certain changes intended to
facilitate the continued exercise of certain shareholders' rights
directly against the Company following the Migration. These
proposed amendments are explained in detail in Section A of Part 8
of this Circular.
Given that the Company will be proposing a number of amendments
to its Articles of Association in order to facilitate the
Migration, the Company has taken the opportunity to propose a
number of additional amendments to its Articles of Association for
consideration and, if thought fit, approval by Shareholders at the
EGM. These additional amendments are intended to update a number of
Articles in order to implement the recommendation of the European
Banking Authority ("EBA") received by the Company in July 2020. The
EBA recommended that certain provisions of the Articles of
Association relating to distributions made by the Company in a form
other than cash or own funds instruments be amended. The EBA
recommended that, in accordance with its interpretation of Article
73 of Regulation (EU) No. 575/2013 of the European Parliament and
of the Council of 26 June 2013 (the "CRR") set out in the EBA
Report On The Monitoring Of CET1 Instruments issued by EU
Institutions - Second Update dated 19 June 2020, the Articles of
Association be revised to provide that prior consent of the
relevant Competent Authority is required for distributions by the
Company in a form other than cash or own funds instruments and that
such distributions are subject to the conditions set out in Article
73(2) of the CRR. As these additional amendments are not related to
the proposed amendments necessary to facilitate the Migration, they
are being proposed for approval by Shareholders as a separate
resolution at the EGM. Implementation of the Migration is not
conditional on the approval of these additional proposed amendments
by Shareholders, which are being proposed in Resolution 2.
5. DI Holders
If a DI Holder wishes to continue holding Depository Interests
representing Shares following the Migration, no action is required
to be taken by that DI Holder in advance of the Migration (other
than voting in respect of the Resolutions, should a DI Holder wish
to do so).
It is not expected that the Migration will directly impact DI
Holders who continue to hold their Shares as Depository Interests.
The Migration will not affect trading of the Shares underlying the
DIs on the Cyprus Stock Exchange. These Shares are outside the
remit of the Migration as they are not settled within CREST and
will continue to be settled in the DSS following Migration.
DI Holders should note that, as is the case currently, in the
event that a DI Holder elects to settle trades in Shares
represented by CDIs on the London Stock Exchange following the
Migration, dematerialisation of the Shares underlying the DIs will
need to be effected by the DI Depository and the DI Holder prior to
such settlement. Following the Migration, it is expected that the
turnaround time for trades between Shares represented by the DIs
and Shares held as CDIs will increase due to additional steps in
the dematerialisation process as described in section 5 of Part 3
of this Circular. This will impact DI Holders to the extent that
they decide to elect to settle trades in Shares represented by CDIs
on the London Stock Exchange.
6. Resolutions proposed for consideration at the EGM
Resolution 1 - Shareholders' consent to the Migration
Resolution 1 is being proposed in order to satisfy the
requirement in sections 4, 5 and 8 of the Migration Act that the
Shareholders of the Company pass a resolution (called a "special
resolution" in the Migration Act) to approve of the Company giving
its consent to the Migration, to take effect on the Live Date
appointed under the Migration Act. Unlike a special resolution
provided for in the Companies Act, the Migration Act requires that
this special resolution be approved at a general meeting at which
there is in attendance at least three (3) persons holding or
representing by proxy at least one-third in nominal value of the
issued Shares in the Company. Resolution 1 is being proposed by the
Board on the basis that it must be approved by 75% or more of votes
properly cast, in person or by proxy at the EGM.
If Resolution 1 is approved, the Migration will, subject to a
market wide migration proceeding, proceed unless otherwise
determined by a resolution of the Board (or a committee thereof).
Any decision of the Board (or a committee thereof) not to proceed
with the Migration shall be published via an announcement through a
Regulatory Information Service prior to the Live Date.
Resolution 2 - Approval of amendments to Articles of Association
to implement the recommendations of the EBA
Resolution 2 is being proposed as a special resolution for the
purposes of the Companies Act as it seeks to amend the Articles of
Association to include certain provisions to reflect the
recommendation of the EBA to amend the Company's Articles. As a
special resolution, Resolution 2 requires the approval of 75% or
more of votes properly cast, in person or by proxy, at the EGM.
As noted in paragraph 4 above, because the Company is proposing
a number of amendments to its Articles of Association in order to
facilitate Migration, the Company has taken the opportunity to
propose a number of additional amendments to the Articles of
Association for consideration and, if thought fit, approval by
Shareholders at the EGM, in relation to the recommendations of the
EBA to amend the Articles of Association.
These amendments aim to clarify the procedure that the EBA
recommended should be followed by the Company in respect of
distributions made by the Company in a form other than cash or own
funds instruments. The EBA recommended that, in accordance with its
interpretation of Article 73 CRR set out in the EBA Report On The
Monitoring Of CET1 Instruments issued by EU Institutions - Second
Update dated 19 June 2020, the Articles of Association be revised
to provide that prior consent of the relevant Competent Authority
is required for distributions by the Company in a form other than
cash or own funds instruments and that such distributions are
subject to the conditions set out in Article 73(2) of the CRR.
A copy of the Articles of Association in the form amended by
Resolution 2 (marked to highlight the proposed changes) is
available (and will be so available until the conclusion of the
EGM) on the Company's website (www.bankofcyprus.com), at its
registered office Ten Earlsfort Terrace, Dublin 2, Ireland and at
51 Stassinos Street, Ayia Paraskevi, 2002 Strovolos, Nicosia,
Cyprus and will also be available at the EGM for at least fifteen
minutes before, and for the duration of, the EGM. In accordance
with applicable regulations and public health guidelines in force
in Cyprus and Ireland in connection with Coronavirus (COVID--19),
we request Shareholders not to attend at the Company's offices but
instead to inspect the Articles of Association on the Company's
website.
As the amendments to the Articles of Association proposed in
Resolution 2 are not related to the proposed amendments necessary
to facilitate the Migration, they are being proposed for approval
by Shareholders as a separate special resolution at the EGM. The
amendments being proposed in order to facilitate the Migration,
will be proposed separately at the EGM in Resolutions 3(a) and 3(b)
as described below.
If approved by Shareholders, the amendments proposed by
Resolution 2 will be effective from the conclusion of the EGM.
Implementation of the Migration is not conditional on the approval
of Resolution 2 by Shareholders.
Resolutions 3(a) and 3(b) - Approval and adoption of new
Articles of Association - Amendments consequent upon Migration
Resolutions 3(a) and 3(b) are being proposed as special
resolutions for the purposes of the Companies Act as they seek to
approve and adopt new Articles of Association to facilitate the new
arrangements required as a result of the Migration and to take
account of changes introduced by the Migration Act and the changes
introduced by the Brexit Omnibus Act. As special resolutions,
Resolutions 3(a) and 3(b) require the approval of 75% or more of
votes properly cast, in person or by proxy, at the EGM.
Because Shareholders will have the opportunity to approve or
reject the amendments to the Articles of Association proposed in
Resolution 2, the additional amendments to the Articles of
Association required in order to facilitate Migration are being
proposed by way of two alternate special resolutions, Resolution
3(a) and Resolution 3(b), each of which is conditional on the
outcome of Resolution 2. Additionally, the adoption of Resolutions
3(a) and 3(b) are subject to the approval of Resolution 1.
Resolution 3(a) proposes the adoption of a new Articles of
Association which will include both (i) the amendments proposed to
be approved in Resolution 2 and (ii) the additional amendments
required in order to implement Migration. As a result, Resolution
3(a) will be subject to and conditional upon Resolution 2 being
approved and adopted by Shareholders at the EGM. If Resolution 2 is
not approved by the requisite majority of Shareholders at the EGM,
Resolution 3(a) will be incapable of being validly passed and will
not be put to a vote of Shareholders at the EGM.
Resolution 3(b) proposes the adoption of a new Articles of
Association which will include only those amendments required in
order to implement Migration. As a result, Resolution 3(b) will be
subject to and conditional upon Resolution 2 not being approved by
Shareholders at the EGM. If Resolution 2 is approved and adopted by
the requisite majority of Shareholders at the EGM, Resolution 3(b)
will be incapable of being validly passed and will not be put to a
vote of Shareholders at the EGM.
Save for their treatment of the outcome of the vote on
Resolution 2, the amendments to the Articles of Association
proposed in Resolution 3(a) and Resolution 3(b) are identical.
Because only one of Resolution 3(a) or 3(b) is capable of being
approved at the EGM (depending on the outcome of the vote on
Resolution 2), Shareholders are encouraged to vote in favour of
both Resolution 3(a) and Resolution 3(b) at the EGM.
An explanation of the proposed changes to the Articles of
Association as a result of Resolution 3(a) and Resolution 3(b) is
contained in Section B of Part 8 of this Circular. These changes
will include an amendment to the Articles of Association so as to
allow the Directors to take all steps necessary to implement the
provisions of the EB Migration Guide including, where considered
necessary or desirable, the appointment of an agent to effect the
Migration on behalf of all holders of relevant Participating
Securities in the manner described in more detail in Part 8 of this
Circular. The Company is also proposing that the directors would
have discretion under the Articles of Association to facilitate the
exercise of certain rights of registered shareholders (i.e.
members), in appropriate circumstances which would otherwise be
directly or indirectly exercisable by a holder of Participating
Securities following the Migration.
A copy of the Articles of Association in the form amended by
Resolution 3(a) and Resolution 3(b) (marked to highlight the
proposed changes) is available (and will be so available until the
conclusion of the EGM) on the Company's website
(www.bankofcyprus.com), at its registered office and at the offices
of 51 Stassinos Street, Ayia Paraskevi, 2002 Strovolos, Nicosia,
Cyprus and will also be available at the EGM for at least fifteen
minutes before, and for the duration of, the EGM. In accordance
with applicable regulations and public health guidelines in force
in Cyprus and in Ireland in connection with Coronavirus
(COVID--19), we request Shareholders not to attend at the Company's
offices but instead to inspect the Articles of Association on the
Company's website.
One of Resolution 3(a) or Resolution 3(b) will be proposed on
the basis that it must be approved by 75% or more of votes properly
cast, in person or by proxy, at the EGM. The adoption of Resolution
3(a) or Resolution 3(b) is subject to approval of Resolution 2. If
approved by Shareholders, the Articles of Association in the form
amended by Resolution 3(a) or Resolution 3(b) (as appropriate) will
be effective on the passing of Resolution 3(a) or Resolution
3(b).
Resolution 4 - To authorise and instruct the Directors to take
all necessary steps to give effect to the Migration
Resolution 4 is being proposed as a special resolution for the
purposes of the Companies Act, which requires the approval of 75%
or more of votes properly cast, in person or by proxy, at the EGM.
As the Migration involves the taking of certain procedural steps
which are not explicitly provided for in the Migration Act,
including the issue of CDIs as explained in further detail in Part
3 of this Circular, the Company is seeking shareholder approval by
way of special resolution to give flexibility to the Board to give
effect to these arrangements. It is expected that any such
arrangements will be in substantial conformity with measures taken
by all Irish listed and traded issuers which participate in the
Market Migration. Resolution 4 will authorise and instruct the
Company to take any and all actions which the directors, in their
absolute discretion, consider necessary or desirable to implement
the Migration and/or the matters in connection with the Migration
referred to in this Circular, in accordance with the Articles of
Association as amended by Resolution 3(a) or 3(b) (as appropriate),
including the procedures and processes described in the EB
Migration Guide, as amended from time to time, and including
appointing any necessary parties to act as the agents of the
holders of the Migrating Shares in order to implement the Migration
and/or the matters in connection with the Migration referred to in
this Circular (including the procedures and processes described in
the EB Migration Guide). The adoption of Resolution 4 is subject to
the approval of Resolution 1.
7. Other information in this Circular
You should read this Circular in its entirety. Part 2 of this
Circular contains a series of questions and answers that will
hopefully address queries you may have about the Migration. Part 3
provides further background to, and information on, the Migration
as well as certain information required for the purpose of section
6(1) of the Migration Act. Part 4 sets out a comparative summary of
certain aspects of the Euroclear Bank service offering to EB
Participants and the EUI service offering to CDI holders, each for
Irish Securities. Part 5 of this Circular contains further
information on Belgian Law Rights relevant to a holding in the
Euroclear System and Part 6 provides an overview of CDIs. Part 7 of
this Circular contains certain information in relation to the tax
impact of the Migration. Part 8 of this Circular contains a
description of the proposed changes to the Articles. Section A of
Part 8 contains a description of the amendments to the Articles of
Association of the Company being proposed in Resolution 2 to take
account of the EBA recommended changes to the Articles as explained
in Part 8. Section B of Part 8 contains a description of the
amendments to the Articles of Association being proposed in
Resolutions 3(a) and 3(b) to take account of the Migration and
otherwise as explained in Part 8. Defined terms used in this
Circular are explained in Part 9. The Notice of EGM is set out at
the end of this Circular in Appendix I. Appendix II contains a list
of those rights of members of Irish incorporated public limited
companies under the Companies Act that are not exercisable under
the EB Services Description. Nothing in this Circular constitutes
legal, tax or other advice, and if you are in any doubt about the
contents of this Circular you should consult your own professional
adviser(s).
8. Documentation on display
Copies of the following documents relevant to the Migration will
be made available for inspection during normal business hours on
any business day from the date of this Circular until the EGM at
the registered office of the Company and at the offices of 51
Stassinos Street, Ayia Paraskevi, 2002 Strovolos, Nicosia, Cyprus
and online at www.bankofcyprus.com:
(a) a copy of the Articles of Association marked to show the
changes proposed to be made by Resolution 2;
(b) a copy of the Articles of Association marked to show the
changes proposed to be made by Resolution 3(a);
(c) a copy of the Articles of Association marked to show the
changes proposed to be made by Resolution 3(b);
(d) a copy of the notification issued by the Company to
Euroclear Bank as required by section 5(5) of the Migration
Act;
(e) a copy of the statements issued by Euroclear Bank to the
Company as required by section 5(6) of the Migration Act;
(f) a copy of the section 6(4) Notice published by the Company;
(g) the EB Terms and Conditions (April 2019);
(h) the EB Operating Procedures (October 2020);
(i) the EB Services Description (October 2020) ;
(j) the EB Rights of Participants Document (July 2017);
(k) the EB Migration Guide (October 2020);
(l) the CREST Manual (December 2020);
(m) the CREST International Manual (provided within the CREST Manual) (December 2020);
(n) the CREST Deed Poll (provided within the CREST International Manual);
(o) the CREST Terms and Conditions (August 2020); and
(p) the CREST Tariff Brochure (August 2020).
In accordance with applicable regulations and public health
guidelines in force in the Republic of Cyprus and in Ireland in
connection with Coronavirus (COVID--19), the Company requests
Shareholders not to attend the Company's offices but instead to
inspect the documents on the Company's website,
www.bankofcyprus.com (Investor Relations / Extraordinary General
Meetings).
9. Public health guidance
The well-being of Shareholders, employees and service providers
remains a primary concern for the Directors of the Company. Due to
the restrictions on gatherings and travel, save for very limited
purposes, under the regulations and the guidance issued by the
Government of the Republic of Cyprus, the Government of Ireland and
the Department of Health (of Ireland) relating to the Coronavirus
(COVID--19), the EGM will proceed under very constrained
circumstances. The attention of Shareholders is drawn to the
electronic voting procedures included with this Circular and made
available on the Company's website, which sets out the basis on
which the EGM will be held.
Shareholders are requested not to attend the EGM in person and
instead to submit a Form of Proxy or DI Proxy Form accompanying the
Notice of EGM, appointing the Chairman or any other person, or to
use the electronic voting facility to ensure they can vote and be
represented at the EGM without attending in person. This can be
done in advance of the EGM by availing of one of the ways you can
appoint a proxy as set out in the notes section of the Notice of
EGM set out at Appendix I. Please note the deadlines for receipt of
the proxy appointment for it to be valid and the relevant
procedures for the electronic voting facility. By submitting a
proxy form or by using the electronic voting facility you will be
able to ensure that your vote on the proposed resolutions is cast
at the EGM in accordance with your wishes without attending in
person.
If you wish to listen live to the EGM proceedings, you can do so
by using the electronic meeting facility which you can access by
either downloading the dedicated "Lumi AGM" app or by accessing the
EGM website, https://web.lumiagm.com . This will allow you to audio
cast the EGM and shareholders can submit questions and votes
through the app or website.
Further instructions on how to attend the meeting remotely are
set out on pages 83 to 84 and on the Company's website
www.bankofcyprus.com (Investor Relations / Extraordinary General
Meetings).
Before the EGM, a shareholder may also submit a question in
writing, to be received at least four business days before the
meeting (i.e. until Monday, 1 February 2021) by post to the Company
Secretary, Bank of Cyprus Holdings Public Limited Company, 51
Stassinos Street, Ayia Paraskevi, 2002 Strovolos, Nicosia, Cyprus
or by email to Company.Secretary@bankofcyprus.com. All
correspondence should include sufficient information to identify a
Shareholder or a DI Holder on the Register of Members or the DI
Register. Responses to the most common questions will be posted on
the Company's website on www.bankofcyprus.com (Investor Relations /
Extraordinary General Meetings) and we also anticipate responding
in writing directly to any individual shareholder who raises a
question.
Overall, we will be seeking to conduct the EGM as safely and
efficiently as possible and in compliance with the applicable law,
regulations and guidance in effect in connection with the
Coronavirus (COVID--19) at the time of the meeting.
In the event that it is not possible to hold the EGM either in
compliance with applicable public health guidelines, applicable law
or where it is otherwise considered that proceeding with the EGM as
planned poses an unacceptable health and safety risk, the EGM may
be adjourned or postponed or relocated to a different time and/or
venue, in which case notification of such adjournment or
postponement or relocation will be given in accordance with the
Company's Articles of Association and applicable law.
The Company will continue to monitor the impact of the
Coronavirus (COVID--19) and any relevant updates regarding the EGM
will be available on the Company's website www.bankofcyprus.com
(Investor Relations / Extraordinary General Meetings), including
any changes to the arrangements for the EGM outlined in this
letter.
10. Action to be taken
The formal EGM Notice appears at Appendix I of this Circular, on
pages 77 to 86, and this Circular sets out the business to be
conducted at the EGM.
As outlined in paragraph 2 of this Part 1, in accordance with
the requirements of the Migration Act, the quorum for the
Extraordinary General Meeting shall be shall be at least three (3)
persons holding or representing by proxy at least one-third in
nominal value of the issued Shares of the Company. As this is
significantly higher than the usual quorum for a general meeting
under the Articles of Association, and given the importance of the
Company retaining access to trading and listing of its Shares on
the London Stock Exchange (which requires approval of the Migration
Resolutions), I would urge all Shareholders, regardless of the
number of Shares that you own, and regardless of whether you hold
or wish to continue to hold your Shares in certificated form (i.e.
paper) or uncertificated form (i.e. electronically) and regardless
of whether you hold Shares or DIs, to complete, sign and return
your Form of Proxy to ensure that you can vote and be represented
at the EGM and to minimise the need to attend in person in these
unprecedented circumstances.
If you wish to validly appoint a proxy, the Form of Proxy should
be completed and signed in accordance with the instructions printed
thereon, and returned by post to the Company's Registrar, Link
Registrars Limited, either to P.O. Box 1110, Maynooth, Co. Kildare,
Ireland (if delivered by post) or to Link Registrars Limited, Block
C, Maynooth Business Campus, Maynooth, Co. Kildare, W23 F854,
Ireland (if delivered by hand) or delivered to the Company at its
registered office.
Alternatively, Shareholders may appoint a proxy electronically,
by logging on to www.signalshares.com and entering the Company
name: Bank of Cyprus Holdings plc. You will need to register for
Signal Shares by clicking on "registration section" (if you have
not registered previously) and following the instructions thereon.
CREST members may also use the CREST electronic proxy appointment
service to appoint a proxy for the EGM.
DI Holders wishing to appoint a proxy should use a DI Form of
Proxy. To be valid, DI Forms of Proxy must be completed, signed and
returned, together with any power of attorney or other authority
under which it is executed, or a notarially certified copy thereof,
to Investor Relations Department, 51 Stassinos Street, Ayia
Paraskevi, 2002 Strovolos, Nicosia, Cyprus or P.O. Box 21472, 1599
Nicosia, Cyprus, or by e-mail to: shares@bankofcyprus.com, or by
fax to: + 357 22 120265 or +357 22 120245 so as to reach such
address no later than 9:00 p.m. (Cyprus time) / 7:00 p.m. (Irish
time) on 3 February 2021.
Further instructions on how to appoint a proxy are set out in
the notes to the Notice of EGM contained in Appendix I and on the
Form of Proxy and the DI Form of Proxy.
All proxy appointments (including an electronic proxy
appointment or an appointment via the CREST electronic proxy
appointment service) must be received by no later than 9:00 p.m.
(Cyprus time) / 7:00 p.m. (Irish time) on 3 February 2021 (or, in
the case of an adjournment, no later than 48 hours before the time
fixed for holding the adjourned meeting). The completion and return
of a Form of Proxy or a DI Form of Proxy (including an electronic
proxy appointment or an appointment via the CREST electronic proxy
appointment service) will not prevent a Shareholder or DI Holder
from attending and voting in person at the EGM, or any adjournment
thereof, should they wish to do so, subject to compliance with the
latest guidance of the Government of the Republic of Cyprus, the
Government of Ireland and the Department of Health (of Ireland) to
minimise any potential risks posed to attendees as a result of the
COVID--19 pandemic.
11. Matters which remain to be clarified
There are a number of matters which remain to be clarified in
connection with the Migration and which are relevant for all Irish
companies whose shares are admitted to trading on the market of the
London Stock Exchange.
(a) Taxation: The Irish Finance Act 2020 contains amendments to
Irish law intended to ensure that the Migration will be a tax
neutral event for Irish Shareholders. These provisions remain
subject to commencement by Ministerial order and other tax matters
are expected to be dealt with in guidance from the Irish Revenue
Commissioners but no such guidance has been published.
(b) Resolution 4 and measures designed to give effect to the
Migration: The steps required to implement the Migration are
summarised in Part 3 of this Circular. As the Migration Act only
provides for an element of the Migration (the vesting of title to
Participating Shares on the Migration Record Date in Euroclear
Nominees), it may be necessary for the Company or another agent of
the Shareholders to enter into other arrangements with EUI and/or
Euroclear Bank on behalf of Shareholders to give effect to certain
other elements of the Migration (including the creation of CDIs and
related arrangements with EUI as set out in Part 3), which have not
been clarified as of the date of this Circular. Resolution 4 is
proposed to give flexibility to the Board to give effect to these
arrangements to the extent they are clarified prior to the
Migration. It is expected that any such arrangements will be in
substantial conformity with measures taken by all Irish listed and
traded issuers which participate in Market Migration.
12. Recommendation
The Board is not making any recommendation with respect to the
manner in which Shareholders should hold their interests in the
Company prior to, on, or subsequent to, the Migration. Shareholders
should make their own investigation in relation to the manner in
which they may hold their interests in the Company at such times.
Shareholders intending to hold their interests in Migrating Shares
via Belgian Law Rights in the Euroclear System or via CDIs in the
CREST System should carefully review the EB Migration Guide, the EB
Services Description and the EB Rights of Participants Document, as
well as the CREST International Manual in the case of CDIs
(including any updated versions thereof to the extent they are
published after the date of this Circular), together with the
additional documentation made available for inspection as set out
in paragraph 8 above and should consider those documents in making
their decisions with respect to their Migrating Shares. Nothing in
this Circular constitutes legal, tax or other advice, and if you
are in any doubt about the contents of this Circular, you should
consult your own professional adviser.
The impact of the Migration on the exercise of shareholder
rights, trading flows, liquidity, share custody costs, the nature,
range and cost of corporate services, and the ease and ability for
underlying Shareholders to exercise their economic rights, and the
costs of so doing is not expected to entail an improvement from the
CREST System. Nevertheless and notwithstanding the matters
described above which remain to be clarified in advance of the
Migration, in order to ensure that following March 2021 electronic
trading of the Company's Shares may continue to be settled in
compliance with EU law, and to ensure ongoing compliance with the
electronic share trading requirements for listing on the London
Stock Exchange, the Board believes that each of the Migration
Resolutions is in the best interests of the Company and its
Shareholders as a whole. In addition, the Board of Directors
believes that the amendments proposed to the Articles of
Association in Resolution 2 are in the best interests of the
Company and its Shareholders as a whole.
Accordingly, the Board unanimously recommends that you vote in
favour of each of the Resolutions to be proposed at the EGM, as
they intend to do so themselves in respect of all of the Shares
held or beneficially owned by them (as at 7 January 2021, the Board
held, in aggregate 86,738 Shares or DIs representing shares,
representing approximately 0.02% of the voting rights of the
Company on that date).
Yours faithfully,
Efstratios-Georgios Arapoglou
Chairman
Part 2
Questions And Answers In Relation To the Migration
The questions and answers set out below are intended to address
briefly some commonly asked questions regarding the Migration.
These questions and answers only highlight some of the information
contained in this Circular and may not contain all the information
that is important to you. Accordingly, you should read carefully
the full contents of this Circular before deciding what action to
take. If you are in any doubt as to the action you should take, you
are recommended to consult your independent professional adviser,
who is authorised or exempted under the European Union (Markets in
Financial Instruments) Regulations 2017 (as amended) or the
Investment Intermediaries Act 1995 (as amended), if you are
resident in Ireland, or who is authorised under the Financial
Services and Markets Act 2000 (as amended), if you are resident in
the United Kingdom, or from another appropriate authorised
independent financial adviser if you are resident in a territory
outside Ireland or the United Kingdom. The contents of this
Circular, including this Part 2, should not be construed as legal,
business, accounting, tax, investment or other professional
advice.
1. Why is the Migration being proposed?
It is a requirement of the continued admission of the Company's
Shares to trading and listing on the London Stock Exchange that
adequate procedures are available for the clearing and settlement
of trades in the Shares conducted on that venue, including that the
Shares are eligible for electronic settlement. At present, trading
in Shares is settled electronically via the CREST System, which is
the London-based securities settlement system operated by EUI. Only
Shares which are held in uncertificated (i.e. dematerialised) form
are eligible for admission to the CREST System. Approximately
60.13% of the Company's issued share capital is listed on the
London Stock Exchange and currently held in uncertificated form in
CREST. As of the Latest Practicable Date, approximately 39.86% of
the issued share capital of the Company is listed on the Cyprus
Stock Exchange and such Shares are held by the DI Depository (on
trust on behalf of DI Holders) in certificated form.
As a result of the withdrawal of the United Kingdom from the EU,
EUI has informed the market that the CREST System will cease to be
available for the settlement of trades in the Company's Shares with
effect from Tuesday, 30 June 2021. As it is essential for the
Company that electronic settlement of trading of its Shares can
continue in order to ensure ongoing compliance with the electronic
share settlement requirements for listing on the London Stock
Exchange, the Board believes that it is appropriate to seek
admission of the Company's Shares to an alternative securities
settlement system that will facilitate the electronic settlement of
trades in the Company's Shares following Brexit.
In December 2018, Euronext Dublin announced that, based on the
analysis it had carried out of four possible post-Brexit securities
settlement options, it had selected the CSD system operated by
Euroclear Bank SA/NV, an international CSD incorporated in Belgium,
to replace the CREST System operated by EUI as the long-term
securities settlement system for Irish issuers. At the date of this
Circular, no alternative securities settlement system authorised to
provide settlement services in respect of Irish Securities has been
actively engaging with Irish market Participants to facilitate the
transition of Irish shares to its settlement system. As a result,
other than the Euroclear System, no alternative securities
settlement system to the Euroclear System is expected to be
available for the electronic settlement of trades in the Company's
Shares on or before 30 June 2021.
Accordingly, the Migration of those Shares which are held in
uncertificated form on a designated Live Date from the CREST System
to the Euroclear System is being proposed in order to preserve the
continued listing and admission to trading of the Shares on the
London Stock Exchange. Further consequences of the failure to
implement the Migration are discussed in the response to Question 3
below .
2. What happens if the Migration is not approved at the EGM?
If the Migration Resolutions are not passed and the Company is
therefore unable to participate in the Migration, all Shares in the
Company which are currently held in uncertificated (i.e.
dematerialised) form through the CREST System will be required to
be re-materialised into certificated (i.e. paper) form and
Shareholders and other investors will no longer be able to settle
trades in the Shares electronically.
The Company believes that, in the absence of an alternative
electronic settlement system, this would materially and adversely
impact on trading and liquidity in the Shares as it would result in
significant delays for Shareholders and investors wishing to sell
or acquire Shares. It would also put at risk the continued
admission to trading and listing of the Shares on the London Stock
Exchange as the absence of electronic settlement of Shares would
mean that the Company would cease to meet the eligibility criteria
for admission to trading on the London Stock Exchange.
The Company believes that the failure to participate in the
Migration would have a material adverse impact on liquidity in, and
could have a material adverse impact on the market value of, the
Shares as well as the relative attractiveness of the Shares and the
DIs for investors.
It is not expected that the Shares listed on the Cyprus Stock
Exchange representing the DIs will be directly impacted by the
Migration.
3. What do I need to do in relation to the Migration?
You are encouraged to complete, sign and return the Form of
Proxy / DI Form of Proxy to vote on the
Resolutions as explained on the front page of this Circular and
in the Notice of EGM.
Any further actions that you may take/wish to take will depend
on whether you hold and/or wish to continue to hold, your Shares in
certificated (i.e. paper) form or in uncertificated (i.e.
dematerialised) form. These possible actions are referred to
below.
4. If the Migration Resolutions are approved, when will the Migration occur?
The Migration is expected to occur in mid-March 2021, with the
Live Date to be specified by Euronext Dublin in accordance with the
provisions of the Migration Act. It is currently expected that the
Live Date will be 15 March 2021 with the Migration occurring over
the weekend immediately prior to the Live Date and then taking
effect on the Live Date.
5. Will the Migration affect the business or operations of the Company?
No. Neither the Migration, nor the proposed changes to the
Articles of Association of the Company, will impact on the on-going
business operations of the Company.
The Company will remain incorporated in Ireland and
headquartered and resident for tax purposes in Cyprus. The nature
and venue of the stock exchange listings of the Company will not
change in connection with the Migration. The Company does not
expect that the Migration will result in any change in the
eligibility of the Company for the indices of which it is a
constituent as of the date of this Circular. In addition, the ISIN
relating to the Shares will be unchanged.
6. I currently hold my Shares in certificated (i.e. paper) form
and wish to continue to do so. What action should I take and what
is the latest date for any such action?
Shares which are held in certificated (i.e. paper) form on the
Migration Record Date will not be subject to the Migration and can
continue to be held in certificated (i.e. paper) form, at the
option of the Shareholder.
Accordingly, Shareholders currently holding their Shares in
certificated (i.e. paper) form and wishing to continue to do so
following the Migration are not required to take any action in
advance of the Migration (other than voting in respect of the
Migration Resolutions should a Shareholder wish to do so).
7. I currently hold my Shares in certificated (i.e. paper) form
but I would like to hold them in uncertificated form in CREST (via
CDIs) with effect from the Migration. What action should I take and
what is the latest date for any such action?
Shareholders currently holding their Shares in certificated
(i.e. paper) form and wishing to hold their interests in book-entry
form via CDIs in the CREST System following the Migration should
become a CREST member or engage the services of a broker or
custodian who is a CREST member in order to have their Shares
admitted to the CREST System so that they are held in
uncertificated form within the CREST System in advance of the
Migration Record Date. If they wish to have this completed before
the Migration so that the relevant Shares participate in the
Migration, Shareholders will need to have completed the deposit of
their Shares into the CREST System prior to the Migration in
accordance with the timelines to be confirmed by EUI. Such
Shareholders are encouraged to engage with their stockbroker or
custodian in good time to ensure that they can meet this
deadline.
8. I am a DI Holder. What action should I take and what is the
latest date for any such action?
If a DI Holder would like to continue holding DIs representing
Shares following the Migration, no action is required to be taken
by that DI Holder in advance of the Migration (other than voting in
respect of the Resolutions, should a DI Holder wish to do so).
It is not expected that the Migration will directly impact DI
Holders who continue to hold their Shares as Depository Interests.
The Migration will not affect trading of the Shares underlying the
DIs on the Cyprus Stock Exchange. These Shares are outside the
remit of the Migration as they are not settled within CREST and
will continue to be settled in DSS following Migration.
If a DI Holder wishes to hold their Shares representing their
DIs through Euroclear Bank in accordance with the EB Services
Description following the Migration, the DI Holder will need to
take steps to deposit the relevant DIs into the CREST System prior
to the Live Date (this date is subject to confirmation). The steps
to be taken to achieve dematerialisation are set out in section 4
of Part 3. Alternatively, DI Holders can give the necessary
instruction to deposit their shares directly into Euroclear Bank,
at any time post--Migration in accordance with Question 9.
9. I hold my Shares in certificated (i.e. paper) form but I
would like to hold them via Belgian Law Rights in the Euroclear
System as soon as possible following the Migration. What action
should I take?
Shareholders wishing to hold their interests in electronic form
via Belgian Law Rights in the Euroclear System following the
Migration must be or become EB Participants (or must appoint an EB
Participant to hold the Belgian Law Rights on their behalf) and
will need to make arrangements to have their certificated Shares
deposited into the Euroclear System following the Migration. Where
a Shareholder is not an EB Participant and does not wish to become
an EB Participant, it should consult its broker or custodian in
order to arrange for the relevant Shares to be deposited into the
Euroclear System and held in electronic form via Belgian Law Rights
held by an EB Participant on behalf of that Shareholder using
arrangements put in place by such broker or custodian. Information
on how to become an EB Participant can be accessed on the Euroclear
website at:
https://www.euroclear.com/about/en/business/Becomingaclient/BecomingaclientEuroclearBank.html.
Shareholders should be aware that there are certain eligibility
criteria applicable to becoming an EB Participant.
These arrangements can also be put in place prior to the
Migration as referred to in section 3.5.8 of the EB Migration Guide
and will enable a holding through the Euroclear System following
the Migration once the transfer out of the initial CDIs holding has
been completed, or at any time following the Migration. If such
arrangements are effected before the Migration, the Shares will be
transferred to an account in Euroclear Bank in which the Shares
will be held under Euroclear Bank's investor CSD service until the
Migration. The services described in the EB Services Description
will however only become applicable as of the Live Date.
10. I hold my Shares in uncertificated (i.e. dematerialised)
form through the CREST System and intend to continue to hold my
interests through the CREST System (via CDIs) with effect from the
Migration. What action should I take and what is the latest date
for any such action?
Shares which are held in uncertificated (i.e. dematerialised)
form through the CREST System on the Migration Record Date will
automatically be subject to the Migration and will be held in
book-entry form via CDIs in the CREST System following the
Migration, unless Shareholders take the steps referred to in the
response to Question 12 below (in which case their interests will
be held via Belgian Law Rights in the Euroclear System).
Accordingly, Shareholders currently holding their Shares in
uncertificated (i.e. dematerialised) form through the CREST System
and who wish to hold their interests in book-entry form via CDIs
through the CREST System following the Migration are not required
to take any action in advance of the Migration (other than voting
in respect of the Resolutions should the Shareholder wish to do
so).
Shareholders currently holding their Shares in uncertificated
(i.e. dematerialised form) form through the CREST System and who
wish to convert their Shares into DIs on the Cyprus Stock Exchange
should contact their broker for further information. The DI Holders
will not be affected by the Migration.
11. I hold my Shares in uncertificated (i.e. dematerialised)
form through the CREST System and wish to hold my interests via
Belgian Law Rights in the Euroclear System as soon as possible.
What action should I take and what is the latest date for any such
action?
Shareholders wishing to hold their interests in electronic form
via Belgian Law Rights in the Euroclear System rather than via CDIs
in the CREST System following the Migration, must be or become an
EB Participant (or must appoint an EB Participant to hold the
Belgian Law Rights on their behalf) and must transfer such Belgian
Law Rights from the CREST International Account in Euroclear Bank
to the account of another EB Participant by way of cross-border
delivery instruction. The specific procedures to be followed are
set out in section 6 Withdrawal of Deposited Property on transfer
and related matters in Chapter 8 Global Deed Poll of the CREST
International Manual and summarised in the response to Question 18
below. Upon matching with a pending receipt instruction from the EB
Participant, the transfer will settle if the applicable other
settlement conditions are satisfied. As referred to in the response
to Question 10 above, these transfers can occur following the
Migration and can also occur ahead of the Migration as referred to
in section 3.5.8 of the EB Migration Guide.
Shareholders who are not themselves CREST members should contact
the stockbroker or other custodian with whom they have made
arrangements with respect to the holding of their Shares to procure
that the steps outlined above are taken on their behalf.
Shareholders who are CREST members should themselves make
arrangements to give the necessary instructions in accordance with
the CREST International Manual.
Arrangements for a Shareholder's interests to be held via
Belgian Law Rights in the Euroclear System can also be put in place
prior to Migration by utilising the procedure set out in paragraph
3.5.8 of the EB Migration Guide, which will enable a holding via
Belgian Law Rights in the Euroclear System as soon as practicable
following Migration and without any further action being required
by the Shareholder following Migration. Where these arrangements
are put in place prior to Migration, the relevant Shares will be
transferred to an account in Euroclear Bank in which the Shares
will be held under Euroclear Bank's investor CSD service until
Migration. The services described in the EB Services Description
will, however, only become applicable as of the Live Date.
12. I hold my Shares in uncertificated (i.e. dematerialised)
form through the CREST System but I do not wish for my Shares to be
Part of the Migration. What action should I take and what is the
latest date for any such action?
If a Shareholder does not wish their Shares to participate in
the Migration, they will need to take action so that they can hold
their interests in certificated (i.e. paper) form before the
Migration Record Date. To do this they will need to withdraw the
relevant Shares from the CREST System prior to the Migration (by a
time which will be confirmed closer to the Migration). Based on the
Expected Timetable of Principal Events the deadline for this action
will be 2:00 p.m. (Cyprus time) / 12:00 p.m. (Irish time) on
Thursday, 11 March 2021. The latest time and date for Shareholders
who hold their Shares in uncertificated (i.e. dematerialised) form
and who do not want their Shares to be subject to the Migration to
withdraw the relevant Shares from the CREST System and hold them in
certificated (i.e. paper) form is expected to be the Latest
Withdrawal Date.
Shareholders wishing to hold their Shares in certificated (i.e.
paper) form prior to the Migration taking effect should make
arrangements with their broker or custodian in good time so as to
allow their stockbroker or custodian sufficient time to withdraw
their Shares from the CREST System prior to the closing date set
out above for CREST withdrawals.
13. If I continue to hold my Shares in certificated (i.e. paper)
form following the Migration, what impact will the Migration have
in relation to my shareholding?
Shares which are held in certificated (i.e. paper) form on the
Migration Record Date will not be subject to the Migration and can
continue to be held in certificated (i.e. paper) form following the
Migration, at the option of the Shareholder.
While it is not expected that the Migration will initially
directly impact Shareholders who continue to hold their Shares in
certificated (i.e. paper) form, such Shareholders should note that,
as is currently the case, in order to settle an on market trade in
their Shares following the Migration, they will need to take steps
to effect a deposit of their Shares by depositing them into the
Euroclear System to be held via Belgian Law Rights or into the
CREST System to be held as CDIs prior to such trades being
settled.
Any such deposit of Shares will entail interaction with a broker
and/or custodian and may involve certain costs being incurred
and/or, a delay in execution of a share trade being experienced by
the Shareholder which may differ from the comparable process
applicable in respect of deposit of Shares into the CREST
System.
Shareholders currently holding their Shares in uncertificated
(i.e. dematerialised form) form through the CREST System and who,
post-Migration, wish to convert their CDIs into DIs on the Cyprus
Stock Exchange should instruct their broker to deliver the CDIs to
the DI Depository's CREST account and to provide the necessary
Stock Deposit Instruction to the Depository to deliver the
equivalent number of DIs to the DSS Member's ISCS account.
14. If I hold my Shares as an EB Participant or through an EB
Participant following the Migration, what impact will the Migration
have in relation to my shareholding?
After the Migration, Euroclear Nominees will hold legal title to
all Shares admitted to the Euroclear System. As a result, Euroclear
Nominees will be recorded in the Register of Members of the Company
as the holder of the relevant Shares. EB Participants' rights with
respect to the Shares deposited in the Euroclear System will be
governed by Belgian Law (through the Belgian Law Rights) and the EB
Services Description.
Holding Shares through the Euroclear System will entail share
custody costs (which may be passed on to Holders of Participating
Securities on the Migration Record Date (" Former Holders ") if
they hold their Shares through an EB Participant) and certain
differences in the nature, range and cost of corporate services,
including with respect to the manner in which voting rights can be
exercised in person or by proxy, relative to the current direct
holding of Shares through the CREST System.
Shareholders who anticipate holding their Shares via the
Euroclear System should familiarise themselves with the EB Services
Description in this regard.
15. What is a CDI and why is it relevant in relation to the Migration?
"CDI" stands for CREST Depository Interest. CDIs are a technical
means by which interests in Shares can be held in the CREST System
as an alternative to holding Belgian Law Rights as an EB
Participant.
It is only possible to hold and transfer certain securities in
the CREST System, (including, currently, shares constituted under
Irish law ("Irish Securities")). Once it ceases to be possible to
hold and transfer Irish Securities directly through the CREST
System, EUI can facilitate the issuance of CDIs in respect of the
Belgian Law Rights which are automatically granted to EB
Participants through the Euroclear System, in order to provide an
alternative settlement mechanism involving CREST. A CDI is issued
by the CREST Depository to CREST members and represents an
entitlement to identifiable underlying securities. Following the
Migration, holders of Irish Securities wishing to continue to hold,
and settle transactions in, Irish Securities through the CREST
System, including in respect of all trades executed on the London
Stock Exchange, will only be able to do so for their Shares held
via CDIs.
Each CDI issued on the Migration will reflect the Belgian Law
Rights related to each underlying Migrating Share. On the
Migration, each Migrating Shareholder will initially receive one
CDI for each Migrating Share held by them at the Migration Record
Date. Thereafter, the Holders of Participating Securities on the
Migration Record Date ("Former Holders") may choose to hold their
interests via Belgian Law Rights through the Euroclear System
rather than via CDIs representing those Belgian Law Rights. To do
this the Former Holder must be an EB Participant (or must appoint
an EB Participant to hold the Belgian Law Rights on its behalf) and
must transfer such Belgian Law Rights from the CREST International
Account in Euroclear Bank to the account of another EB Participant
by way of cross-border delivery instruction. The delivery
instruction will need to match with a receipt instruction in order
for the transfer to settle. Please see the response to Question 11
above as to what steps should be undertaken to convert a holding
via CDIs into a holding via Belgian Law Rights.
16. If I hold my Shares through a CDI following the Migration,
what is the impact of this type of holding?
In the case of a CDI, the CREST Nominee (CIN (Belgium) Limited)
will be an EB Participant and will hold rights to securities held
within the Euroclear System on behalf of the CREST Depository for
the account of CDI holding CREST members. The CREST Depository's
relationship with CDI holding CREST members will be governed by the
CREST Deed Poll and the CREST International Manual.
Holding by way of a CDI will entail international custody costs
(which may be passed on to Former Holders) and certain differences
in the nature, range and cost of corporate services, including with
respect to the manner in which voting rights can be exercised in
person or by proxy, relative to a direct holding in the CREST
System or relative to a position in Euroclear Bank.
The manner (if you do not currently hold your Shares through a
custodian or other nominee) and time period within which any such
voting rights may be exercised by CDI holders may differ from
arrangements which would currently apply in respect of current
direct holdings of Shares through the CREST System or in the
Euroclear System.
CREST members who anticipate holding their interests in Shares
following the Migration via CDI should familiarise themselves with
the CDI service offering, details of which are included in the
CREST International Manual, and the terms of the CREST Deed
Poll.
17. What are the taxation implications of the Migration?
You should refer to Part 7 of this Circular in relation to
taxation. Shareholders are advised to consult their own tax
advisers about the Irish, Belgian, UK and US tax consequences (and
the tax consequences under the laws of other relevant
jurisdictions), which may arise as a result of being Migrating
Shareholders and the acquisition, ownership and disposition of
Shares (or CDIs representing Shares) in the future.
Summary of Irish taxation implications
In general terms, as referred to in more detail in Part 7 of
this Circular, legislation is being enacted in Ireland to provide
that the Migration is a tax neutral event for Shareholders and that
the Irish taxation regime subsequently applying is not materially
different from that currently applying.
Summary of Belgian taxation implications
In general terms, as referred to in more detail in Part 7 of
this Circular, Shareholders, whether they be Belgian residents or
not, are not expected to be subject to Belgian income tax on
capital gains as a consequence of the Migration on the basis that
the Migration should normally not give rise (or should not be
treated as giving rise) to a definitive disposal of the Shares.
Summary of UK taxation implications
In general terms, as referred to in more detail in Part 7 of
this Circular, from a UK tax perspective the Migration should be a
tax neutral event for Shareholders and the UK taxation regime
subsequently applying should not be materially different from that
which currently applies.
Summary of US taxation implications
In general terms, as referred to in more detail in Part 7 of
this Circular, US Holders are not expected to recognise any gain or
loss for US federal income tax purposes on the exchange of
Participating Securities for CDIs representing Shares in connection
with the Migration.
18. How do I withdraw Shares from either the Euroclear System or
the CREST System following the Migration in order to become a
registered (certificated) holder?
The procedures for withdrawing Shares will be different
depending on whether a holder of Participating Securities holds his
interests through the Euroclear System via Belgian Law Rights or
through the CREST System via CDIs.
Shareholders should be aware that, in order to comply with
Article 3(2) of the CSD Regulations, settlement of trades in Shares
that have been withdrawn from the Euroclear System to be held in
certificated (i.e. paper) form must take place within a CSD. As a
result, any subsequent sale of Shares held in certificated (i.e.
paper) form following withdrawal will require the Shares to be
redeposited into the CREST System (via the Euroclear System) for
LSE trades or into the CSE system for CSE trades, as
appropriate.
Withdrawal of Shares held through the Euroclear System via
Belgian Law Rights to become a registered (certificated) holder
The process involved in order to withdraw Shares which are held
through the Euroclear System via Belgian Law Rights and hold them
in certificated (i.e. paper) form is set out in detail in section
4.2.3.2 "Mark-downs" of the EB Services Description. In summary, in
order to withdraw Shares from the Euroclear System, the relevant EB
Participant will need to issue a "mark-down" (withdrawal)
instruction, together with details of the entity into whose name
the withdrawn Share(s) should be registered to Euroclear Bank.
Subject to validation, this instruction and the related details
will be communicated by Euroclear Bank to the Registrar. Upon
receipt of the instruction and registration details, the Registrar
will proceed to effect a transfer of the relevant shareholding from
Euroclear Nominees to the designated transferee whose name will be
entered in the Register of Members as the holder of the withdrawn
Share(s). The time period for any such withdrawal of securities
from the Euroclear System is expected to be within one (1) business
day such that the owner of the Participating Securities will be
entered on the Register of Members of the Company within one
business day of a valid withdrawal request and the necessary
supporting details. It may take up to ten (10) business days for a
transferee to receive the relevant share certificate; however,
entry on the Register of Members is prima facie evidence of a
shareholding under Irish law.
Former Holders whose interests in Shares are held through EB
Participants (or other nominees) on their behalf will need to
engage with their stockbroker or other custodian to procure that
the steps outlined above are taken on their behalf by the relevant
EB Participant. For a description as to what EB Participants need
to do to withdraw their Shares from Euroclear Nominees into a
direct name on register (mark-down), please refer to the EB
Services Description section 4.2.3 "Mark-up and Mark-down".
Withdrawal of Shares held through the CREST System via CDIs to
become a registered (certificated) holder
The process involved in order to withdraw Shares held through
the CREST System via CDIs following Migration is set out in section
6 Withdrawal of Deposited Property on transfer and related matters
of Chapter 8 Global Deed Poll of the CREST International
Manual.
In summary, in order to withdraw Shares through the CREST System
via CDIs, the holder of the CDI will be required to input an
instruction requesting cancellation of CDIs in the CREST System and
the receipt of the relevant Belgian Law Rights into a shareholding
account with a depository financial institution which is an EB
Participant. This involves the input of a cross-border delivery
instruction in favour of the relevant EB Participant, which should
separately input a matching cross-border receipt instruction to
ensure receipt of the Belgian Law Rights. It is expected that the
process to withdraw the CDIs and receive the Belgian Law Rights
into the Euroclear System can be accomplished within one (1)
business day. After this, the process to withdraw the relevant
Share(s) from the Euroclear System is as described above.
Former Holders who are not themselves CREST members should
contact the stockbroker or other custodian with whom they have made
arrangements with respect to the holding of CDIs to procure that
the steps outlined above are taken on their behalf. Former Holders
who are CREST members should make arrangements themselves to give
the necessary instructions in accordance with the CREST
International Manual.
As noted in paragraph 8 of Part 3 of this Circular, the ability
of Shareholders to hold Shares in certificated (i.e. paper) form
after 1 January 2023 (for newly issued Shares) and 1 January 2025
(for all Shares) will depend on legislative changes relating to the
implementation of dematerialisation which have not yet been
proposed or determined by the relevant authorities. Please note
that the future ability to enjoy direct exercise of rights after 1
January 2023 (for newly issued Shares) and 1 January 2025 (for all
Shares) will depend on legislative changes which have not yet been
proposed or determined by the relevant authorities.
19. Can I attend a general meeting of the Company following the Migration?
Shares which are held in certificated (i.e. paper) form on the
Migration Record Date will not be subject to the Migration and can
continue to be held in certificated (i.e. paper) form following the
Migration, at the option of the Shareholder. Such holders can
attend, vote and speak at a general meeting of the Company in
person or by proxy in the same way as before the Migration.
EB Participants holding Belgian Law Rights via the Euroclear
System will be entitled to instruct Euroclear Bank to vote in
favour of, against or abstain on any resolution proposed at a
general meeting, by issuing an instruction in advance of the
relevant Euroclear Bank voting deadline for that general meeting.
EB Participants can also, in advance of the Euroclear Bank voting
deadline, instruct Euroclear Bank to appoint a third party (other
than Euroclear Nominees or the Chair of the meeting) identified by
the EB Participant to attend and vote at a general meeting for the
number of Shares specified in the proxy voting instruction. For
example, such third party may be the EB Participant or, where the
EB Participant is a broker or custodian, the client of that broker
or custodian or a corporate representative.
CDI holders will be entitled to instruct Broadridge
("Broadridge"), in advance of the relevant Broadridge voting
deadline, to vote in favour of, against or abstain on any
resolution proposed at a general meeting. CDI holders can also, in
advance of the Broadridge voting deadline, instruct Broadridge to
appoint a third party (other than Euroclear Nominees or the Chair
of the meeting) identified by the CDI holder to attend and vote at
a general meeting for the number of Shares specified in the proxy
voting instruction. The third party identified in the proxy
instruction could be, for example, the CREST member, the client of
a CREST member or a corporate representative. The CREST Nominee (as
an EB Participant) will then action that instruction to Euroclear
Bank as set out above.
The proposed new Article 5(d) will, subject to the approval of
either Resolution 3(a) or 3(b), provide that indirect owners of
Shares (including holders of interests in Shares through the
Euroclear System via Belgian Law Rights, or through the CREST
System via CDIs) who the directors deem eligible to receive notice
of a meeting under Article 5(b) at the date the notice was given,
served or delivered, may also be deemed eligible by the directors
to attend and speak at the meeting, provided that such person
remains an owner of a Share at the record date for the relevant
meeting. However, such persons will not be entitled to vote or
exercise any other right conferred by membership in relation to
meetings of the Company while in attendance. Instead, EB
Participants and CDI holders should issue voting instructions
(which may include a proxy appointment as set out above) through
the Euroclear System and/or the CREST System in accordance with the
relevant deadlines set by Euroclear Bank, EUI and/or Broadridge as
described above.
20. I hold Shares on the Irish Register of Members, who do I contact if I have a query?
If you have any questions about the action you should take as a
result of the receipt of this Circular, you should contact your
stockbroker, bank or other appropriately authorised independent
advisor in the first instance.
If you have any questions about this Circular, the proposed
Resolutions and the Migration detailed herein or the EGM, or are in
any doubt as to how to complete the Form of Proxy, please call the
Registrar, Link Registrars Limited on +353 1 5530050. Lines are
open from 11:00 a.m. to 7:00 p.m. (Cyprus time) / 9:00 a.m. to 5:00
p.m. (Irish time) Monday to Friday, excluding bank holidays in
Ireland. Please note that calls may be monitored or recorded and
Link cannot provide legal, tax, accounting or financial advice or
advice on the merits of the Migration or the Migration
Resolutions.
Shareholders intending to hold their interests in Migrating
Shares through the Euroclear System via Belgian Law Rights or the
CREST System via CDIs should carefully review the EB Migration
Guide, the EB Services Description and the EB Rights of
Participants Documents and, in the case of CDIs, the CREST Deed
Poll and the CREST International Manual (including any updated
versions thereof to the extent they are published after the date of
this Circular), together with the additional documentation made
available for inspection as set out in paragraph 8 of Part 1 of
this Circular.
21. I hold DIs in the Cyprus DI register, who do I contact if I have a query?
If you have any questions about the proposed Resolutions and the
Migration detailed herein or the EGM, or are in any doubt as to how
to complete the DI Form of Proxy, please call Investor Relations,
on +357 22 126055.
Lines are open from 7.30 a.m. until 3:00 p.m. (Cyprus time)
Monday to Friday, excluding bank holidays in Cyprus. Please note
that calls may be monitored or recorded and Investor Relations
cannot provide legal, tax, accounting or financial advice or advice
on the merits of the Migration or the Migration Resolutions.
Part 3
Further information RELATING TO THE MIGRATION, INCLUDING CERTAIN
INFORMATION provided for the purpose of Section 6(1) of the
migration act
1. Further background relating to the Migration
Since 1996, the electronic settlement of share trading in Irish
incorporated companies has been carried out through the CREST
System as operated by EUI. EUI is incorporated in England and Wales
and is regulated in the UK by the Bank of England. Insofar as it
applies to Irish companies, the CREST System is also regulated in
Ireland by the Minister for Business, Enterprise and Innovation
under the Irish CREST Regulations.
Since 17 September 2014, both EUI and Euroclear Bank have been
central securities depositories ("CSDs") operating in the EU for
the purpose of the EU Central Securities Depositories Regulation
("CSDR"). The aim of CSDR is to harmonise certain aspects of the
settlement cycle and settlement discipline and to provide a set of
common requirements for CSDs operating securities settlement
systems across the EU. While EUI did not obtain authorisation as a
CSD for the purposes of CSDR until 8 December 2020, it had been
able to provide CSD services in Ireland on account of the
'grandfathering provision' in Article 69(4) of CSDR and the fact
that the CREST System is regulated in Ireland by the Minister for
Business, Enterprise and Innovation under the Irish CREST
Regulations. As a result of the withdrawal of the United Kingdom
from the EU, EUI became a third country CSD on the date of the
expiry of the Brexit transition period on 31 December 2020 ("Brexit
Date"). Under CSDR, third country CSDs need to be recognised by the
European Securities and Markets Authority ("ESMA") to offer certain
CSD services in the EU with respect to securities constituted under
the laws of a member state of the European Union. ESMA announced on
11 December 2020 that it will recognise EUI as a third country CSD.
Prior to that grant of recognition by ESMA, the European Commission
was required to adopt an implementing act determining, amongst
other issues, that the legal and supervisory arrangements of the
relevant third country imposes legally binding requirements which
are equivalent to those contained in CSDR. Recognising that Irish
companies rely on EUI to provide CSD services (through the CREST
System), the European Commission issued an Implementing Decision on
19 December 2018 under Article 25 of CSDR which was the first step
in granting equivalence recognition for EUI as a third country CSD
under CSDR which would be effective from the Brexit Date until 30
June 2021. This was followed by an announcement by ESMA on 1 March
2019 that, in the event of a no-deal Brexit, EUI will be recognised
as a third country CSD to provide its services in the European
Union under CSDR. On 25 November 2020, the European Commission
issued an Implementing Decision 2020/1766, which determined that
the legal and supervisory arrangements governing CSDs established
in the United Kingdome shall be considered equivalent to the
requirements laid down in CSDR for a period of six months from 1
January 2021 to 30 June 2021. EUI then formally applied to ESMA
seeking recognition as a third country CSD under Article 25 of CSDR
and was authorised in that respect for a period expiring on 30 June
2021.
In December 2018, Euronext Dublin announced that, based on the
analysis it had carried out of four possible CSD options for
settlement post-Brexit, it had selected the Euroclear System
operated by Euroclear Bank to replace the CREST System operated by
EUI as the long-term CSD for Irish Securities settlement.
In May 2019, Euroclear Bank issued a White Paper which set out
its proposal for Euroclear Bank to become the Issuer CSD for Irish
corporate securities from March 2021.
On 26 December 2019, the Migration Act was enacted with the
intention that it would provide a legislative mechanism to
facilitate the migration of Irish Securities from their current CSD
to another EU-based CSD. While the issue of CDIs to Former Holders
who are CREST members, as described in this Circular, is a key part
of the implementation of the Migration, it is not provided for in
the Migration Act. Instead, this aspect of the Migration is to be
covered by the taking of certain operational steps by Euroclear
Bank, EUI, the CREST Nominee and the CREST Depository as set out in
the EB Migration Guide and in accordance with the terms of the
CREST Deed Poll and the CREST International Manual and the
amendment of the Company's Articles of Association, including by
the adoption of the proposed new Article 14A pursuant to
Resolutions 3(a) or 3(b) and the approval of Resolution 4. On 17
March 2020, the Company notified Euroclear Bank (as required by
section 5(5)(a) of the Migration Act) of its intention to seek
Shareholder consent in order for Participating Securities in the
Company to be the subject of the Migration in accordance with the
Migration Act. In the notification to Euroclear Bank, the Company
confirmed that the following matters have been or will be done or
satisfied in time for the Migration:
1. the appointment of an issuer agent which meets or will, by
the time of the Migration, meet Euroclear Bank's requirements for
being an issuer agent in respect of the Irish Issuer CSD
service;
2. nothing in the Articles of Association would prevent a
Shareholder from voting in the manner permitted by section 190 of
Companies Act (i.e. on the basis of a poll);
3. nothing in the Articles of Association would prevent voting
at meetings from being conducted on the basis of a poll; and
4. electronic proxy voting with respect to meetings of the
Company may occur through the use of a secured mechanism to
exchange electronic messages (as agreed with Euroclear Bank).
In the same letter, the Company set out its understanding of
certain key aspects of the Migration mechanisms.
On 20 March 2020, the Company received a statement in writing
from Euroclear Bank (as required by section 5(6)(a) of the
Migration Act) to the effect that the provision of the services of
the Euroclear System to the Company will, on and from the Live
Date, be in compliance with Article 23 of CSDR. In the same letter,
the Company also received the statement from Euroclear Bank (as
required by section 5(6)(b) of Migration Act) to the effect that
following (i) such inquiries as have been made of the Company by
Euroclear Bank, and (ii) the provision of such information by or on
behalf of the Company, in writing, to Euroclear Bank as is
specified by Euroclear Bank, Euroclear Bank is satisfied that the
relevant Participating Securities in the Company meet the criteria
stipulated by Euroclear Bank for the entry of the Participating
Securities into the settlement system operated by Euroclear Bank.
This confirmation from Euroclear Bank was stated as being subject
to the information which the Company has provided to Euroclear Bank
as mentioned in (ii) above being true and correct at the time of
the Migration. These communications were all required pursuant to
the Migration Act before the Company could issue this Circular.
On 9 November 2020, the UK Chancellor and HM Treasury announced
that the UK will be granting a package of equivalence decisions to
the European Economic Area States (" EEA "), including the Member
States of the European Union. This includes the Central Securities
Depositories Regulation Equivalence Directions 2020 which will
determine that CSDs in each EEA State are equivalent to Article 25
of the CSDR which will form Part of UK law at the end of the Brexit
transition period. With equivalence granted, the Bank of England
can then assess CSDs in the EEA for recognition (subject to
establishing cooperation arrangements with the relevant EU
authorities), allowing those CSDs, once recognised, to continue to
service UK securities and to exit the transitional regime contained
in Article 69 CSDR and Part 5 of the UK Central Securities
Depositories (Amendment) (EU Exit) Regulations 2018.
On 2 December 2020, EUI announced that it will not be able to
continue to settle in Euros under the current TARGET2 arrangements
from Monday, 29 March 2021. In the same announcement, EUI confirmed
that it is investigating alternative arrangements with the aim that
Euros can continue as a settlement currency in the CREST system.
Unless such alternative arrangements can be secured, this means
that the final date for Euro settlement in EUI will be Friday, 26
March 2021.
An explanation of how the Migration will affect the rights of
registered shareholders (i.e. of members) and the form through
which interests in the Shares are held
The Migration will entail all of the uncertificated (i.e.
dematerialised) Shares which are held in electronic form on the
Migration Record Date moving from the CREST System to the Euroclear
System. Following the Migration, legal title to all Shares which
are admitted to the Euroclear System will be held by a single
nominee shareholder, Euroclear Nominees, subject to the rules and
procedures of the Euroclear System. The DIs and the Shares
represented by the DIs on the Cyprus Stock Exchange are not subject
to the Migration.
Under the Company's existing settlement arrangements with EUI,
when trades in Participating Securities are settled via the CREST
System, electronic instructions are issued via the CREST System in
accordance with the Irish CREST Regulations, which result in a
change in the Company's Register of Members in order to reflect the
transfer of legal title to the relevant Participating Securities.
When trades in securities are settled via the Euroclear System,
there will be no change in the Company's Register of Members in
order to reflect a transfer of legal title. It is a difference
between the Euroclear System and the CREST System that it is an
'intermediated' or 'indirect' system, under which the rights of EB
Participants are governed by Belgian law. For so long as securities
remain in the Euroclear System, Euroclear Bank's nominee, Euroclear
Nominees will be recorded in the Company's Register of Members as
the holder of the relevant Shares and trades in the securities will
instead be reflected by a change in Euroclear Bank's book-entry
system, as detailed in Part 5 of this Circular. A holder must
become an EB Participant (or have access to an EB Participant as
custodian) for its holding to be recorded in Euroclear Bank's
book-entry system.
Once admitted to the Euroclear System, interests in Shares may
be held directly in the Euroclear Bank system via Belgian Law
Rights or indirectly via CDIs in the CREST System as outlined
below.
Holding an interest in Migrating Shares directly in the form of
Belgian Law Rights
Under the Euroclear System, pursuant to Royal Decree No. 62,
Belgian Law Rights representing the Shares admitted to the
Euroclear System will automatically be granted to EB Participants.
The Belgian Law Rights will entitle EB Participants to indirectly
exercise certain rights relating to the Shares in accordance with
the terms of the EB Services Description. It is important to note
that Euroclear Nominees and Euroclear Bank will only facilitate the
exercising of rights attaching to Shares admitted to the Euroclear
System in accordance with instructions given to them by EB
Participants in accordance with the EB Services Description,
Euroclear Bank's Terms and Conditions governing use of Euroclear
(the "EB Terms and Conditions") and the Operating Procedures of the
Euroclear System ("EB Operating Procedures").
Existing Shareholders that are entitled to become EB
Participants will be able to hold and indirectly exercise rights
relating to the Belgian Law Rights directly in their capacity as an
EB Participant. Existing Shareholders which are not entitled to
become EB Participants but who wish for their Shares to be admitted
to the Euroclear System will either need to make arrangements for
an existing EB Participant to hold the Belgian Law Rights as a
custodian on their behalf, or hold their Shares through CDIs, as
described below (in which case the CREST Nominee will act as an EB
Participant).
The EB Operating Procedures, the EB Service Description and the
EB Rights of Participants Document set forth the services provided
to all EB Participants with respect to interests in Shares and are
governed by Belgian law. Furthermore, the services available under
the Euroclear System in respect of the indirect exercise of
shareholder rights are set out in the EB Services Description and
this means that the rights indirectly exercisable by an ultimate
owner of Shares through the Euroclear System will not be as
extensive as is the currently case for a person holding
Participating Securities in the CREST System pursuant to the Irish
CREST Regulations and exercising rights indirectly through the
CREST System.
Further information on the Belgian Law Rights through which EB
Participants will hold interests in the Shares is set out in Part 5
of this Circular.
Holding an interest in Migrating Shares indirectly in the form
of CREST CDIs
CDIs are a technical means by which interests in Shares can be
held in the CREST System as an alternative to holding Belgian Law
Rights as an EB Participant. In order to facilitate trading of
Shares on the London Stock Exchange following the Migration and to
ensure an orderly transfer to the intermediated Euroclear model,
Euroclear Bank will have arranged with EUI for CDIs to be issued to
Former Holders who are CREST members on the Migration Record Date.
These CDIs will represent an indirect interest in the Migrating
Shares deposited in the Euroclear System. While the underlying
Shares will be admitted to the Euroclear System, the CDIs will
entitle CREST members to indirectly exercise certain rights
relating to the Shares, through the interface of the CREST System,
in accordance with the service offering set out in the CREST
International Manual.
On the Migration, Euroclear Bank will record all of the
deposited Migrating Shares as being in the account of the CREST
Nominee (CIN (Belgium) Limited), as an EB Participant in its book
entry system. The CREST Nominee is an EB Participant and is also
the nominee of the CREST Depository for the purpose of creating
CDIs. The CREST Depository's relationship with CREST members is
governed by the CREST Deed Poll and Former Holders will be entitled
to indirectly exercise certain rights in respect of the underlying
Migrating Shares in accordance with the terms of the CREST Deed
Poll and the CREST International Manual.
CDIs may be of assistance to Former Holders who do not qualify
as, or do not have a custody relationship with, an entity which is
an EB Participant. Following the Migration, CREST members who have
been issued CDIs will be able to either continue to hold their
interests in Shares via CDI or, subject to being, becoming, or
having a custody relationship with, an alternative EB Participant,
will be able to hold via Belgian Law Rights in the Euroclear
System. Further information in relation to CDIs is set out below
and Part 6 of this Circular and a summary comparing the service
offering of EUI with respect to CDIs and Euroclear Bank to EB
Participants via Belgian Law Rights is set out at Part 4 of this
Circular.
Further information on the rights and services accessible in
respect of Shares admitted to the Euroclear System following the
Migration is set out in paragraph 2 of this Part 3. The expected
effect of the Migration for holders of certificated (i.e. paper)
Shares and holders of Participating Securities (i.e. holders of
uncertificated Shares) is as set out below:
Summary of the expected effect of the Migration on holders of
certificated Shares (i.e. shareholders with paper share
certificates)
The legal effects of the Migration on holders of certificated
Shares on the Migration Record Date can be summarised as
follows:
-- Shareholders holding a direct interest in Shares in
certificated (i.e. paper) form on the Migration Record Date will
continue to hold their Shares directly in certificated form after
the Live Date, without any further action being required.
-- Such Shareholders will continue to be recorded in the
Register of Members of the Company as the holder of their
certificated Shares.
-- The Migration will not affect the manner in which they hold
their Shares or exercise their rights. No new share certificates
will be issued in connection with the Migration.
This will also be the case for Shareholders that currently hold
their Shares in the CREST System but who withdraw their Shares from
the CREST System and hold them in certificated (i.e. paper) form
prior to the Migration Record Date. The latest time for issuing a
withdrawal instruction to ensure that Shares which are currently
held in the CREST System are held in certificated (i.e. paper) form
on the Migration Record Date is the Latest Withdrawal Date.
Shareholders that currently hold their Shares in uncertificated
form through the CREST System and who wish to withdraw those Shares
so that they are held in certificated (i.e. paper) form on the
Migration Record Date should engage with their stockbroker or CREST
nominee in good time to ensure that a withdrawal instruction is
received by the Company's Registrar no later than the deadline
specified above.
Shareholders who wish to deposit Shares currently held in
certificated (i.e. paper) form into the CREST System, in order that
the Shares are subject to the Migration, should either become a
CREST member themselves or make arrangements with their stockbroker
or CREST nominee in good time so as to allow their stockbroker or
CREST nominee sufficient time to deposit their Shares into the
CREST System by the closing date for CREST deposits prior to the
Migration. Such Shareholders will then receive CDIs on the
Migration, as further referred to below.
As is the case currently, in the event that Shareholders holding
certificated (i.e. paper) Shares wish to settle trades in their
Shares on the London Stock Exchange they will need to arrange for
such Shares to be admitted to a central securities depository which
facilitates electronic settlement of their Shares. Following the
Migration, this will require those Shares to be deposited in the
Euroclear System to be held via Belgian Law Rights or the CREST
System to be held via CDIs. Shareholders wishing to make such a
deposit should consult their stockbroker or other advisor.
Further information on the impact of the Migration on holders of
Shares held in certificated (i.e. paper) form is set out in
paragraph 3 of this Part 3.
As of the Latest Practicable Date, approximately 39.87% of the
issued share capital of the Company is held by Shareholders who
hold Shares in certificated (i.e. paper) form. These Shareholders,
who are not directly impacted by the Migration, represent
approximately 1.22% in number of the total registered Shareholders
in the Company.
Summary of the effect of the Migration on holders of
Participating Securities (i.e. holders of uncertificated
shares)
For Holders of Participating Securities on the Migration Record
Date, the immediate legal effects of the Migration can be
summarised as follows:
-- Legal title to all Participating Securities on the Migration
Record Date will become vested in Euroclear Nominees.
-- Euroclear Nominees will be entered in the Register of Members
of the Company as the legal holder of all such Participating
Securities. As a result, Former Holders (i.e. Holders of
Participating Securities on the Migration Record Date) will no
longer be able to directly exercise certain rights as members of
the Company in respect of such Participating Securities.
-- Belgian Law Rights representing the securities deposited in
the Euroclear System will automatically be granted to EB
Participants, pursuant to Royal Decree No. 62.
-- Former Holders that are CREST members will be credited with
CDIs representing the Belgian Law Rights related to each underlying
Migrating Share, unless they have instructed their Belgian Law
Rights to be credited to an alternative EB Participant in advance
of the Migration, with which they have a custody relationship. Once
the CDIs have been issued, the relevant CREST members will then be
able to either continue to hold their interests in Shares via CDI
or, subject to being, becoming, or having a custody relationship
with, an EB Participant, will be able to hold such interests via
Belgian Law Rights in the Euroclear System.
-- Unless a Former Holder is or has become an EB Participant,
the Former Holder will need to appoint an EB Participant to act on
its behalf. Where a Former Holder is credited with CDIs, the CREST
Nominee (CIN (Belgium) Limited) will act as the EB Participant.
-- The exercise of rights in respect of securities deposited in
the Euroclear System will be subject to the Euroclear Bank service
offering which is set out in the EB Services Description. The
services which can be availed of via the Euroclear System in
respect of the exercise of certain shareholder rights will not be
as extensive as is the currently case for a person holding
Participating Securities in the CREST System pursuant to the Irish
CREST Regulation and exercising rights indirectly through the CREST
System.
-- Only EB Participants will be entitled to directly exercise
the foregoing rights and avail of the foregoing services in respect
of securities deposited in the Euroclear System (although the
contractual relationship between the Former Holder and the relevant
EB Participant may provide for the indirect exercise of such rights
and services by the Former Holder). Where Former Holders hold CDIs,
they will be entitled to indirectly exercise certain rights in
respect of the underlying securities deposited in the Euroclear
System in accordance with the terms of the CREST International
Manual.
-- The rights of EB Participants (including, in the context of
CDIs, the CREST Nominee (CIN (Belgium) Limited)) to securities
deposited in the Euroclear System, as well as the services being
provided by Euroclear, are governed by Belgian law and Belgian
contractual and statutory rights summarised in Part 5 of this
Circular. The rights of CDI holders are governed by the law of
England and Wales and are summarised in Part 6 of this Circular.
The services available to EB Participants and to CDI holders will
be governed by the EB Services Description and, additionally in the
case of CDIs, the CREST International Manual.
-- The existing CREST arrangements applicable to Participating
Securities under the Irish CREST Regulations will cease to apply.
The regulation of CDIs is governed by the UK CREST Regulations.
-- Holders of Participating Securities who do not wish for some
or all of their Participating Securities to participate in
Migration should take steps to withdraw their Participating
Securities from the CREST System so that they are held in
certificated form on the Migration Record Date. Such Shareholders
should liaise with their stockbroker or CREST nominee in relation
to how this can be done via the CREST System. Any such instructions
must be received by no later than Latest Withdrawal Date. .
-- Shareholders who wish to transfer their Participating
Securities to an account in Euroclear Bank prior to the Migration
can do so (in which event all the characteristics of a holding via
the Euroclear System will apply to them prior to the Migration but
their ability to avail of the services available under the EB
Services Description will only commence on the Migration). In order
to do this, the relevant Shareholders must either be or become an
EB Participant or appoint an EB Participant to act on their
behalf.
-- Information concerning the process for withdrawing securities
from the Euroclear System post-the Migration is contained in the EB
Services Description and is set out in paragraph 5 of Part 4 of
this Circular. It is expected that entry of the transferee on the
Register of Members of the Company following withdrawal of the
underlying security can be accomplished within one (1) business day
of receipt of a valid withdrawal instruction and, while the issue
of a share certificate to a transferee may take up to ten (10)
business days thereafter, entry of the transferee on the Register
of Members is evidence of title of the transferee to the relevant
Shares.
-- Information on becoming an EB Participant is contained in
paragraph 4(b) of this Part 3 and in the EB Services
Description.
Further information on the impact of the Migration on holders of
Shares held in uncertificated (i.e. dematerialised) form is set out
in paragraph 4 of this Part 3.
DI Holders
-- It is not expected that the Migration will directly impact DI
Holders who continue to hold their Shares as Depository Interests.
The Migration will not affect trading of the Shares underlying the
DIs on the Cyprus Stock Exchange. These Shares are outside the
remit of the Migration as they are not settled within CREST and
will continue to be settled in the Cyprus Central Securities
Depository following Migration.
-- DI Holders should note that, as is the case currently, in the
event that a DI Holder elects to settle trades in Shares
represented by CDIs on the London Stock Exchange following the
Migration, dematerialisation of the Shares underlying the DIs will
need to be effected by the DI Depository and the DI Holder prior to
such settlement. Following the Migration, it is expected that the
turnaround time for trades between Shares represented by the DIs
and Shares held as CDIs will increase due to additional steps in
the dematerialisation process as described in section 5 of Part 3
of this Circular. This will impact DI Holders to the extent that
they decide to elect to settle trades in Shares represented by CDIs
on the London Stock Exchange.
2. An explanation of how the exercise of rights and services
accessible to uncertificated shareholders following the Migration
(provided via the Euroclear System and via CREST in respect of
CDIs) differ from those currently provided.
Range of services available via the Euroclear System
Currently, any investor acquiring Participating Securities via
the CREST System in accordance with the Irish CREST Regulations,
can either have the Participating Securities registered in its own
name in the Company's Register of Members, if it is a CREST member,
or, if it is not a CREST member, it can arrange for a custodian
which is a CREST member to hold the Participating Securities on its
behalf, in which case the custodian will be registered as the
holder of the Participating Securities in the Company's Register of
Members. In both cases, the owner of the Participating Securities
is able to exercise all rights attaching to the Participating
Securities either directly as the registered shareholder or
indirectly via instructions given to the relevant custodian
shareholder in accordance with the terms of the private contract
entered into with the custodian.
As noted above, the rights of EB Participants in respect of
Migrating Securities will be governed by the EB Terms and
Conditions, the EB Operating Procedures and Royal Decree No. 62 and
will be subject to the EB Services Description. In addition, the
rights of holders of CDIs will be subject to the terms of the CREST
Deed Poll and the CREST International Manual. The EB Operating
Procedures, the EB Services Description and the EB Rights of
Participants Document set forth the services provided to all EB
Participants with respect to interests in the Shares and are
governed by Belgian law. The CREST Deed Poll and the CREST
International Manual are governed by the laws of England and Wales.
The services available under the Euroclear System in respect of the
indirect exercise of shareholder rights are set out in the EB
Services Description and the CREST International Manual in respect
of holders of CDIs and the rights indirectly exercisable by the
ultimate owner of Shares through the Euroclear System will not be
as extensive as is currently the case for a person holding
Participating Securities in the CREST System pursuant to the Irish
CREST Regulations and exercising rights directly. By withdrawing
Shares from the Euroclear System (see procedures specified in
paragraph 5 of Part 4 of this Circular), these rights may once
again be exercised directly, if desired.
Holders of Migrating Shares are strongly encouraged to read the
EB Rights of Participants Document, the EB Services Description,
the EB Terms and Conditions and the EB Operating Procedures, which
are available for inspection as explained in paragraph 8 of Part 1
of this Circular. In addition, holders of Migrating Shares who
intend to hold their interests in securities via CDIs should read
the CREST Deed Poll and the CREST International Manual, which are
also available for inspection as explained in paragraph 8 of Part 1
of this Circular. Shareholders are advised to consider these
documents in detail when determining how to hold their interests in
Shares following the Migration. In Particular, holders of Migrating
Shares need to be aware that, in addition to its services with
respect to the settlement of trades in shares, the rights which
Euroclear Bank is offering to facilitate the indirect exercise of
by EB Participants as set out in the EB Services Description, and
the rights of CDI holders under the CREST Deed Poll and CREST
International Manual, do not include the direct exercise of certain
rights currently available to members.
Part 4 of this Circular contains a high level comparison of
certain elements of the service offering which will be available
following the Migration in relation to common corporate actions. In
general terms, there will be earlier deadlines for certain actions
(including deadlines for the submission of proxy instructions and
restrictions on the withdrawal of proxy instructions by holders)
and different procedural requirements than currently apply in
respect of securities admitted to the CREST System but the ability
to vote electronically, to receive dividends and to participate in
share issuances will be preserved in accordance with the terms of
the service offering.
Proposed amendments to the Articles of Association in order to
address certain shareholder rights which are not directly
exercisable under the EB Services Description.
Appendix II to this Circular contains a list of shareholder
rights that are not directly exercisable by Former Holders under
the EB Services Description. While it will be possible to exercise
directly the rights listed in Appendix II by withdrawing some or
all (depending on the right in question) of a Former Holder's
Migrating Shares from the Euroclear System and the CREST System (in
the case of CDIs), resulting in a certificated (i.e. paper)
holding, this solution will require Former Holders to follow the
procedures necessary to effect a withdrawal of Shares from the
Euroclear System (see procedures specified in paragraph 5 of Part 4
of this Circular) and would also require Former Holders to
redeposit their Shares into the Euroclear System in order to trade
their Shares on a trading venue which may result in delays and
incurring additional fees. In addition, as outlined in more detail
in paragraph 8 of this Part 3, the continued ability of
Shareholders to hold Shares in certificated form will depend on
legislative changes relating to the implementation of
dematerialisation which have not yet been proposed or determined by
the relevant authorities.
Appendix II also refers to three changes to company law sought
by Euroclear Bank which have been implemented by the Market
Migration in the European Union (Consequential Provisions) Act 2020
(the "Brexit Omnibus Act").
It is understood that the Company Law Review Group (the
statutory body charged with monitoring, reviewing and advising the
Minister for Business, Enterprise & Innovation in relation to
company law in Ireland) has conducted a review of certain Irish
company law provisions in light of the impending move to an
intermediated settlement system. It is hoped that legislative
amendments will be advanced in the period prior to 1 January 2023
which will address the manner in which shareholder rights can be
exercised following the move to dematerialisation.
In the interim and in order to minimise the inconvenience to
Shareholders, the Company is proposing that the Directors would
have the discretion to facilitate the indirect exercise of certain
of the rights detailed in Appendix II in certain circumstances and
subject to certain requirements, by making amendments to the
Company's Articles of Association as Part of the approval of
Resolution 3(a) or Resolution 3(b) in the Notice of EGM. These
amendments are also detailed in Section B of Part 8 of this
Circular.
Holders of Participating Securities are strongly urged to read
Appendix II as some of the rights listed in that Appendix cannot be
effectively accommodated while holding Shares through the Euroclear
System by the proposed amendments to the Articles of Association
and may not be accommodated by changes in law. In those instances,
such rights would only be exercisable by withdrawing Shares from
the Euroclear System and the CREST System (in the case of CDIs)
(see the procedures specified in paragraph 5 of Part 4 of this
Circular).
Withdrawal of securities from the Euroclear System
Information concerning the process for withdrawing securities
from the Euroclear System and, in the case of CDIs, the CREST
System is contained in the EB Services Description and the CREST
International Manual and is summarised in paragraph 5 of Part 4 of
this Circular.
Until the EU-wide dematerialisation deadline of 1 January 2025
required by Articles 3(1) and 76(2) of the CSDR, it will be
possible to withdraw any Migrating Shares from the Euroclear System
and hold the relevant Shares in certificated (i.e. paper) form.
Settlement of trades in Shares that have been withdrawn from the
Euroclear System to be held in certificated (i.e. paper) form
cannot be facilitated within the Euroclear System.
As a consequence of Section 1087C of the Companies Act it will
not be necessary to execute a written instrument of transfer in
order to withdraw shares from the Euroclear System (in favour of
any holder of rights or interests in those securities) or transfer
those securities from one authorised CSD to another.
Stock lending
Persons engaged in stock lending and borrowing transactions in
Shares, as currently facilitated as Part of the CREST service
offering under the Irish CREST Regulations, should note that such
services do not form Part of the EB Services Description. Persons
who wish to lend and borrow Shares after the Migration may seek to
register for Euroclear Bank's automated Securities Lending and
Borrowing programme or use one of the other services of Euroclear
Bank that can achieve an equivalent effect. It is important for
Shareholders to note that the foregoing change in service offering
will have an impact on any stock lending and borrowing transactions
in Shares that remain outstanding as at the Live Date. The CREST
stock lending and borrowing service will remain available to CREST
members holding CDIs via the CREST System.
3. Impact of the Migration for holders of certificated (i.e. paper) Shares
Only those Shares which are Participating Securities (i.e.
Shares which are held in uncertificated form through the CREST
System) on the Migration Record Date will be subject to the
Migration. Shares which are held in certificated (i.e. paper) form
on the Migration Record Date will not be subject to the Migration
and can continue to be held in certificated (i.e. paper) form
following the Migration, at the option of the Shareholder. As a
result, Shareholders holding a direct interest in Shares in
certificated (i.e. paper) form on the Migration Record Date will
continue to do so following the Migration, without any further
action being required. No new share certificates will be issued in
connection with the Migration.
Shareholders who intend to hold their Shares in certificated
(i.e. paper) form should note however that, as is currently the
case, in order to settle trades in their Shares on a trading venue
such as the London Stock Exchange, they will need to take steps for
their Shares to be deposited in an appropriately authorised central
securities depository which facilitates electronic settlement of
such trades being settled. Following the Migration, this will
require such Shareholders to take steps for their Shares to be
deposited in the Euroclear System to be held via Belgian Law Rights
or in the CREST System to be held via CDIs prior to such trades
occurring. While interests in Shares will not need to be held as
CDIs in order to be traded, it is expected that they will need to
be held via CDIs in order to settle a transaction conducted on the
London Stock Exchange.
Any such deposit of Shares will entail interaction with a
stockbroker and/or custodian and may involve certain costs being
incurred, procedures being followed and/or a delay in execution of
a share trade being experienced by the Shareholder which may differ
from the current process applicable in respect of the deposit of
Shares into the CREST System.
Please also see paragraph 5 in Part 1 in relation to DI
Holders.
A CDI is a security constituted under English law, which is
issued by the CREST Depository, and that represents an interest in
other securities (which may be securities constituted under the
laws of other countries). In the case of the Migration, each CDI
will reflect an indirect interest of the CREST member in each
underlying Migrating Share. Further information on the CDIs is set
out in Part 6 of this Circular.
Shareholders currently holding their Shares in certificated
(i.e. paper) form and who wish for their Shares to be subject to
the Migration will need to take steps to have their Shares admitted
to the CREST System so that they are held in uncertificated form
within the CREST System in advance of the Migration Record
Date.
To do this, Shareholders will need to become a CREST member
themselves or engage the services of a stockbroker or custodian who
is a CREST member and complete the process for the deposit of their
certificated Shares into the CREST System in advance of the
Migration Record Date.
Shareholders wishing to deposit some or all of their Shares into
the CREST System in advance of the Migration are recommended to
ensure that the relevant procedures are implemented in advance of
the Migration Record Date. Such Shareholders are encouraged to
engage with their stockbroker or custodian in good time to ensure
that they can meet this deadline.
Shareholders wishing to hold their Shares in certificated form
following the Migration are also advised that, as described in
further detail in paragraph 8 of this Part 3, their ability to do
so following 1 January 2023 (in respect of new issues of Shares)
and 1 January 2025 (in respect of all issued Shares) will be
subject to the model of dematerialisation adopted in order to
comply with the requirements of Article 3(1) and 76(2) of CSDR.
4. Impact of the Migration for holders of uncertificated (i.e. dematerialised) Shares
All Shares which are Participating Securities (i.e. Shares which
are held in uncertificated form through the CREST System) on the
Migration Record Date will be subject to the Migration. On the
Migration, all such Participating Securities will be registered in
the Register of Members of the Company in the name of Euroclear
Nominees, which will hold the Shares in trust for Euroclear Bank.
The Belgian Law Rights representing the underlying Shares will
automatically be granted to EB Participants pursuant to Royal
Decree No. 62. The Belgian Law Rights will entitle EB Participants
to indirectly exercise certain rights in respect of the Shares, in
accordance with the EB Services Description. With effect from the
Live Date, each holding of Participating Securities credited to any
stock account in the CREST System on the Migration Record Date will
be reclassified in the CREST System as a holding via CDIs which
represent the Belgian Law Rights held by the CREST Nominee on
behalf of the CREST Depository.
The practical result of the Migration taking effect will be that
all Migrating Shareholders will initially receive one (1) CDI for
each Participating Security held by them on the Migration Record
Date (i.e. Migrating Shares), on the basis described at
sub-paragraph 5(a) below. Migrating Shareholders will then be
entitled to choose whether (1) to continue to hold their interests
via CDI or (2) to convert their CDIs into and instead hold and
exercise Belgian Law Rights in respect of the underlying Shares
directly through the Euroclear System (subject to such Migrating
Shareholders either being or becoming an EB Participant or
appointing an EB Participant (e.g. a stockbroker, custodian or
other nominee which is an EB Participant) to hold the Belgian Law
Rights on their behalf) or (3) to withdraw their Shares from the
Euroclear System to be held in certificated form.
Arrangements for a Shareholder's interests to be held via
Belgian Law Rights directly through the Euroclear System can also
be put in place prior to Migration by utilising the procedure set
out in paragraph 3.5.8 of the EB Migration Guide, as described in
more detail in sub-paragraph 5(b) below.
(a) CREST members and CREST Depository Interests
As outlined above, on the Live Date, the CREST accounts of
Migrating Shareholders who held Participating Securities on the
Migration Record Date will be credited with CDIs.
Each CDI will reflect an indirect interest of the Migrating
Shareholder in the underlying Migrating Shares vested in Euroclear
Nominees as nominee for Euroclear Bank as Part of the Migration.
The terms on which CDIs are issued and held in the CREST System on
behalf of CREST members are set out in the CREST International
Manual (and, in Particular, the CREST Deed Poll set out in the
CREST International Manual) and the CREST Terms and Conditions
issued by EUI . Migrating Shareholders who intend to hold their
interests in Shares via CDI should read and familiarise themselves
with the terms of the CREST International Manual, the CREST Deed
Poll and the CREST Terms and Conditions.
On the Migration, the Company will instruct the Registrar to
credit the Migrating Shares to Euroclear Nominees in the Company's
Register of Members for credit to the Securities Clearance Account
of the CREST Nominee (CIN (Belgium) Limited) in the Euroclear
System. Pursuant to Royal Decree No. 62, Euroclear Bank will, in
turn, issue Belgian Law Rights representing the underlying
Migrating Shares to the Securities Clearance Account of the CREST
Nominee (CIN (Belgium) Limited) in accordance with the rules and
procedures of the Euroclear System.
The CREST Nominee (CIN (Belgium) Limited) is an EB Participant
and holds rights to securities held in the Euroclear System (i.e.
the Belgian Law Rights representing Migrating Shares) on behalf of
the CREST Depository for the account of CREST members. The CREST
Depository is the entity responsible for the issue of CDIs to CREST
members. The CREST Depository's relationship with CREST members is
governed by the CREST Deed Poll entered into under and governed by
English law. The CREST Depository holds its rights to international
securities (such rights being held on its behalf by the CREST
Nominee (CIN (Belgium) Limited)) upon trust for the holders of the
related CDIs.
Upon the Migration of the Migrating Shares to the Euroclear
System, Euroclear Bank will instruct EUI pursuant to the terms of
the CREST Deed Poll to issue CDIs to, and credit the appropriate
stock account in the CREST System of, the Migrating Shareholders
which held the Migrating Shares on the Migration Record Date. The
CDIs will represent the Belgian Law Rights held by the CREST
Nominee on behalf of the CREST Depository. As the Belgian Law
Rights in turn represent the underlying Migrating Shares admitted
to the Euroclear System, each CDI will reflect an indirect interest
in the underlying Migrating Shares. The stock account credited will
be the same account of the relevant Migrating Shareholder in
respect of the relevant Migrating Shares.
CDIs are designated as "international securities" within the
CREST System and have access to different services in terms of
voting and other custody services when compared to securities held
directly in the CREST System. The manner (if the relevant holder
does not currently hold Shares through a custodian or nominee) and
time period within which any such voting rights may be exercised by
CDI holders is expected to differ from arrangements which would
currently apply in respect of direct holdings of Shares in the
CREST System prior to the Migration or direct holdings of Belgian
Law Rights in the Euroclear System following the Migration.
For the avoidance of doubt, CDIs are separate and different from
Shares currently held in uncertificated form and transferable via
the CREST System. Currently, legal title in Shares entered in the
Register of Members is transferred electronically in the CREST
System. CDIs, however, are a technical means by which interests in
Shares can be held through the CREST System as an alternative to
holding Belgian Law Rights directly as, or indirectly through, an
EB Participant in the Euroclear System. CDIs will allow a Former
Holder to continue to hold interests in Shares through the CREST
System and to settle trades in the Shares conducted on the London
Stock Exchange. Further information on CDIs is set out at Part 6 of
this Circular.
An international custody fee and a transaction fee, as
determined by EUI from time to time, is charged for the CREST
International Settlement Links Service and in respect of
transactions. The anticipated fees which will apply in respect of
Irish equities are outlined in section 6.3 (Irish equities pricing
from 15 March 2021) of the CREST Tariff Brochure which is available
for inspection as set out in section 8 of Part 1 of this
Circular.
(b) EB Participants and Belgian Law Rights
Following the enablement of CDIs in the CREST System on the Live
Date, CREST members may choose to hold their interests via Belgian
Law Rights directly in the Euroclear System rather than via CDIs in
the CREST System. To hold interests via Belgian Law Rights directly
in the Euroclear System, a Former Holder must be or become an EB
Participant (or must appoint an EB Participant to hold the Belgian
Law Rights on its behalf) and must transfer such Belgian Law Rights
from the CREST international account in Euroclear Bank to the
account of another EB Participant by way of cross-border delivery
instruction. Upon matching with a pending receipt instruction from
the relevant EB Participant, and satisfaction of any other relevant
settlement criteria from the Euroclear System, the transfer will
settle.
Information on how to become an EB Participant can be accessed
on the Euroclear website at
https://www.euroclear.com/about/en/business/Becomingaclient/BecomingaclientEuroclearBank.html
. Shareholders should be aware that there are certain eligibility
criteria applicable to becoming an EB Participant.
Where a Former Holder is not an EB Participant and does not wish
to become an EB Participant, but wishes to hold its interests via
Belgian Law Rights in the Euroclear System, it should consult its
stockbroker or custodian in order to arrange for the relevant
underlying Shares to be deposited into the Euroclear System to be
held in electronic form via Belgian Law Rights by an EB Participant
on behalf of that Shareholder using arrangements put in place by
such stockbroker or custodian.
Arrangements for a Shareholder's interests to be held via
Belgian Law Rights directly through the Euroclear System can also
be put in place prior to the Migration by utilising the procedure
set out in paragraph 3.5.8 of the EB Migration Guide, which will
enable a holding via Belgian Law Rights in the Euroclear System as
soon as practicable following the Migration and without any further
action being required by the Shareholder following the Migration.
Where these arrangements are put in place prior to the Migration,
the relevant Participating Securities will be transferred to an
account in Euroclear Bank in which the Participating Securities
will be held under Euroclear Bank's investor CSD service until the
Migration. The services described in the EB Services Description
will, however, only become applicable as of the Live Date.
Shareholders should note that the Belgian Law Rights are not
securities that can be traded in their own right. Instead, they are
special co-ownership rights in respect of the pool of the Company's
Shares of the same issue, which are held through the Euroclear
System from time to time. Belgian law grants such rights to the
relevant EB Participants and, in certain specifically identified
cases, to the underlying holders of Shares admitted to the
Euroclear System. Further information on the Belgian Law Rights is
set out in Part 5 of this Circular.
(c) Custodians, stockbrokers or nominees which are EB Participants
Shareholders that currently hold interests in Shares through a
custodian, stockbroker or other nominee should consult that
custodian, stockbroker or nominee to determine the manner in which
they intend to hold those Shares following the Migration.
Where the custodian, stockbroker or other nominee constitutes an
EB Participant (or makes arrangements for an EB Participant to
provide custody services to it) the arrangements in relation to
holdings of interests in Shares by Former Holders will be subject
to the terms between that custodian, broker or nominee and the
Former Holder.
5. Options for Shareholders who do not wish their Shares to be subject to the Migration
Shares which are held in certificated (i.e. paper) form on the
Migration Record Date will not be subject to the Migration and can
continue to be held in certificated (i.e. paper) form, at the
option of the Shareholder. No action needs to be taken (other than
voting in respect of the Resolutions should a Shareholder wish to
do so) by a Shareholder who holds Shares in certificated (i.e.
paper) form and wishes to continue to do so following the
Migration.
If a holder of Participating Securities (i.e. Shares which are
held in uncertificated form through the CREST System) does not wish
their Shares to be subject to the Migration, the relevant
Participating Securities must be converted into certificated (i.e.
paper) form by withdrawing them from the CREST System.
The recommended latest time for receipt by EUI of a properly
authenticated dematerialised instruction requesting withdrawal of
Participating Securities from the CREST System in order to ensure
that the relevant Participating Securities will not be subject to
the Migration is expected to be the Latest Withdrawal Date. The
Company will issue an announcement if it is notified of any change
to the Latest Withdrawal Date. You are recommended to refer to the
CREST Manual for details of the procedures applicable in relation
to withdrawal of shares from the CREST System. Shareholders who are
not CREST members wishing to hold their Shares in certificated
(i.e. paper) form prior to the Migration should make arrangements
with their stockbroker or other CREST nominee in good time so as to
allow their stockbroker or other CREST nominee sufficient time to
withdraw their Shares from the CREST System by the closing date set
out for CREST withdrawals in the EB Migration Guide.
Shareholders should note that there are other CSDs authorised in
the EU for the purposes of CSDR and currently three of these CSDs
are recorded by ESMA as having designated Ireland as a Host Member
State for the purposes of CSDR. While the Migration Act is not
specific to Euroclear Bank, it appears that Euroclear Bank is the
only CSD that has been actively engaging with Irish market
Participants to facilitate the transition of Irish shares to its
settlement system.
6. Impact for DI Holders
The Company has previously appointed the DI Depository to act in
relation to the Depositary Interests. The DI Depository holds
(through the Custodian) Shares (and all rights attributable to
those Shares) that are related to the Depository Interests for the
benefit of each DI Holder. DI Holders have an interest in the
relevant Shares but are not the registered holders of such Shares.
DI Holders are able to enforce and exercise the rights relating to
the Shares only in accordance with existing arrangements in place
relating to the Depository Interests.
Because the Shares represented by the Depository Interests are
not Participating Securities, such Shares will not be subject to
the Migration. The Board currently expects that, following the
Migration, outstanding Depository Interests will continue to trade
and settle on the Cyprus Stock Exchange in the same manner as
before the Migration.
Accordingly, DI Holders who continue to hold Depository
Interests will be unaffected by the proposed transfer and Migration
to Euroclear Bank. However, DI Holders should note that following
the Migration, the turnaround time for the transfer of Shares
represented by Depository Interests from certificated (i.e. paper)
form (the form in which they are held by the DI Depository) to
uncertificated (i.e. dematerialised) form in the CREST System, so
that such transferring Shares can be held by transferees as CDIs,
will increase. This is because the DI Depository, as an EB
Participant, will need first to deposit the relevant transferring
Shares held in certificated (i.e. paper) form into its account in
the Euroclear System, and then deliver those shares to the CREST
Nominee through the Euroclear System, to be held as CDIs in the
CREST System. The increase in such turnaround time is not yet
known, but is likely to be between 24 hours and 72 hours.
Following the Migration, in the event that a DI Holder wishes to
convert its Depository Interests into Shares, the Board currently
expects that the DI Depository would arrange to credit the
Euroclear Bank account of such holder (or its designated EB
Participant) with the rights and interests of the Euroclear
Nominees in the Shares represented by such Depository
Interests.
7. Implementation of the Migration
If the Migration Resolutions are passed, and the Company
satisfies the other requirements applicable to the Migration
becoming effective, legal title to all Migrating Shares (i.e. all
Shares held in uncertificated form through the CREST System on the
Migration Record Date) will be vested in Euroclear Nominees as
nominee for Euroclear Bank on and with effect from the Live
Date.
Under the Migration Act, Euronext Dublin is responsible for
appointing a date to be the Live Date for the purposes of the
Migration. At the date of publication of this Circular, Euronext
Dublin has not yet appointed a date to be the Live Date and,
accordingly, it is not yet possible for the Company to definitively
identify the Migration Record Date (although it is expected to be
9:00 p.m. (Cyprus times)/ 7:00 p.m. (Irish time) on the business
day preceding the Live Date). The Live Date is currently expected
to be on or around 15 March 2021 with the Migration commencing over
the weekend immediately prior to the Live Date and taking effect on
the Live Date. The Company will give notice of further confirmed
dates in connection with the Migration, including the Live Date and
the Migration Record Date, when known, by issuing an announcement
through a Regulatory Information Service.
Euroclear Bank and EUI have identified the following sequence of
steps to be taken in order to implement the Migration:
-- At 4:55 p.m. (Cyprus time) / 2:55 p.m. (Irish time) on the
Friday preceding the Migration weekend (which is expected to be
Friday, 12 March 2021), EUI will stop the delivery versus payment
settlement of Participating Securities. Free of payment settlement
will continue until 8:00 p.m. (Cyprus time) / 6:00 p.m. (Irish
time) on that date, at which time free of payment settlement will
be stopped by EUI.
-- There will then be a final reconciliation between EUI and the
Registrar which is necessary so that all Participating Securities
which are recorded in the Register of Members on the Migration
Record Date (i.e. Migrating Shares) can be reclassified as CDIs in
the CREST System.
-- By the live Date, the Company will instruct its Registrar to
enter Euroclear Nominees into the Register of Members as the holder
of the Migrating Shares, with title to the relevant shares to take
effect on the Live Date.
-- Euroclear Bank will credit its interest in such Shares (which
it holds via Euroclear Nominees) to the account of the CREST
Nominee (CIN (Belgium) Limited) and the CREST Nominee will hold its
interest in such Shares (i.e. the Belgian Law Rights) as nominee
and for the benefit of the CREST Depository. The CREST Depository
will, in turn, hold its interest in such Shares (i.e. the Belgian
Law Rights) on trust and for the benefit of the holders of the CDIs
pursuant to the terms of the CREST Deed Poll.
-- With effect from the Live Date, each holding of Participating
Securities credited to any stock account in the CREST System on the
Migration Record Date will be disabled and enabled in the CREST
System as a holding via CDIs which represent the Belgian Law Rights
held by the CREST Nominee on behalf of the CREST Depository.
Implementation of the steps outlined above will only be possible
as a result of the combined effect of the Migration Act, the Brexit
Omnibus Act, the amendment of the Articles of Association in the
manner set out in Resolutions 3(a) and 3(b) including by the
adoption of the proposed new Article 14A, the approval of
Resolution 4 and the implementation of the measures and steps to be
effected in accordance with and as envisaged by the EB Migration
Guide. Under the proposed new Article 14A any holder of a
Participating Security on the Migration Record Date shall be deemed
to have consented to and authorised the carrying out of these steps
with respect to its Participating Securities. Any Holder of
Participating Securities who does not wish to give such consent and
authorisation must withdraw the relevant Shares from the CREST
System before the Latest Withdrawal Date.
While these steps are set out in the EB Migration Guide, neither
Euroclear Bank nor EUI are obliged by statute or contract to do any
of these steps. If there is a systems failure on the Part of
Euroclear Bank, EUI or the Company's Registrar which prevents any
of these steps from taking place as described above, a Holder of
Participating Securities shall have no recourse against the
Company, the Directors or the Company's Registrar.
As indicated, upon completion of the foregoing steps, the
Migrating Shares will initially be enabled as CDIs in the CREST
System and Former Holders will be entitled to indirectly exercise
certain rights in respect of the underlying Migrating Shares in
accordance with the terms of the CREST Deed Poll and the CREST
International Manual. If a Former Holder wishes to exercise the
rights relating to the underlying Migrating Shares via the Belgian
Law Rights in the Euroclear System, rather than CDIs in the CREST
System, the Former Holder must:
(a) be or become an EB Participant (or must appoint an EB
Participant to hold the interest in the Migrating Shares on its
behalf as described further at paragraph 4(b) of this Part 3);
and
(b) transfer the Belgian Law Rights in respect of the Migrating
Shares from the CREST international account in Euroclear Bank to
the account of another EB Participant by way of cross-border
delivery instruction. The delivery instruction will need to match
with a receipt instruction from the proposed recipient and any
other settlement criteria required must also be satisfied in order
for the transfer to settle.
While the issue of CDIs to Former Holders who are CREST members
as described in this Circular is a key Part of the implementation
of the Migration, it is not expressly provided for in the Migration
Act. Instead, this aspect of the Migration is to be covered by the
taking of certain operational steps by Euroclear Bank, EUI, the
CREST Nominee and the CREST Depository as set out in the EB
Migration Guide and in accordance with the terms of the CREST Deed
Poll and the CREST International Manual and the amendment of the
Articles of Association, including by the adoption of the proposed
new Article 14A pursuant to Resolutions 3(a) and 3(b) and the
approval of Resolution 4.
It will be for each Shareholder to decide whether, following the
Migration, it will hold the Belgian Law Rights as, or through, an
EB Participant or hold its interest in the Migrating Shares by way
of CDIs representing those Belgian Law Rights. The practical result
of the Migration taking effect will be that all Migrating
Shareholders will initially receive one CDI for each Participating
Security held at the Migration Record Date. Migrating Shareholders
will then be entitled to choose whether (1) to continue to hold via
CDI, (2) to convert their CDI holding into a holding of Belgian Law
Rights as an EB Participant (subject to such Migrating Shareholder
being, or becoming, an EB Participant), or through a custodian,
stockbroker or other nominee which is itself an EB Participant, or
(3) to withdraw their Shares from the Euroclear System.
With effect from the Live Date, unless an alternative
arrangement can be secured by EUI to permit settlement of trades on
the London Stock Exchange in euro, the settlement of Shares traded
on the London Stock Exchange will occur via CDI through the CREST
System in GBP (or in USD) as of two (2) days following the Live
Date. This is due to the requirements of the London Stock Exchange
Trading Rules.
Where persons hold interests in Migrating Shares via a
contractual arrangement with another party, such as a stockbroker
or custodian, they should consult with that party as well as their
independent professional advisers to ascertain the effect of the
Migration on such interests.
8. Regulatory matters including certain company law provisions
Migration will impact a number of areas of Irish company law as
referred to below.
(a) The Irish Government has made a number of amendments to
Irish company law which are intended to facilitate and address
certain consequences of the Market Migration. Specifically, Part 4
of the Brexit Omnibus Act includes a number of amendments to the
Companies Act in connection with the Migration, including the
following:
(i) The disapplication of the requirement for a company to issue
share certificates in respect of any securities which are admitted
to a securities settlement system operated by a CSD which is
authorised under CSDR to perform services in Ireland (an
"authorised CSD").
As a result, following the Migration, the Company will not be
required to issue share certificates in respect of Shares which are
admitted to the Euroclear System (but will not affect the
entitlements of Shareholders to a share certificate where their
Shares are held in certificated (i.e. paper) form).
(ii) The disapplication of the requirement for the execution of
a written instrument of transfer in order to give effect to any
transfer of title in securities that is necessary to:
(A) withdraw those securities from an authorised CSD (in favour
of any holder of rights or interests in those securities);
(B) deposit those securities into an authorised CSD (by any
holder of rights or interests in those securities); or
(C) transfer those securities from one authorised CSD to another;
This disapplication will facilitate the deposit of Shares into,
and withdrawal of Shares from, the Euroclear System following
Migration as well as the transfer of Shares between Euroclear Bank
and any other authorised CSD by eliminating the need for a written
instrument of transfer in order to implement such transactions. Any
such withdrawals, deposits or transfers will remain subject to the
procedural requirements established by Euroclear Bank in the EB
Services Description and EB Operating Procedures, as
applicable.
(iii) In the case of an issuer with any securities admitted to an authorised CSD
(A) the disapplication of the requirement that a resolution to
approve a scheme of arrangement be approved by a "majority in
number" of the members or class of members affected by the scheme
by amending the definition of "special majority" set out in section
449(1) of the Companies Act to exclude this requirement; and
(B) where some of the securities of such an issuer are held
outside an authorised CSD, imposing a new requirement that the
quorum for any meeting to consider a resolution to approve a scheme
of arrangement shall be at least two persons holding or
representing by proxy at least one-third in nominal value of the
issued shares, or class of issued shares, as the case may be, of
the issuer.
This alters the threshold for shareholder approval of any
proposed scheme of arrangement that the Company may implement while
securities are admitted to the Euroclear System and, assuming that
some Shares continue to be held outside of an authorised CSD
following the Migration, would increase the necessary quorum for
any meeting to consider a resolution to approve a scheme of
arrangement.
(iv) In the case of an issuer with any securities admitted to an
authorised CSD, the disapplication of the additional requirement
set out in section 458(3) of the Companies Act in order for a right
of buy-out to apply in certain circumstances.
This means that an offeror for the Company which already held
beneficial ownership of more than 20% of the Company's Shares would
no longer be required to satisfy the additional requirement in
section 458(3) of the Companies Act that the assenting shareholders
in respect of the relevant scheme, contract or offer are not less
than 50% in number of the holders of the relevant shares, in order
for the offeror to be entitled to compulsorily acquire the Shares
of any dissenting shareholders.
(v) The insertion of a new section 1087F into the Companies Act
providing that an irrevocable power of attorney will be deemed to
be granted where the terms of any offer to acquire all of the
issued share capital of any issuer with securities admitted to an
authorised CSD provide that acceptance of the offer constitutes an
irrevocable power of attorney and acceptance of that offer is
communicated by instructions that are sent or received by means of
a securities settlement system of a central securities depository
in accordance with the procedures of that settlement system.
This facilitates the granting of irrevocable powers of attorney
by way of acceptance of an offer for the Company which is
communicated through the Euroclear System following the Migration,
in line with the current practice with respect to acceptances
communicated through CREST.
(vi) In the case of an issuer with any securities admitted to an
authorised CSD, the modification of section 1105(1) of the
Companies Act to provide that the record date for voting would be
close of business on the day preceding a date not more than
seventy--two (72) hours before the general meeting to which it
relates.
This means that, at any general meeting of the Company following
the Migration, the record date for determining entitlements to vote
at that meeting would be set at close of business on the day
preceding a date not more than seventy--two (72) hours before
meeting. Currently, under the Companies Act and the Articles of
Association, the record date can be no more than 48 hours prior to
the general meeting. The Company understands that a longer period
is required to facilitate the collection of instructions relating
to voting events under the Euroclear System and the CREST System
(with respect to CDIs) and to avoid the need to block voted shares
until after the Meeting Record Date. An amendment to the record
date specified in the Articles of Association is being proposed as
Part of the amendments being proposed in Resolutions 3(a) and 3(b)
in order to align the Articles of Association with section 1105(1),
as modified.
(b) It should also be noted that Article 3(1) of CSDR requires
issuers established in the EU with instruments admitted to trading
in the EEA to arrange for their securities to be represented in
book-entry form as immobilisation or, subsequent to a direct
issuance, in dematerialised form. This obligation applies from 1
January 2023 with respect to new issues of shares. From 1 January
2025, this requirement will apply to all transferable securities.
Depending on the model of dematerialisation adopted, the effect of
these provisions, when implemented, will be that the option of
holding shares in certificated form will no longer be available in
the case of new issues from 1 January 2023 and in the case of
existing issued shares from 1 January 2025. Furthermore, Article
3(2) CSDR requires that where a transaction in transferable
securities occurs on a trading venue the relevant securities must
be recorded in book-entry form in a CSD on or before the intended
settlement date, unless they have already been so recorded.
The Irish Government has not yet indicated what measures, if
any, it will adopt in order to facilitate implementation of these
requirements (known as "dematerialisation") by issuers by the
relevant implementation dates. Depending on the model adopted for
dematerialisation, if suitable provision is not made by relevant
legislative changes, investors in the Company may not subsequently
be able to hold Shares in certificated (i.e. paper) form and may be
unable to effectively enforce certain rights which are expressed as
members' rights under Irish company law. The extent of any further
amendments which may be made to Irish company law, having regard
also to the fact that the model to be adopted for dematerialisation
has not been determined, are not known as at the date of this
Circular.
One possible approach to the implementation of dematerialisation
is that legislative amendments are advanced in the period prior to
1 January 2023 which will address the manner in which shareholder
rights can be exercised under a dematerialised model. Another
possible solution is that each issuer proposes amendments to its
Articles of Association so as to accommodate the exercise of those
rights subject to certain conditions. It is in this context that
the Company is proposing, pursuant to Resolutions 3(a) and 3(b), a
number of amendments to its Articles of Association, designed to
seek to provide that Shareholders can continue to exercise certain
members' rights without the necessity of re-materialising their
holdings. Details of these amendments are contained in Part 8 of
this Circular.
Holders of Participating Securities are strongly urged to read
Appendix II as some of the rights listed in that Appendix cannot be
accommodated while holding Shares through the Euroclear System by
the proposed amendments to the Articles of Association and may not
be accommodated by changes in law. In those instances, such rights
would only be exercisable by withdrawing Shares from the Euroclear
System and the CREST System (in the case of CDIs) (see procedures
specified in paragraph 5 of Part 4 of this Circular).
Part 4
COMPARISON OF THE EUROCLEAR BANK AND EUI SERVICE OFFERINGS
1. Summary
Following the Migration, Migrating Shares which are held through
the Euroclear System via Belgian Law Rights will be subject to the
service offering set out in the EB Services Description. Interests
in Migrating Shares which are held through the CREST System in the
form of CDIs will be subject to the service offering expected to be
set out in the revised CREST International Manual. These service
offerings differ from each other in some respects as well as from
the current service offering available in respect of Participating
Securities which are currently admitted directly to the CREST
System. This Part 4 provides a summary of certain differences
between these service offerings.
Whilst the timelines and mechanics of a CREST Participant
holding a security constituted under Irish law taking Part in
certain corporate actions may be affected by the change of model
from a direct 'name on register' legal holding to an
'intermediated' holding via CDIs through the CREST System or via
Belgian Law Rights through the Euroclear System, the effective
exercise of the rights of such CREST Participant will be
substantially unaffected except as explained in Appendix II.
Shareholders should, however, be aware that the timeline for
exercising certain corporate actions in respect of Migrating Shares
held through the CREST System via CDIs following the Migration will
be different to the timelines to exercise equivalent corporate
actions in respect of securities held directly in the Euroclear
System via Belgian Law Rights. This is because the EUI, being an EB
Participant through the CREST Nominee, will need to receive
notifications from Euroclear Bank in the first instance before the
relevant notifications can be communicated to CDI holders and will
have to set earlier deadlines for the receipt of instructions from
CDI holders in order to be able to communicate those instructions
to Euroclear Bank by the deadline set by Euroclear Bank.
Shareholders who expect to hold their interests in Migrating
Shares through a custodian, nominee or other intermediary should be
aware that earlier deadlines for some corporate actions may apply
under the arrangements between the Shareholder and that custodian,
nominee or other intermediary.
Shareholders intending to hold their interests in Migrating
Shares through the Euroclear System via Belgian Law Rights or the
CREST System via CDIs should carefully review the EB Migration
Guide, the EB Services Description and the EB Rights of
Participants Documents and, in the case of CDIs, the CREST Deed
Poll and the CREST International Manual (including any updated
versions thereof to the extent they are published after the date of
this Circular), together with the additional documentation made
available for inspection as set out in paragraph 8 of Part 1 of
this Circular and consult with their stockbroker or other custodian
in making any decisions with respect to the manner in which they
hold any interests in Migrating Shares. Shareholders should not
rely on the summary below, which is incomplete and may exclude
descriptions of differences which are material to the circumstances
of an individual Shareholder. While it is expected that a revised
CREST International Manual will be published prior to the
Migration, that document is not yet available as at the date of
this Circular. This Part reflects the revisions expected to be made
to the CREST International Manual based on discussions with
Euroclear Bank. It is not expected that the Migration will directly
impact the DIs.
The Company is not making any recommendation with respect to the
manner in which Shareholders should hold their interests in the
Company prior to, on, or subsequent to, the Migration. No reliance
should be placed on the contents of this Circular for the purposes
of any decision in that regard.
2. Voting
-- Section 5.3.2.7 of the EB Operating Procedures describes the
process for processing voting instructions within the Euroclear
System. This section is further supplemented by the 'Online Market
Guides' for market specific operational elements (currently the EB
Services Description for Migrating Shares). The Online Market
Guides form Part of the contractual relationship between Euroclear
Bank and EB Participants.
-- Further information regarding the manner in which the voting
rights can be exercised in respect of Migrating Shares can be found
in section 6 Custody - Meeting Services of the EB Services
Description.
-- Section 5.3.2.7 of the EB Operating Procedures and section 6
of the EB Services Description make clear that Euroclear Bank has
no discretion to exercise any voting rights in respect of
securities held in the Euroclear System. In the absence of any
instruction from the relevant EB Participant, Euroclear Bank will
not process voting instructions for a specific voting action.
-- Chapter 4 of the CREST International Manual outlines the
broad principles surrounding the management of corporate actions in
the CREST system for CDIs, including with respect to voting
actions. In respect of the Migrating Shares held through the CREST
System via CDIs, it is expected that Broadridge will be appointed
by EUI as a third party voting service provider in respect of any
voting actions.
Item Euroclear Bank offering to CREST System offering to Pre-Migration CREST System
EB Participants CDI holders offering
Meeting announcements The Registrar notifies As an EB Participant, the The CREST member can be
Euroclear Bank of an event. CREST Nominee (via a third notified through the CREST
Euroclear Bank party service provider System directly by the
automatically sends this engaged by EUI, issuer or the issuer's
event notification to all currently Broadridge) agent.
EB Participants either (a) receives an event The announcement is
having or receiving a notification from Euroclear available once notice is
position in that security Bank. entered correctly on the
up to Euroclear Bank's Upon receipt of an event CREST System.
voting deadline or, notification from Euroclear
(b) having a pending Bank, Broadridge notifies
instruction, the settlement that event
of which would result in an to any CREST member who
EB Participant holds CDIs up to the
having such a position. Broadridge voting deadline.
The notification will be
made available to all CREST
members (those either
having or receiving
a position in that CDI)
within forty eight (48)
hours of receipt by
Broadridge of complete
information.
---------------------------- ---------------------------- ----------------------------
Determination of record Record date is determined Record date is determined Record date is determined
date for voting by the issuer and is a by the issuer and is a by the issuer and is a
market-wide applicable market-wide applicable market-wide applicable
date. date. date.
---------------------------- ---------------------------- ----------------------------
Submission of proxy From a Euroclear Bank CREST members can complete CREST members can complete
appointment instructions perspective, there are and submit proxy and submit proxy
two distinct options, appointments (including appointments (including
with the same voting instructions) voting instructions)
operational electronically electronically
timelines. EB through Broadridge. The through the CREST System to
Participants can same voting options as in a CREST member acting on
either send: Euroclear Bank will be behalf of the issuer.
1. electronic voting available (i.e. electronic
instructions to voting instructions,
instruct Euroclear appointing the chairperson
Nominees to (or to of the meeting as proxy or
appoint the Chair appointing a third
of the meeting as party proxy).
proxy to):
ü vote in favour
of all or a specific
resolution(s).
ü vote against
all or a specific
resolution(s).
ü abstain from
all or a specific
resolution(s).
ü give a
discretionary vote to
the Chair in respect
of one or more of the
resolutions
being put to a
shareholder vote
or
2. proxy voting
instructions to:
ü appoint a third
party (other than
Euroclear Nominees/the
chairperson of the
meeting)
to attend the meeting
and vote the number of
Shares specified in
the manner directed in
the
proxy voting
instruction.
---------------------------- ---------------------------- ----------------------------
Deadline for submission of Euroclear Bank will, Broadridge will process and The proxy appointment
voting instructions wherever practical, aim to deliver proxy voting instruction may be
have a voting instruction instructions received from submitted at any time from
deadline of one CREST members the time of input of the
(1) hour prior to the by the Broadridge voting meeting announcement
issuer's proxy appointment deadline date to Euroclear instruction up to the
deadline. Bank, by their cut-off and issuer's proxy appointment
to agreed market deadline.
requirements.
Broadridge's deadline will
be earlier than Euroclear
Bank's voting instruction
deadline.
---------------------------- ---------------------------- ----------------------------
Amending, withdrawing or Voting instructions cannot Voting instructions cannot CREST members can appoint a
cancelling submitted voting be changed after Euroclear be changed after corporate representative to
instructions Bank's voting instruction Broadridge's voting attend the meeting in
deadline. deadline. person and change
their vote at the meeting.
---------------------------- ---------------------------- ----------------------------
Attending and voting at Upon receipt of a third A CREST member will be able CREST members can, after
meetings party proxy voting to send a third party proxy the date of submission of
instruction from an EB voting instruction through proxy instructions to the
Participant before the Broadridge Registrar, and
voting in order to appoint a third after the deadline for
instruction deadline, party to attend the meeting doing so, which is usually
Euroclear Bank will appoint and vote for the number of at any time up to the
a third party identified by shares meeting, appoint a
the EB Participant specified in the manner corporate representative to
(other than Euroclear directed in the proxy attend and vote at the
Nominees or the chairman of instruction (subject to the meeting in any manner,
the issuer) to attend the Broadridge voting including contrary
meeting and vote deadline). to that set out in the
the number of shares There is no facility to proxy instructions.
specified in the manner offer a letter of
directed in the proxy representative/appoint a
voting instruction. corporate representative
There is no facility to other than through the
offer a letter of submission of third party
representative/appoint a proxy appointment
corporate representative instructions.
other than through the
submission of third party
proxy appointment
instructions.
---------------------------- ---------------------------- ----------------------------
Announcement of results In practice, an EB In practice, a CDI holder CREST functionality
Participant is expected to is expected to access this supports the announcement
access this information information when published of meeting results through
when published by way by way of the CREST System,
of announcement on a announcement on a if a registrar chooses to
Regulatory Information Regulatory Information use this functionality.
Service and/or published on Service and/or published on However, in practice, these
the website of the the website of the issuer. announcements are normally
issuer. communicated outside the
CREST System
by way of announcement on a
Regulatory Information
Service and/or published on
the website
of the issuer.
---------------------------- ---------------------------- ----------------------------
3. Shareholder Identification
Item Euroclear Bank offering to EB CREST System offering to CDI Pre-Migration CREST System
Participants holders offering
ID request Issuers will be able to CREST members may be contacted Each issuer is legally obliged to
investigate the underlying by issuer's agents as Part of maintain a register of members.
beneficial ownership or interests the "section 1062" process set As such, the register maintained
in Shares out in the Companies Act or by the issuer (or by its
by making a disclosure request under the Articles of registrar) records shareholder
either via the existing "section Association of the Company. information.
1062" process set out in the Alternatively, issuers and their For dematerialised securities,
Companies Act or via a disclosure agents may enter into an this is the CREST member recorded
request under the Articles of agreement to subscribe to a CDI against the issuance in the
Association of the Company register which will, at CREST system.
or by a process that will be pre-agreed intervals (for If an issuer wants to identify
facilitated by systems that are example every last business day the holders behind a nominee
to be put in place by Euroclear of the month) structure it may issue a section
Bank in connection with the be sent in an agreed format 1062 request or an equivalent
implementation of SRD II. showing all CREST members and request under the Articles of
If Euroclear Bank (through the holding they have in that Association of the Company to
Euroclear Nominees) receives a Particular the nominee account holder in
section 1062 request (or security. CREST in accordance with the
equivalent The Company may enter into a CDI procedures specified in the
request under the Articles of register agreement. Companies
Association) from an issuer, it Act.
will provide to the issuer or
its agent the name, account
number and holding of any EB
Participant having a holding in
the
relevant security. As is the case
today, the issuer or the issuer's
agent will then contact
EB Participants to understand on
whose behalf they are holding the
position.
If an issuer or its agent submits
a request to Euroclear Bank via
ISO 20022 (STP) message
(as opposed to a request in the
format habitually used for
section 1062 requests), (i)
Euroclear
Bank will provide to the
requestor the EB Participant
Legal Entity Identifier (LEI),
name,
full address, email address (if
available), position split
between an EB Participant's own
assets and assets held by the EB
Participant on behalf of (an)
underlying client(s) and, (ii)
Euroclear Bank will request via
ISO 20022 its EB Participants
having a holding to disclose
the relevant data to the
issuer/registrar/issuer's agent
or relevant shareholder
identification
provider.
---------------------------------- --------------------------------- ----------------------------------
4. Dividend and Corporate Actions
-- The general framework for processing corporate actions within
the Euroclear System is described in section 5.3 of the EB
Operating Procedures, with further detail on certain corporate
actions being set out in section 5.3.2. This section is further
supplemented by the 'Online Market Guides' for market specific
operational elements (expected to be the EB Services Description
for Migrating Shares).
-- Section 5.3.1.4 of the EB Operating Procedures indicates
that, where an instruction is needed in respect of a corporate
action, Euroclear Bank does not have discretion in exercising any
corporate action and confirms that Euroclear Bank will act only
upon instruction of an EB Participant (where an instruction is
needed). Certain corporate actions may have a default action which
will be taken by Euroclear Bank if no instruction is received by
the appropriate deadline.
-- Further details on the specific processes for collection,
distribution and payment of dividends are set out in section
5.3.1.5 of the EB Operating Procedures and section 5 Custody -
Income and Corporate Actions of the EB Services Description.
-- Section 5 of the EB Terms and Conditions provides that
income/dividends received by Euroclear Bank will be distributed to
EB Participants pro-rata to the number of securities credited to
their securities accounts in the Euroclear System.
-- Chapter 4 of the CREST International Manual outlines the
broad principles surrounding the management of corporate actions in
the CREST system for CDIs, including those applicable to cash and
stock distributions.
Item Euroclear Bank offering to CREST System offering to Pre-Migration CREST System
EB Participants CDI holders offering
Payment of dividends The entitlement of EB The entitlement of CREST This is determined by the
Participants to a dividend members holding a CDI to a issuer and their receiving
will be based on their dividend will be based on agent. EUI has in place
holdings of the relevant their holdings various instructions
security in Euroclear Bank in CREST on the relevant which facilitate the
on the relevant record record date. payment of dividends to
date. Upon receipt of funds from shareholders who are CREST
Upon receipt of funds and Euroclear Bank and Participants. CREST
successful reconciliation successful reconciliation members can receive
by Euroclear Bank, EB by CREST, CREST members dividends by cheque or
Participants will will be credited an amount alternatively via SEPA or
be credited an amount based based on their record date BACS or through the CREST
on their record date holdings with timing System, should the issuer
holdings. dependent on when offer these options.
the cash correspondent of
the issuer's registrar
credits Euroclear Bank's
cash account.
---------------------------- ---------------------------- ----------------------------
Other corporate actions The issuer's registrars As an EB Participant, EUI Each corporate action set
(including dividends with will advise Euroclear Bank (through the CREST Nominee) up in the CREST System is
options) of corporate actions in a will receive a notification ascribed its own corporate
standardised regarding action number
way. the relevant corporate which identifies the
Upon receipt of a action from Euroclear Bank. corporate actions data held
notification, Euroclear Broadridge, on behalf of under the ISIN of the
Bank will notify every EB EUI, will notify CREST underlying security.
Participant having a members of the event as CREST members can receive
position soon as possible after notifications of corporate
or a pending settlement receipt of a complete actions via their chosen
instruction in the relevant notification of the CREST communication
security. The notification corporate action from method or can obtain the
will inform Euroclear Bank (normally information directly from
the EB Participant of the shortly the CREST System via an
relevant deadlines after the announcement by enquiry function.
(Euroclear Bank deadline, the issuer).
record date, election The notification will
date, etc.) as well as the inform the CREST member of
actions the EB Participant the relevant deadlines (EUI
needs to undertake (i.e. is deadline, record
it a mandatory date, election date, etc.)
event, elective event, is as well as the actions the
there a default action or CREST member needs to
not). undertake (i.e.
Upon receipt of the is it a mandatory event,
instructions from EB elective event, is there a
Participants, an aggregated default action or not).
instruction (consolidating Upon receipt by EUI of the
the instructions received corporate action
from those EB Participants instructions from the CDI
having a position in the holders by the CREST
relevant security) deadline, the CREST Nominee
is sent by Euroclear Bank will send the instructions
to the issuer's registrars. to Euroclear Bank, who in
Where relevant to the turn will
corporate action, the include these instructions
registrars will credit the in the aggregated
relevant proceeds to instructions Euroclear Bank
Euroclear Bank, and sends to the registrars.
Euroclear Bank will then Where relevant to the
credit the entitled EB corporate action, the
Participants based on registrar will credit the
either their elections or relevant proceeds to
their holdings on the Euroclear Bank and upon
relevant record date. receipt of the proceeds,
Euroclear Bank will then
credit the entitled
EB Participants (including
the CREST Nominee as an EB
Participant) with their
respective entitlement.
Upon receipt of the
relevant proceeds, EUI will
credit the CREST members
with their entitlement
based on either their
elections or their holdings
on the relevant record
date.
---------------------------- ---------------------------- ----------------------------
Deadline for corporate The deadline will be The deadline would be The deadline is managed by
action instructions determined on a earlier than the Euroclear the issuer, their agent in
case-by-case basis as it is Bank deadline, as EUI needs the CREST System and the
dependent upon the market to ensure it shareholder.
deadline (set by the sends its instructions to EUI is not involved and
issuer) and the type of Euroclear Bank within the does not supervise the way
corporate action event. Euroclear Bank deadline. in which corporate actions
are offered.
Deadlines are not enforced
by EUI.
---------------------------- ---------------------------- ----------------------------
Remedies of holders EB Participants' rights and CREST members' remedies are As directly registered
remedies are set out in the set out in the English law shareholders, all rights
Belgian law governed governed contract entered and remedies are governed
contract entered into with by the Companies
into with Euroclear Bank. EUI (the CREST Deed Poll). Act and the company's
Articles of Association
---------------------------- ---------------------------- ----------------------------
Treatment of fractional Euroclear Bank does not As Euroclear Bank will not Fractional entitlements are
entitlements. credit fractional credit fractions of managed by the issuer.
entitlements. EB securities proceeds, CREST Fractions are generally
Participants with the members will not sold for the benefit
largest fractional be credited with fractional of the shareholder, save
entitlement will be rounded entitlements. for de minimis amounts.
up until all fractional
entitlements are
distributed.
---------------------------- ---------------------------- ----------------------------
5. Exchange for certificated interests
Appendix II of this Circular contains a list of shareholder
rights under the Companies Act that are not directly exercisable by
Former Holders under the EB Services Description or CREST
International Manual. For this reason, the Company is proposing to
ensure that many of these rights remain indirectly exercisable by
the ultimate owner of Shares making certain amendments to the
Company's Articles of Association as Part of the approval being
sought in Resolutions 3(a) and 3(b) in the Notice of EGM. These
amendments are also detailed in Section B of Part 8 of this
Circular. Holders of Participating Securities are strongly urged to
read Appendix II as some of the rights listed in that Appendix
cannot be accommodated while holding Shares through the Euroclear
System by the proposed amendments to the Company's Articles of
Association and may not be accommodated by changes in law. These
rights will still be capable of being indirectly exercised
following the Migration but, in order to do so, the relevant
intermediated holder will need to arrange to have its interests in
Shares withdrawn from the Euroclear System (and the CREST System in
the case of CDI holders) and held in certificated (i.e. paper)
form. The process for doing so is set out below.
Shareholders' attention is also drawn to paragraph 8 of Part 3
of this Circular in which it is explained that the future ability
of Shareholders to hold Shares in certificated (i.e. paper) form
after 1 January 2023 (for newly issued Shares) and 1 January 2025
(for all Shares) will depend on legislative changes relating to the
implementation of dematerialisation which have not yet been
proposed or determined by the relevant authorities.
(a) Actions to be taken by EB Participants
EB Participants can withdraw their Shares from Euroclear
Nominees into a direct name on register (mark-down). For a detailed
description as to what EB Participants would need to do, please
refer to the EB Services Description section 4.2.3 - Mark-up and
Mark-down.
(b) Actions to be taken by a holder of a CDI
A CDI only exists in the CREST System as a settlement mechanic.
It is not possible to directly rematerialise a CDI. Please see
Clause 6 of the CREST Deed Poll set out in Chapter 8 of the CREST
International Manual. There are two distinct steps in this
process:
1. if a CREST member no longer wishes to hold their interest in
the underlying Irish security by way of a CDI, they can choose to
deliver the interest out to an EB Participant. Once the delivery in
Euroclear Bank is settled, EUI will debit the CDI; and
2. Euroclear Bank enables EB Participants to withdraw their
Shares from Euroclear Nominees into a direct name on register
(mark-down). For a detailed description as to what EB Participants
need to do, please refer to section 4.2.3 Mark up and Mark down of
the EB Services Description.
Part 5
Overview Of Belgian Law Rights
A description of the Belgian Law Rights that, as a matter of
Belgian law, are granted to EB Participants in respect of the
Shares credited to them in the Euroclear System is set out
below.
1. Legal framework
Section 4(b) of the EB Terms and Conditions lists the various
pieces of legislation which govern securities held in the Euroclear
System, namely:
(a) the coordinated Royal Decree No.deg62 on the deposit of
fungible financial instruments and the settlement of transactions
involving such instruments ("Royal Decree No.deg62"), which applies
to all types of securities admitted in the Euroclear System which
are, in principle not governed by one of the specific pieces of
legislation listed in items 1(b) to (d) below;
(b) the Act of 2 January 1991 on the market in public debt
securities and monetary policy instruments, which applies to
dematerialised debt instruments issued by the Belgian Federal
Government or other public-sector entities;
(c) the Act of 22 July 1991 on commercial paper and certificates
of deposit, which applies to certain short- or medium-term
dematerialised debt instruments issued by Belgian issuers or
foreign issuers that have specifically chosen to use one of these
types of securities;
(d) the Belgian Companies Code and Associations Code (section
5:30 et seq. and section 7:35 et seq.), which apply to
dematerialised securities issued by certain Belgian companies, it
being understood that, notwithstanding the statement under
sub-paragraph (a) above, certain provision of the Royal Decree
No.deg62 also apply to these types of securities; or
(e) other applicable Belgian legislation providing for a regime
of fungibility, as the case may be and as the same may be amended,
supplemented or superseded from time to time (note that there are
currently no such other applicable legislation).
The asset protection rules set out in the pieces of legislation
listed at sub-paragraphs 1(b) to (d) above provide a protection
which is equivalent, in substance, to the protection afforded by
Royal Decree No.deg62. In addition, some of the pieces of
legislation listed above do not apply to shares issued by an Irish
issuer (for example, due to the fact that they only apply to
securities issued by a Belgian issuer or by a Belgian public
authority) and the remainder of this summary, therefore, relates
only to those rules provided for by Royal Decree No.deg62.
2. Scope of Royal Decree No.deg62
Royal Decree No.deg62 applies to all securities (other than with
a limited number of exceptions those governed by one of the
specific pieces of legislation mentioned in sub-paragraphs 1(b) to
(d) above) deposited with Euroclear Bank by EB Participants,
irrespective of whether:
(a) the securities have been initially deposited with Euroclear
Bank or have first been deposited with another CSD before being
transferred to a Securities Clearance Account opened on the books
of Euroclear Bank;
(b) Euroclear Bank sub-deposits these securities with
sub-custodians or CSDs in Belgium or elsewhere; or
(c) where relevant, under the law governing the securities, it
is the EB Participant, Euroclear Bank itself or a nominee (e.g.
Euroclear Nominees) that has legal title to the securities.
3. Fungibility
Securities held by Euroclear Bank on behalf of EB Participants
are fungible (Article 6 of Royal Decree No.deg62). This means that
once the securities have been accepted by Euroclear Bank for
deposit in the Euroclear System, it is no longer possible to
identify (whether on the books of Euroclear Bank or in the books of
the relevant depository) a specific security (by means of a serial
number or otherwise) as belonging to a Particular EB
Participant.
Owing to this fungibility, securities held in the Euroclear
System are treated on a book-entry basis. Rights to such securities
(such as the co-ownership right on the pool of securities of the
same issue held in the Euroclear System as discussed below) are
evidenced by entries to the Securities Clearance Account of the
relevant EB Participant pursuant to Article 8 of Royal Decree No.
62.
4. Rights attaching to the securities
The rights that EB Participants have in respect of securities
held in the Euroclear System are twofold: an EB Participant has a
right to claim back the underlying securities initially deposited
or transferred to a Securities Clearance Account under the
fungibility regime but also, as long as the securities are held in
the Euroclear System, a co-ownership right on all securities of the
same issue held under the fungibility regime. The deposit of
securities in the Euroclear System amounts to the exchange by the
depositor of an ownership interest in specific securities for an
intangible co-ownership right over the pool of securities of the
same issue as such specific securities held in the Euroclear System
by all EB Participants. It is this co-ownership right that is the
subject of book-entry transfers between the EB Participants in the
Euroclear System. If an EB Participant wishes to take possession of
or recover an ownership interest in specific securities it may at
any time request the delivery of an amount of underlying securities
corresponding to the amount of such securities the co-ownership
right of which are recorded on the EB Participant's Securities
Clearance Account. As from such delivery, the securities will no
longer be held in the Euroclear System. Such delivery would satisfy
the recovery claim the EB Participant has against Euroclear Bank as
evidenced by the credit to the EB Participant's Securities
Clearance Account.
5. Nature of the co-ownership right
Royal Decree No.deg62 offers enhanced protection to holders of
book-entry securities compared with mere contractual rights. Under
Royal Decree No.deg62, EB Participants are granted an intangible
co-ownership right over the pool of book-entry securities of the
same issue held by Euroclear Bank on behalf of all EB Participants
that hold securities of that issue (Article 2 of Royal Decree
No.deg62). Securities of the same issue are securities that have
been issued by the same issuer and have the same maturity and
rights and are therefore fungible (i.e. they have the same
ISIN).
The existence of this co-ownership right affords EB Participants
specific rights with respect to the securities recorded on their
Securities Clearance Account (in this case the Migrating Shares),
which would not otherwise arise under Belgian Law in favour of
holders of pure contractual rights, namely:
(a) a right to directly exercise voting rights (subject to the
laws applicable to the underlying security, i.e. the Migrating
Shares); and
(b) a right of recovery (terugvorderingsrecht/droit de
revendication), i.e. a proprietary right to receive back the
relevant quantity of securities in the event of the bankruptcy of
Euroclear Bank (or any other proceedings in which the rule of equal
treatment of creditors applies (geval van samenloop/situation de
concours)).
These rights are regarded as the two essential attributes of
ownership under Belgian law.
As a consequence of the fungibility of the securities deposited
with Euroclear Bank, Article 12 of Royal Decree No.deg62 provides
that the right of recovery is a collective right, to be exercised
by all EB Participants collectively that have deposited the
relevant securities (rather than an individual right to be
exercised by each EB Participant). This right is, as a matter of
principle, to be exercised by the administrator of Euroclear Bank's
bankruptcy or any other procedure where the rule of equal treatment
of creditors applies (geval van samenloop/situation de concours),
and it is the administrator that would, on behalf of all EB
Participants having deposited the securities concerned, claim those
securities back from the depositories. Where the administrator
would fail to take any action to effect the recovery of the
securities held on behalf of EB Participants, it is considered in
legal doctrine that each EB Participant may directly make a claim
with the depositories for the portion of securities held by it in
the Euroclear System as evidenced by the entries in the Securities
Clearance Account(s) of the EB Participant.
6. Absence of proprietary right of Euroclear Bank
Euroclear Bank has, under Belgian law, no proprietary right in
respect of securities recorded in EB Participants' Securities
Clearance Accounts. This is without prejudice to the other rights
Euroclear Bank may have with respect to securities held in the
Euroclear System, as described elsewhere in this Part 5 (see in
Particular the statutory liens and other rights described further
below).
7. Insolvency of Euroclear Bank
Under Belgian law, were bankruptcy proceedings
(faillissement/faillite) to be opened in respect of Euroclear Bank,
the assets of Euroclear Bank would be placed under judicial control
to be conserved, administrated and liquidated by one or more
bankruptcy administrators (curator/curateur), in order to reimburse
the creditors of Euroclear Bank. The administrator would also be
responsible for returning to each EB Participant the number of
securities it held in the Euroclear System.
The National Bank of Belgium may also commence resolution
measures in respect of Euroclear Bank in accordance with Title VIII
of the Act of 25 April 2014 on the status and supervision of credit
institutions and stock brokerage firms (the "Banking Act") which
has implemented amongst others, Directive 2014/59/EU of the 15 May
2014 establishing a framework for the recovery and resolution of
credit institutions and investment firms in Belgium. The impact of
such resolution measures on EB Participants would depend on the
measures taken. Section 288 of the Banking Act provides that the
resolution authority should ensure that the exercise of its
resolution powers does not affect the operation and regulation of
payment and settlement covered by Directive 98/26/EC of 19 May 1998
on settlement finality in payment and securities settlement
systems.
8. Securities held on behalf of EB Participants are not Part of bankruptcy estate
EB Participants are granted an intangible co-ownership right
over the pool of book-entry securities of the same issue held by
Euroclear Bank on behalf of all EB Participants that hold
securities of that issue (Article 2 of Royal Decree No.deg62). Such
securities would not form Part of the assets of Euroclear Bank
which would be available for the satisfaction of the claims of
Euroclear Bank's creditors where bankruptcy proceedings
(faillissement/faillite) would be commenced before the Belgian
courts in respect of Euroclear Bank or where resolution measures
affecting Euroclear Bank would be taken.
9. Recovery of securities
Securities held with Euroclear Bank would be recoverable in kind
by the EB Participants in the event of bankruptcy proceedings
(faillissement/faillite) or resolution measures affecting Euroclear
Bank. As noted above, EB Participants have a right of recovery
(terugvorderingsrecht/droit de revendication), i.e. a proprietary
right to receive back the relevant quantity of securities in the
event of bankruptcy proceedings (faillissement/faillite) or any
other procedure where the rule of equal treatment of creditors
applies (geval van samenloop/situation de concours). This recovery
right must be brought collectively in respect of the pool of
securities of the same issue held by EB Participants with Euroclear
Bank.
Article 12 of Royal Decree No.deg62 provides that where the pool
of securities is insufficient (i.e. if there is a securities loss)
to allow complete restitution of all due securities of a specific
issue held on account with Euroclear Bank by all EB Participants,
the pool must be allocated among the EB Participants/owners in
proportion to their rights i.e. on a pro rata basis). If Euroclear
Bank itself is the owner of a number of securities of the same
issue, it will only be entitled to the number of securities
remaining after the total number of securities of the same issue
which it held for third parties has been returned.
10. Recovery procedure
In order for an EB Participant to be entitled to the recovery of
securities held in the Euroclear System in the case of a bankruptcy
(faillissement/faillite) of Euroclear Bank, the EB Participant must
file a claim for recovery with the clerk's office of the Brussels
business court before the submission of the first report of
verification of claims (neerlegging van het eerste proces-verbaal
van verificatie/dépôt du premier procès-verbal de vérification des
créances) (section XX.194 of the Belgian Code of Economic Law). The
judgment pursuant to which the bankruptcy has been declared would
contain the date by which the first report of verification of
claims must be submitted (generally between thirty (30) and forty
five (45) days after the bankruptcy declaration). Any claim for
recovery submitted after that date would be inadmissible. The
administrator of the bankruptcy would then allocate the securities
of each issue between those EB Participants having filed a claim
for recovery in accordance with the rules set out in this Part
5.
11. Attachment prohibited
Pursuant to Article 11 of Royal Decree No.deg62, attachments
(derden-beslag/saisie-arrêt) of Securities Clearance Accounts
opened with Euroclear Bank are prohibited. The prohibition prevents
Euroclear Bank, third parties (such as creditors of the account
holder), depositories or service providers from being able to
attach (in beslag nemen/saisir) securities recorded in a Securities
Clearance Account. Article 11 of Royal Decree No. 62 also
stipulates that no attachment of securities deposited by Euroclear
Bank with depositories is permissible. Further, Article 14 of Royal
Decree No.deg62 provides that the dividend, interest and principal
amount cash payments relating to fungible securities paid to
Euroclear Bank by issuers of securities held in the Euroclear
System may not be attached by the creditors of Euroclear Bank.
12. Statutory liens, other rights and pledge
Pursuant to section 31, --2 of the Act of 2 August 2002 on the
supervision of the financial sector and financial services (the
"Act of 2 August 2002"), Euroclear Bank has:
(a) a statutory lien over financial instruments (including
securities), cash, currencies and other rights held in the books of
Euroclear Bank as an EB Participant's own (i.e. proprietary)
assets, which secures any claim Euroclear Bank has against the EB
Participant in connection with the settlement of securities
subscriptions, transactions in securities or currency-forward
transactions, including claims resulting from loans or advances;
and
(b) a statutory lien over financial instruments (including
securities), cash, currencies and other rights held in the books of
Euroclear Bank on behalf of the EB Participant's underlying
clients, which may only be used to secure any claim Euroclear Bank
has against the EB Participant in connection with the settlement of
securities subscriptions, transactions in securities or
currency-forward transactions, including claims resulting from
loans or advances, which are carried out on behalf of the EB
Participant's underlying clients.
13. Other liens and rights
In addition to the section 31 statutory lien referred to above,
Belgian law provides for:
(a) a retention right in favour of the depository (e.g.
Euroclear Bank) to guarantee its claim for the full payment of any
amount owed to it in connection with the deposit (section 1948 of
the Belgian Civil Code);
(b) a statutory lien which covers any expenses made for the
preservation of an asset (e.g. securities) (section 20, 4deg of the
Belgian mortgage act of 16 December 1851 as amended from time to
time (the "Mortgage Act"); and
(c) a statutory lien in favour of the unpaid seller on the sold,
movable assets (e.g. securities) which exists as long as the buyer
is in possession of such assets (section 20, 5deg of the Mortgage
Act).
Section 14(e) (limbs (i) and (ii)) of the EB Terms and
Conditions provides, therefore, for a contractual right of set-off
and retention in favour of Euroclear Bank pursuant to which
Euroclear Bank may (upon the effectiveness of any termination or
resignation of an EB Participant):
(a) set off or retain from the amounts to be returned by
Euroclear Bank to the EB Participant any amounts which are due to,
or which may become due to, Euroclear Bank from the EB Participant;
and
(b) retain securities held in the Securities Clearance
Account(s) opened in the name of the EB Participant to provide for
the payment in full of any amounts which are due to, or which may
become due to, Euroclear Bank from the EB Participant.
Belgian law provides that holders of interests through the
Euroclear Bank CSD have the right to exercise other "associative
rights" directly against the Company under Article 13 of the Royal
Decree No.deg62. These associative rights would (to the extent
permitted by the law governing the underlying security) include,
for example, the right to attend and vote at a general meeting, the
right to subscribe in rights issues or the right to commence
derivative claims against the directors. Holders would request
evidence of their shareholding from Euroclear Bank CSD in
connection with the exercise of such associative rights.
14. General pledge
Pursuant to section 3.5.2 of the EB Operating Procedures, in
order to secure any claim Euroclear Bank may have against an EB
Participant in connection with the use of the Euroclear System (in
Particular any claim resulting from any extension of credit or
conditional credit made in connection with the clearance or
settlement of transactions or custody services), each EB
Participant agrees to pledge to Euroclear Bank:
(a) all securities and cash such EB Participant holds in the Euroclear System;
(b) all right, title and interest in and to such securities and cash; and
(c) all existing and future contractual claims such EB
Participant may have against Euroclear Bank in connection with the
use of the Euroclear System and in Particular any claim to receive
from Euroclear Bank securities from a local market as a result of
either:
(i) stock exchange trade orders where such transactions are
automatically fed by the local stock exchange into the local
clearance system; or
(ii) receipt instructions that Euroclear Bank sends to the local
market on such EB Participant's behalf.
Unless otherwise agreed in writing, this general pledge concerns
both the EB Participant's proprietary securities as well as those
securities the EB Participant holds on behalf of its clients. The
EB Participant represents and warrants having obtained the
necessary consent from its clients to that effect. This general
pledge is without prejudice to (i) any collateral arrangements that
Euroclear Bank may enter into with the EB Participant and (ii) the
section 31 statutory lien referred to in paragraph 12 above.
15. Waivers
Pursuant to section 3.5.1(b) of the EB Operating Procedures,
Euroclear Bank waives the statutory lien provided by section 31,
--2 of the Act of 2 August 2002 with respect to all securities held
by the EB Participant on behalf of clients, provided such
securities are credited to a Securities Clearance Account
separately and specifically identified in writing by the EB
Participant as an account to which only client securities are
credited.
16. Securities Losses
Section 17 of the EB Terms and Conditions contains a general
loss-sharing rule which is without prejudice to the rules contained
in section 12 of Royal Decree No.deg62. The rules set out in
section 17 are also without prejudice to any liability that
Euroclear Bank may have to compensate EB Participants for
negligence or wilful misconduct on its Part.
Where all or a portion of the securities of a Particular issue
held in the Euroclear System is lost or otherwise becomes
unavailable for delivery (such loss or unavailability being
referred to as a "Securities Loss"), then the reduction in the
amount of securities of such issue (i.e. the same ISIN) held in the
Euroclear System arising therefrom will be borne by those EB
Participants holding securities of such issue in the Euroclear
System at the opening of the business day on which Euroclear Bank
makes a determination that a Securities Loss has occurred (or if
such day is not a business day, at the opening of business on the
immediately preceding business day).
The loss sharing is to be pro rata with the amount of securities
of such issue (i.e. of the same ISIN) so held by each EB
Participant at the time of such determination and is effected by
means of debits to the Securities Clearance Accounts on which
securities of such issue are credited. This is subject to
appropriate adjustment in the event that any portion of the
securities of such issue held in the Euroclear System is for any
reason not credited to Securities Clearance Accounts. Any reduction
in the amount of securities available for delivery which arises
from a Securities Loss with respect to securities held with any
depository or other CSD shall be shared at the time as of which
such reduction is attributed to Euroclear Bank.
In the case of any Securities Loss with respect to any issue of
securities which arises under circumstances in which any
depository, any EB Participant, any other CSD, any sub-custodian,
or any other person is or may be legally liable (or if any other
remedy may be available for making good the Securities Loss),
Euroclear Bank may take such steps to recover the securities which
are the subject of such Securities Loss or damages (or to obtain
the benefits of any such other remedy) as Euroclear Bank reasonably
deems appropriate under all the circumstances (including without
limitation the bringing and settling of legal proceedings).
Unless Euroclear Bank is liable for such Securities Loss due to
its negligence or wilful misconduct, Euroclear Bank will charge
those sharing the reduction in securities arising out of such
Securities Loss (proportionately in accordance with the amount of
such sharing) the amount of any cost or expense incurred in
connection with any action taken referred to in the preceding
paragraph.
Any cash amounts or securities which Euroclear Bank recovers in
respect of a Securities Loss relating to a Particular issue of
securities or for which Euroclear Bank is liable in connection with
a Securities Loss will be credited to the appropriate cash accounts
or Securities Clearance Accounts of those sharing the reduction in
the amount of securities of such issue arising from such Securities
Loss.
Part 6
oVERVIEW OF CREST DEPOSITORY INTERESTS
1. Effect of the Migration and initial creation of CDIs
The practical result of the Migration taking effect will be that
all Migrating Shareholders will initially receive one (1) CDI for
each Migrating Share held by them at the Migration Record Date.
Migrating Shareholders will then be entitled to choose whether to
(1) continue to hold their interests via CDI, (2) convert their
CDIs into and instead hold and exercise Belgian Law Rights in
respect of the underlying Shares directly through the Euroclear
System (subject to such Migrating Shareholder either being or
becoming an EB Participant, or appointing an EB Participant (e.g. a
stockbroker, custodian or other nominee which is an EB Participant)
to hold the Belgian Law Rights on its behalf), or (3) to withdraw
their Shares from the Euroclear System to be held in certificated
form.
Following the Migration, Migrating Shares will likely be
represented by a combination of book entries within the Euroclear
System and CDIs within the CREST System. It should be noted that,
following the Migration, transactions in the Shares resulting from
trades on the London Stock Exchange are expected to settle via CDIs
in the CREST System. Transactions in Shares resulting from trades
on other trading venues which are not cleared through a central
counterparty can settle either in the Euroclear System or in the
CREST System as agreed by the counterparties.
With respect to CDIs, the CREST Nominee (CIN (Belgium) Limited)
will be an EB Participant and will hold rights to the Shares held
within Euroclear Bank on behalf of the CREST Depository for the
account of CDI holding CREST members.
2. Form of CDIs
A CDI is a security constituted under English law, which is
issued by the CREST Depository, and that represents an interest in
other securities (which may be securities constituted under the
laws of other countries). In the case of the Migration, each CDI
will reflect an indirect interest of the CREST member in each
underlying Migrating Share.
Following the Migration, holders of CDIs will not be the
registered holders of the Shares to which they are entitled.
Rather, immediately following the Migration, their interests in the
Migrating Shares will be held through an intermediated chain of
holdings, whereby Euroclear Nominees will hold the legal interest
in all Shares admitted to the Euroclear System on trust for
Euroclear Bank, and will be recorded as the registered holder of
such Shares in the Register of Members of the Company. Euroclear
Bank will credit its interest in such Shares to the account of the
CREST Nominee in its capacity as an EB Participant and the CREST
Nominee (CIN (Belgium) Limited) will hold its interest in such
Shares (i.e. the Belgian Law Rights) as nominee and for the benefit
of the CREST Depository. The CREST Depository will, in turn, hold
its interest in such Shares on trust and for the benefit of the
holders of the CDIs.
The terms and conditions upon which CDIs are issued and held in
the CREST System are set out in the CREST Deed Poll and the CREST
International Manual.
An international custody fee and a transaction fee, as
determined by EUI from time to time, is charged at user level for
the use of CDIs and on transactions. The anticipated fees which
will apply in respect of Irish equities are outlined in section 6.3
(Irish equities pricing from 15 March 2021) of the CREST Tariff
Brochure.
The rights of prospective holders of CDIs in relation to EUI and
its subsidiaries in respect of CDIs held through the CREST System
are set out in the CREST Deed Poll and the CREST International
Manual (and in Particular, in the CREST Deed Poll set out in the
CREST International Manual), and in the CREST Terms and Conditions
issued by EUI.
The CDIs will have the same security code (ISIN) as the
underlying Shares and will not be separately listed on the Official
List or separately traded on the London Stock Exchange.
CDIs are capable of being credited to the same CREST member
account as all other CREST securities of any CREST Participant.
This means that, from a practical point of view, CDIs representing
Shares will be held and transferred in the same way as
Participating Securities are held and transferred in CREST today,
subject to the provisions of the CREST International Manual.
3. Rights attaching to CDIs
The holders of CDIs will have an indirect entitlement to Shares
admitted to the Euroclear System but will not be the registered
holders thereof. Accordingly, the holders of CDIs will be able to
enforce and exercise certain rights relating to the Shares through
and in accordance with the arrangements described below and the
procedures specified in the CREST International Manual.
As a result of certain aspects of Irish law which govern the
Shares, the holders of CDIs will not be able directly to enforce or
exercise rights relating to the Shares, including voting and
pre-emption rights, unless they take steps to withdraw the
underlying Shares from the CREST System to be held in certificated
(i.e. paper) form, as described below. Instead, holders of CDIs
will be entitled to exercise certain rights indirectly via the
CREST Depository and Euroclear Nominees, as set out in the CREST
International Manual and further explained below.
Holders of CDIs will, at their option, be entitled to withdraw
the underlying Shares in which they are interested by virtue of
holding CDIs from the CREST System and the Euroclear System and
hold those Shares in certificated (i.e. paper) form by following
the procedures set out in paragraph 4 of this Part 6. In summary,
in order to withdraw the Shares in which they are interested,
holders of CDIs will need to (a) appoint an agent or custodian
which is an EB Participant to receive the relevant Belgian Law
Rights representing those Shares on their behalf through the
Euroclear System and (b) arrange for that agent or custodian to
take the necessary steps to withdraw the underlying Shares from the
Euroclear System. Such holders may also choose to receive the
benefit of the Belgian Law Rights either directly (if they are an
EB Participant) or via a shareholding account with a depository
financial institution which is an EB Participant.
Holders of CDIs will only be able to exercise their rights
attached to CDIs by instructing the CREST Depository to exercise
these rights on their behalf in accordance with the CREST
International Manual. The CREST Depository and CREST Nominee (CIN
(Belgium) Limited) will in turn communicate these instructions to
Euroclear Bank in accordance with the rules and procedures of the
Euroclear System. As a result, the process for exercising rights
(including the right to vote at general meetings and the right to
subscribe for new shares on a pre-emptive basis) will take longer
for holders of CDIs than for holders of Shares in certificated
(i.e. paper) form or holders of Belgian Law Rights. Consequently,
in respect of any corporate action which requires an instruction or
other input from a CREST member before a specified deadline, it is
expected that the CREST Depository will set a deadline for
receiving instructions from all CDI holders which is in advance of
the deadline set by Euroclear Bank and/or the deadline set by the
issuer. As a result, holders of CDIs may be granted shorter periods
in which to exercise certain rights carried by the CDIs than
Shareholders who hold their Shares in certificated (i.e. paper)
form or EB Participants.
The manner (where the holder does not currently hold Shares
through a custodian or nominee) and time period within which any
such voting rights may be exercised by CDI holders is expected to
differ from arrangements which would currently apply in respect of
direct holdings of Shares in the CREST System prior to the
Migration or direct holdings of Belgian Law Rights in the Euroclear
System following the Migration. Voting confirmations may not be
provided by Euroclear Bank to EB Participants or to underlying CDI
holders.
(a) Voting Rights
EUI has arranged for voting instructions relating to Shares to
be received via a third party service provider, currently
Broadridge. Any CREST member who has a holding in a CDI up to the
Broadridge voting deadline will be notified of a voting event
through Broadridge upon Broadridge's receipt of such notification
from Euroclear Bank.
The notification will be made available to all CREST members
(those either having or receiving a position in that CDI) within
forty eight (48) hours of receipt by Broadridge of complete
information. The relevant record date for voting will be determined
by the Company and will be a market-wide applicable date.
CREST members will be entitled to complete and submit proxy
appointments (including voting instructions) electronically through
Broadridge. The same voting options as are available in respect of
Shares held through the Euroclear System via Belgian Law Rights
will be available to holders of CDIs (i.e. electronic votes by
means of appointment of the Chair of the meeting as a proxy or
appointing a third party proxy to attend and vote at the
meeting).
Broadridge will process and deliver proxy voting instructions
received from CREST members by the Broadridge voting deadline to
Euroclear Bank, by Euroclear Bank's deadline for receipt of voting
instructions and to agreed market requirements. Voting instructions
cannot be changed after Broadridge's voting deadline.
There is no facility for holders of CDIs to appoint a corporate
representative, though they will be entitled to appoint any third
party to attend and vote at a general meeting of the Company by
using the third party proxy voting instruction.
Holders of CDIs wishing to use the voting rights related to the
Shares represented by their CDIs personally in their capacity as a
member of the Company (and not as proxy), by attending a general
meeting of the Company, will need to take steps so that their
Shares are withdrawn from the CREST System and the Euroclear System
in the manner described above and in paragraph 4 of this Part 6 so
that such Shares are recorded in the Register of Members of the
Company as being held by such holder in time for the record date of
the relevant general meeting. On so doing, they will, subject to
and in accordance with the Company's Articles of Association, be
entitled to attend and vote in person or appoint a corporate
representative at the relevant general meeting.
Voting confirmations may not be provided by Euroclear Bank to EB
Participants or to underlying CDI holders.
(b) Dividends
The entitlement of CREST members holding CDIs to a dividend will
be based on their holdings in the CREST System on the relevant
record date. Upon receipt of funds and successful reconciliation by
CREST, CREST members will be credited an amount based on their
record date holdings.
EUI required the consent of the European Central Bank to
continue to offer euro settlement after 29 March 2021. As such
consent was not forthcoming, EUI announced, on 2 December 2020,
that it will not be able to continue to settle in euro under the
current arrangements from Monday, 29 March 2021. This means that,
unless alternative arrangements can be secured beforehand, the
final date for euro settlement in CREST will be Friday, 26 March
2021 and all trades carried out on the London Stock Exchange will
then settle in pounds sterling or US dollars only. This could
therefore impact holders of CDIs who wish to receive dividends in
euro.
(c) Other Corporate Actions
EUI will notify CREST members of corporate actions by way of
notification through the CREST System as soon as possible after
receipt of complete notification of the corporate action from
Euroclear Bank (normally shortly after the announcement of the
corporate action by the issuer).
The notification will inform the CREST member of the deadlines
applicable to the corporate action (CREST deadline for receipt of
instructions, record date for participation in the corporate
action, election date, etc.) as well as any actions the CREST
member needs to take (i.e. is it a mandatory event, elective event,
is there a default action or not). The CREST deadline for receipt
of instructions and/or elections in respect of corporate actions is
expected to be earlier than the Euroclear Bank deadline, as CREST
will need to ensure it sends its instructions to Euroclear Bank
within the Euroclear Bank deadline.
Upon receipt by CREST of the corporate action instructions from
the CDI holders by the CREST deadline, CREST will send the
instructions to Euroclear Bank who in turn will include these
instructions in the aggregated instructions Euroclear Bank sends to
the issuer and/or its agents.
If the corporate action proceeds, the issuer and/or its agents
will, in turn, credit the relevant proceeds to Euroclear Bank and,
upon receipt of the proceeds, Euroclear Bank will credit the
entitled EB Participants (including, in respect of interests in
Shares held through CDIs, the CREST Nominee in its capacity as an
EB Participant) with their respective entitlements.
Upon receipt of the relevant proceeds, CREST will credit the
accounts of CREST members with their entitlement based on either
their elections or their holdings in CDIs on the relevant record
date.
CREST members' remedies in respect of any corporate actions are
set out in the English law governed contract entered into with
EUI.
Given that Euroclear Bank will not credit fractions of
securities proceeds, CREST members will not be credited with
fractional entitlements.
4. Withdrawal of Shares represented by CDIs from the CREST
System and/or the Euroclear System
Holders of CDIs will, at their option, be entitled to withdraw
the underlying Shares in which they are interested by virtue of
holding CDIs from the CREST System and the Euroclear System and
hold those Shares in certificated (i.e. paper) form by following
the procedures set out in section 6 Withdrawal of Deposited
Property on transfer and related matters of Chapter 8 Global Deed
Poll of the CREST International Manual.
In summary, in order to withdraw Shares held through the CREST
System via CDIs, the holder of the CDI will be required to input an
instruction requesting a cancellation of CDIs in the CREST System
and the receipt of the relevant Belgian Law Rights into a
shareholding account with a depository financial institution which
is a Participant in the Euroclear System (i.e. an EB Participant).
This will involve the input of a cross-border delivery instruction
in favour of the relevant EB Participant, who should separately
input a matching cross-border receipt instruction to ensure receipt
of the Belgian Law Rights. It is expected that the process to
withdraw the CDI's and receive the Belgian Law Rights in the
Euroclear System can be accomplished within one business day.
Persons holding interests in Shares through CDIs who are not
themselves CREST members should contact the stockbroker or other
custodian with whom they have made arrangements with respect to the
holding of CDIs to procure that the steps outlined above are taken
on their behalf. Holders of CDIs who are CREST members should
themselves make arrangements to give the necessary instructions in
accordance with the CREST International Manual.
Following completion of the steps above, if the former CDI
holder wishes to withdraw the underlying Shares from the Euroclear
System and hold them in certificated (i.e. paper) form, they will
need to follow the process set out in detail in section 4.2.3.2
"Mark-downs" of the EB Services Description.
In summary, in order to withdraw Shares from the Euroclear
System, the relevant EB Participant will need to issue a
"mark-down" (withdrawal) instruction, together with details of the
entity into whose name the withdrawn Share(s) should be registered,
to Euroclear Bank. Subject to validation, this instruction and the
related details will be communicated by Euroclear Bank to the
Registrar. Upon receipt of the instruction and registration
details, the Registrar will proceed to effect a transfer of the
relevant shareholding from Euroclear Nominees to the designated
transferee whose name will be entered in the Register of Members of
the Company as the holder of the withdrawn Share(s). The time
period for any such withdrawal of securities from the Euroclear
System, is expected to be within one (1) business day such that the
owner of the relevant Share will be entered in the Register of
Members of the Company within one business day of receipt of a
valid withdrawal request and the necessary supporting details. It
may take up to ten (10) business days for a transferee to receive
the relevant share certificate, however, entry in the Register of
Members is prima facie evidence of ownership of a shareholding
under Irish law.
Persons whose interests in Shares are held through EB
Participants (or other nominees) on their behalf will need to
engage with their stockbroker or other custodian to procure that
the steps outlined above are taken on their behalf by the relevant
EB Participant.
Shareholders wishing to hold their Shares in certificated form
following Migration are advised that, as described in further
detail in paragraph 8 of Part 3 of this Circular, their ability to
do so following 1 January 2023 (in respect of new issues of Shares)
and 1 January 2025 (in respect of all issued Shares) will be
subject to the model of dematerialisation adopted in order to
comply with the requirements of Article 3(1) of CSDR.
5. Cancellation of CDIs for underlying Belgian Law Rights or for underlying Shares
Holders of CDIs will, at their option, be able to effect the
cancellation of their CDIs in the CREST System and receive the
Belgian Law Rights to which they are entitled into a shareholding
account with a depository financial institution which is an EB
Participant and to be registered as holder of the underlying Shares
by arranging for that EB Participant to take the necessary steps to
effect the transfer of the relevant Shares from Euroclear Nominees.
It is envisaged that receipt of Belgian Law Rights on cancellation
of CDIs can be accomplished within the same business day, and that
entry on the Register of Members as holder of the underlying Shares
can be accomplished within one (1) business day. It may take up to
ten (10) business days for a transferee to receive the relevant
share certificate, however entry on the Register of Members is
prima facie evidence of a shareholding under Irish law. Certain
transfer fees will generally be payable by a holder of CDIs who
makes such a transfer.
Part 7
Tax Information In Respect Of the Migration
1. Cyprus Tax Considerations
The Migration should not give rise to a stamp duty
liability.
The Cypriot Stamp Duty Law includes an exemption in respect on
documents relating to the transfer of securities which are listed
on a recognised stock exchange provided that the stock exchange
certifies the transaction. In this respect the Migration/transfer
of the shares will not give rise to stamp duty in Cyprus on the
understanding that both the LSE and CSE certify/approve the
transaction.
THE CYPRIOT TAX CONSIDERATIONS SUMMARISED ABOVE ARE FOR GENERAL
INFORMATION ONLY. EACH SHAREHOLDER SHOULD CONSULT HIS OR HER OWN
TAX ADVISER AS TO THE PARTICULAR TAX CONSEQUENCES THAT MAY APPLY TO
SUCH SHAREHOLDER.
2. UK Tax Considerations
The comments set out below are of a general nature and are based
on current United Kingdom tax law and the published practice of Her
Majesty's Revenue and Customs ("HMRC"), which may not be binding on
HMRC at the date of this document, (both of which are subject to
change at any time, possibly with retrospective effect) and are not
intended to be exhaustive.
The following summary does not constitute tax advice and is
intended only as a general guide. It relates only to certain
limited aspects of the UK tax position of Shareholders who are
resident (and, in the case of individuals, domiciled) in the United
Kingdom for United Kingdom tax purposes and who are, and will be,
the absolute beneficial owners of their Migrating Shares and CDIs
and who have neither lent nor borrowed their shares ("UK
Shareholders"). It may not apply to certain UK Shareholders such as
traders, broker-dealers, dealers in securities, intermediaries,
insurance companies and collective investment schemes, shareholders
who have (or are deemed to have) acquired their Migrating Shares by
virtue of an office or employment or who are officers or employees
or individual shareholders who own 10% or more of the issued share
capital of the Company (including in certain circumstances, shares
comprised in a settlement of which the shareholder is a settlor and
shares held by a connected person as well as shares transferred by
a shareholder pursuant to a repurchase or stock lending
arrangement). Such persons may be subject to special rules.
Shareholders should consult their own tax advisers about the
United Kingdom tax consequences (and the tax consequences under the
laws of other relevant jurisdictions), which may arise as a result
of being Migrating Shareholders and the acquisition, ownership and
disposition of Shares in the future.
(a) Migration
UK Shareholders are not expected to be liable to United Kingdom
capital gains tax or corporation tax on chargeable gains as a
result of the Migration, either on the basis that the Migration
does not give rise (or should not be treated as giving rise) to a
disposal of Shares, or on the basis that under the securities
identification rules any disposal should be treated as being of the
interest in Shares acquired in the Migration (whether held as a CDI
or as Belgian Law Rights by an EB Participant or through a broker
or other nominee which is an EB Participant) and therefore at no
gain and no loss. There is therefore expected to be no effect on
the base cost available to be taken into account by UK Shareholders
in computing the gain on any subsequent disposals.
No United Kingdom stamp duty or stamp duty reserve tax ("SDRT")
is expected to be required to be paid in respect of the
Migration.
Following the Migration, a beneficial owner of CDIs in respect
of Shares is expected to be treated for UK tax purposes as the
beneficial owner of the corresponding number of Shares held through
the Euroclear System for the benefit of the CREST Depository.
(b) Cancellation of CDIs for underlying Belgian Law Rights or for underlying Shares
Following the Migration, if a UK Shareholder holding CDIs
effects the cancellation of those CDIs in the CREST System and
receives the underlying Shares (held as Belgian Law Rights as
described in section 5 of Part 6 of this Circular): (i) the UK
Shareholder is not expected to be liable to United Kingdom capital
gains tax or corporation tax on chargeable gains as a result of the
cancellation; (ii) the base cost in the Shares is expected to be
the same as the base cost in the CDIs; and (iii) no United Kingdom
stamp duty or SDRT is expected to be required to be paid as a
result of the cancellation.
HMRC guidance suggests that the cancellation of the CDIs
involves a disposal of them for the purposes of United Kingdom
capital gains tax or corporation tax on chargeable gains and that
the usual computational rules will apply; but as it is not expected
that any consideration (beyond the receipt of the Shares
themselves) would be received by a UK Shareholder for the disposal
of the CDIs, no chargeable gain should arise.
If a UK Shareholder holding Belgian Law Rights in respect of
Shares subsequently takes steps (whether immediately after the
cancellation of that UK Shareholder's CDIs or at a later time) to
become registered directly as the holder of the Shares (again as
described in section 5 of Part 6 of this Circular) those steps are
not expected to give rise to any further UK tax consequences for a
UK Shareholder.
(c) Taxation of Capital Gains
A disposal or deemed disposal of Shares (including the CDIs and
Shares represented by them) by a UK Shareholder may, subject to the
UK Shareholders' particular circumstances and subject to any
available exemption or relief, give rise to a chargeable gain (or
allowable loss) for the purposes of UK taxation of chargeable
gains.
Individuals who are temporarily non-resident in the UK may, in
certain circumstances, be subject to capital gains tax in respect
of gains realised on a disposal of Shares during their period of
non-residence.
A Shareholder who is not resident for tax purposes in the United
Kingdom will not generally be liable to UK taxation on chargeable
gains on a disposal or deemed disposal of Shares (including the
CDIs and Shares represented by them) unless they are carrying on a
trade, profession or vocation in the United Kingdom through a
branch or agency (or, in the case of a corporate Shareholder
through a permanent establishment) in connection with which the
Shares (including the CDIs and Shares represented by them) are
used, held or acquired.
Individuals
For UK Shareholders who are individuals and subject to capital
gains tax, an annual exemption is available such that capital gains
tax is chargeable only on gains arising from all sources during the
tax year in excess of this figure. The annual exemption is
GBP12,300 for individuals for the tax year 2020-2021. Capital gains
tax chargeable will be at the rate of 10% (for basic rate
taxpayers) and 20% (for higher and additional rate taxpayers)
during the tax year 2020-2021.
Corporate Shareholders
Shareholders within the charge to UK corporation tax on
chargeable gains will be subject to UK corporation tax (currently
at 19% for companies paying the main rate of UK corporation tax)
but reliefs may be available to reduce the amount of chargeable
gain realised on a disposal of Shares (including CDIs and Shares
represented by them).
(d) Taxation of Dividends
Individuals
As of 6 April 2020 an annual tax-free dividend allowance of
GBP2,000 is available for individuals. Dividend income in excess of
the dividend allowance will be taxed at 7.5% for an individual UK
Shareholder who is subject to income tax at the basic rate, 32.5%
for an individual UK Shareholder who is subject to income tax at
the higher rate and 38.1% for an individual UK Shareholder who is
subject to income tax at the additional rate.
Dividend income that is within the dividend allowance counts
towards an individual's basic or higher rate limits and will
therefore affect the rate of tax that is due on any dividend income
in excess of the annual dividend allowance. In calculating into
which tax band any dividend income over the GBP2,000 allowance
falls, savings and dividend income are treated as the highest part
of an individual's income. Where an individual has both savings and
dividend income, the dividend income is treated as the top
slice.
Corporate Shareholders
UK Shareholders who are within the charge to UK corporation tax
will be subject to UK corporation tax on dividends paid by BOCH,
unless (subject to special rules for such UK Shareholders that are
"small" companies) the dividends fall within an exempt class and
certain other conditions are met. The position of each UK
Shareholder will depend on its own individual circumstances,
although it would normally be expected that the dividends paid by
BOCH would fall within an exempt class. Shareholders are advised to
seek specific tax advice on this when completing UK corporation tax
returns.
(e) Stamp duty and stamp duty reserve tax
No UK stamp duty will be payable in respect of a paperless
transfer of Shares for which no written instrument of transfer is
used.
In practice, UK stamp duty should generally not need to be paid
on a written instrument of transfer of Shares, provided that such
instrument is executed and retained outside of the United Kingdom
and does not relate to any property situated in the UK or to any
other matter or thing done or to be done in the UK (which may
include, without limitation, the involvement of UK bank accounts in
payment mechanics).
No UK SDRT will arise in respect of any agreement to transfer
Shares provided that the Shares are not at any time registered in
any register of BOCH kept in the United Kingdom.
No UK stamp duty will arise on transfers of CDIs within the
CREST System, on the assumption that no written instrument of
transfer is used to effect such a transfer.
No UK SDRT will arise on transfers of CDIs within the CREST
System, provided that (i) the Shares represented by the CDIs are of
the same class as shares in the Company that are listed on a
'recognised stock exchange' for UK tax purposes, (ii) the Shares
are not at any time registered in a register that is kept in the
United Kingdom, and (iii) the Company (as a non-UK incorporated
company) remains centrally managed and controlled outside of the
United Kingdom. Shares that are included in the UK official list
and admitted to trading on the main market of the London Stock
Exchange are regarded as listed on a recognised stock exchange for
UK tax purposes.
3. US Tax Considerations
(a) General
The following is a discussion of the material U.S. federal
income tax consequences of the Migration to U.S. holders (as
defined below) of Participating Securities that receives CDIs
representing Shares in exchange for the Participating Securities as
well as at the subsequent ownership and the disposition of Shares
or CDIs representing Shares to U.S. holders (as defined below).
This discussion:
-- assumes you hold your Participating Securities, Shares or
CDIs representing Shares as capital assets within the meaning of
Section 1221 of the Internal Revenue Code of 1986, as amended (the
"Code") (that is, for investment purposes);
-- is based upon the Code, Treasury regulations promulgated under the Code ("Treasury Regulations"), judicial decisions and published administrative rulings, all as currently in effect and all of which are subject to change, possibly with retroactive effect(and no Internal Revenue Service (the "IRS") private letter ruling has been sought in respect of any U.S. federal tax consequences of the Migration);
-- does not address (A) U.S. federal taxes other than income
taxes, (B) the 3.8% Medicare tax, (C) state, local or non-U.S.
taxes or (D) tax reporting requirements, in each case, as
applicable to the Migration ; and
-- does not address U.S. federal income tax considerations
applicable to U.S. holders that are subject to special treatment
under U.S. federal income tax law, including, for example,
financial institutions; pass-through entities (such as entities
treated as Partnerships for U.S. federal income tax purposes);
insurance companies; broker-dealers; tax-exempt organizations;
dealers in securities or currencies; traders in securities that
elect to use a mark to market method of accounting; persons that
hold Participating Securities, Shares or CDIs representing Shares
as Part of a straddle, hedge, constructive sale, conversion
transaction, or other integrated transaction for U.S. federal
income tax purposes; regulated investment companies; certain U.S.
expatriates; U.S. holders whose "functional currency" is not the
U.S. dollar; persons who are subject to the alternative minimum
tax; or persons who acquired their Participating Securities, Shares
or CDIs representing Shares through the exercise of an employee
stock option or otherwise as compensation.
This discussion is not binding on the IRS, and the IRS is not
precluded from taking a position that is different from, and
contrary to, the positions taken in this discussion.
For purposes of this discussion, you are a "U.S. holder" if you
beneficially own Participating Securities, Shares or CDIs
representing Shares and you are:
-- an individual who is a citizen or resident of the United
States for U.S. federal income tax purposes;
-- a corporation (or other entity taxable as a corporation for
U.S. federal income tax purposes) created or organised in or under
the laws of the United States or any political subdivision
thereof;
-- an estate the income of which is subject to U.S. federal
income taxation regardless of its source; or
-- a trust that (A) is subject to the supervision of a court
within the United States and the control of one or more U.S.
persons or (B) has a valid election in place under the Treasury
Regulations to be treated as a U.S. person.
If a Partnership (or other entity or arrangement treated as a
Partnership for U.S. federal income tax purposes) holds
Participating Securities, Shares or CDIs representing Shares, then
the tax treatment of a Partner in the Partnership generally will
depend on the status of the Partner and the activities of the
Partnership. Any Partnership or other entity or arrangement treated
as a Partnership for U.S. federal income tax purposes that holds
Participating Securities, Shares or CDIs representing Shares and
the Partners in such Partnership (as determined for U.S. federal
income tax purposes), should consult their own tax advisors.
You should consult your own tax advisors regarding the specific
tax consequences to you of the Migration as well as the subsequent
ownership and disposition of Shares or CDIs representing Shares,
including the applicability and effect of U.S. federal, state,
local and non-U.S. income and other tax laws, and potential changes
in applicable tax laws, in light of your particular
circumstances.
(b) Tax Status of BOCH for U.S. Tax Purposes
Based on a review of its method of operation, its organisational
structure, and its available information about its shareholder
basis and after obtaining legal advice regarding the requirements
for qualification, BOCH believes that it has not been a "controlled
foreign corporation" (or "CFC") or "passive foreign investment
corporation" (or "PFIC") for U.S. federal income tax purposes. In
addition, based on BOCH's current expectations regarding the value
and nature of its assets, and the sources and nature of its income,
BOCH does not anticipate becoming a PFIC for its 2021 taxable year.
A "CFC" is any non-U.S. corporation if it has one or more "10% U.S.
shareholders" and those "10% U.S. shareholders" own, directly,
indirectly or constructively, in the aggregate more than 50% (by
vote or value) of the shares of such non-U.S. corporation. For this
purpose, a "10% U.S. shareholder" is defined as a U.S. person who
owns, directly, indirectly, or constructively, 10% (by vote or
value) of the shares of such non--U.S. corporation. A PFIC is any
non-U.S. corporation if either 75% of its gross income is passive
income (e.g. interest, dividends, gains from the sale of bonds and
shares, currency gains, and similar types of income) or at least
50% of its assets (determined on the basis of an average) are
assets that produce, or are held for the production of, passive
income.
As noted above, the determination of BOCH's CFC status depends
on the composition of its direct and indirect Shareholders who are
U.S. persons for U.S. federal income tax purposes. Because of the
limitations of the shareholder disclosure regimes and the public
trading of the Shares, BOCH's information about its shareholder
basis is limited, and, as a result, there can be no assurance that
BOCH has not been a CFC.
In addition, BOC's PFIC status depends on the application of the
25% look through rule (i.e. BOCH may, for purposes of the PFIC
asset and income tests, look through subsidiaries if it owns at
least 25% (by value) of the shares of such subsidiary) and the
so-called banking exception which exempts certain non-U.S. banking
operations from the application of the PFIC rules if certain
requirements (such as banking license, substantial deposit taking,
lending activities, etc.) are met. The scope and the details of
that PFIC banking exception are not always clear due to a lack of
guidance. Accordingly, there can be no assurance that BOCH has not
been, or will not be, a PFIC.
For purposes of the following discussion, it is assumed that
BOCH has not been, and will not be, a CFC or a PFIC at any
time.
(c) Tax Treatment of the Migration
Holders of Participating Securities will generally be treated
for U.S. federal income tax purposes as holding the underlying
Shares represented by such Participating Securities. In addition,
holders of CDIs representing Shares will generally be treated for
U.S. federal income tax purposes as holding the underlying Shares
represented by such CDIs. Accordingly, you will not recognise any
gain or loss on the exchange of Participating Securities for CDIs
representing Shares in connection with the Migration. The tax basis
and holding period in your CDIs representing Shares will be the
same as the tax basis and holding period of Participating
Securities exchanged therefor.
As noted above, holders of CDIs representing Shares will
generally be treated for U.S. federal income tax purposes as
holding the underlying Shares represented by such CDIs. No gain or
loss will generally be recognised on an exchange of Participating
Securities for CDIs representing Shares or an exchange of CDIs
representing Shares for Shares. Upon an exchange of CDIs
representing Shares for Shares, the tax basis and holding period of
Shares would be the same as the tax basis and holding period of
such CDIs.
(d) Treatment of Dividends on Shares
Dividends on Shares or on CDIs representing Shares that you will
receive in connection with the Migration will be ordinary income
unless such dividends qualify for treatment as "qualified dividend
income". Such dividends will be qualified dividend income only if
certain holding requirements are met and if BOCH is a qualified
non-U.S. corporation. BOCH is a qualified non-U.S. corporation only
if (i) it is neither a PFIC nor a "surrogate foreign corporation";
(ii) it is treated as resident in Cyprus for purposes of the income
tax treaty between the United States and Cyprus (the "US-Cyprus Tax
Treaty"); and (iii) it is entitled to the benefits of the US-Cyprus
Tax Treaty. A corporation will be treated as a resident of Cyprus
for purposes of the US-Cyprus Tax Treaty if it is a body corporate
for tax purposes under the laws of Cyprus, which is resident in
Cyprus for purposes of Cypriot tax. The US-Cyprus Tax Treaty sets
forth several alternative means by which a corporation can be
treated as being entitled to the benefits of the US-Cyprus Tax
Treaty. Under one such alternative, a corporation resident in
Cyprus will not be denied the benefits under the US-Cyprus Tax
Treaty if it is determined that the establishment, acquisition and
maintenance of such corporation and the conduct of its operations
did not have as a principal purpose obtaining benefits under the
US-Cyprus Tax Treaty. Given that (i) BOCH is not expected to be a
PFIC or a "surrogate foreign corporation"; (ii) BOCH is expected to
be a resident of Cyprus for purposes of the US-Cyprus Tax Treaty;
and (iii) BOCH is expected to be entitled to the benefits of the
US-Cyprus Tax Treaty, it is expected that dividends on Shares will
qualify as "qualified dividend income". Accordingly, if you are a
non-corporate U.S. holder (including an individual), then it is
expected that you will be entitled to the long-term capital gains
tax rate that is applicable to such "qualified dividend income" if
you otherwise satisfy the holding period requirements.
Dividends paid in a currency other than U.S. dollars will be
includable in your income as a U.S. dollar amount based on the
exchange rate in effect on the date such dividend is received
whether or not the currency is converted into U.S. dollars at that
time. If the dividend is converted to U.S. dollars on the date of
receipt, you generally will not recognise a foreign currency gain
or loss. However, if you convert the currency into U.S. dollars on
a later date, you must include in income any gain or loss resulting
from any exchange rate fluctuations during the period from the date
you included the dividend in income to the date such holder
converts the currency into U.S. dollars (or otherwise disposes of
the currency). Generally, any gain or loss resulting from currency
exchange rate fluctuations will be ordinary income or loss and will
be treated as being from sources within the United States for
foreign tax credit limitation purposes. You should consult your tax
advisors regarding the tax consequences to you if BOCH pays
dividends in a non-U.S. currency.
(e) Sale, Exchange, Redemption or Other Disposition of Shares or CDIs Representing Shares
If you sell, exchange, redeem or otherwise dispose of your
Shares or CDIs representing Shares in a taxable transaction, then
you will recognise gain or loss in an amount equal to the
difference, if any, between the amount realised from such sale or
other disposition and your tax basis in those Shares or CDIs
representing Shares. Such gain or loss will generally be capital
gain or loss, and will be long-term capital gain or loss if you
have held your Shares or CDIs representing Shares for a period
exceeding one year at the time of the disposition (your holding
period will include your holding period in the Participating
Securities surrendered in the Migration). The deductibility of
capital losses is subject to limitations. Any gain or loss
recognised by you will be treated as U.S. source gain or loss.
If you receive currency other than U.S. dollars upon the sale or
other disposition of your Shares or CDIs representing Shares, you
will realise an amount equal to the U.S. dollar value of the
foreign currency at the spot rate on the date of sale or other
disposition. You will have a tax basis in the foreign currency
received equal to the U.S. dollar amount realised. Generally, any
gain or loss realised by you on a subsequent conversion or
disposition of such foreign currency will be U.S. source ordinary
income or loss.
(f) Required Disclosure with Respect to Foreign Financial Assets
Certain U.S. holders are required to report information relating
to an interest in BOCH, subject to certain exceptions, by attaching
a completed IRS Form 8938 (Statement of Specified Foreign Financial
Assets) with their tax return for each year in which they hold an
interest in BOCH. You should consult your own tax advisors
regarding information reporting requirements relating to your
ownership of Shares.
4. Irish Tax Considerations
(a) Scope of Summary
The following is a general summary of the material Irish tax
considerations applicable to Shareholders who are the ultimate
owners of Migrating Shares for Irish tax purposes and references to
"Shareholders" in this summary should be read accordingly. The
summary contained in this Part 7 is based on existing Irish tax law
and our understanding of the practices of the Irish Revenue
Commissioners ("Irish Revenue") as of the Latest Practicable Date.
It is based on the recently introduced Finance Act 2020, parts of
which have not been commenced into law. Legislative, administrative
or judicial changes may modify the tax consequences described in
this Part 7, possibly with retroactive effect. Furthermore, we can
provide no assurances that the tax consequences contained in this
summary will not be challenged by the Irish Revenue or will be
sustained by an Irish court if they were to be challenged.
The following summary does not constitute tax advice and is
intended only as a general guide. The following summary is not
exhaustive and Shareholders should consult their own tax advisers
about the Irish tax consequences (and the tax consequences under
the laws of other relevant jurisdictions), which may arise as a
result of being Migrating Shareholders and the acquisition,
ownership and disposition of Shares in the future. Furthermore, the
following summary applies only to Shareholders who currently hold
their Shares as capital assets and does not apply to all categories
of Shareholders, such as dealers in securities, trustees, insurance
companies, collective investment schemes, pension funds or
shareholders who have, or who are deemed to have, acquired their
Shares by virtue of an office or employment and such persons may be
subject to special rules.
The Finance Act includes a number of amendments to Irish tax
legislation that seek to ensure that the migration of securities in
Irish registered companies from the CREST system to the Euroclear
System is tax neutral and to maintain the status quo
post-migration. The Finance Act has been subject to a number of
stages in the legislative process before it was signed into law in
December 2020 and the relevant provisions dealing with migration of
securities will only come into force when a ministerial
commencement order is made. The Irish Revenue have proposed
addressing some matters by way of published practice rather than by
statute, but this practice has not been published yet. It is
possible that further changes in law may be introduced and/or that
the law or practice of the Irish Revenue could change, either
prospectively or retroactively, and such change could increase,
reduce or mitigate possible tax consequences for Shareholders.
Also, the assumed practices may not be issued by the Irish Revenue.
The position under current Irish law is uncertain and the Company
makes no assurances on the tax position for Shareholders.
The following summary is drafted on the basis that the
amendments in the Finance Act 2020 dealing with the Migration are
commenced by way of ministerial order prior to any action or
transaction being undertaken in relation to the Migration.
(b) Irish Capital Gains Tax
Shareholders should not be liable to Irish capital gains tax
("CGT") as a result of the Migration on the basis that the
Migration should not be treated as giving rise to a disposal of
Shares for CGT purposes.
Shareholders who are not resident or ordinarily resident in
Ireland for Irish tax purposes should not be liable to CGT to the
extent a gain is realised on a disposal of Shares (including CDIs)
(or an interest in Shares) unless such Shares (or interest in
Shares) are used, held or acquired for the purpose of a trade or
business carried on by such Shareholder in Ireland through a branch
or an agency.
Following the Migration, a disposal by an Irish resident or
ordinarily resident Shareholder of its Shares may, depending on the
circumstances (including the availability of exemptions and
reliefs), give rise to a chargeable gain or allowable loss for that
Shareholder. The rate of CGT is currently 33%.
(c) Irish Dividend Withholding Tax
Irish dividend withholding tax ("DWT") should not arise as a
result of the Migration.
Following the Migration, the Company will remain resident for
tax purposes in Cyprus and as such no Irish DWT should apply to
dividends paid by the Company.
(d) Income Tax on Dividends Paid
Irish income tax may arise for certain Shareholders in respect
of any dividends received from the Company.
Irish Resident Shareholders
Companies resident in Ireland may be subject to corporation tax
on distributions received on the Shares.
Individual Shareholders who are resident or ordinarily resident
in Ireland are subject to income tax on the gross dividend at their
marginal tax rate, but should be entitled to a credit for any tax
withheld by the Company. The dividend may also be subject to the
universal social charge and Irish social security taxes.
(e) Capital Acquisitions Tax
Irish capital acquisitions tax ("CAT") should not arise simply
by virtue of the Migration.
Following the Migration, a gift or inheritance of Shares
(including CDIs) (or an interest in Shares) may be within the
charge to CAT notwithstanding that the donor or the donee/successor
in relation to such gift or inheritance is domiciled and resident
outside Ireland. CAT is charged at a rate of 33% above a tax-free
threshold. This tax-free threshold is determined by the amount of
the current benefit and of previous benefits taken since 5 December
1991, as relevant, within the charge to CAT and the relationship
between the donor and the done/successor. Gifts and inheritances
between spouses (and in certain cases former spouses) are not
subject to CAT.
In a case where an inheritance or gift of Shares is subject to
both Irish CAT and foreign tax of a similar character, the foreign
tax paid may in certain circumstances be credited in whole or in
part against the Irish tax. Shareholders should consult their own
tax advisers as to whether CAT is creditable or deductible in
computing any domestic tax liabilities.
(f) Irish Stamp Duty
The Finance Act contains a provision to the effect that stamp
duty shall not be chargeable on the migration of securities under
the Migration of Participating Securities Act 2019.
It is understood that this provision is based on the
understanding that the mere act of migration itself does not give
rise to a stamp duty charge. Accordingly, where a shareholder also
effects a change in beneficial ownership or similar change, in
addition to the effects of the Migration, any such additional
effect may bring the transaction within the charge to stamp
duty.
Following the Migration, transfers of equitable or beneficial
interests in Shares (or an interest in Shares), including a
transfer of CDIs within the CREST system, and transfers of an
interest in Shares or such CDIs effected by a transfer order
relating to a single netted settlement of two or more contracts for
the transfer of interests in Shares, may be subject to stamp duty
for at a rate of 1% of the consideration or the market value of the
Shares, if greater. The person accountable for payment of stamp
duty is the transferee or, in the case of a transfer by way of a
gift or for a consideration less than the market value, all parties
to the transfer. The methods for collection of stamp duty remain to
be clarified by the Irish Revenue.
THE IRISH TAX CONSIDERATIONS SUMMARISED ABOVE ARE FOR GENERAL
INFORMATION ONLY. EACH SHAREHOLDER SHOULD CONSULT HIS OR HER OWN
TAX ADVISER AS TO THE PARTICULAR TAX CONSEQUENCES THAT MAY APPLY TO
SUCH SHAREHOLDER.
5. Belgian Tax Considerations
(a) Scope of Summary
The following is a general summary of the material Belgian tax
considerations applicable to Shareholders who are the beneficial
owners of Migrating Shares, who have neither lent nor borrowed
their shares and who are (i) Belgian resident individuals or
companies ("Belgian Resident Shareholders") or (ii) Belgian
non-resident individuals or companies ("Belgian Non-Resident
Shareholders"). It has been assumed that Belgian Non-Resident
Shareholders are Shareholders that have no connection with Belgium
other than the mere fact that their Shares (including Shares
represented by CDIs) are held through the Euroclear System. The
summary is based on our understanding of existing Belgian tax laws,
treaties and regulatory interpretations by the Belgian Tax
Authorities in effect in Belgium as of 3 January 2021. Legislative,
administrative or judicial changes may modify the tax consequences
described in the paragraphs below, possibly with retroactive
effect. Furthermore, we can provide no assurances that the tax
consequences contained in this summary will not be challenged by
the Belgian Tax Authorities or will be sustained by a Belgian court
if they were to be so challenged, unless a specific tax ruling were
to be obtained beforehand from the Belgian Ruling Commission. The
below summary does not constitute tax advice and is intended only
as a general guide. The following summary is not exhaustive and
does not purport to address all tax consequences of the ownership
and disposal of Shares, nor does it take into account (i) the
specific circumstances of Particular Shareholders, some of which
may be subject to special rules, or (ii) the tax laws of any
country other than Belgium. This summary does not describe the tax
treatment of Shareholders that may be subject to special rules,
such as banks, insurance companies, pension funds, trustees,
collective investment undertakings, dealers in securities or
currencies, persons that hold, or will hold, Migrating Shares as a
position in a straddle, share-repurchase transaction, conversion
transaction, synthetic security or other integrated financial
transactions. This summary does not address the local taxes
applicable to Belgian resident individuals.
For purposes of this summary, a Belgian resident individual is
an individual subject to Belgian personal income tax (i.e. an
individual domiciled in Belgium or having his seat of fortune in
Belgium or a person assimilated to a resident for purposes of
Belgian tax law). A Belgian resident company is a company subject
to the ordinary Belgian corporate income tax (i.e. a corporate
entity that has its main establishment, its administrative seat or
seat of management in Belgium and that is not excluded from the
scope of the Belgian corporate income tax). The fact that a company
has its statutory seat in Belgium leads to a rebuttable presumption
that its main establishment, its administrative seat or seat of
management is located in Belgium. A Belgian non-resident is an
individual or company that is not a Belgian resident. As mentioned
above, it has been assumed that Belgian Non-Resident Shareholders
are Shareholders that have no connection with Belgium other than
the mere fact that their Shares (including Shares represented by
CDIs) are held through the Euroclear System.
In addition to the assumptions mentioned above, it is also
assumed in this Circular that for purposes of Belgian tax law, the
beneficial owners of CDIs will be treated as the beneficial owners
of the Shares represented by such CDIs. However, the assumption has
not been confirmed by or verified with the Belgian Tax
Authorities.
Shareholders should consult their own tax advisors about the
Belgian tax consequences which may arise as a result of being
Migrating Shareholders and the acquisition, ownership and disposal
of Migrating Shares in the future (including the effect of any
regional or local laws).
(b) Migration
Belgian Resident and Non-Resident Shareholders are not expected
to be subject to Belgian income tax on capital gains as a
consequence of the Migration on the basis that the Migration should
normally not give rise (or should not be treated as giving rise) to
a definitive disposal of the Shares.
(c) Dividends
For Belgian income tax purposes, the gross amount of all
benefits paid on or attributed to Shares (including Shares
represented by CDIs) is expected to be treated as a dividend
distribution. By way of exception, the repayment of capital may not
be treated as a dividend distribution to the extent that such
repayment is imputed to the fiscal capital. Note that any reduction
of fiscal capital is deemed to be paid out on a pro rata basis of
the fiscal capital and certain reserves. The part of the capital
reduction deemed to be paid out of the fiscal capital may, subject
to certain conditions, for Belgian income tax purposes, be
considered as a reimbursement of capital and not be considered as a
dividend distribution.
Non-Belgian dividend withholding tax, if any, will neither be
creditable against any Belgian income tax due nor reimbursable to
the extent that it exceeds Belgian income tax due.
Belgian Resident Shareholders
Individuals
Dividends distributed to Belgian Resident Shareholders holding
the Shares (including Shares represented by CDIs) in the framework
of the normal management of their private estate, are in principle
expected to be subject to Belgian withholding tax of 30% if an
intermediary established in Belgium was in any way involved in the
processing of the payment of the dividends. The Belgian withholding
tax of 30% fully discharges their personal income tax
liability.
The intermediary established in Belgium, as referred to in the
above paragraph, will not qualify as the debtor of the Belgian
withholding tax and hence should not withhold the Belgian
withholding tax if (a) it is proven to him that another
intermediary has withheld the withholding tax, (b) he can
demonstrate that the dividends have been paid to an in Belgium
established credit institution, stock market company or recognised
clearing or settlement institution which has explicitly,
unequivocally and verifiably accepted to comply with the
obligations "as intermediary" in respect of withholding tax, or (c)
the intermediary qualifies as an in Belgium established credit
institution, stock market company or recognised clearing or
settlement institution which has paid the dividends to (i) credit
institutions established abroad, (ii) financial intermediaries,
established abroad, as defined in Article 2, 9deg of the Act of 2
August 2002, (iii) clearing institutions and settlement
institutions, established abroad, as defined in Article 2, 16deg
and 17deg, respectively, of the Act of 2 August 2002, and (iv)
undertakings, established abroad, whose principal activity is the
management of assets, the provision of advice in connection with
the management of assets or the custody and management of financial
instruments as well as undertakings, established abroad, which are
authorised to carry on one of those activities under the law to
which they are subject to (together (i) to (iv), the " Specific
Foreign Intermediaries ").
Belgian individuals may nevertheless opt to report the dividends
in their personal income tax return or may even need to report them
if (i) an intermediary established in Belgium was involved in the
processing of the payment of the dividends but such intermediary
did not withhold the Belgian dividend withholding tax due, or (ii)
no intermediary established in Belgium was in any way involved in
the processing of the payment of the non-Belgian sourced
dividends.
Belgian resident individuals who report the dividends in their
personal income tax return will normally be taxable at the lower of
the generally applicable 30% Belgian withholding tax rate on
dividends or at the progressive personal income tax rates
applicable to their overall declared income. In addition, if the
dividends are reported, the Belgian dividend withholding tax may be
credited against the personal income tax due and is reimbursable to
the extent that it exceeds the personal income tax due provided
that the dividend distribution does not result in a reduction in
value of or a capital loss on the Shares (including Shares
represented by CDIs) of the Company. The latter condition is not
applicable if the individual can demonstrate that he/she has held
the Shares (including Shares represented by CDIs) in full legal
ownership for an uninterrupted period of twelve (12) months prior
to the payment or attribution of the dividends. An exemption from
personal income tax could in principle be claimed by Belgian
resident individuals in their personal income tax return for a
first tranche of dividend income up to the amount of EUR 800 (for
income year 2021), subject to certain formalities. All reported
dividends are taken into account to assess whether said maximum
amount is reached.
For Belgian Resident Shareholders holding Shares (including
Shares represented by CDIs) for professional purposes, the Belgian
withholding tax will not fully discharge their Belgian income tax
liability. Dividends received should be reported by the Shareholder
and will, in such a case, be taxable as professional income at the
Shareholder's personal income tax rate increased with local
surcharges. Belgian withholding tax levied could then be credited
against the personal income tax due and would be reimbursable to
the extent that it exceeds the income tax due, subject to two
conditions: (i) the taxpayer must own the Shares (including Shares
represented by CDIs) in full legal ownership on the day the
beneficiary of the dividend is identified and (ii) the dividend
distribution may not result in a reduction in value of or a capital
loss on Shares (including Shares represented by CDIs). The latter
condition is not applicable if the Shareholder can demonstrate that
he has held the full legal ownership of Shares (including Shares
represented by CDIs) for an uninterrupted period of twelve (12)
months immediately prior to the payment or attribution of the
dividends.
Companies
Dividends distributed by the Company to Belgian Resident
Shareholders are in principle expected to be subject to Belgian
withholding tax of 30% if an intermediary established in Belgium
was in any way involved in the processing of the payment of the
dividends.
The intermediary established in Belgium, as referred to in the
above paragraph, will not qualify as the debtor of the Belgian
withholding tax and hence should not withhold the Belgian
withholding tax if (a) it is proven to him that another
intermediary has withheld the withholding tax, or (b) he can
demonstrate that the dividends have been paid to an in Belgium
established credit institution, stock market company or recognised
clearing or settlement institution which has explicitly,
unequivocally and verifiably accepted to comply with the
obligations "as intermediary" in respect of withholding tax; or (c)
the intermediary qualifies as an in Belgium established credit
institution, stock market company or recognised clearing or
settlement institution which has paid the dividends to Specific
Foreign Intermediaries.
For Belgian Resident Shareholders, the dividend income (after
deduction of any non-Belgian withholding tax but including any
Belgian withholding tax) must be declared in the corporate income
tax return and will be subject to the standard corporate income tax
rate of 25% (for financial years starting on or after 1 January
2020). Subject to certain conditions, a reduced corporate income
tax rate of 20% applies for financial years starting on or after 1
January 2020 (for so-called small and medium sized enterprises) on
the first EUR 100,000 of taxable profits. Belgian resident
companies may under certain conditions deduct 100% of the gross
dividend received from their taxable income (" Dividend Received
Deduction "). Such Shareholders should consult their own tax
advisor in this respect.
Belgian dividend withholding tax levied at source could be
credited against the Belgian corporate income tax due and would be
reimbursable to the extent it exceeds such corporate income tax,
subject to two conditions: (i) the taxpayer must own the Shares
(including Shares represented by CDIs) in full legal ownership on
the day the beneficiary of the dividend is identified and (ii) the
dividend distribution does not result in a reduction in value of or
a capital loss on the Shares (including Shares represented by
CDIs). The latter condition is expected not to be applicable: (i)
if the taxpayer can demonstrate that it has held the Shares
(including Shares represented by CDIs) in full legal ownership for
an uninterrupted period of twelve (12) months immediately prior to
the payment or attribution of the dividends or (ii) if, during that
period, the Shares (including Shares represented by CDIs) never
belonged in full legal ownership to a taxpayer other than a Belgian
resident company or a non-resident company that has, in an
uninterrupted manner, invested the Shares (including Shares
represented by CDIs) in a Belgian permanent establishment.
Dividends received by Belgian Resident Shareholders on the
Shares (including Shares represented by CDIs) are exempt from
Belgian withholding tax provided that the investor satisfies the
identification requirements in Article 117, --11 of the Royal
Decree implementing the Belgian Income Tax Code 1992.
Belgian Non-Resident Shareholders
Dividends distributed by the Company to Belgian Non-Resident
Shareholders are in principle expected to be subject to Belgian
withholding tax of 30% if an intermediary established in Belgium
was in any way involved in the processing of the payment of the
dividends.
The intermediary established in Belgium, as referred to in the
above paragraph, will not qualify as the debtor of the Belgian
withholding tax and hence should not withhold the Belgian
withholding tax if (a) it is proven to him that another
intermediary has withheld the withholding tax; (b) he can
demonstrate that the dividends have been paid to an in Belgium
established credit institution, stock market company or recognised
clearing or settlement institution which has explicitly,
unequivocally and verifiably accepted to comply with the
obligations "as intermediary" in respect of withholding tax; or (c)
the intermediary qualifies as an in Belgium established credit
institution, stock market company or recognised clearing or
settlement institution which has paid the dividends to Specific
Foreign Intermediaries.
Dividends paid by the Company through a Belgian credit
institution, stock market company or recognised clearing or
settlement institution to Belgian Non-Resident Shareholders should
be exempt from Belgian dividend withholding tax with respect to
dividends of which the debtor (i.e. the Company) is subject to the
Belgian non-resident income tax and has not allocated said income
to his Belgian establishment provided that the Belgian Non-Resident
Shareholders deliver an affidavit confirming that (i) they are
non-residents in the meaning of Article 227 of the Belgian Income
Tax Code, (ii) they have not allocated the Shares (including Shares
represented by CDIs) to business activities in Belgium, and (iii)
they are the full owners or usufructors of the Shares (including
Shares represented by CDIs).
No Belgian dividend withholding tax should be due with respect
to dividends, as referred to in the above paragraph, paid by an in
Belgium established credit institution, stock market company or
recognised clearing or settlement institution to intermediaries
other than Specific Foreign Intermediaries provided that such other
intermediaries deliver an affidavit confirming that the
beneficiaries of the dividends (i) are non-residents in the sense
of Article 227 of the Belgian Income Tax Code, (ii) have not
allocated the Shares (including Shares represented by CDIs) to
business activities in Belgium, and (iii) are the full owners or
usufructors of the Shares (including Shares represented by
CDIs).
If Shares (including Shares represented by CDIs) are acquired
and held by a Belgian Non-Resident Shareholder in connection with a
business in Belgium, the Shareholder must report the dividends
received and such dividends will then be taxable at the applicable
Belgian non-resident individual or corporate income tax rate, as
appropriate. Any Belgian withholding tax levied at source may be
credited against the Belgian non-resident individual or corporate
income tax and is reimbursable to the extent it exceeds the income
tax due, subject to two conditions: (i) the taxpayer must own the
Shares (including Shares represented by CDIs) in full legal
ownership on the day the beneficiary of the dividends is identified
and (ii) the dividend distribution does not result in a reduction
in value of or a capital loss on the Shares (including Shares
represented by CDIs). The latter condition is not applicable if (i)
the non-resident Shareholder can demonstrate that the Shares
(including Shares represented by CDIs) were held in full legal
ownership for an uninterrupted period of twelve (12) months
immediately prior to the payment or attribution of the dividends or
(ii) with regard to non-resident companies only, if, during the
said period, the Shares (including Shares represented by CDIs) have
not belonged in full legal ownership to a taxpayer other than a
resident company or a non-resident company which has, in an
uninterrupted manner, invested the Shares (including Shares
represented by CDIs) in a Belgian permanent establishment.
Dividends paid or attributed to Belgian non-resident individuals
who do not use the Shares (including Shares represented by CDIs) in
the exercise of a professional activity, may be exempt from Belgian
non-resident individual income tax up to the amount of EUR 800 (for
income year 2021). Consequently, if Belgian withholding tax has
been levied on dividends paid or attributed to the Shares
(including Shares represented by CDIs), such Belgian non-resident
individual may request in his or her Belgian non-resident income
tax return that any Belgian withholding tax levied on dividends up
to the amount of EUR 800 (for income year 2021) be credited and, as
the case may be, reimbursed. However, if no such Belgian income tax
return has to be filed by the Belgian non-resident individual
Shareholder, Belgian withholding tax levied on such an amount could
in principle be reclaimed by filing a request thereto addressed to
the tax official to be appointed in a Royal Decree, subject to
formalities.
(d) Capital Gains
Belgian Resident Shareholders
Individuals
Belgian Resident Shareholders holding Shares (including Shares
represented by CDIs) in the Company would as a matter of principle
not be subject to Belgian income tax on capital gains realised upon
the disposal of the Shares provided that such capital gains are
realised within the scope of normal management of the individual's
private estate; capital losses would in such case not be tax
deductible. Capital gains realised by a private individual may
however be considered as miscellaneous income taxable at 33% (plus
local surcharges) if the capital gains are realised outside the
scope of normal management of the individual's private estate.
Capital losses would in such case not be tax deductible.
Belgian Resident Shareholders holding Shares (including Shares
represented by CDIs) for professional purposes may be taxable at
the ordinary progressive personal income tax rates (plus local
surcharges) on capital gains realised upon the disposal of the
Shares (including Shares represented by CDIs) or at a separate rate
of 10% (plus local surcharges) (in the framework of cessation of
activities under certain circumstances) or 16.5% (plus local
surcharges) (for Shares held for more than five (5) years or in the
framework of cessation of activities under certain circumstances).
Capital losses on the Shares (including Shares represented by CDIs)
incurred by Belgian resident individuals holding the Shares for
professional purposes may be tax deductible. Capital gains realised
by Belgian resident individuals upon the redemption of Shares
(including Shares represented by CDIs) of the Company or upon the
liquidation of the Company would be taxable as a dividend (see
above).
Companies
Following the Migration, a disposal by a Belgian Resident
Shareholder of its Shares (including Shares represented by CDIs)
may be exempt from Belgian corporate income tax provided that any
potential income distributed in respect of the Shares (or interest
in Shares) would be deductible pursuant to the conditions for the
application of the Dividend Received Deduction regime. Application
of the Dividend Received Deduction regime depends, however, on a
factual analysis to be made upon each distribution and its
availability should be verified upon each distribution.
Shareholders should consult their own tax advisor in this respect.
If one or more of these conditions for the application of the
Dividend Received Deduction regime are not met, then any capital
gain realised on Shares (including Shares represented by CDIs) will
be taxable at the standard corporate income tax rate of 25%, unless
the reduced corporate income tax rate of 20% applies. Capital
losses on the Shares incurred by Belgian resident companies are as
a general rule not tax deductible.
Capital gains realised by Belgian resident companies upon
redemption of the Shares (including Shares represented by CDIs) or
upon liquidation of the Company would in principle be subject to
the same taxation regime as dividends (see above).
Belgian Non-Resident Shareholders
Belgian Non-Resident Shareholders should in principle not be
subject to Belgian income tax on capital gains realised on Shares
(including Shares represented by CDIs) unless the Shares (including
Shares represented by CDIs) are held as part of a business in
Belgium through a fixed base in Belgium or a Belgian permanent
establishment. In such case, the same principles apply as described
above with regard to Belgian Resident Shareholders - Individuals
(holding the Shares for professional purposes) or Belgian Resident
Shareholders - Companies.
Shareholders who (i) are not Belgian Resident Shareholders -
Individuals, (ii) do not use the Shares (including Shares
represented by CDIs) for professional purposes and (iii) have their
fiscal residence in a country with which Belgium has not concluded
a tax treaty or with which Belgium has concluded a tax treaty that
confers the authority to tax capital gains on the Shares to
Belgium, could be subject to tax in Belgium if the capital gains
are obtained or received in Belgium and arise from transactions
that are considered as speculative or as being outside the scope of
normal management of the individual's private estate. In such a
case the gain is subject to a final professional withholding tax of
30.28% (to the extent that Articles 90.1 and 248 of the Belgian
Income Tax Code 1992 are applicable). Belgium has however concluded
tax treaties with more than ninety--five (95) countries which would
generally provide for a full exemption from Belgian capital gains
taxation on such gains realised by residents of those countries.
Capital losses are generally not deductible in Belgium.
(e) Tax on stock exchange transactions
The purchase and the sale and any other acquisition or transfer
for consideration of existing Shares (including Shares represented
by CDIs) (secondary market transactions) in Belgium through a
professional intermediary is expected to be subject to the tax on
stock exchange transactions ( taks op de beursverrichtingen / taxe
sur les opérations de bourse ) if it is (i) entered into or carried
out in Belgium through a professional intermediary, i.e. credit
institutions, stock market companies, trade platforms and any other
intermediary that habitually acts as an intermediary in securities
transactions, or (ii) deemed to be entered into or carried out in
Belgium, which is the case if the order is directly or indirectly
made to a professional intermediary established outside of Belgium,
either by private individuals with habitual residence in Belgium,
or legal entities for the account of their seat of establishment in
Belgium (both referred to as "Belgian Investor").
The tax on stock exchange transactions is not due upon the
issuance of Shares (primary market transactions). The tax on stock
exchange transactions is expected to be levied at a rate of 0.35%
of the purchase price, capped at EUR 1,600 per transaction and per
party. Such tax is separately due by each party to the transaction,
and each of those is collected by the professional intermediary.
However, if the transaction is in scope of the tax and the order
is, directly or indirectly, made to a professional intermediary
established outside of Belgium, the tax is then in principle due by
the Belgian Investor, unless that Belgian Investor could
demonstrate that the tax has already been paid. In the latter case,
the foreign professional intermediary would also need to provide
each client (which gives such intermediary an order) with a
qualifying order statement ( bordereau / borderel ), at the latest
on the business day after the day the transaction concerned was
realised. Alternatively, professional intermediaries established
outside of Belgium could appoint a stock exchange tax
representative in Belgium, subject to certain conditions and
formalities (" Stock Exchange Tax Repr esentative " ). Such Stock
Exchange Tax Representative will then be liable towards the Belgian
Treasury in respect of the transactions executed through the
professional intermediary and for complying with the reporting
obligations and the obligations relating to the order statement in
that respect. If such a Stock Exchange Tax Representative has paid
the tax on stock exchange transactions due, the Belgian Investor
will, as per the above, no longer be the debtor of the tax on stock
exchange transactions . No tax on stock exchange transactions
should be due on transactions entered into by the following
parties, provided they are acting for their own account: (i)
professional intermediaries described in Article 2, 9deg and 10deg
of the Act of 2 August 2002 on the supervision of the financial
sector and financial services; (ii) insurance companies described
in Article 2, -- 1 of the Belgian Act of 9 July, 1975 on the
supervision of insurance companies; (iii) pension institutions
referred to in Article 2,1deg of the Belgian Act of 27 October 2006
concerning the supervision of pension institutions; (iv) collective
investment institutions; (v) regulated real estate companies; and
(vi) Belgian Non--Resident Shareholders provided they deliver a
certificate to their financial intermediary in Belgium confirming
their non-resident status.
On 14 February 2013 the EU Commission adopted the Draft
Directive on a Financial Transaction Tax (" FTT "). The Draft
Directive currently stipulates that once the FTT enters into
effect, the participating Member States shall not maintain or
introduce any taxes on financial transactions other than the FTT
(or VAT as provided in the Council Directive 2006/112/EC of 28
November 2006 on the common system of value added tax). For
Belgium, the tax on stock exchange transactions should thus be
abolished once the FTT enters into effect. The Draft Directive is
still subject to negotiation between the participating Member
States and may, therefore, never be passed into law and may be
further amended at any time.
Tax on securities accounts
On 4 November 2020, the Belgian tax authorities published a
notice in the Belgian State Gazette indicating that the Council of
Ministers has approved on 2 November 2020 a preliminary draft law
("Draft Law") aimed at introducing (a renewed version of) an annual
tax on securities accounts ("Draft TSA"). The Draft Law has been
submitted for advice to the Belgian Council of State.
The Draft TSA would apply to securities accounts as such and
would therefore, in principle, cover all securities accounts held
by (i) individuals, including those subject to the Belgian
non-resident income tax, and (ii) legal persons subject to the
Belgian corporate income tax, the Belgian legal entity tax or
Belgian non-resident tax. It would entail an annual tax on the
holding of a securities account. The applicable tax base would be
the average value of qualifying financial instruments held on a
securities account provided said average value exceeds
EUR1,000,000. The applicable tax rate of the Draft TSA is 0.15%
and, where applicable, the amount of the tax shall be limited to 10
% of the difference between the tax base and EUR 1,000,000. The
Draft Law also contains a general anti-abuse provision, which would
retroactively apply as from 30 October 2020 preventing, inter alia,
(i) the splitting of a securities account where securities are
transferred to one or more accounts with the same financial
intermediary or to accounts with another financial intermediary
with the aim of avoiding that the total value of the securities in
one account exceeds EUR 1,000,000, (ii) the opening of securities
accounts where securities are spread between accounts with the same
financial intermediary or with another financial intermediary with
the aim of avoiding that the total value of the securities on one
account exceeds EUR 1,000,000, (iii) the conversion of registered
shares, bonds and other taxable financial instruments so that they
are no longer held in a securities account, with the aim of
escaping the tax, (iv) the placing of a securities account subject
to the tax in a foreign legal entity that transfers the securities
to a foreign securities account, with the intention of avoiding the
tax, and (v) placing a securities account subject to the tax in a
fund whose parts are placed in registered form, with a view to
avoiding the tax. In the above situations, there is a rebuttable
presumption of tax avoidance whereby the taxpayer can provide proof
to the contrary.
Please note that this tax is still subject to negotiation and
the aforementioned principles could still change. Hence,
Shareholders are strongly advised to seek their own professional
advice in relation to this potential new version of the tax on
securities accounts.
EACH SHAREHOLDER SHOULD CONSULT HIS OR HER OWN TAX ADVISER AS TO
THE PARTICULAR TAX CONSEQUENCES THAT MAY APPLY TO SUCH
SHAREHOLDER.
Part 8
Proposed Amendments To The Articles Of Association
This Part 8 contains a summary of the amendments to the Articles
of Association of the Company proposed to be made pursuant to
Resolution 2 and Resolutions 3(a) and 3(b) set out in the Notice of
EGM. As explained in further detail in paragraph 4 of Part 1 of
this Circular, because the amendments to the Articles of
Association proposed in Resolution 4 are not related to the
proposed amendments necessary to facilitate the Migration, they are
being proposed for approval by Shareholders as a separate special
resolution at the EGM. In addition, because Shareholders will have
the opportunity to approve or reject the amendments to the Articles
of Association proposed in Resolution 2, the additional amendments
to the Articles of Association required in order to facilitate the
Migration are being proposed by way of two alternate special
resolutions, Resolutions 3(a) and 3(b), each of which is
conditional on the outcome of Resolution 2.
The amendments to the Articles of Association proposed to be
made pursuant to Resolution 2 are summarised in Section A below.
The amendments to the Articles of Association proposed to be made
pursuant to Resolutions 3(a) and 3(b) are summarised in Section B
below.
Shareholders are advised that copies of the Articles of
Association, marked to shown the changes proposed to be made by
Resolutions 2, 3(a) and 3(b) will be made available for inspection
(and will be so available until the conclusion of the EGM) on the
Company's website (www.bankofcyprus.com), at its registered office
and at the offices of 51 Stassinos Street, Ayia Paraskevi, 2002
Strovolos, Nicosia, Cyprus and will also be available at the EGM
for at least fifteen minutes before, and for the duration of, the
EGM. In accordance with applicable regulations and public health
guidelines in force in Ireland and Cyprus in connection with
Coronavirus (COVID--19), we request Shareholders not to attend at
the Company's offices but instead to inspect the Articles of
Association on the Company's website.
Section A
Proposed Amendments to the Articles of Association Pursuant to
Resolution 2
Set out below is an explanation of the amendments to the
Articles of Association of the Company proposed to be made pursuant
to Resolution 2 set out in the Notice of EGM. Subject to the
approval of Resolution 2 by 75% or more of votes properly cast, in
person or by proxy at the EGM, the proposed changes will take
effect on and with effect from the passing of Resolution 2.
As noted in Part 1 of this Circular, because the Company will be
required to make a number of amendments to its Articles of
Association in order to facilitate the Migration, the Company has
taken the opportunity to propose a number of additional amendments
to the Articles of Association for consideration and, if thought
fit, approval by Shareholders at the EGM, in relation to the
recommendations of the EBA to amend the Articles of
Association.
In July 2020, the EBA recommended that certain provisions of the
Articles of Association relating to distributions made by the
Company in a form other than cash or own funds instruments be
amended. The EBA recommended that, in accordance with its
interpretation of Article 73 of the CRR set out in the EBA Report
On The Monitoring Of CET1 Instruments issued by EU Institutions -
Second Update dated 19 June 2020, the Articles of Association be
revised to provide that prior consent of the relevant Competent
Authority is required for distributions by the Company in a form
other than cash or own funds instruments and that such
distributions are subject to the conditions set out in Article
73(2) of the CRR.
These amendments aim to clarify the procedure that the EBA
recommended should be followed by the Company in respect of
distributions in a form other than cash or own funds
instruments.
Article Explanation for the amendments to the Articles of
Association
1 New definitions have been inserted in Article 1 for
the reason that these expressions are used elsewhere
in the amended Articles of Association.
---------------------------------------------------------------
111(a) Article 111(a) has been amended to take account of
and 112(b) the new Article 111(b). A new Article 111(b) has been
(Dividend inserted for the purpose of reflecting the EBA recommendation
in specie) that, in accordance with the EBA's interpretation
of Article 73 of the CRR, the prior consent of the
relevant Competent Authority is required for distributions
by the Company in a form other than cash or own funds
instruments and that such distributions are subject
to the conditions set out in Article 73(2) of the
CRR.
---------------------------------------------------------------
Section B
Proposed Amendments to the Articles of Association Pursuant to
Resolutions 3(a) and 3(b)
Set out below is an explanation of the amendments to the
Articles of Association of the Company proposed to be made pursuant
to Resolutions 3(a) and 3(b) set out in the Notice of EGM. Subject
to the approval of either Resolution 3(a) or Resolution 3(b) by 75%
or more of votes properly cast, in person or by proxy at the EGM,
the proposed changes will take effect on and with effect from the
passing of Resolution 3(a) or Resolution 3(b) (as applicable).
The majority of the proposed changes are necessary to enable the
Company to satisfy the eligibility requirements for Euroclear Bank
and must be in effect on and with effect from the Migration.
In addition, a number of additional changes to the Articles of
Association are being proposed in relation to Article 5 so as to
allow the directors to exercise their discretion so that the
ultimate owners of the Shares held by Euroclear Nominees can, in
certain circumstances, have the benefit of legal owners of certain
rights under the Companies Act which are expressed as member's
rights. In the absence of such rights being included in the
Articles of Association, continued exercise of these rights would
require that holders within the Euroclear System or CDI holders
withdraw some or all (depending on the right in question) of the
underlying Shares and hold them in certificated form at the
relevant time. These changes are not required in order to give
effect to the Migration.
Save for their treatment of the outcome of the vote on
Resolution 2, the amendments to the Articles of Association
proposed in Resolution 3(a) and Resolution 3(b) are identical. As
only one of Resolution 3(a) or 3(b) is capable of being approved at
the EGM (depending on the outcome of the vote on Resolution 2),
Shareholders are encouraged to vote in favour of both Resolution
3(a) and Resolution 3(b) at the EGM. Shareholders are encouraged to
review the proposed amendments to the Articles of Association in
their entirety which are available for inspection as set out in
section 7 of Part 1 of this Circular.
Article Explanation for the amendments to the Articles of
Association
1 New definitions have been inserted in Article 1 for
the reason that these expressions are used elsewhere
in the amended Articles of Association.
------------------------------------------------------------------
5(b), (f), A new Article 5(b) has been inserted in order to allow
(g) and the Board to deem the owner of a Share (where such
(h) Share is registered in the name of a nominee of a
CSD acting in its capacity as operator of a securities
settlement system), which is recorded in book-entry
form in a CSD, as being eligible to exercise all of
the rights conferred on a member with respect to that
Share by Articles 52, 54(a), 54(b), 56(b), 72 and
88 and sections 37(1), 105(8), 112(2), 146(6), 178(3),
180(1), 185(1), 1101 and 1104 of the Companies Act
provided that such owner has notified the Company
in writing that it is the owner of such Share and
that the notification is accompanied by such other
information and other evidence as the Directors may
reasonably require to confirm ownership of that Share.
The new Article 5(f) provides that where two or more
persons are the owner of a Share, the rights conferred
by this Article shall not be exercisable unless all
such persons have satisfied the requirements in subparagraph
5(b) above with respect to that Share.
The new Article 5(g) provides that in the case of
the death of an owner of a Share, the survivor or
survivors where the deceased was a joint owner of
the Share, and the personal representatives of the
deceased where he or she was a sole holder, shall
be the only persons recognised by the Company as the
persons entitled to exercise any rights conferred
by Article 5(b) in respect of that Share provided
that they or the deceased owner have satisfied the
requirements in Article 5(b) above with respect to
that Share.
The new Article 5(h) provides that any notice or other
information to be given, served or delivered by the
Company pursuant to Article 5 shall be in writing
(whether in electronic form or otherwise) and served
or delivered in any manner determined by the directors
(in their absolute discretion) in accordance with
the provisions of Article 124. The Company shall not
be obliged to give, serve or deliver any notice or
other information to any person pursuant to this Article
5 where the Company is not in possession of the information
necessary to for such information to be given, served
or delivered in the manner determined by the directors
in accordance with the preceding sentence.
These amendments are subject to the Migration becoming
effective, and the exercise of any rights thereunder
are subject to any restrictions which may be imposed
pursuant to the Articles of Association or otherwise.
------------------------------------------------------------------
5 (c) A new Article 5(c) has been inserted in order to provide
that the references to a member, a holder of a share
or a Shareholder in Articles 9(a), 54(b), 117, 124,
125 and 128 and sections 69(4)(b), 89(1), 111(2),
180, 228(3), 228(4), 251(2), 252(2), 338, 339(1)-(7),
374(3), 459, 460(4), 471(1), 1137(4), 1147 and 1159(4)
of the Companies Act may be deemed by the Board to
include a reference to an owner of a Share who has
satisfied the requirements in Article 5(b) above with
respect to that Share.
This amendment is subject to the Migration becoming
effective, and the exercise of any rights thereunder
are subject to any restrictions which may be imposed
pursuant to the Articles of Association or otherwise.
------------------------------------------------------------------
5(d) and A new Article 5(d) has been inserted in order to provide
(e) that all persons who the directors deem to be eligible
to receive notice of a meeting by virtue of new Article
5(b) at the date the notice was given, served or delivered,
may also be deemed eligible by the directors to attend
at the meeting in respect of which the notice has
been given, served or delivered and to speak at such
meeting, provided that such person remains an owner
of a Share at the relevant record date for such meeting.
The new Article 5(e) provides that neither the new
Article 5(d) above nor the reference to Article 72(a)
in the new Article 5(b), shall entitle the person
to vote at a meeting of the Company or exercise any
other right conferred by membership in relation to
meetings of the Company.
These amendments are subject to the Migration becoming
effective, and the exercise of any rights thereunder
are subject to any restrictions which may be imposed
pursuant to the Articles of Association or otherwise.
------------------------------------------------------------------
7(b) A new Article 7(b) has been inserted to account for
the fact that all Participating Securities will be
registered in the name of Euroclear Nominees which
is acting as the nominee for Euroclear Bank upon Migration.
This new provision recognises that all rights attaching
to such Shares may be exercised on the instructions
of Euroclear Bank and the Company shall have no liability
to Euroclear Nominees where it acts in response to
such instruction.
------------------------------------------------------------------
8 Article 8 has been amended in order to make Euroclear
Bank's obligations clear when enquiries are made of
it by the Company in accordance with Article 8.
------------------------------------------------------------------
12 This Article has been amended to take account of Article
3(1) of CSDR. Article 3(1) requires the Company to
arrange for all of its shares which are admitted to
trading or traded on trading venues to be represented
in book-entry form as immobilisation or subsequent
to a direct issuance in dematerialised form. Article
3(1) of CSDR shall apply to new shares issued after
1 January 2023 and from 1 January 2025, it will apply
to all shares in the Company which are admitted to
trading or traded on trading venues.
------------------------------------------------------------------
14A Article 14A is an entirely new article which is intended
to facilitate the transfer of Participating Securities
to Euroclear Bank in accordance with the Migration.
Pursuant to this Article, holders of the Migrating
Shares will be deemed to have consented and agreed
to, inter alia:
* the Company appointing attorneys or agents of such
holders to do everything necessary to complete the
transfer of the Migrating Shares to Euroclear
Nominees (or such other nominee(s) of Euroclear Bank
as it may notify the Company in writing) and do all
such other things and execute and deliver all such
documents and electronic communications as may be
required by Euroclear Bank or as may, in the opinion
of such attorney or agent, be necessary or desirable
to vest the Migrating Shares in Euroclear Nominees
(or such other nominee(s) of Euroclear Bank as it may
notify the Company in writing) and, pending such
vesting, to exercise all such rights attaching to the
Migrating Shares as Euroclear Bank may direct;
* Euroclear Bank and Euroclear Nominees being
authorised to take any action necessary or desirable
to enable the issuance of CDIs by the CREST
Depository to the relevant Holders of the Migrating
Shares, including any action necessary or desirable
in order to authorise Euroclear Bank, Euroclear
Nominees, the CREST Nominee and/or any other relevant
entity to instruct the CREST Depository and/or EUI to
issue the CDIs to the relevant Holders of the
Migrating Shares pursuant to the terms of the CREST
Deed Poll or otherwise; and
* the Company's Registrar, the Company's Secretary
and/or EUI releasing such personal data of the Former
Holders as is required by Euroclear Bank, the CREST
Depository and/or EUI to effect the Migration and the
issue of the CDIs.
Pursuant to Article 14A the Holders of the Migrating
Shares agree that none of the Company, the Directors,
nor the Company's Registrar or the Company's secretary
will be liable in any way in connection with any of
the actions taken in respect of the Migrating Shares
in connection with the Migration and/or any failures/errors
in the systems, processes or procedures of the Registrar,
Euroclear Bank and/or EUI which adversely impacts
the implementation of the Migration.
------------------------------------------------------------------
33 Article 33 deals with the requirement for a written
instrument of transfer in order to transfer an interest
in the Shares in the Company. An additional sentence
has been added to make it clear that the Company can
allow shares to be transferred without a written instrument
as permitted by the Companies Act.
------------------------------------------------------------------
35 Article 35 is being updated to provide that the directors
may decline to register any renunciation of a renounceable
letter of allotment.
------------------------------------------------------------------
55 In Article 55 the quorum for Shareholder meetings
is reduced from 10 persons entitled to vote, each
being a shareholder or a proxy of a shareholder, to
2 such shareholders present in person or by proxy.
If at any adjourned meeting a quorum is not present
within half--an--hour from the time appointed for
the meeting, the meeting, if convened otherwise than
by resolution of the directors, shall be dissolved,
but if the meeting shall have been convened by resolution
of the directors, a proxy appointed by a CSD entitled
to be counted in a quorum present at the meeting shall
be a quorum.
------------------------------------------------------------------
57(b) Article 57(b) has been amended to make it clear that
members present includes member present in person
or by proxy at a general meeting of the Company.
------------------------------------------------------------------
67 and The reference to the 48--hour deadline for the submission
73 of proxies in these Articles has been amended to the
latest time which may be specified by the Directors
subject to the requirements of the Companies Acts.
------------------------------------------------------------------
69 A new Article 69(f) has been inserted in order to
make it clear what the obligations of Euroclear Bank
are when a Restriction Notice (as defined in Article
69) is served on it by the Company in accordance with
Article 69.
------------------------------------------------------------------
73(b) Article 73 has been amended and Article 73(b) has
been inserted so that any body corporate which is
an owner of a share may by resolution of its directors
or other governing body authorise such person or persons
as it thinks fit to act as its representative or representatives
at any meeting of the Company or of any class of members
of the Company and the person so authorised shall
be entitled to exercise the same powers on behalf
of the body corporate which he/she represents as that
body corporate could exercise in accordance with Article
5 of the amended Articles of Association.
------------------------------------------------------------------
72 and Additional provisions are being included in Articles
75 72 and 75 in order to make it clear that proxies can
be appointed using Euroclear Bank's system for electronic
communications.
------------------------------------------------------------------
112 Article 112 is being amended in order to make it clear
that dividends and all monies can be paid in such
method as the Directors decide and, in particular,
in accordance with such arrangements as the Company
may agree with Euroclear Bank.
------------------------------------------------------------------
124 Article 124 is being amended in order to allow for
the serving of notices on Euroclear Bank via its messaging
system.
------------------------------------------------------------------
Part 9
Definitions
The following definitions apply in this Circular unless the
context otherwise clearly requires:
"Act of 2 August 2002" has the meaning given to it in paragraph
12 of Part 5 of this Circular;
"Articles of Association" the articles of association of the Company,
or " Article" from time to time;
"authorised CSD" has the meaning given to it in paragraph
8(a)(i) of Part 3 of this Circular;
"Banking Act" has the meaning given to it in paragraph
7 of Part 5 of this Circular;
"Belgian Investor" has the meaning given to it in paragraph
5 of Part 7 of this Circular;
"Belgian Law Right" the fungible co-ownership rights governed
by Belgian law over a pool of book-entry
interests in securities of the same issue
(i.e. ISIN) which EB Participants will
receive upon the Migration, further summary
details of which are set out in Part
5 of this Circular;
"Belgian Non-Resident has the meaning given to it in paragraph
Shareholders" 5 of Part 7 of this Circular;
"Belgian Resident Shareholders" has the meaning given to it in paragraph
5 of Part 7 of this Circular;
"Belgium" the Kingdom of Belgium and the word 'Belgian'
shall be construed accordingly;
"BOCH" Bank of Cyprus Holdings Public Limited
Company;
"Brexit" the United Kingdom's withdrawal from
the European Union;
"Brexit Date" means 31 December 2020;
"Brexit Omnibus Act" the Withdrawal of the United Kingdom
from the European Union (Consequential
Provisions) Act 2020;
"Broadridge" Broadridge Proxy Voting Service, a third
party service provided engaged by EUI
in connection with the voting service
provided in respect of CDIs;
"business day" means a day, other than a Saturday, Sunday
or public holiday in Dublin, London and
Cyprus;
"CAT" has the meaning given to it in paragraph
4 of Part 7 of this Circular;
"CCSS" CREST Courier and Sorting Service;
"CDCR" means the Central Securities Depository
and Central Registry of the Cyprus Stock
Exchange;
"CDI(s)" CREST Depository Interest(s);
"certificated form" a share being the subject of a certificate
or "in certificated as referred to in section 99(1) of the
form" Companies Act;
"CFC" has the meaning given to it in paragraph
3 of Part 7 of this Circular;
"CGT" Irish Capital Gains Tax;
"Circular" this Circular dated 13 January 2021;
"Code" means the US Internal Revenue Code of
1986;
"Companies Act" the Companies Act 2014 (No. 38 of 2014),
as amended;
"Company" or "BOCH" Bank of Cyprus Holdings PLC;
"Competent Authority" has the meaning prescribed in the CRR;
"Constitution" the constitution of the Company as in
effect from time to time, consisting
of the Memorandum of Association and
the Articles of Association;
"CREST" or "CREST System" the securities settlement system operated
by EUI and constituting, in respect of
the Shares, a relevant system for the
purposes of the Irish CREST Regulations
and, in respect of CDIs, a relevant system
for the purposes of the UK CREST Regulations;
"CREST Deed Poll" the global deed poll made on 25 June
2001 by the CREST Depository, (as amended)
a copy of which is set out in Chapter
8 of the CREST International Manual;
"CREST Depository" CREST Depository Limited, a subsidiary
of EUI established under the laws of
England and Wales with registration number
03133256;
"CREST Depository Interest" an English law security issued by the
or "CDI" CREST Depository pursuant to the CREST
Deed Poll that represents a CREST member's
interest in an underlying international
security;
"CREST Glossary of the document issued by EUI entitled 'CREST
Terms" Glossary' dated December 2020 and which
forms part of the CREST Manual, as may
be amended, varied, replaced or superseded
from time to time;
"CREST International the document issued by EUI entitled 'CREST
Manual" International Manual' dated December
2020 in respect of the international
links settlement service offered by EUI
and which forms part of the CREST Manual,
as may be amended, varied, replaced or
superseded from time to time;
"CREST Manual" the documents issued by EUI governing
the operation of CREST, as may be amended,
varied, replaced or superseded from time
to time, consisting of the CREST Reference
Manual, CREST International Manual, CREST
Central Counterparty Service Manual,
CREST Rules, CREST CCSS Operations Manual,
CREST Application Procedure and CREST
Glossary of Terms (all as defined in
the CREST Glossary of Terms);
"CREST members" has the meaning given to it in the CREST
Terms and Conditions;
"CREST Nominee" CIN (Belgium) Limited, a subsidiary of
the CREST Depository, or any other body
appointed to act as a nominee on behalf
of the CREST Depository, including the
CREST Depository itself;
"CREST Proxy Instruction" the appropriate CREST message to be completed
with respect to a proxy appointment or
instruction, as outlined in the CREST
Manual;
"CREST Tariff Brochure" the document issued by EUI entitled 'Euroclear
UK & Ireland tariff' dated August 2020,
as may be amended, varied, replaced or
superseded from time to time;
"CREST Terms and Conditions" the document issued by EUI entitled 'CREST
Terms and Conditions' dated August 2020,
as may be amended, varied, replaced or
superseded from time to time;
"CRR" Regulation (EU) No. 575/2013 of the European
Parliament and of the Council of 26 June
2013;
"CSD" a central securities depository, including
EUI and Euroclear Bank;
"CSDR" Regulation (EU) No. 909/2014 of the European
Parliament and of the Council of 23 July
2014 on improving securities settlement
in the European Union and on central
securities depositories and amending
Directives 98/26/EC and 2014/65/EU and
Regulation (EU) No 236/2012;
"CSE" Cyprus Stock Exchange;
"CySEC" Cyprus Securities and Exchange Commission;
"Depository" Link Market Services Trustees Limited
(formerly known as Capita IRG Trustees
Limited);
"Depository Interests" the uncertificated depository interests
or "DIs" representing Shares transferable by the
Central Securities Depository and Central
Registry of the Cyprus Stock Exchange;
"DI Depository" Link Market Services Trustees Limited;
"DI Form of Proxy" the form of proxy in respect of voting
or " Form of DI Proxy" at the EGM;
"DI Holder" a holder of Depository Interests;
"Directors" or "Board" the board of directors of the Company,
details of which are set out at the top
of page 5 of this Circular;
"Dividend Received has the meaning given to it in paragraph
Deduction" 5 of Part 7 of this Circular;
"Draft Law" has the meaning given to it in paragraph
5 of Part 7 of this Circular;
"Draft TSA" has the meaning given to it in paragraph
5 of Part 7 of this Circular;
"DWT" has the meaning given to it in paragraph
4 of Part 7 of this Circular;
"DSS" means the central registry and computerised
system for the settlement of sales and
purchases of securities on a dematerialised
basis and the holding of securities in
uncertificated form operated by the CDCR.
"EBA" European Banking Authority;
"EB Migration Guide" the document issued by Euroclear Bank
entitled 'Euroclear Bank as Issuer CSD
for Irish corporate securities; Migration
Guide' dated October 2020, as may be
amended, varied, replaced or superseded
from time to time;
"EB Operating Procedures" the document issued by Euroclear Bank
entitled 'Operating Procedures of the
Euroclear System' dated October 2020,
as may be amended, varied, replaced or
superseded from time to time;
"EB Participants" Participants in Euroclear Bank, each
of which has entered into an agreement
to participate in the Euroclear System
subject to the EB Terms and Conditions;
"EB Rights of Participants the document issued by Euroclear Bank
Document" entitled 'Rights of Participants to Securities
deposited in the Euroclear System' dated
July 2017, as may be amended, varied,
replaced or superseded from time to time;
"EB Services Description" the document issued by Euroclear Bank
entitled 'Euroclear Bank as Issuer CSD
for Irish corporate securities - Services
Description' dated October 2020, as may
be amended, varied, replaced or superseded
from time to time;
"EB Terms and Conditions" the document issued by Euroclear Bank
entitled 'Terms and Conditions governing
use of Euroclear' dated April 2019 ,
as may be amended, varied, replaced or
superseded from time to time;
"EBA" the European Banking Authority;
" EEA " European Economic Area States;
"ESMA" the European Securities and Markets Authority;
"EU" the European Union;
"EUI" Euroclear UK & Ireland Limited, the operator
of the CREST System;
"Euro" or "EUR" euro, the lawful currency of Ireland;
"Euroclear Bank" or Euroclear Bank SA/NV, an international
"EB" CSD based in Belgium and part of the
Euroclear Group;
"Euroclear Group" the group of Euroclear companies, including
Euroclear Bank and EUI;
"Euroclear Nominees" Euroclear Nominees Limited, a wholly
owned subsidiary of Euroclear Bank, established
under the laws of England and Wales with
registration number 02369969;
"Euroclear System" the securities settlement system operated
by Euroclear Bank and governed by Belgian
law;
"Euronext Dublin" the Irish Stock Exchange plc, trading
as Euronext Dublin;
"Extraordinary General the extraordinary general meeting of
Meeting" or "EGM" the Company convened to be held at 11:00
a.m. (Cyprus time) / 09:00 a.m. (Irish
time) on 5 February 2021 at 51 Stassinos
Street, Ayia Paraskevi, 2002 Strovolos,
Nicosia, Cyprus or any adjournment thereof;
"FCA" the Financial Conduct Authority of the
United Kingdom;
"Finance Act" the Finance Act 2020;
"Former Holders" the former registered holders of Participating
Securities at the Migration Record Date
who hold, either directly or indirectly,
Belgian Law Rights in respect of such
Participating Securities as or through
EB Participants after the Migration;
"Form of Proxy" the form of proxy in respect of voting
at the EGM;
"FTT" has the meaning given to it in paragraph
5 of Part 7 of this Circular;
"GBP" or "Sterling" pounds sterling, the lawful currency
of the United Kingdom;
"HMRC" has the meaning given to it in paragraph
2 of Part 7 of this Circular;
"Holders of Participating registered holders of Participating Securities
Securities" and/or (as the context requires) persons
holding their interests in such Shares
through such registered holders;
"Interest" means, in respect of any Shares, unless
the context otherwise requires, any interest
whatsoever in Shares (of any size) which
would be taken into account in deciding
whether a notification to the Company
would be required under Chapter 4 of
Part 17 of the Companies Act and "interested"
shall be construed accordingly;
"Investor CSD" has the meaning given to it in Article
1(f) of Commission Delegated Regulation
(EU) 2017/392 of 11 November 2016 supplementing
CSDR;
"Ireland" the island of Ireland, excluding Northern
Ireland and the word 'Irish' shall be
construed accordingly;
"Irish CREST Regulations" the Companies Act 1990 (Uncertificated
Securities) Regulations 1996 (as amended);
"Irish Revenue" the Irish Revenue Commissioners;
"Irish Securities" shares constituted under Irish law;
"IRS" has the meaning given to it in paragraph
3 of Part 7 of this Circular;
"Issuer CSD" has the meaning given to it in Article
1(e) of Commission Delegated Regulation
(EU) 2017/392 of 11 November 2016 supplementing
CSDR;
"Latest Practicable 7 January 2021,
Date" being the latest practicable date prior
to the issue of this Circular;
"Latest Withdrawal unless otherwise notified by the Company,
Date" 2:00 p.m. (Cyprus time) / 12:00 p.m.
(Irish time) on 11 March 2021;
"Live Date" the date appointed by Euronext Dublin
pursuant to the Migration Act to be the
effective date in respect of Market Migration;
"London Stock Exchange" London Stock Exchange plc;
or "LSE"
"London Stock Exchange the trading rules of the London Stock
Trading Rules" Exchange as set out in the Rules of the
London Stock Exchange dated 1 July 2019;
"Market Migration" the migration to the Euroclear System
of the securities of all Relevant Issuers
which constitute Participating Securities
on the Migration Record Date, with effect
from the Live Date;
"Memorandum of Association" the memorandum of association of the
Company, from time to time;
"Migrating Shareholders" the registered holders of Migrating Shares
as at the Migration Record Date;
"Migrating Shares" if the Migration Resolutions are passed,
and the Company satisfies the other requirements
applicable to the Migration becoming
effective, all Participating Securities
in the Company on the Migration Record
Date;
"Migration" or "Migrate" the vesting of title to all Shares of
the Company which constitute Participating
Securities as at the Live Date on the
Migration Record Date in Euroclear Nominees,
holding on trust for Euroclear Bank,
with effect from the Live Date as described
in this Circular and including, where
the context requires, migration as described
in and as envisaged by the EB Migration
Guide;
"Migration Act" the Migration of Participating Securities
Act 2019;
"Migration Record Date" 9:00 p.m. (Cyprus time) / 7:00 p.m. (Irish
time) on Friday, 12 March 2021 or such
other date and time as may be determined
by Euroclear Bank and/or EUI as the date
and time at which the Participating Securities
which are subject to the Migration will
be determined;
"Migration Resolutions" Resolutions 1, 3(a), 3(b) and 4 as set
out in the Notice of EGM;
"Notice of EGM" or the notice of Extraordinary General Meeting
"Notice" which is contained in Appendix I to this
Circular;
"Online Market Guide(s)" a Euroclear Bank web-based resource providing
specific legal and operational information
for individual domestic markets;
"Participating Issuer(s)" has the meaning given to it in the Migration
Act;
"Participating Securities" means any Shares issued by the Company
which constitute "relevant Participating
securities" as that term is defined in
the Migration Act;
"PFIC" has the meaning given to it in paragraph
3 of Part 7 of this Circular;
"Record Date for EGM" 9:00 p.m. (Cyprus time) / 7:00 p.m. (Irish
time) on 3 February 2021;
"Register" or "Register the register of members of the Company,
of Members" maintained pursuant to Section 169 of
the Companies Act;
"Registrar" the registrar to the Company, being Link
Registrars Limited;
"Regulatory Information an electronic information dissemination
Service" service permitted by the London Stock
Exchange;
"Relevant Issuers" Participating Issuers that have complied
with the necessary formalities for the
Migration to occur under the Migration
Act;
"Resolutions" the resolutions proposed for consideration
at the EGM as set out in the Notice of
EGM, being the Migration Resolutions
and Resolution 2;
"Royal Decree No. 62" Belgian Royal Decree No. 62 of 10 November
1967, on the deposit of fungible financial
instruments and the settlement of transactions
involving such instruments;
"SDRT" has the meaning given to it in paragraph
2 of Part 7 of this Circular;
"Section 6(4) Notice" the notice published by the Company in
accordance with section 6(4) of the Migration
Act;
"Securities Clearance an account in the name of an EB Participant
Account" with the Euroclear System;
"Securities Loss " has the meaning given to it in paragraph
16 of Part 5 of this Circular;
"Shares " the ordinary shares of EUR0.10 each in
the capital of the Company;
"Shareholder(s) " holders of Shares;
"Specific Foreign Intermediaries has the meaning given to it in paragraph
" 5 of Part 7 of this Circular;
"SRD II " Directive (EU) 2017/828 of the European
Parliament and of the Council of 17 May
2017 amending Directive 2007/36/EC as
regards the encouragement of long-term
shareholder engagement;
"Stock Exchange Tax has the meaning given to it in paragraph
Representative " 5 of Part 7 of this Circular;
"Treasury Regulations has the meaning given to it in paragraph
" 3 of Part 7 of this Circular;
"UK CREST Regulations the Uncertificated Securities Regulations
" 2001 (SI 2001/3755) of the United Kingdom;
"UK Shareholders " has the meaning given to it in paragraph
2 of Part 7 of this Circular;
"uncertificated " or a share or other security recorded in
"in uncertificated the relevant register of the share or
form " security concerned as being held in uncertificated
form in a relevant system (within the
meaning of the Irish CREST Regulations)
or a CSD, and title to which may be transferred
by means of a relevant system or a securities
settlement system (as defined in the
CSDR) which is operated by a CSD;
"United Kingdom " or the United Kingdom of Great Britain and
"UK " Northern Ireland;
"United States " or the United States of America, its territories
"US " and possessions, any state of the United
States of America and the District of
Columbia and all other areas subject
to its jurisdiction;
"US Dollar " US dollars, the lawful currency of the
United States of America;
"US Holders " has the meaning given to it in paragraph
3 of Part 7 of this Circular; and
"US-Cyprus Income Tax has the meaning given to it in paragraph
Treaty " 3 of Part 7 of this Circular.
Any reference to any provision of any legislation shall include
any amendment, modification, re-enactment or extension thereof. Any
reference to any legislation is to Irish legislation unless
specified otherwise.
Words importing the singular shall include the plural and vice
versa and words importing the masculine gender shall include the
feminine or neutral gender.
Unless otherwise stated, all reference to time in this Circular
are to Irish time.
Appendix I
Notice Of Extraordinary General Meeting
OF
BANK OF CYPRUS HOLDINGS PLC (THE "COMPANY")
NOTICE is hereby given that an Extraordinary General Meeting
("EGM") of the Company will be held on Friday, 5 February 2021 at
11:00 a.m. (Cyprus time) / 9:00 a.m. (Irish time) at 51 Stassinos
Street, Ayia Paraskevi, 2002 Strovolos, Nicosia, Cyprus and
shareholders in Ireland may participate in the EGM by audio link at
the registered office of the Company, Ten Earlsfort Terrace, Dublin
2, D02 T380, Ireland at the same time as the EGM, (i.e. commencing
at 9:00 a.m. Irish time on Friday, 5 February 2021), for the
following purposes:
To consider and, if thought fit, to pass the following
resolutions:
1. As a special resolution within the meaning of sections 4, 5
and 8 of the Migration of Participating Securities Act 2019
"WHEREAS:-
(a) the Company has notified Euroclear Bank SA/NV ("Euroclear
Bank") by a letter dated 17 March 2020 (as required by section
5(5)(a) of the Migration Act) of the proposal that the relevant
Participating Securities in the Company are to be the subject of
the Migration, in accordance with the Migration of Participating
Securities Act 2019 (the "Migration Act");
(b) the Company has received a statement in writing from
Euroclear Bank dated 20 March 2020 (as required by section 5(6)(a)
of the Migration Act) to the effect that the provision of the
services of Euroclear Bank's settlement system to the Company will,
on and from the Live Date, be in compliance with Article 23 of
Regulation (EU) No 909/2014 of the European Parliament and of the
Council of 23 July 2014 ("CSDR"); and
(c) the Company has received the statement from Euroclear Bank
dated 20 March 2020 (as required by section 5(6)(b) of the
Migration Act) to the effect that following;
(i) such inquiries as have been made of the Company by Euroclear Bank, and
(ii) the provision of such information by or on behalf of the
Company, in writing, to Euroclear Bank as specified by Euroclear
Bank,
Euroclear Bank is satisfied that the relevant Participating
Securities in the Company meet the criteria stipulated by Euroclear
Bank for the entry of the Participating Securities into the
settlement system operated by Euroclear Bank.
IT IS HEREBY RESOLVED that this meeting approves of the Company
giving its consent to the Migration of the Migrating Shares to
Euroclear Bank's central securities depository (which is authorised
in Belgium for the purposes of CSDR) on the basis that the
implementation of the Migration shall be determined by and take
effect subject to a resolution of the board of directors of the
Company (or a committee thereof), at its discretion, and provided
that as part of the Migration the title to the Migrating Shares
will become and be vested in Euroclear Nominees Limited, being a
company incorporated under the laws of England and Wales with
registration number 02369969 ("Euroclear nominees"), as part of the
Migration and acting in its capacity as the trustee for and/or
nominee of Euroclear Bank for the purposes of such Migrating Shares
being admitted to the Euroclear System, and that the directors be
and are hereby authorised to take all actions necessary or
desirable in connection with the foregoing or the Migration
(including, without limitation, determining not to proceed with the
Migration. It being understood that:-
"Circular" means the circular issued by the Company to its
shareholders and dated 13 January 2021;
"Euroclear System" has the meaning given to that term in the
Circular;
"Live Date" has the meaning given to that term in the
Circular;
"Migrating Shares" has the meaning given to that term in the
Circular;
"Migration" has the meaning given to that term the Circular;
"Migration Act" has the meaning given to that term in the
Circular;
"Participating Securities" has the meaning given to that term in
the Circular; and
"relevant Participating Securities" means all Participating
Securities recorded in the register of members of the Company on
the Live Date."
2. As a special resolution for the purposes of the Companies Act
2014, as amended (the "Companies Act")
"THAT the Articles of Association of the Company be and are
hereby amended in the manner set out in the Exhibit to the Notice
of this Extraordinary General Meeting with effect from the
conclusion of this Extraordinary General Meeting."
3. As a special resolution for the purposes of the Companies Act
Resolution 3(a):
"THAT, subject to and conditional upon the adoption of
Resolution 1 and Resolution 2 in the Notice of this EGM, the
Articles of Association of the Company, which have been signed at
this meeting by the Chairman of this EGM for identification
purposes and marked "Exhibit R3(a)" and which have been available
for inspection on the Company's website as set out in section 7 of
Part 1 of this Circular and at the registered office of the Company
since the date of the Notice of this EGM, be approved and adopted
as the new Articles of Association of the Company on and with
effect from the passing of this resolution to the exclusion of the
existing Articles of Association of the Company."
Resolution 3(b):
"THAT, subject to and conditional upon the adoption of
Resolution 1 in the Notice of this EGM and further subject to and
conditional upon Resolution 2 in the Notice of this EGM not being
validly adopted at the EGM, the Articles of Association of the
Company, which have been signed by the Chairman of this EGM for
identification purposes and marked "Exhibit R3(b)" and which have
been available for inspection at the registered office of the
Company since the date of the Notice of this EGM, be approved and
adopted as the new Articles of Association of the Company on and
with effect from the passing of this resolution to the exclusion of
the existing Articles of Association of the Company."
4. As a special resolution for the purposes of the Companies Act
"THAT, subject to the adoption of Resolution 1 in the Notice of
EGM, the Company be and is hereby authorised and instructed to:
(a) take any and all actions which the Directors (or a committee
thereof), in their absolute discretion, consider necessary or
desirable to implement the Migration (including, without
limitation, determining not to proceed with the Migration) and/or
the matters in connection with the Migration referred to in the
Circular (including the procedures and processes described in the
EB Migration Guide (as amended from time to time)); and
(b) appoint any persons as attorney or agent for the holders of
the Migrating Shares to do any and all things, including the
execution and delivery of all such documents and/or instructions as
may, in the opinion of the attorney or agent, be necessary or
desirable to implement the Migration and/or the matters in
connection with the Migration referred to in the Circular
(including the procedures and processes described in the EB
Migration Guide (as amended from time to time)) including:
(i) instructing Euroclear Bank and/or Euroclear Nominees to
credit the interests of the holders of the Migrating Shares in the
Migrating Shares (i.e. the Belgian Law Rights (as defined in the
Circular) representing the Migrating Shares to which such Holder
was entitled) to the account of the CREST Nominee (CIN (Belgium)
Limited) in the Euroclear System, as nominee and for the benefit of
the CREST Depository (or the account of such other nominee(s) of
the CREST Depository as it may determine);
(ii) any action necessary or desirable to enable the CREST
Depository to hold the interests in the Migrating Shares referred
to in sub-paragraph (i) above on trust pursuant to the terms of the
CREST Deed Poll or otherwise and for the benefit of the holders of
the Crest Depository Interests ("CDIs") (being the relevant holders
of the Migrating Shares);
(iii) any action necessary or desirable to enable the issuance
of CDIs by the CREST Depository to the relevant holders of the
Migrating Shares, including any action deemed necessary or
desirable in order to authorise Euroclear Bank, the CREST Nominee
and/or any other relevant entity to instruct the CREST Depository
and/or EUI to issue the CDIs to the relevant holders of the
Migrating Shares pursuant to the terms of the CREST Deed Poll or
otherwise; and
(iv) the release by the Company's Registrar, the Secretary of
the Company and/or EUI of such personal data of a holder of
Migrating Shares to the extent required by Euroclear Bank, the
CREST Depository and/or EUI to effect the Migration and the issue
of the CDIs.
It being understood that capitalised terms used in this
Resolution shall have the meaning given to them in the Circular
issued by the Company to its shareholders dated 13 January 2021 and
provided always that nothing in this Resolution shall qualify or
limit in any way the effect of Resolutions 1 and 3, or the
authorisations and powers arising from such effect."
By order of the Board
Katia Santis
Group Secretary
Bank of Cyprus Holdings plc
Registered Office:
Ten Earlsfort Terrace
Dublin 2
D02 T380
Ireland
13 January 2021
NOTES TO THE NOTICE OF THE EXTRAORDINARY GENERAL MEETING:
1. IMPORTANT NOTICE TO SHAREHOLDERS AND DI HOLDERS REGARDING CORONAVIRUS (COVID--19)
(a) The well-being of attendees, employees and service providers
at the upcoming EGM is a primary concern for the directors of the
Company and in this context we are closely monitoring developments
in relation to the Coronavirus (COVID--19) pandemic. Due to the
restrictions on meetings and travel, save for very limited purposes
from the Government of the Republic of Cyprus, and in respect of
the Irish venue of the EGM, the Government of Ireland and the
Department of Health (of Ireland), relating to the Coronavirus
(COVID--19) pandemic, the EGM will proceed under very constrained
circumstances.
(b) Shareholders and DI Holders are requested not to attend the
EGM in person and instead to submit a proxy form accompanying the
Notice of EGM or use the electronic voting facility to ensure they
can vote at the EGM without attending in person. This can be done
in advance of the EGM by availing of one of the ways you can either
appoint a proxy as set out in these notes or during the EGM by
using the electronic voting facility set out on pages 83 to 84.
Please note the deadlines for receipt of the proxy appointment for
it to be valid and the relevant procedures for the electronic
voting facility. By submitting a proxy form or by using the
electronic voting facility you will be able to ensure that your
vote on the proposed resolutions is cast at the EGM in accordance
with your wishes without attending in person.
(c) If you wish to listen live to the EGM proceedings, you can
do so by accessing the electronic meeting facility which you can
access by either downloading the dedicated "Lumi AGM" app or by
accessing the EGM website, https://web.lumiagm.com. This will allow
you to audio cast the EGM and Shareholders and DI Holders can
submit questions and votes through the app or website. Further
instructions on how to attend the meeting remotely are set out on
pages 83-84 of these notes and on the Company's website
www.bankofcyprus.com (Investor Relations / Extraordinary General
Meetings).
(d) Before the EGM, a shareholder may also submit a question in
writing, to be received at least four business days before the
meeting (i.e. by 1 February 2021) by post to the Company Secretary,
Bank of Cyprus Holdings Public Limited Company, 51 Stassinos
Street, Ayia Paraskevi, 2002 Strovolos, Nicosia Cyprus or by email
to Company.Secretary@bankofcyprus.com. All correspondence should
include sufficient information to identify a Shareholder on the
Register of Members and a DI Holder on the DI Register of Members.
Responses to the most common questions will be posted on our
website on www.bankofcyprus.com (Investor Relations / Extraordinary
General Meetings) and we also anticipate responding in writing
directly to any individual shareholder who raises a question.
(e) Overall, we will be seeking to conduct the EGM as safely and
efficiently as possible and in compliance with the applicable law,
regulations and guidance in effect in connection with the
Coronavirus (COVID--19) pandemic at the time of the meeting.
(f) In the event that it is not possible to convene and hold the
EGM either in compliance with applicable public health guidelines
or requirements, applicable law or where it is otherwise considered
that proceeding with the EGM as planned poses an unacceptable risk
to health and safety, the EGM may be adjourned to a different time
and/or venue, in which case notification of such adjournment will
be given in accordance with the Company's Articles of Association.
We may also, with appropriate advance notice, amend the venue of
the EGM and/or make further or replacement measures for electronic
or telephonic access.
2. ENTITLEMENT TO PARTICIPATE IN THE EXTRAORDINARY GENERAL
MEETING - THE RIGHTS OF SHAREHOLDERS AND DI HOLDERS
(a) References to shareholders of the Company in this Notice
means shareholders appearing in the Register of Members of the
Company (the "Shareholders") and references to DI Holders means
persons holding a Depository Interest issued by Link Market
Services Trustees (Nominees) Limited ("Custodian") and representing
a share in the Company (a "DI Holder"). This section describes the
procedure for participation at the EGM by Shareholders and DI
Holders.
(b) The record date for determining the right to vote at the EGM
is 9:00 p.m. (Cyprus time) / 7:00 p.m. (Irish time) on 3 February
2021 (or in the case of an adjournment no later than 9:00 p.m.
(Cyprus time) /7:00 p.m. (Irish time) on the day that falls 48
hours before the time fixed for the adjourned meeting) (the "Record
Date"). Transactions which will be taking place thereafter will not
be considered in determining the right to vote at the EGM. On the
Record Date, each Shareholder and DI Holder is entitled to
participate in the EGM. Shareholders and DI Holders are each
entitled to exercise one vote for each share or Depository Interest
representing one share. The Custodian, as the holder of the shares
in the Company pursuant to which the Depositary Interests have been
issued, will deliver to the Company a form of proxy appointing: (i)
each of the DI Holders; and/or (ii) such other person(s) as any of
the DI Holders have informed the Company that they wish to nominate
as their proxy (provided such appointment has been made in the
prescribed form) as at the Record Date, to attend, speak, ask
questions and vote for the Custodian on behalf of the Custodian at
the EGM of the Company and at any adjournment of the meeting.
(c) A Shareholder and a DI Holder entitled to attend, speak, ask
questions and vote at the EGM is entitled to appoint a proxy as
follows:
(i) Each Shareholder who wishes to appoint a proxy to attend,
speak, ask questions and vote on his behalf should complete and
deliver the accompanying proxy entitled "Form of Proxy";
(ii) Each DI Holder who wishes to appoint a proxy to attend,
speak, ask questions and vote on his behalf should complete and
deliver the accompanying proxy entitled "DI Form of Proxy".
(iii) Shareholders and DI Holders may appoint the Chairman of
the EGM or any person as their proxy or proxy nominee. Such proxy
or proxy nominee does not need to be a Shareholder or DI Holder of
the Company. A proxy holder holding proxies from several
Shareholders and/or DI Holders may cast votes differently for each
Shareholder and/or DI Holder. Shareholders and DI Holders, who
appoint or nominate the Chairman or any other person as a proxy to
vote on their behalf, but wish to specify how their votes should be
cast, should indicate accordingly in the relevant boxes on the
Shareholder Form of Proxy or DI Form of Proxy as applicable. Where
the Shareholder or DI Holder does not specify how the proxy must
vote on any particular matter, the appointed proxy (including the
Chairman, if appointed) has discretion as to whether, and if so,
how he votes. Shareholders and DI Holders may nominate more than
one proxy to attend and vote at the meeting provided that, where a
Shareholder or DI Holder appoints more than one proxy in relation
to a general meeting, each proxy must be appointed to exercise the
rights attached to different ordinary shares held by that
Shareholder or different ordinary shares represented by Depository
Interests held by that DI Holder.
(d) The Form of Proxy and DI Form of Proxy, which accompany this
Notice, have been posted on the Company's website
www.bankofcyprus.com (Investor Relations / Extraordinary General
Meetings) and are available in hard copy at the Company's
Headquarters, 51 Stassinos Street, Ayia Paraskevi, 2002 Strovolos,
Nicosia, Cyprus.
(e) To be valid, Forms of Proxy must be completed, signed and
returned, together with any power of attorney or other authority
under which it is executed, or a notarially certified copy thereof,
to the Registrar at Link Registrars Limited, PO Box 1110, Maynooth,
Co. Kildare, Ireland or Link Registrars Limited, Block C, Maynooth
Business Campus, Maynooth, Co Kildare, W23 F854, Ireland, in each
case so as to reach such address no later than 9:00 p.m. (Cyprus
time) / 7:00 p.m. (Irish time) on 3 February 2021. Pursuant to the
Company's Constitution, Forms of Proxy may also be completed,
signed and returned, together with any power of attorney or other
authority under which it is executed, or a notarially certified
copy thereof, to the Company's registered office, Ten Earlsfort
Terrace, Dublin 2, D02 T380, Ireland so as to reach such address no
later than 9:00 p.m. (Cyprus time) / 7:00 p.m. (Irish time) on 3
February 2021.
(f) A Shareholder wishing to appoint a proxy by electronic means
may do so on the Registrar's website: www.signalshares.com before
9:00 p.m. (Cyprus time) / 7:00 p.m. (Irish time) on 3 February
2021. The Shareholder will need to register an account by clicking
on "Register an account" (if he has not registered previously) and
follow the instructions thereon.
(g) To be valid, DI Forms of Proxy must be completed, signed and
returned, together with any power of attorney or other authority
under which it is executed, or a notarially certified copy thereof,
to Investor Relations Department, 51 Stassinos Street, Ayia
Paraskevi 2002 Strovolos, Nicosia, Cyprus, P.O. Box 21472, 1599
Nicosia, Cyprus, e-mail: shares@bankofcyprus.com, fax: +357 22
120265 or +357 22 120245, so as to reach such address no later than
9:00 p.m. (Cyprus time) / 7:00 p.m. (Irish time) on 3 February
2021.
(h) DI Holders may confirm that the applicable DI Form of Proxy
has been successfully received by the Company by calling the
Investor Relations Department at +357 22 126055.
(i) Shareholders, DI Holders and/or their proxies, who will
attend the Meeting must provide their identity card or other proof
of identification.
(j) Alternatively, any body corporate which is a Shareholder or
a DI Holder may by resolution of its directors or other governing
body authorise such person as it thinks fit, to act as its
representative at any Meeting of the Company or any class of
members 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 or DI Holder of the
Company. In light of the restrictions and guidelines in relation to
the Coronavirus (COVID--19), corporations sole or bodies corporate
wishing to vote at the EGM are requested to submit a proxy form or
otherwise appoint a proxy in advance of the meeting rather than
appoint a corporate representative.
(k) In the case of joint Shareholders or joint DI Holders, the
vote of the senior who tenders a vote, whether in person or by
proxy, will be accepted to the exclusion of the votes of the other
registered Shareholders or DI Holders and, for this purpose,
seniority will be determined by the order in which the names stand
on the register of shareholders (for Shareholders) or the register
of DI Holders maintained by the Custodian (for DI Holders).
(l) Completion of a Form of Proxy or a DI Form of Proxy (or
submission of shareholder proxy instructions electronically) will
not prevent a Shareholder or DI Holder from attending the EGM and
voting in person should they wish to do so or casting their vote by
electronic means.
(m) CREST members who wish to appoint a proxy or proxies through
the CREST electronic proxy appointment service may do so for the
meeting and any adjournment(s) thereof by using the procedures
described in the CREST Manual on the Euroclear website
(www.euroclear.com). CREST personal members or other CREST
sponsored members, and those CREST members who have appointed a
voting service provider(s), should refer to their CREST sponsor or
voting service provider(s), who will be able to take the
appropriate action on their behalf. In order for a proxy
appointment or instruction made using the CREST service to be
valid, the appropriate CREST Proxy Instruction must be properly
authenticated in accordance with Euroclear UK & Ireland
Limited's specifications and must contain the information required
for such instructions, as described in the CREST Manual. The
message, regardless of whether it constitutes the appointment of a
proxy or an amendment to the instruction given to a previously
appointed proxy must, in order to be valid, be transmitted so as to
be received by the Registrar (Id 7RA08) by 9:00 p.m. (Cyprus time)
/ 7:00 p.m. (Irish time) on 3 February 2021 (or, in the case of
adjournment, no later than 48 hours before the time fixed for
holding the adjourned meeting). For this purpose, the time of
receipt will be taken to be the time (as determined by the
timestamp applied to the message by the CREST Applications Host)
from which the Registrar is able to retrieve the message by enquiry
to CREST in the manner prescribed by CREST. CREST members and,
where applicable, their CREST sponsors or voting service providers
should note that Euroclear UK & Ireland Limited does not make
available special procedures in CREST for any particular messages.
Normal system timings and limitations will therefore apply in
relation to the input of CREST Proxy Instructions. It is the
responsibility of the CREST member concerned to take (or, if the
CREST member is a CREST personal member or sponsored member or has
appointed a voting service provider(s)), to procure that his CREST
sponsor or voting service provider(s) take(s)) such action as shall
be necessary to ensure that a message is transmitted by means of
the CREST system by any particular time. In this connection, CREST
members and, where applicable, their CREST sponsors or voting
service providers are referred, in particular, to those sections of
the CREST manual concerning practical limitations of the CREST
system and timings. The Company may treat as invalid a CREST Proxy
Instruction in the circumstances set out in Regulation 35(5)(a) of
the Companies Act 1990 (Uncertificated Securities) Regulations,
1996.
(n) In case of discrepancies between the English and the Greek
text of the Notice, the English text shall prevail.
3. VOTING PROCEDURES AT GENERAL MEETINGS
(a) The proposed resolutions at the EGM will be decided by way of a poll.
(b) Any decision regarding the normal business of the EGM will
be reached (unless otherwise provided in the Constitution) with an
ordinary resolution. An ordinary resolution is a resolution passed
at a general meeting by a simple majority (50%+1) of members of the
Company entitled to vote and who vote at the meeting either in
person or by proxy.
(c) A special resolution by a company shall be a resolution
passed at a general meeting by not less than 75% of members of the
company as, being entitled so to do, vote in person or by proxy, at
the meeting for which relevant notice of at least twenty one days
has been given pursuant to section 181 of the Companies Act
specifying the intention to propose the resolution as a special
resolution.
(d) The "Vote Withheld" option provided on Forms of Proxy and DI
Forms of Proxy is provided to enable you to abstain on any
particular resolution. However, it should be noted that a 'Vote
Withheld' is not a vote in law and will not be counted in the
calculation of the proportion of the votes for and against a
resolution.
4. MINORITY RIGHTS AT THE EXTRAORDINARY GENERAL MEETING
(a) Pursuant to section 1104(b) of the Companies Act, and
subject to any contrary provision in company law, one or more
members of the Company holding at least 3% of the issued share
capital of the Company, representing at least 3% of the total
voting rights of all the members who have a right to vote at the
EGM, have the right to put an item on the agenda or to table a
draft resolution for an item on the agenda of the EGM, subject to
certain limitations.
(b) Shareholders and DI Holders are reminded that there might be
other provisions of company law which impose other conditions on
the right of Shareholders and DI Holders to propose resolutions at
a general meeting of a company.
(c) Pursuant to section 1107 of the Companies Act, a member has
the right to ask questions related to items on the EGM agenda and
to have such questions answered by the Company subject to any
reasonable measures the Company may take to ensure the
identification of the member. An answer is not required where (a)
to give an answer would interfere unduly with the preparation for
the Meeting or the confidentiality and business interests of the
Company, or (b) the answer has already been given on the Company's
website in the form of a "Q&A", or (c) it appears to the
Chairman that it is undesirable in the interests of good order of
the Meeting that the question be answered.
(d) Before the EGM, a shareholder may also submit a question in
writing, to be received at least four business days before the
meeting (i.e. by 1 February 2021) by post to the Company Secretary,
Bank of Cyprus Holdings Public Limited Company, 51 Stassinos
Street, Ayia Paraskevi, 2002 Strovolos, Nicosia Cyprus or by email
to Company.Secretary@bankofcyprus.com. All correspondence should
include sufficient information to identify a Shareholder on the
Register of Members and a DI Holder on the DI Register of Members.
Responses to the most common questions will be posted on our
website on www.bankofcyprus.com (select Investor Relations /
Extraordinary General Meetings) and we also anticipate responding
in writing directly to any individual shareholder who raises a
question.
(e) A copy of this Notice of EGM and copies of documentation
relating to the EGM, including Forms of Proxy, are available on the
Company's website www.bankofcypus.com.
5. ELECTRONIC VOTING AND PRIVACY NOTICE
(f) Electronic voting will be used at the EGM for the taking of
votes of Shareholders and DI Holders on a poll at the meeting.
(g) In order to operate the electronic voting system certain
Shareholders' and DI Holders' personal data, as defined in the
General Data Protection Regulation ("GDPR") will be processed by
the Company pursuant to its legitimate interests for the purpose of
operating an efficient and reliable voting system.
(h) The Company will also process Shareholders' and DI Holders'
name, address, contact information, number and type of shares and
other shareholding related data to populate the corporate register
as required by applicable law.
(i) This personal data may be shared with the Company's legal
advisors, tax advisors and regulatory bodies which supervise the
Company. Personal data will be retained in an identifiable format
for no longer than is necessary for the purposes for which this
personal data are processed. Where personal data are transferred
outside of the European Economic Area the Company shall ensure
appropriate safeguards are in place.
(j) Shareholders and DI Holders located in the European Union
have a right of access, amendment, restriction, objection, deletion
and portability in relation to their personal data and the right to
complain to the data protection authority in their jurisdiction.
These rights are not absolute; for example, where personal data are
retained to comply with applicable law the right of objection,
deletion and portability are not available.
(k) The Company is the controller of Shareholders' and DI
Holders' personal data. For further information in respect of how
Shareholders' and DI Holders' personal data are used or to exercise
rights in relation to this personal data please contact the Data
Protection Officer at 97 Kyrenias Ave. 2113 Platy Aglantzias,
Nicosia. Cyprus or P.O. Box 21472, 1599 Nicosia, Cyprus, email:
dpo@bankofcyprus.com.
(l) In light of the restrictions and guidelines in relation to
the Coronavirus (COVID--19) pandemic, the Company will be giving
shareholders the opportunity to audio cast the EGM and submit votes
and questions electronically through the use of the "Lumi AGM" app
or by accessing the EGM website, https://web.lumiagm.com.
(m) On accessing either the app or EGM website, you will be
asked to enter a Meeting ID which is 132-557-328. You will then be
prompted to enter your Identification Number (as presented in the
Shareholders and DI Holder's Registers respectively as at 3
February 2021) and use the Password: EGM2021. Access to the meeting
via the app or website will be available from 10.50 a.m. (Cyprus
time) / 8:50 a.m. (Irish time) on 5 February 2021; however, please
note that your ability to vote will not be enabled until the
Chairman formally opens the meeting at 11:00 a.m. (Cyprus time) /
9:00 a.m. (Irish time).
(n) After the resolutions have been proposed, voting options
will appear on the screen. Select the option that corresponds with
the way in which you wish to vote, "For", "Against" or "Withheld".
Once you have selected your choice, you will see a message on your
screen confirming that your vote has been received. If you make a
mistake or wish to change your voting instruction, simply press or
click the correct choice until the voting is closed. If you wish to
cancel your "live" vote, please press "Cancel", before the voting
is closed.
(o) Please note that an active internet connection is required
in order to successfully cast your vote when the Chairman commences
polling on the resolutions. It is your responsibility to ensure
connectivity for the duration of the meeting.
(p) The process of asking questions, voting and accessing the
EGM presentation will be further explained within the application
and located on the information page and detailed instructions can
be found at the Company's website www.bankofcyprus.com (select
Investor Relations / Extraordinary General Meetings). Shareholders
should note that electronic entry to the EGM will open at 10.50
a.m. (Cyprus time) / 8:50 a.m. (Irish time) on 5 February 2021.
6. OTHER INFORMATION
(a) As the Latest Practicable Date, the outstanding issued share
capital of the Company is EUR44,619,993.30 divided into 446,199,933
ordinary shares of the Company of nominal value EUR0.10 each. There
are no outstanding share options issued by the Company. The Company
does not currently hold any treasury shares.
(b) This Notice, the total number of shares and voting rights at
the date of the giving of the notice, the documents to be submitted
to the meeting, copies of any draft resolutions and copies of the
forms to be used to vote by proxy are available at the Company's
website at www.bankofcyprus.com.
(c) In light of ongoing impact of the Coronavirus (COVID--19)
pandemic and related public health guidance, and as set out in this
Circular and made available on the Company's website and of which
this Notice of EGM forms part, we strongly encourage shareholders
to submit their Forms of Proxy, appointing the Chairman or any
other person, or to use the electronic voting facility, to ensure
they can vote and be represented at the EGM without the need to
attend in person. If you have not received a Form of Proxy, or
should you wish to be sent copies of the documents relating to the
EGM you may request this by calling the Company's Registrar on +353
1 5530050, emailing Company.Secretary@bankofcyprus.com or by
writing to the Company Secretary at the Company's registered
office.
(d) We are closely monitoring the situation and the measures
advised by the Government of the Republic of Cyprus, the Government
of Ireland and the Department of Health (Ireland) in relation to
the ongoing Coronavirus (COVID--19) pandemic and will endeavour to
take all recommended actions into account in the conduct of the
EGM.
EXHIBIT TO THE NOTICE OF EXTRAORDINARY GENERAL MEETING
Set out below are the relevant paragraphs and sub-paragraphs
relating to amendments to the Company's Articles of Association
proposed by Resolution 2 with additional text shown in double
underline, and deleted text shown in strike-through.
PART I - PRELIMINARY
1. Interpretation
1(b)(xiv) "Competent Authority" means the competent authority in
respect of the Company pursuant to CRR, or any amended, re-enacted
or replacement term, authority, entity or agency for the
foregoing;
1(b)(xv) "CRR", Regulation (EU) No. 575/2013 of the European
Parliament and of the Council of 26 June 2013 on prudential
requirements for credit institutions and investment firms, and any
amendment, re-enactment or replacing legislative instrument under
applicable law of any of the foregoing;
1(b)(xxvi) "Own Funds Instruments" has the meaning given to that
term in CRR, or any amended, re-enacted or replacement term for the
foregoing;
1(b)(xviii) "Relevant Capital Instrument" means any of Common
Equity Tier 1, Additional Tier 1 or Tier 2 each within the meaning
of CRR, or any amended, re-enacted or replacement term for the
foregoing;
PART XX - DIVIDS AND RESERVES
111. Dividend in specie
(a) Subject to Article 111(b) below, A a general meeting of the
Company declaring a dividend may direct, upon the recommendation of
the Directors, that it shall be satisfied wholly or partly by the
distribution of assets (and, in particular, of paid up shares,
debentures or debenture stock of any other company or in any one or
more of such ways) and the Directors shall give effect to such
resolution. Where any difficulty arises in regard to the
distribution, the Directors may settle the same as they think
expedient and in particular may issue fractional certificates and
fix the value for distribution of such specific assets or any part
thereof in order to adjust the rights of all the parties and may
determine that cash payments shall be made to any members upon the
footing of the value so fixed in order to adjust rights of all the
parties and may vest any such specific assets in trustees, upon
trust for the persons entitled to the dividend as the Directors
think expedient, and generally may make such arrangements for the
allotment, acceptance and sale of such specific assets or
fractional certificates, or any part thereof, and otherwise as they
may think fit.
(b) No dividends, other than in the form of Own Funds
Instruments, may be declared pursuant to Article 111(a) in respect
of shares constituting a Relevant Capital Instrument:
(i) without the prior consent of the Competent Authority to the
extent any such prior consent is required pursuant to CRR or
required for the shares to be recognised as (or maintain their
recognition as) a Relevant Capital Instrument; and
(ii) otherwise than in compliance with any conditions placed on
such a dividend by the Competent Authority in accordance with its
powers under CRR, including any requirement to comply with
conditions under Article 73(2) of CRR.
APPIX II
Rights of members of Irish-incorporated COMPANIES under the
Companies Act 2014 that are not directly exercisable under the
Euroclear Bank service offering
Following Migration to the Euroclear System, in order to
directly exercise the rights listed in Appendix II, a Former Holder
will be required to withdraw some or all Shares (depending on the
right in question) in which they are interested from the CREST
System and/or Euroclear System (as appropriate) and hold those
Shares in a certificated (i.e. paper) form, in order to exercise
the relevant rights directly as a member of the Company. The
process for such a withdrawal (whether as an EB Participant or as a
CDI holder) is set out in paragraph 5 of Part 4 of this Circular.
Persons interested in Shares admitted to the Euroclear System
wishing to exercise these rights directly should take steps to have
their Share(s) withdrawn from the Euroclear System and transferred
into their name before making the relevant application.
If the amendments proposed to the Articles of Association by
Resolutions 3(a) and 3(b) are approved at the EGM, owners of Shares
admitted to the Euroclear System or held via CDIs in the CREST
System following Migration will be entitled to exercise the rights
outlined below pursuant to sections 37(1), 105(8), 112(2), 146(6),
178(3), 180(1), 185(1), 1101 and 1104 of the Companies Act without
first withdrawing their Shares from the CREST System and/or the
Euroclear System, provided that such owner has complied with the
notification and other requirements specified in the amended
Articles of Association.
No. Irish legal right Section Person(s) entitled New Article, if
of the Companies to exercise any, to be inserted
Act 2014 in Constitution
/ manner of exercise
following Migration
To have a copy
of the constitution
1. sent to the member 37(1) "any member" Article 5(b)
-------------------------- ------------------ --------------------------- ------------------------------
No change to the
Articles is proposed.
It is not possible
to provide this
right through
amendments to
the Constitution
as the right is
based on a statutory
provision.
Owners will get
notice of the
conversion via
the Euroclear
System.
If an owner does
now want its Shares
converted, it
should withdraw
To object to the Shares from
the conversion the Euroclear
2. of his shares 83(4) "the holder" System.
-------------------------- ------------------ --------------------------- ------------------------------
"not less than No change to the
10 per cent of Articles is proposed.
the issued shares It is not possible
of that class, to provide this
being members right through
who did not consent amendments to
To apply to Court to or vote in the Constitution
to have a variation favour of the as this is a judicial
of share rights resolution for remedy provided
3. cancelled 89(1) the variation" for in statute.
-------------------------- ------------------ --------------------------- ------------------------------
To apply to Court
to have overdue
share certificates "the person entitled No change to the
4. issued 99(4) to have the certificates" Articles is proposed.
-------------------------- ------------------ --------------------------- ------------------------------
To apply to Court
to have an invalid
creation, allotment,
acquisition or
cancellation "any member or No change to the
5. of shares received 100(2) former member" Articles is proposed.
-------------------------- ------------------ --------------------------- ------------------------------
To inspect a
contract of purchase
of the company's 105(8);
6. own shares 112(2) "the members" Article 5(b)
-------------------------- ------------------ --------------------------- ------------------------------
To be sent copies
of representations "every member
from directors of the company
the subject of to whom notice
a resolution of the meeting
7. to be removed 146(6) is sent" Article 5(b)
-------------------------- ------------------ --------------------------- ------------------------------
To apply to Court
to rectify the No change to the
8. register of members 173(1) "any member" Articles is proposed.
-------------------------- ------------------ --------------------------- ------------------------------
"unless all of
To object to the members entitled
the holding of to attend and
a general meeting vote at such meeting No change to the
9. outside the State 176(2) consent in writing" Articles is proposed.
-------------------------- ------------------ --------------------------- ------------------------------
"not less than
50 per cent (or
such other percentage
as may be specified
in the constitution)
of the paid up
share capital
of the company
as, at that time,
carries the right
of voting at general
To convene an meetings of the
10. EGM 178(2) company" Article 5(b)
-------------------------- ------------------ --------------------------- ------------------------------
11. To require the 178(3) (as "not less than Article 5(b)
directors to modified 5 per cent of
convene an EGM by 1101 the paid up share
in the case capital of the
of a regulated company, as at
market PLC) the date of the
deposit of the
requisition of
EGM carries the
right of voting
at general meetings
of the company"
-------------------------- ------------------ --------------------------- ------------------------------
To apply to court "a member of the
for an order company who would
requiring a general be entitled to
meeting to be vote at a general No change to the
12. called 179(1) meeting of it" Articles is proposed.
-------------------------- ------------------ --------------------------- ------------------------------
To receive notice
of every general
13. meeting 180(1) "every member" Article 5(d)
-------------------------- ------------------ --------------------------- ------------------------------
"if it is so agreed
To object to by ... all the
the holding of members entitled
a meeting on to attend and No change to the
14. short notice 181(2) vote at the meeting" Articles is proposed.
-------------------------- ------------------ --------------------------- ------------------------------
Ability of a
body corporate
to appoint a
corporate representative
to represent
it at shareholder
15. meetings 185(1) "if it is a member..." Article 72(b)
-------------------------- ------------------ --------------------------- ------------------------------
While section
188(2) has been
disapplied by
the Articles of
Association, the
subject matter
of section 188(2)
is dealt with
by Article 64.
The rights under
the Articles of
Association in
relation to voting
and including
proxy appointment
instructions,
must be received
via the Euroclear
System or may
be exercised directly
following rematerialisation.
It is noted that
the EB Participant
or CDI holder
may also appoint
itself or another
person as a third
party proxy in
accordance with
To vote at general the EB Services
16. meetings 188(2) "every member" Description.
-------------------------- ------------------ --------------------------- ------------------------------
"(c) any member
or members present
in person or by
proxy and representing
not less than
10 per cent of
the total voting
rights of all
the members of
the company concerned
having the right
to vote at the
meeting; or
(d) a member or
members holding
shares in the
company concerned
conferring the
right to vote
at the meeting,
being shares on
which an aggregate
sum has been paid
up equal to not
less than 10 per
cent of the total
sum paid up on
To demand a poll all the shares
at a general conferring that No change to the
17. meeting 189(2) right" Articles is proposed.
-------------------------- ------------------ --------------------------- ------------------------------
To apply to court
for a declaration
that a director
is personally
responsible for
the company's
liabilities where
a solvency declaration
is given without No change to the
18. reasonable grounds 210(1) "a ...member" Articles is proposed.
-------------------------- ------------------ --------------------------- ------------------------------
"one or more members
who held, or together
held, not less
than 10 per cent
in nominal value
of the company's
issued share capital,
or any class thereof,
at the date of
the passing of No change to Articles
the special resolution is proposed.
and hold, or together It is not possible
hold, not less to provide this
than that percentage right through
in nominal value amendments to
of the foregoing the Constitution
To apply to court on the date of as this is a judicial
to cancel certain the making of remedy provided
19. special resolutions 211(3) the application" for in statute.
-------------------------- ------------------ --------------------------- ------------------------------
No change to Articles
is proposed.
It is not possible
to provide this
right through
To apply to the amendments to
court for an the Constitution
order where there as this is a judicial
is an instance remedy provided
20. of minority oppression 212(1) "any member" for in statute.
-------------------------- ------------------ --------------------------- ------------------------------
21. The disapplication Section A majority in Alters the threshold
of the requirement 449(1) as number of members for shareholder
that a scheme amended approval of any
of arrangement by section proposed scheme
be approved by 1087D of of arrangement
a majority in the Companies that the Company
number of shareholders Act. may implement
affected. while securities
In addition, are admitted to
for so long as the Euroclear
there are some System and, assuming
of shares held that some Shares
outside an authorised continue to be
CSD, the quorum held outside of
for any meeting an authorised
to consider a CSD following
resolution to the Migration,
approve a scheme would increase
of arrangement the necessary
shall be at least quorum for any
two persons holding meeting to consider
or representing a resolution to
by proxy at least approve a scheme
one-third in of arrangement.
nominal value
of the issued
shares, or class
of issued shares,
as the case may
be, of the issuer.
-------------------------- ------------------ --------------------------- ------------------------------
22. The disapplication Section Means that an
of the additional 458(3) as offeror for the
requirement set amended Company which
out in section as amended already held beneficial
58(3) of the by section ownership of more
Companies Act 1087E of than 20% of the
in order for the Companies Company's Shares
a right of buy-out Act. would no longer
to apply in certain be required to
circumstances satisfy the additional
requirement in
section 458(3)
of the Companies
Act that the assenting
shareholders in
respect of the
relevant scheme,
contract or offer
are not less than
50% in number
of the holders
of the relevant
shares, in order
for the offeror
to be entitled
to compulsorily
acquire the Shares
of any dissenting
shareholders.
-------------------------- ------------------ --------------------------- ------------------------------
23. To apply to the 459(5) to No change to the
court for an (8) Articles is proposed.
order permitting It is not possible
a dissenting to provide this
shareholder to right through
retain his or amendments to
her shares or the Constitution
varying the terms as this is a judicial
of the scheme, remedy provided
contract or offer for in statute.
as they apply
to that shareholder,
or in a case
where the offeror
is bound to acquire
his or her shares
by virtue of
section 457(7)(a)
, apply to the
court for an
order varying
the terms of
the scheme, contract
or offer as they
apply to that
dissenting shareholder
-------------------------- ------------------ --------------------------- ------------------------------
To apply to the
court for the
appointment of
one or more competent
inspectors to
investigate the
affairs of a No change to the
company in order "not less than Articles is proposed.
to enquire into 10 members of It is not possible
matters specified the company or to provide this
by the court a member or members right through
and to report holding one-tenth amendments to
on those matters or more of the the Constitution
in such manner paid up share as this is a judicial
as the court capital of the remedy provided
24. directs 747(2) company" for in statute.
-------------------------- ------------------ --------------------------- ------------------------------
To apply to the
court for an
order that the
company or officer
in default to
remedy the default
within such time
as the court No change to the
25. specifies. 797(3)(a) "any member" Articles is proposed.
-------------------------- ------------------ --------------------------- ------------------------------
"One or more members
... subject to
the member or
members concerned
holding 3 per
cent of the issued
share capital
of the company,
representing at
Ability to put least 3 per cent
item on the agenda of the total voting
at an annual rights of all
26. general meeting 1104(1) the members" Article 5(b)
-------------------------- ------------------ --------------------------- ------------------------------
27. The company may Section Article 1 - Definition
select a record 1105(1) of "Record Date"
date for voting as amended
at shareholder by 1087G
meeting provided of the Companies
that it is close Act.
of business on
the day before
a date and not
more than 72
hours before
the general meeting
to which it relates.
-------------------------- ------------------ --------------------------- ------------------------------
Ability to request
the company to
acquire his shareholding No change to the
28. for cash 1140(1) A "shareholder" Articles is proposed.
-------------------------- ------------------ --------------------------- ------------------------------
Note:
(1) Rights in respect of general meetings may be exercised via
the Euroclear System, subject to the terms and restrictions set out
in the EB Services Description.
SHAREHOLDER FORM OF PROXY ("FORM OF PROXY")
I/We
________________________________________________________________________________________________________________
being a member/members of Bank of Cyprus Holdings Public Limited
Company (the "Company"), hereby appoint:
1. The Chairman of the EGM
2.
______________________________________________________________________
with ID number _____________________
or failing him/her,
__________________________________________________________________________________________
with ID number ____________________________
as my/our proxy to attend, speak and vote on my/our behalf at
the EGM of the Company, to be held on Friday, 05 February 2021, at
11:00 a.m. (Cyprus time) / 9:00 a.m. (Irish time) at the Company's
Headquarters (51 Stassinos Street, Ayia Paraskevi, 2002 Strovolos,
Nicosia, Cyprus) (which shall also be linked by audio link to the
registered office of the Company at the address, Ten Earlsfort
Terrace, Dublin 2, D02 T380, Ireland) and at any adjournment
thereof.
This proxy may be exercised in respect of all / _______________
(delete/complete as appropriate) ordinary shares registered in
my/our name(s).
Please tick here to indicate that this proxy appointment is one
of multiple appointments being made.
I/We direct my/our proxy to vote on the resolutions proposed at
the meeting as indicated on this form. Where no instruction appears
below as to how the proxy should vote, the proxy may vote as he or
she thinks fit (acting in his/her absolute discretion) in relation
to any business of the meeting:
Resolutions For Against Vote
Withheld
1 To approve the Migration of the Migrating
Shares to Euroclear Bank's Central Securities
Depository
------------------------------------------------------ ---- -------- ----------
2 To amend the Articles of Association in the
manner set out in the exhibit to the Notice
of EGM.
------------------------------------------------------ ---- -------- ----------
3 To approve and adopt Articles of Association
in connection with the Migration.
------------------------------------------------------ ---- -------- ----------
3(a) Subject to Resolutions 1 and 2 being approved,
to approve and adopt the new Articles of Association
to include the amendments in Resolution 2
and those required for Migration.
------------------------------------------------------ ---- -------- ----------
3(b) Subject to Resolution 1 being approved, and
Resolution 2 not being approved, to adopt
the new Articles of Association to include
the amendments for the Migration only.
------------------------------------------------------ ---- -------- ----------
4 To authorise and instruct the Company to take
all steps to give effect to the Migration.
------------------------------------------------------ ---- -------- ----------
Date Signature
Contact details: Telephone Fax
Notes to the Shareholder Form of Proxy:
1. Every Shareholder has the right to appoint some other
person(s) of their choice, who need not be a shareholder, as his
proxy to exercise all or any of his rights, to attend, speak and
vote on their behalf at the meeting. If you wish to appoint a
person other than the Chairman, please insert the name of your
chosen proxy in the space provided. A Shareholder may appoint more
than one proxy to attend and vote at the meeting in respect of
shares provided that, where a Shareholder appoints more than one
proxy in relation to a general meeting, each proxy must be
appointed to exercise the rights attached to different shares held
by that Shareholder. A Shareholder acting as an intermediary on
behalf of one or more clients may grant a proxy to each of its
clients or their nominees provided each proxy is appointed to
exercise rights attached to different Shares held by the
Shareholder. If the proxy is being appointed in relation to less
than your full voting entitlement please indicate in the space
provided the number of shares in relation to which they are
authorised to act as your proxy. If left blank, your proxy will be
deemed to be authorised in respect of your full voting entitlement
(or if this proxy form has been issued in respect of a designated
account for a Shareholder, the full voting entitlement for that
designated account). Where a poll is taken at the EGM, a
Shareholder present in person or proxy, holding more than one
share, is not required to cast all their votes in the same way.
Where you do not specify how the proxy must vote on any particular
matter, the appointed proxy (including the Chairman, if appointed)
has discretion as to whether, and if so, how he votes.
2. To appoint more than one proxy, please print an additional
copy of this form. Please indicate in the space provided the number
of Shares in relation to which they are authorised to act as your
proxy. Please also indicate by ticking the space provided if the
proxy instruction is one of multiple instructions being given.
3. All forms must be completed and signed and should be returned
together in the same envelope. To be effective, the completed Form
of Proxy, together with any power of attorney or other authority
under which it is executed, or a notarially certified copy thereof,
must be deposited with the Registrar at Link Registrars Limited,
either to PO Box 1110, Maynooth, Co. Kildare, Ireland (if delivered
by post) or Level 2, Block C, Maynooth Business Campus, Maynooth,
Co. Kildare W23 F854, Ireland (if delivered by hand) or to the
Company's registered office, Ten Earlsfort Terrace, Dublin 2, D02
T380, Ireland before 9:00 p.m. (Cyprus time) / 7:00 p.m. (Irish
time) on 03 February 2021 (or, in the case of an adjournment of the
EGM, no later than 48 hours before the time fixed for holding the
adjourned meeting).
4. Alternatively, a Shareholder wishing to appoint a proxy by
electronic means may do so by logging on to www.signalshares.com
and entering the Company name Bank of Cyprus Holdings plc before
9:00 p.m. (Cyprus time) / 7:00 p.m. (Irish time) on 03 February
2021. The Shareholder will need to register for Signal Shares by
clicking on "registration section" (if not already registered) and
follow the instructions therein.
5. Where the appointing Shareholder is a body corporate this
form must be signed under its common seal or under the hand of a
duly authorised officer thereof.
6. In the case of joint Shareholders the Form of Proxy can only
be signed by the person whose name appears first in the Register of
Members.
7. The "Vote Withheld" option is provided to enable you to
abstain on any particular resolution. However, it should be noted
that a 'Vote Withheld' is not a vote in law and will not be counted
in the calculation of the proportion of the votes 'For' and
'Against' a resolution.
8. Pursuant to Section 1105 of the Companies Act and regulation
14 of the Companies Act, 1990 (Uncertificated Securities)
Regulations, 1996, entitlement to attend and vote at the meeting
and the number of votes which may be cast thereat will be
determined by reference to the Register of Members of the Company
at 9:00 p.m. (Cyprus time) / 7:00 p.m. (Irish time) on 03 February
2021. Changes to entries on the Register of Members after that time
shall be disregarded in determining the rights of any person to
attend and vote at the meeting.
9. To appoint one or more proxies or to give an instruction to a
proxy (whether previously appointed or otherwise) via the CREST
system, CREST messages must be received by Registrar (ID 7RA08) by
9:00 p.m. (Cyprus time) / 7:00 p.m. (Irish time) on Wednesday, 03
February 2021. For this purpose, the time of receipt will be taken
to be the time (as determined by the timestamp generated by the
CREST system) from which the Registrar is able to retrieve the
message by enquiry to CREST in the manner prescribed by CREST. The
Company may treat as invalid a proxy appointment sent by CREST in
the circumstances set out in Regulation 35(5)(a) of the Companies
Act, 1990 (Uncertificated Securities) Regulations, 1996. Please see
the Notes to the Notice of the EGM for further details.
10. Any alterations made to this form should be initialled.
11. The appointment of a proxy will not preclude a Shareholder
from attending the meeting and voting in person should he/she wish
to do so, subject to compliance with the latest guidance of the
Government of the Republic of Cyprus, the Government of Ireland and
the Department of Health (of Ireland) to minimise any potential
risks posed to attendees as a result of the COVID--19 pandemic.
12. Capitalised terms in this Shareholder Form of Proxy shall
have the same meaning given to them in the Notice of the EGM unless
otherwise indicated herein.
13. Detailed instructions on proxy voting and how to access the
EGM remotely are set out in the Notice convening the EGM. You can
access the Notice of the EGM, Shareholder Circular, redlines of the
Articles of Association showing the proposed changes and the other
documents being placed on display in connection with the EGM by
visiting the Company's website: www.bankofcyprus.com which will
also include any updates or announcements regarding the EGM in the
event that circumstances change.
DEPOSITARY INTEREST HOLDER PROXY NOMINATION FORM ("DI FORM OF
PROXY")
I/We
__________________________________________________________________________________________________________
with ID/Passport/Company Registration number/ Investor Share
Code ___________________________________________________
being a holder of depositary interests representing ordinary
shares in Bank of Cyprus Holdings Public Limited Company (the
"Company"), appointed as a proxy of Link Market Services Trustees
(Nominees) Limited ("Link Nominees") of The Registry, 34 Beckenham
Road, Beckenham, Kent, BR3 4TU, United Kingdom in respect of the
number of ordinary shares represented by the depositary interests
held by me/us, hereby direct, nominate and request:
1. The Chairman of the EGM
2.
______________________________________________________________________
with ID number _________________
or failing him/her,
____________________________________________________________________________________
with ID number ____________________________
to be appointed as a proxy of Link Nominees in respect of the
number of ordinary shares represented by the depositary interest
held by me/us and consequently as my/our proxy to attend, speak and
vote in respect of the number of ordinary shares represented by the
depositary interest held by me/us at the EGM of the Company, to be
held on Friday, 05 February 2021, at 11:00 a.m. (Cyprus time) /
9:00 a.m. (Irish time) at the Company's Headquarters (51 Stassinos
Street, Ayia Paraskevi, 2002 Strovolos, Nicosia, Cyprus) (which
shall also be linked by audio link to the registered office of the
Company at the address, Ten Earlsfort Terrace, Dublin 2, D02 T380,
Ireland) and at any adjournment thereof.
This nomination may be exercised in respect of all /
_______________ (delete/complete as appropriate) ordinary shares in
respect of which I am being appointed as proxy (reflecting my
holding of depositary interests representing ordinary shares in the
Company registered in my/our name(s)).
Please tick here to indicate that this nomination is one of multiple nominations being made.
I/We direct my/our proxy to vote on the resolutions proposed at
the meeting as indicated on this form. Where no instruction appears
below as to how the proxy should vote, the proxy may vote as he or
she thinks fit (acting in his/her absolute discretion) in relation
to any business of the meeting. I/We direct that any proxy issued
by Link Nominees in respect of the ordinary shares in respect of
which my nominee representative is being appointed be subject to
such direction:
Resolutions For Against Vote
Withheld
1 To approve the Migration of the Migrating
Shares to Euroclear Bank's Central Securities
Depository
------------------------------------------------- ---- -------- ----------
2 To amend the Articles of Association in
the manner set out in the exhibit to the
Notice of EGM.
------------------------------------------------- ---- -------- ----------
3 To approve and adopt Articles of Association
in connection with the Migration.
------------------------------------------------- ---- -------- ----------
3(a) Subject to Resolutions 1 and 2 being approved,
to approve and adopt the new Articles of
Association to include the amendments in
Resolution 2 and those required for Migration.
------------------------------------------------- ---- -------- ----------
3(b) Subject to Resolution 1 being approved,
and Resolution 2 not being approved, to
adopt the new Articles of Association to
include the amendments for the Migration
only.
------------------------------------------------- ---- -------- ----------
4 To authorise and instruct the Company to
take all steps to give effect to the Migration.
------------------------------------------------- ---- -------- ----------
Date Signature
Contact details: Telephone Fax
Notes to the DI Form of Proxy:
1. Every DI Holder has the right to appoint some other person(s)
of their choice, who need not be a shareholder or DI Holder, as his
nominated proxy, who shall in turn be appointed as proxy, to
exercise all or any of his rights, to attend, speak, ask questions
and vote in respect of the number of ordinary shares represented by
depositary interests held by a DI Holder. If you wish to nominate a
person other than the Chairman, please insert the name of your
chosen nominated proxy in the space provided. A DI Holder may
nominate more than one proxy to attend and vote at the meeting in
respect of depositary interests provided that, where a DI Holder
appoints more than one proxy in relation to a general meeting, each
proxy must be appointed to exercise the rights attached to
different ordinary shares represented by depositary interests held
by that DI Holder. A DI Holder acting as an intermediary on behalf
of one or more clients may nominate as a proxy each of its clients
or their nominees provided each proxy nominee is nominated to
exercise rights attached to different depositary interests held by
the DI Holder. If the proxy nominee is being nominated in relation
to less than your full voting entitlement please indicate in the
space provided the number of depositary interests in relation to
which they are nominated as your proxy nominee. If left blank, your
proxy nominee will be deemed to be nominated in respect of your
full voting entitlement (or if this proxy nomination form has been
issued in respect of a designated account for a DI Holder, the full
voting entitlement for that designated account). Where a poll is
taken at the EGM, a DI Holder present in person or represented by a
proxy nominee, holding more than one depositary interest
representing one share, is not required to cast all their votes in
the same way. Where you do not specify how the proxy must vote on
any particular matter, the appointed proxy (including the Chairman,
if appointed) has discretion as to whether, and if so, how he
votes.
2. To appoint more than one proxy, please print an additional
copy of this form. Please indicate in the space provided the number
of depositary interests in relation to which they are authorised to
act as your proxy. Please also indicate by ticking the space
provided if the proxy instruction is one of multiple instructions
being given.
3. All forms must be completed and signed and should be
deposited together with any power of attorney or other authority
under which it is executed, or a notarially certified copy thereof,
to Investor Relations, 51 Stassinos Street, Ayia Paraskevi, 2002
Strovolos, Nicosia, Cyprus, P.O. Box 21472, 1599 Nicosia, Cyprus,
e-mail:shares@bankofcyprus.com, fax: +357 22 120265 / +357 22
120245 so as to reach such address no later than 9:00 p.m. (Cyprus
time) / 7:00 p.m. (Irish time) on 03 February 2021. DI Holders may
confirm that the applicable DI Form of Proxy has been successfully
received by the Company by calling Investors Relations at +357 22
126055.
4. Where the appointing DI Holder is a body corporate this form
must be signed under its common seal or under the hand of a duly
authorised officer thereof.
5. In the case of joint DI Holders the Form of Proxy can only be
signed by the person whose name appears first in the Register of
Members.
6. The "Vote Withheld" option is provided to enable you to
abstain on any particular resolution. However, it should be noted
that a 'Vote Withheld' is not a vote in law and will not be counted
in the calculation of the proportion of the votes 'For' and
'Against' a resolution.
7. The entitlement of a DI Holder to be appointed as proxy or to
nominate a proxy nominee to attend and vote at the meeting and the
number of votes which may be cast thereat will be determined by
reference to the Register of DI Holders at 9:00 p.m. (Cyprus time)
/ 7:00 p.m. (Irish time) on 03 February 2021. Changes to entries on
the Register of DI Holders after that time shall be disregarded in
determining the rights of any person to attend and vote at the
meeting.
8. Any alterations made to this form should be initialled.
9. The nomination of a proxy nominee will not preclude a DI
Holder holding Depositary Interests at the voting record time from
attending the meeting and voting in person should he/she wish to do
so pursuant to their appointment as proxy by Link Nominees.
10. Capitalised terms in this Depositary Interest Form of Proxy
shall have the same meaning given to them in the Notice of the EGM
unless otherwise indicated herein.
11. Detailed instructions on proxy voting and how to access the
EGM remotely are set out in the Notice convening the EGM. You can
access the Notice of the EGM, Shareholder Circular, redlines of the
Articles of Association showing the proposed changes and the other
documents being placed on display in connection with the EGM by
visiting the Company's website: www.bankofcyprus.com which will
also include any updates or announcements regarding the EGM in the
event that circumstances change.
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END
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