Dole plc F-3ASR, filed Sep 3, 2025
Dole plc (DOLE)
As filed with the Securities and Exchange Commission on September 3, 2025
Registration No. 333-
UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM F-3
REGISTRATION
STATEMENT
UNDER THE SECURITIES ACT OF 1933
Dole plc
(Exact name of Registrant as specified in its charter)
N/A
(Translation of Registrant’s name into English)
Ireland |
98-1610692 | |
| (State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification Number) |
29
North Anne Street, Dublin 7
D07 PH36 Ireland
Tel: 353-1-887-2600
101 South Tryon St, Suite #600, Charlotte, NC
United States 28280
(Address and telephone number of Registrant’s principal executive offices)
Corporation Service Company
251 Little Falls Drive
Wilmington, DE
United States 19808
Tel: (302) 636-5400
(Name, address, and telephone number of agent for service)
Copies to:
P. Michelle Gasaway
David
C. Eisman
Skadden, Arps, Slate, Meagher & Flom LLP
2000 Avenue of the Stars
Los Angeles, California 90067
Tel: (213) 687-5000
Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.C. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☒
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.C. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933.
Emerging growth company ☐
If an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards† provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
| † | The term “new or revised financial accounting standard” refers to any update issued by the Financial Accounting Standards Board to its Accounting Standards Codification after April 5, 2012. |
PROSPECTUS
Dole plc
Ordinary Shares
This prospectus relates to the offer and sale by the selling shareholders named herein (the “Selling Shareholders”), from time to time, in amounts, at prices and on terms that will be determined at the time of any such offering, of ordinary shares, par value $0.01 per share (“ordinary shares”), of Dole plc (the “Company,” “we,” “our” or “us”) owned by the Selling Shareholders and subject to the registration rights agreement, dated as of August 3, 2021 (the “Registration Rights Agreement”), between the Company and the Selling Shareholders pursuant to which the Selling Shareholders were granted certain registration rights. We are registering the ordinary shares covered hereby for resale pursuant to, and subject to the conditions of, the Registration Rights Agreement. This prospectus describes the general manner in which the ordinary shares may be offered and sold by the Selling Shareholders. If necessary, the specific manner in which the shares may be offered and sold will be described in a supplement to this prospectus or free writing prospectus, if needed, which may add, update or change information contained or incorporated by reference in this prospectus.
We are not selling any ordinary shares under this prospectus, and we will not receive any of the proceeds from the sale or other disposition of ordinary shares by the Selling Shareholders.
The Selling Shareholders may offer the ordinary shares for sale directly to purchasers or through underwriters, dealers or agents to be designated at a future date. If any underwriters, dealers or agents are involved in the sale of any of the ordinary shares, their names, and any applicable purchase price, fee, commission or discount arrangement between or among them will be set forth, or will be calculable from the information set forth, in the applicable prospectus supplement or free writing prospectus. See the “Plan of Distribution” and “About this Prospectus” sections for more information.
You should read this prospectus and the applicable prospectus supplement as well as the documents incorporated or deemed to be incorporated by reference in this prospectus carefully before you invest in our securities together with additional information described under the heading “Where You Can Find More Information.” Our ordinary shares are quoted on the New York Stock Exchange (“NYSE”) under the symbol “DOLE.” The closing price of our ordinary shares, as reported on the New York Stock Exchange on September 2, 2025, was $14.63.
As a foreign private issuer, we are subject to different U.S. securities laws, NYSE governance standards and other requirements than domestic U.S. registrants and non-emerging growth companies. These may afford relatively less protection to holders of our ordinary shares, who may not receive all corporate and Company information and disclosures they are accustomed to receiving, or in a manner to which they are accustomed.
Investing in our ordinary shares involves risks. Risks associated with an investment in our ordinary shares will be described in the applicable prospectus supplement and certain of our filings with the Securities and Exchange Commission (the “SEC”) that are incorporated by reference into this prospectus, as described under “Risk Factors” on page 4 of this prospectus.
Neither the SEC nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is September 3, 2025.
TABLE OF CONTENTS
i
This prospectus is part of an “automatic shelf” registration statement on Form F-3 that we have filed with the SEC as a “well-known seasoned issuer,” as defined in Rule 405 under the Securities Act of 1933, as amended (the “Securities Act”), utilizing a “shelf” registration process. Under this shelf registration process, the Selling Shareholders may offer and sell our ordinary shares in one or more offerings or resales. The offer and sale of our ordinary shares by the Selling Shareholders under this prospectus may be made from time to time in any manner described under the section in this prospectus entitled “Plan of Distribution” or in any prospectus supplement. To the extent permitted by law, we may file or authorize one or more prospectus supplements or free writing prospectuses to be provided to you that may contain material information relating to these offerings.
Before investing in our ordinary shares, you should carefully read both this prospectus and any prospectus supplement and/or free writing prospectus together with additional information incorporated by reference herein and described under the headings “Where You Can Find More Information” and “Incorporation by Reference.” Any such prospectus supplement and/or free writing prospectus may include a discussion of any risk factors or other special considerations that apply to that offering. The prospectus supplement and/or free writing prospectus may also add, update or change the information in this prospectus. If there is any inconsistency between the information in this prospectus and any prospectus supplement and/or free writing prospectus, you should rely on the information in that prospectus supplement and/or free writing prospectus. The registration statement containing this prospectus, including exhibits to the registration statement, also provides additional information about us and the ordinary shares offered under this prospectus. The registration statement can be read on the SEC website.
When acquiring any ordinary shares described in this prospectus, you should rely only on the information provided in this prospectus and in any applicable prospectus supplement and/or free writing prospectus, including the information incorporated by reference. Neither we nor any Selling Shareholder nor any underwriter, dealer or agent have authorized anyone to provide you with different information or to make any representations other than those contained or incorporated by reference in this prospectus, the applicable prospectus supplement or free writing prospectus made available by us. If anyone provides you with different or inconsistent information, you should not rely on it. Ordinary shares are not being offered in any jurisdiction where the offer or sale is prohibited. You should not assume that the information in this prospectus, any prospectus supplement, any free writing prospectus or any document incorporated by reference is truthful or complete at any date other than the date set forth on the cover page of any such document or any earlier date as of which such information is given, as applicable. Our business, financial condition, results of operations and prospects may have changed since that date. This prospectus and the information incorporated herein by reference contain summaries of certain provisions contained in some of the documents described herein, but reference should be made to the actual documents for complete information. All of the summaries are qualified in their entirety by the actual documents. Copies of some of the documents referred to herein have been filed, will be filed or will be incorporated by reference as exhibits into the registration statement of which this prospectus is a part, and you may obtain copies of those documents as described below under the heading “Where You Can Find More Information.”
The Selling Shareholders may sell our ordinary shares to underwriters who will sell the securities to the public at a fixed offering price or at varying prices determined at the time of sale. The applicable prospectus supplement will contain the names of the underwriters, dealers or agents, if any, together with the terms of offering, and will contain (or will be calculable from the information set forth therein) the compensation of those underwriters, dealers or agents and the net proceeds to the Selling Shareholders. Any underwriters, dealers or agents participating in the offering may be deemed “underwriters” within the meaning of the Securities Act.
Unless otherwise mentioned or unless the context requires otherwise, all references in this prospectus to “we,” “our,” “us,” the “Company” and “Dole” refer to Dole plc, individually or together with its subsidiaries, as the context may require. References to “Dole plc” refer to the registrant.
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Dole is a global leader in fresh fruits and vegetables and offers over 300 products that are grown and sourced, both locally and globally, from over 100 countries worldwide. With operations in 30 countries, these products are distributed and marketed in over 85 countries, across retail, wholesale and foodservice channels, under our business-to-business and business-to-consumer brands, the most notable being our iconic DOLE brand. Our most significant products hold leading positions in their respective product categories and market territories, and we are one of the world’s largest producers and distributors of fresh bananas and pineapples, one of the largest global exporters of grapes and have a strong presence in growing categories such as berries, avocados and organic produce.
Our vertically-integrated business model is supported by a valuable and extensive infrastructure and asset base, including approximately 110,000 acres of farms and other land holdings around the world. In addition, we own a fleet of refrigerated container carriers and pallet-friendly conventional refrigerated ships and have an extensive portfolio of various business facilities, including packing houses, manufacturing plants and cold storage and distribution facilities. In addition to our owned asset base, we have developed long-standing relationships with independent growers across the globe, including international partnerships, joint ventures and other investments, which provide us additional operational flexibility and extended range and availability throughout the year.
On August 5, 2025, we completed the sale of our Fresh Vegetables Division to a portfolio company of Arable Capital Partners, LLC for an aggregate purchase price of approximately $140.0 million, comprising of approximately $90 million in cash (subject to customary post-closing adjustments) and a $50 million seller note, and a $10 million potential earnout payment.
We are an enthusiastic advocate of a healthy lifestyle, and supporting consumers in making healthier choices by consuming more fruits and vegetables. We are committed to continuously improving farming and supply chain practices and the way we operate our business to make a positive impact on society and the environment through our activities.
Our legal and commercial name is Dole plc. We were incorporated in Ireland on June 16, 2017 as a dormant company under the name Pearmill Limited and changed our name to Dole Limited on April 13, 2021. On April 26, 2021, we re-registered as a public limited company under the laws of Ireland and changed our name to Dole plc. Our principal places of business are 29 North Anne Street, Dublin 7, D07PH36, Ireland (which is also our registered address) and 101 South Tryon St., Suite #600, Charlotte, North Carolina 28280. Our telephone number is 353-1-887-2600. The name and address of our agent in the U.S. is Corporation Service Company at 251 Little Falls Drive, Wilmington, Delaware 19808.
We maintain a public website at https://www.doleplc.com. The information contained on or connected to, or accessible from, our website is not a part of this prospectus, and you should not rely on any such information in making your decision whether to purchase our ordinary shares.
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SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
Some of the information contained in or incorporated by reference into this prospectus contains forward-looking statements within the meaning of Section 27A of the Securities Act and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), that relate to our operations, results of operations and other matters that are based on our current expectations, estimates, assumptions and projections. Forward-looking statements are based on management’s beliefs, assumptions and expectations of our future economic performance, considering the information currently available to management. These statements are not statements of historical fact. The words “believe,” “may,” “could,” “will,” “should,” “would,” “anticipate,” “estimate,” “expect,” “intend,” “objective,” “seek,” “strive,” “target” or similar words, or the negative of these words, identify forward-looking statements. The inclusion of this forward-looking information should not be regarded as a representation by us, the underwriters or any other person that the future plans, estimates or expectations contemplated by us will be achieved. Such forward-looking statements are subject to various risks and uncertainties and assumptions relating to our operations, financial results, financial condition, business prospects, growth strategy and liquidity. Accordingly, there are, or will be, important factors that could cause our actual results to differ materially from those indicated in these statements.
We believe that these factors include, but are not limited to:
| ● | weather conditions that affect the production, transportation, storage, import and export of our products; |
| ● | adverse weather conditions, natural disasters, crops disease, pests and other natural conditions, including the effects of climate change, which may affect market prices and the demand for our products, and our ability to mitigate such risks; |
| ● | our ability to compete and innovate effectively against our present and future competitors; |
| ● | changes in interest and currency exchange rates; |
| ● | product and raw material supplies, including increases in pricing due to inflation or otherwise or changes to their availability; |
| ● | our exposure to product contamination and product liability claims and associated regulatory and legal actions, product recalls or other legal proceedings relating to our business; |
| ● | our ability to generate a sufficient amount of cash to service our indebtedness and fund our operations; |
| ● | our ability to operate our business under agreements governing certain of our indebtedness containing financial covenants and other restrictions; |
| ● | the impact of pandemics on demand for the Company’s products, including as a result of illness, quarantines, government actions, facility closures, store closures or other restrictions, and the extent and duration thereof, related impact on our ability to meet customer needs and on the ability of third parties on which we rely, including our franchisees, suppliers, customers, contract manufacturers, distributors, to meet their obligations to us, the extent that government funding and reimbursement programs in connection with such an event or other similar pandemics are available to us, and the ability to successfully implement measures to respond to such impacts; |
| ● | our use of herbicides, pesticides and other hazardous substances; |
| ● | labor disruptions, strikes or work stoppages; |
| ● | geopolitical risks, including the ongoing conflicts between Ukraine and Russia and in the Middle East and other international conflicts or political instability in key production or distribution regions that could impact our ability to operate efficiently; |
| ● | acts of crime or terrorism, including any potential impact on our information systems; |
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| ● | our failure to hire and retain key personnel and highly skilled employees; |
| ● | loss of important intellectual property rights; |
| ● | the effects of any changes in laws (including the interpretation thereof), regulations, rules, quotas, tariffs, export and import laws on our operations; |
| ● | economic crises or a decline in general economic conditions; |
| ● | the impact of governmental trade restrictions, including adverse governmental regulation that may impact our ability to access certain markets, including spillover effects to other Eurozone countries; |
| ● | vulnerabilities in global supply chains, including potential disruptions due to transportation constraints, supplier failure or geopolitical tensions; |
| ● | reliance on information technology networks and systems and potential cyberattacks that may compromise confidential data or disrupt business operations; |
| ● | the adequacy of the insurance we maintain; |
| ● | the volatility of the trading price of our ordinary shares; and |
| ● | other risk factors set forth in or incorporated by reference under “Risk Factors.” |
All such risk factors are difficult to predict, contain uncertainties that may materially affect actual results and may be beyond our control. New risk factors emerge from time to time, and it is not possible for management to predict all such risk factors or to assess the impact of each such risk factor on the Company. Any forward-looking statement speaks only as of the date on which such statement is made, and we do not undertake any obligation to update any forward-looking statement to reflect events or circumstances after the date on which such statement is made, except as required by the federal securities laws.
If one or more risks or uncertainties materialize, or if our underlying assumptions prove to be incorrect, our actual results may vary materially from what we may have expressed or implied by these forward-looking statements. Factors that could cause or contribute to such differences include, but are not limited to factors discussed in the section of this prospectus entitled “Risk Factors” and the risk factors and cautionary statements described in other documents that we file from time to time with the SEC, specifically under the section titled “Risk Factors” and elsewhere in our most recent Annual Report on Form 20-F, as amended, revised or supplemented by our reports of foreign private issuer on Form 6-K, which have been or will be incorporated by reference in this prospectus. We caution you that the factors referenced above may not contain all of the factors that are important to you and that you should not place undue reliance on any of our forward-looking statements. You should, however, review the factors and risks we describe in the reports we will file from time to time after the date of this prospectus.
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An investment in our ordinary shares involves a high degree of risk. Before making an investment decision, you should carefully consider the risks and uncertainties described under “Risk Factors” in the applicable prospectus supplement and/or any free writing prospectus and in Part.I, Item 3.D (“Risk Factors”) in our most recent Annual Report on Form 20-F, and in our updates, if any, to those risk factors in our reports of foreign private issuer on Form 6-K, together with all of the other information appearing in this prospectus or incorporated by reference into this prospectus and any applicable prospectus supplement, in light of your particular investment objectives and financial circumstances. The risks described in any prospectus supplement and the risks in our filings with the SEC incorporated by reference herein are not the only ones facing us. Our business, financial condition, prospects, results of operations or cash flows could also be harmed by risks and uncertainties not currently known to us or that we currently do not believe are material. Past financial performance may not be a reliable indicator of future performance, and historical trends should not be used to anticipate results or trends in future periods. We cannot assure you that any of the events discussed in these risk factors will not occur. The trading price of our securities could decline due to any of these risks, and you may lose all or part of your investment.
Risks Related to the Ownership of Our Ordinary Shares
The market price of our ordinary shares could be negatively affected by future sales by our shareholders or by us of our ordinary shares.
Future sales by us or our shareholders of a substantial number of ordinary shares in the public market, or the perception that these sales might occur, could cause the market price of our ordinary shares to decline or could impair our ability to raise capital through a future sale of, or pay for acquisitions using, our equity securities.
The Selling Shareholders currently own an aggregate of 11,917,263 of our ordinary shares. Pursuant to, and subject to the conditions of, the Registration Rights Agreement, we are registering for resale shares owned by the Selling Shareholders, and therefore such shares may be sold by the Selling Shareholders from time to time in the public market or in other transactions, in amounts, at prices and on terms that will be determined at the time of any such offering.
In addition, as of June 30, 2025, 5,071,764 ordinary shares were available for future awards under our equity incentive plans and 1,844,549 ordinary shares were available for future issue under awards granted. We have filed registration statements on Form S-8 under the Securities Act registering ordinary shares that we may issue under our equity incentive plans. Shares included in such registration statements may be sold in the public market upon issuance, except for shares held by affiliates who have certain restrictions on their ability to sell.
We cannot assure you that the price of our ordinary shares will not decline or not be subject to significant volatility.
The market price of our ordinary shares could be subject to significant fluctuations. The price of our ordinary shares may change in response to fluctuations in our results of operations in future periods and also may change in response to other factors, including factors specific to companies in our industry, many of which are beyond our control. As a result, the price of our ordinary shares may experience significant volatility and may not necessarily reflect our performance. Among other factors that could affect the price of our ordinary shares are:
| ● | changes in laws or regulations applicable to our industry or offerings; |
| ● | speculation about our business in the press or the investment community; |
| ● | price and volume fluctuations in the overall stock market; |
| ● | volatility in the market price and trading volume of securities of companies in our industry or of companies that investors consider comparable; |
| ● | price and volume fluctuations attributable to inconsistent trading levels of our ordinary shares; |
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| ● | our ability to protect our intellectual property and other proprietary rights and to operate our business without infringing, misappropriating or otherwise violating the intellectual property and other proprietary rights of others; |
| ● | sales of our ordinary shares by us or our significant shareholders, officers and directors, and the expiration of contractual lock-up agreements in connection therewith; |
| ● | the development and sustainability of an active trading market for our ordinary shares; |
| ● | success of competitive products or services; |
| ● | the public’s response to press releases or other public announcements by us or others, including our filings with the SEC, announcements relating to litigation or significant changes to our key personnel; |
| ● | the effectiveness of our internal controls over financial reporting; |
| ● | changes in our capital structure, such as future issuances of debt or equity securities; |
| ● | our entry into new markets; |
| ● | tax developments in the United States, Europe or other markets; |
| ● | strategic actions by us or our competitors, such as acquisitions or restructurings; and |
| ● | changes in accounting principles. |
Further, the stock markets have experienced extreme price and volume fluctuations that have affected and continue to affect the market prices of equity securities of many companies. These broad market and industry fluctuations, as well as general economic, political and market conditions such as recessions, interest rate changes or international currency fluctuations, may cause the market price of our ordinary shares to decline.
You may not be able to resell any of your ordinary shares at or above the price you paid for such shares and/or the public offering price, as applicable. If the market price of our ordinary shares after this offering does not exceed the price you paid for such shares and/or the public offering price, as applicable, you may not realize any return on your investment and may lose some or all of your investment.
If securities or industry analysts do not publish or cease publishing research or reports about us, our business or our market, or if they change their recommendations regarding our ordinary shares adversely, the trading price of our ordinary shares and trading volume could decline.
The trading market for our ordinary shares will be influenced by the research and reports that industry or securities analysts publish about us or our business. We do not control these analysts. If any of the analysts who cover us downgrade our ordinary shares or our industry, or the stock of any of our competitors, or publish inaccurate or unfavorable research about our business, the price of our ordinary shares may decline. If analysts cease coverage of us or fail to regularly publish reports on us, we could lose visibility in the financial markets, which in turn could cause the price or trading volume of our ordinary shares to decline and our ordinary shares to be less liquid.
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We are not selling any ordinary shares under this prospectus, and we will not receive any of the proceeds from the sale of ordinary shares by the Selling Shareholders. All ordinary shares offered from time to time pursuant to this prospectus are being registered for the account of the Selling Shareholders. The Selling Shareholders will receive all of the net proceeds from the sale of any ordinary shares by them under this prospectus, excluding commissions and discounts, if any.
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This prospectus covers the possible offer and resale from time to time by the Selling Shareholders of ordinary shares. The term “Selling Shareholders” includes the persons listed in the table below and any of their transferees, pledgees, assignees, distributes, donees, lenders, successors or others who later hold any of the Selling Shareholders’ interests in the ordinary shares.
The Selling Shareholders and any brokers, dealers or agents that participate in the distribution of the ordinary shares may be deemed to be “underwriters” within the meaning of the Securities Act, and any discounts, concessions, commissions or fees received by them and any profit on the resale of the ordinary shares sold by them may be deemed to be underwriting discounts and commissions.
The following table sets forth information about the Selling Shareholders. Additional information regarding the Selling Shareholders, including the number of ordinary shares being offered by such Selling Shareholders in any offering and the number of ordinary shares beneficially owned by the Selling Shareholders after such offering, will be set forth in a prospectus supplement, free writing prospectus, post-effective amendment or filings we make with the SEC under the Exchange Act, that are incorporated by reference. The Selling Shareholders may acquire at any time ordinary shares in addition to those registered hereby. In addition, the Selling Shareholders may sell, transfer, assign or otherwise dispose of some or all of their ordinary shares in transactions exempt from or not subject to the registration requirements of the Securities Act. The information set forth below is based on information provided by or on behalf of the Selling Shareholders prior to the date hereof. Information concerning the Selling Shareholders may change from time to time.
We have based percentage ownership on 95,162,657 ordinary shares outstanding as of August 27, 2025. We have determined beneficial ownership in accordance with the rules of the SEC. We believe, based on the information furnished to us, that each person or entity named in the table below has sole voting and investment power with respect to all ordinary shares that he, she or it beneficially owns, subject to applicable community property laws.
| Ordinary Shares Beneficially Owned Prior to Offering | Ordinary Shares Beneficially Owned After Completion of Offering(1) | |||||||||||||||
| Name of Selling Shareholder | Number | Percentage | Number | Percentage | ||||||||||||
| Castle & Cooke Holdings, Inc.(2) | 2,076,564 | 2.2 | % | — | — | |||||||||||
| The Murdock Group, LLC(3) | 9,840,699 | 10.3 | % | — | — | |||||||||||
| (1) | Assumes the Selling Shareholders sell all the ordinary shares owned by them. |
| (2) | Castle & Cooke Holdings, Inc. is wholly owned by Castle & Cooke Investments, Inc., which is wholly owned by The Murdock Group, LLC, which is owned by The David H. Murdock Administrative Trust, dated May 28, 1986, as amended, of which Gary Wong and Roberta Wieman are co-trustees. The principal business address of each of Castle & Cooke Holdings, Inc., Castle & Cooke Investments, Inc., The Murdock Group, LLC and The David H. Murdock Administrative Trust is 1 Dole Drive, Westlake Village, CA 91362. |
| (3) | The Murdock Group, LLC is owned by The David H. Murdock Administrative Trust, dated May 28, 1986, as amended, of which Gary Wong and Roberta Wieman are co-trustees. The principal business address of each of The Murdock Group, LLC and The David H. Murdock Administrative Trust is 1 Dole Drive, Westlake Village, CA 91362. |
Registration Rights Agreement
Pursuant to the Registration Rights Agreement, the Selling Shareholders are entitled to make long form and short form demands, subject to the conditions therein, that we register for resale the ordinary shares owned by them as of the closing date of our IPO (August 3, 2021) that constitute “registrable securities.” The shares will cease to be “registrable securities” when (i) sold pursuant to an effective registration statement, (ii) transferred to a non-permitted transferee, (iii) repurchased by us or a subsidiary or no longer outstanding or (iv) they may be resold without registration pursuant to Rule 144 under the Securities Act without regard to volume or manner of sale limitations, whether or not any such sale has occurred. In addition, the Selling Shareholders have certain “piggy-back” registration rights. We will bear the expenses incurred in connection with the filing of any such registration statements, subject to some limitations and exceptions. The Registration Rights Agreement also contains customary indemnification and contribution provisions.
Other Material Relationships
For information regarding certain material relationships between the Selling Stockholders and the Company, see “Certain Relationships and Related Party Transactions” in our Annual Report on Form 20-F incorporated by reference into this prospectus.
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The following description of our share capital is intended as a summary only and therefore is not a complete description of our share capital. This description is based upon, and is qualified by reference to, our Articles of Association, and applicable provisions of the Irish Companies Act 2014, as amended (the “Irish Companies Act”). You should read our Articles of Association, which are incorporated by reference as an exhibit to the registration statement of which this prospectus forms a part, for the provisions that are important to you.
Capital Structure—Authorized and Issued Share Capital
Our authorized share capital consists of $3,300,000 divided into 300,000,000 ordinary shares, par value $0.01 per share, and 300,000,000 preferred shares, par value $0.001 per share and €25,000 divided into 25,000 euro shares, par value €1.00 per share. As of August 27, 2025, our issued share capital consisted of 95,162,657 ordinary shares and we had no euro or preferred shares outstanding.
We may issue shares subject to the maximum authorized share capital contained in our Articles of Association. The authorized share capital may be increased or reduced (but not below the number of issued ordinary shares, euro shares or preferred shares, as applicable) by a resolution approved by a simple majority of the votes of our shareholders cast at a general meeting (referred to under Irish law as an “ordinary resolution”) (unless otherwise determined by the directors). The shares comprising our authorized share capital may be divided into shares of any nominal value.
The rights and restrictions to which the ordinary shares are subject are prescribed in our Articles of Association. Our Articles of Association entitle our board of directors, without shareholder approval, to determine the terms of our preferred shares. Preferred shares may be preferred as to dividends, rights upon liquidation or voting in such manner as our board of directors may resolve. The preferred shares may also be redeemable at the option of the holder of the preferred shares or at our option and may be convertible into or exchangeable for shares of any of our other class or classes, depending on the terms of such preferred shares. The specific terms of any series of preferred shares offered pursuant to this prospectus will be described in the prospectus supplement relating to that series of preferred shares.
Irish law does not recognize fractional shares held of record. Accordingly, our Articles of Association do not provide for the issuance of fractional shares, and our official Irish register will not reflect any fractional shares.
Whenever an alteration or reorganization of our share capital would result in any of our shareholders becoming entitled to fractions of a share, our board of directors may, on behalf of those shareholders that would become entitled to fractions of a share, arrange for the sale of the shares representing fractions and the distribution of the net proceeds of sale in due proportion among the shareholders who would have been entitled to the fractions.
Issuance of Shares
As a matter of Irish law, the directors of a company may issue new ordinary, preferred or euro shares for cash without shareholder approval once authorized to do so by the memorandum and articles of association or by an ordinary resolution adopted by the shareholders at a general meeting. The authorization may be granted for a maximum period of five years, at which point it must be renewed by the shareholders by an ordinary resolution. Our board of directors is authorized pursuant to a shareholder resolution passed on July 2, 2021 to issue new ordinary or preferred shares up to the amount of the authorized but unissued share capital as at that date for cash without shareholder approval for a period of five years from the date of the passing of the resolution.
Pre-emption Rights, Share Warrants and Share Options
Under Irish law certain statutory pre-emption rights apply automatically in favor of shareholders where shares are to be issued for cash. However, we have opted out of these pre-emption rights by way of shareholder resolution passed on July 2, 2021 as permitted under Irish company law. Irish law requires this opt-out to be renewed every five years by a resolution approved by not less than 75% of the votes of our shareholders cast at a general meeting (referred to under Irish law as a “special resolution”) and our current opt-out will expire on July 2, 2026. If the opt-out is not renewed, shares issued for cash must be offered to our existing shareholders on a pro rata basis to their existing shareholding before the shares can be issued to any new shareholders. The statutory pre-emption rights do not apply where shares are issued for non-cash consideration (such as in a share-for-share acquisition) and do not apply to the issue of non-equity shares (that is, shares that have the right to participate only up to a specified amount in any income or capital distribution) or where shares are issued pursuant to an employee share option or similar equity plan.
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Our Articles of Association provide that, subject to any shareholder approval requirement under any laws, regulations or the rules of any stock exchange to which we are subject, the board of directors is authorized, from time to time, in its discretion, to grant such persons, for such periods and upon such terms as the board of directors deems advisable, options to purchase such number of shares of any class or classes or of any series of any class as the board of directors may deem advisable, and to cause warrants or other appropriate instruments evidencing such options to be issued. The Irish Companies Act provides that directors may issue share warrants or options without shareholder approval once authorized to do so by the Articles of Association. We are subject to the rules of the NYSE that require shareholder approval of certain equity plans and share issuances. Our board of directors may authorize the issuance of shares upon exercise of warrants or options without shareholder approval or authorization (up to the relevant authorized share capital limit).
Under Irish law, we are prohibited from allotting shares without consideration. Accordingly, at least the nominal value of the shares issued underlying any restricted share award, restricted share unit, performance share award, bonus share or any other share based grant must be paid pursuant to the Irish Companies Act.
Dividends
Under Irish law, dividends and distributions may only be made from distributable reserves. Distributable reserves, broadly, means the accumulated realized profits of a company, so far as not previously utilized by distribution or capitalization, less accumulated realized losses of a company, so far as not previously written off in a reduction or reorganization of capital, and includes reserves created by way of capital reduction, on a standalone basis. In addition, no distribution or dividend may be made unless our net assets are equal to, or in excess of, the aggregate of our called up share capital plus undistributable reserves and the distribution does not reduce our net assets below such aggregate. Undistributable reserves include the undenominated capital, the amount by which our accumulated unrealized profits, so far as not previously utilized by any capitalization, exceed our accumulated unrealized losses, so far as not previously written off in a reduction or reorganization of capital and any other reserve that we are prohibited from distributing by applicable law.
The determination as to whether or not we have sufficient distributable reserves to fund a dividend must be made by reference to the “relevant financial statements” of the Company. The “relevant financial statements” are either the last set of unconsolidated annual audited financial statements or unaudited financial statements properly prepared in accordance with the Irish Companies Act, which give a “true and fair view” of the Company’s unconsolidated financial position in accordance with accepted accounting practice in Ireland. The “relevant financial statements” must be filed in the Companies Registration Office (the official public registry for companies in Ireland) prior to the making of the distribution.
Consistent with Irish law, our Articles of Association authorize the directors to declare dividends without shareholder approval out of funds lawfully available for the purpose, to the extent they appear justified by profits and subject always to the requirement to have distributable reserves at least equal to the amount of the proposed dividend. The board of directors may also recommend a dividend to be approved and declared by our shareholders at a general meeting. The board of directors may direct that the payment be made by distribution of assets, shares or cash and no dividend declared or paid may exceed the amount recommended by the directors. Dividends may be paid in U.S. dollars or any other currency.
Our directors may deduct from any dividend payable to any shareholder any amounts payable by such shareholder to us in relation to our shares.
Our directors may also authorize the issuance of shares with preferred rights to participate in our declared dividends. The holders of preferred shares may, depending on their terms, rank senior to our ordinary shares in terms of dividend rights and/or be entitled to claim arrears of a declared dividend out of subsequently declared dividends in priority to ordinary shareholders.
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Share Repurchases, Redemptions and Conversions
Overview
Our Articles of Association provide that, in general, any ordinary share which we have agreed to acquire shall be deemed to be a redeemable share. Accordingly, for Irish company law purposes, the repurchase of ordinary shares by us may technically be effected as a redemption of those shares as described below under “—Repurchases and Redemptions.” If our Articles of Association did not contain such provisions, all repurchases by us would be subject to many of the same rules that apply to purchases of our shares by subsidiaries described below under “—Purchases by Subsidiaries” including the shareholder approval requirements described below. Except where otherwise noted, when we refer elsewhere in this prospectus to repurchasing or buying back our ordinary shares, we are referring to the redemption of ordinary shares by us pursuant to the Articles of Association or the purchase of our ordinary shares by a subsidiary of the Company, in each case in accordance with our Articles of Association and Irish law as described below.
Repurchases and Redemptions
Under Irish law, a company may issue redeemable shares and redeem them out of distributable reserves (which are described above under “—Dividends”) or, if the Company proposes to cancel the shares on redemption, the proceeds of a new issue of shares for that purpose. The redemption of redeemable shares may only be made by us where the nominal value of the issued share capital that is not redeemable is not less than 10% of the nominal value of the total issued share capital of the Company. All redeemable shares must also be fully paid. Redeemable shares may, upon redemption, be canceled or held in treasury. Based on the provisions of our Articles described above, shareholder approval will not be required to redeem our shares.
We may also be given an additional general authority by our shareholders to purchase our own shares on-market, which would take effect on the same terms and be subject to the same conditions as applicable to purchases by our subsidiaries as described below.
Our board of directors may also issue preferred shares or other classes or series of shares which may be redeemed at either our option or the option of the shareholder, depending on the terms of such preferred shares. Please see “—Capital Structure—Authorized and Issued Share Capital.”
Repurchased and redeemed shares may be canceled or held as treasury shares. The nominal value of treasury shares held by us at any time must not exceed 10% of the nominal value of our issued share capital. We may not exercise any voting rights in respect of any shares held as treasury shares. Treasury shares may be canceled by us or re-issued subject to certain conditions.
Purchases by Subsidiaries
Under Irish law, an Irish or non-Irish subsidiary of the Company may purchase our shares either as overseas market purchases on a recognized stock exchange such as the NYSE or off-market. For a subsidiary of ours to make market purchases of our shares, our shareholders must provide general authorization for such purchase by way of ordinary resolution. However, as long as this general authority has been granted, no specific shareholder authority for a particular market purchase by a subsidiary of our shares is required. We may elect to seek such general authority, which must expire no later than 18 months after the date on which it was granted, at our annual general meetings.
For an off-market purchase by a subsidiary of ours, the proposed purchase contract must be authorized by special resolution of the shareholders before the contract is entered into. The person whose shares are to be bought back cannot vote in favor of the special resolution and from the date of the notice of the meeting at which the resolution approving the contract is proposed, the purchase contract must be on display or must be available for inspection by shareholders at our registered office from the date of the notice of the meeting at which the resolution approving the contract is to be proposed.
In order for a subsidiary of ours to make an on-market purchase of our shares, such shares must be purchased on a “recognized stock exchange.” The NYSE is specified as a recognized stock exchange for this purpose by Irish company law.
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The number of shares held by our subsidiaries at any time will count as treasury shares and will be included in any calculation of the permitted treasury share threshold of 10% of the nominal value of our issued share capital. While a subsidiary holds shares of ours, it cannot exercise any voting rights in respect of those shares. The acquisition of our shares by a subsidiary of ours must be funded out of distributable reserves of the subsidiary.
Lien on Shares, Calls on Shares and Forfeiture of Shares
Our Articles of Association provide that we will have a first and paramount lien on every share for all debts and liabilities of any shareholder to the Company, whether presently due or not, payable in respect of such share. Subject to the terms of their allotment, directors may call for any unpaid amounts in respect of any shares to be paid, and if payment is not made within 14 days after notice demanding payment, we may sell the shares. These provisions are standard inclusions in the Articles of Association of an Irish company limited by shares and will only be applicable to our shares that have not been fully paid up. See “—Transfer and Registration of Shares.”
Consolidation and Division; Subdivision
Under our Articles of Association, we may, by ordinary resolution (unless the directors determine otherwise), divide all or any of our issued share capital into shares of smaller nominal value than our existing shares (often referred to as a share split) or consolidate all or any of our issued share capital into shares of larger nominal value than is fixed by our Articles of Association (often referred to as a reverse share split); provided that the proportion between the amount paid for such share and the amount, if any, unpaid on each reduced share after the subdivision remains the same.
Reduction of Share Capital
We may, by ordinary resolution (unless the directors determine otherwise), reduce our authorized but unissued share capital in any way. We also may, by special resolution and subject to confirmation by the Irish High Court, reduce or cancel our issued share capital in any manner permitted by the Irish Companies Act.
Annual General Meetings of Shareholders
We are required to hold an annual general meeting at intervals of no more than 15 months; provided that an annual general meeting is held in each calendar year and no more than nine months after our fiscal year-end. Any annual general meeting may be held outside Ireland; provided that technological means are provided to enable shareholders to participate in the meeting without leaving Ireland.
Notice of an annual general meeting must be given to all of our shareholders and to our auditors. Our Articles of Association provide for a minimum notice period of 21 clear days (i.e., 23 days as the clear days’ notice period does not include the day when the notice is given or deemed to be given nor the day of the event for which it is given or on which it is to take effect), which is the minimum permitted under Irish law.
The only matters which must, as a matter of Irish company law, be transacted at an annual general meeting are (i) the consideration of the statutory financial statements, report of the directors, and report of the statutory auditors, (ii) review by the members of the Company’s affairs, (iii) the appointment or re-appointment of the statutory auditors and (where applicable) the re-election of those directors of the relevant class whose terms are expiring.
At any annual general meeting, only such business may be conducted as has been brought before the meeting:
| ● | in the notice of the meeting; |
| ● | by or at the direction of the board of directors; |
| ● | in certain circumstances, at the direction of the Irish High Court; |
| ● | as required by law; or |
| ● | that the chair of the meeting determines is properly within the scope of the meeting. |
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In addition, and subject to compliance with our Articles of Association, shareholders entitled to vote at an annual general meeting may propose business in advance of the meeting to be considered thereat.
Extraordinary General Meetings of Shareholders
Our extraordinary general meetings may be convened by (i) the board of directors, (ii) on requisition of the shareholders holding not less than 10% of our paid up share capital carrying voting rights, (iii) in certain circumstances, on requisition of our auditors; or (iv) in exceptional cases, by order of the Irish High Court.
Extraordinary general meetings are generally held for the purpose of approving shareholder resolutions as may be required from time to time. At any extraordinary general meeting, only such business will be conducted as is set forth in the notice thereof or is proposed pursuant to and in accordance with the procedures and requirements set out in our Articles of Association.
Notice of an extraordinary general meeting must be given to all of our shareholders and to our auditors. Under Irish law and our Articles of Association, the minimum notice periods are 21 clear days’ notice in writing for an extraordinary general meeting to approve a special resolution and 21 clear days’ notice in writing for any other extraordinary general meeting, except that such a meeting may be called by 14 days’ notice where all members who hold shares that carry rights to vote at the meeting are permitted to vote by electronic means at the meeting and a special resolution reducing the period of notice to 14 days has been passed at the immediately preceding annual general meeting, or at a general meeting held since that meeting.
In the case of an extraordinary general meeting convened by our shareholders, the proposed purpose of the meeting must be set out in the requisition notice. Upon receipt of any such valid requisition notice, our board of directors has 21 days to convene a meeting of our shareholders to vote on the matters set out in the requisition notice. This meeting must be held within two months of the receipt of the requisition notice. If the board of directors does not convene the meeting within such 21-day period, the requisitioning shareholders, or any of them representing more than one half of the total voting rights of all of them, may themselves convene a meeting, which meeting must be held within three months of our receipt of the requisition notice.
If the board of directors becomes aware that our net assets are not greater than half of the amount of our called-up share capital, our directors must convene an extraordinary general meeting of our shareholders not later than 28 days from the date that the fact is known to a director to be held not later than 56 days from such date. This meeting must be convened for the purposes of considering whether any, and if so what, measures should be taken to address the situation.
Quorum for General Meetings
Our Articles of Association provide that no business shall be transacted at any general meeting unless a quorum is present. One or more shareholders present in person or by proxy at any meeting of shareholders holding not less than a majority of the issued shares that carry the right to vote at the meeting constitutes a quorum for the conduct of any business at a general meeting. If a meeting is adjourned because a quorum is not present, the quorum at the reconvened meeting shall, if the meeting was convened by resolution of the Directors, be any proxy appointed by DTC entitled to be counted in a quorum present at the meeting provided that the proxy represents more than 33% of the votes that may be cast by all members at the relevant time.
Voting
Our Articles of Association provide that all votes at a general meeting will be decided on a poll and that the board or the chair may determine the manner in which the poll is to be taken and the manner in which the votes are to be counted.
Every shareholder is entitled to one vote for each ordinary share that he or she holds as of the record date for the meeting. Voting rights may be exercised by shareholders registered in our share register as of the record date for the meeting or by a duly appointed proxy, which proxy need not be a shareholder. Where interests in shares are held by a nominee trust company, this company may exercise the rights of the beneficial holders on their behalf as their proxy. All proxies must be appointed in the manner prescribed by our Articles of Association, which provide that our board of directors may permit shareholders to notify us of their proxy appointments electronically.
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In accordance with our Articles of Association, our directors may from time to time authorize the issuance of preferred shares or any other class or series of shares. These shares may have such voting rights as may be specified in the terms of such shares (e.g., they may carry more votes per share than ordinary shares or may entitle their holders to a class vote on such matters as may be satisfied in the terms of such shares). Treasury shares or shares of ours that are held by our subsidiaries will not be entitled to be voted at general meetings of shareholders.
Irish company law requires special resolutions of the shareholders at a general meeting to approve certain matters.
Examples of matters requiring special resolutions include:
| ● | amending our Articles of Association; |
| ● | approving a change of name; |
| ● | authorizing the entering into of a guarantee or provision of security in connection with a loan, quasi-loan or credit; transaction to a director or connected person; |
| ● | opting out of pre-emption rights on the issuance of new shares; |
| ● | re-registration from a public limited company to a private company; |
| ● | purchase of own shares off-market; |
| ● | reduction of issued share capital; |
| ● | sanctioning a compromise/scheme of arrangement; |
| ● | resolving that the Company be wound up by the Irish courts; |
| ● | resolving in favor of a shareholders’ voluntary winding-up; |
| ● | re-designation of shares into different share classes; |
| ● | setting the re-issue price of treasury shares; and |
| ● | variation of class rights attaching to classes of shares (where our Articles of Association do not provide otherwise). |
Neither Irish law nor any of our constituent documents places limitations on the right of non-resident or foreign owners to vote or hold our shares.
Variation of Rights Attaching to a Class or Series of Shares
Under our Articles of Association and the Irish Companies Act, any variation of class rights attaching to our issued shares must be approved by a special resolution passed at a general meeting of the shareholders of the affected class or with the consent in writing of the holders of 75% of the issued shares of that class of shares entitled to vote on such variation. The rights conferred upon the holder of any pre-existing issued shares shall not be deemed to be varied by the issuance of any preferred shares.
The provisions of our Articles of Association relating to general meetings apply to general meetings of the holders of any class of shares except that the necessary quorum is determined in reference to the shares of the holders of the class. Accordingly, for general meetings of holders of a particular class of shares, a quorum consists of one or more shareholders present in person or by proxy holding not less than a majority of the issued and outstanding shares of the class entitled to vote at the meeting in question.
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Record Date
Our Articles of Association provide that the board may fix in advance a date as the record date (i) for any such determination of members entitled to notice of or to vote at a general meeting of the members, which record date shall not be more than 60 days before the date of such meeting, and (ii) for the purpose of determining the members entitled to receive payment of any dividend or other distribution, or in order to make a determination of members for any other proper purpose, which record date shall not be more than 60 days prior to the date of payment of such dividend or other distribution or the taking of any action to which such determination of members is relevant.
If no record date is fixed for the determination of members entitled to notice of or to vote at a meeting of members, the date immediately preceding the date on which notice of the meeting is deemed given under our Articles of Association will be the record date for such determination of members.
Shareholder Proposals
Under Irish law, there is no general right for a shareholder to put items on the agenda of an annual general meeting of a U.S.-listed company, other than as set out in the Articles of Association of a company. Under our Articles of Association, in addition to any other applicable requirements, for business or nominations to be properly brought before an annual general meeting by a shareholder, such shareholder must have given timely notice thereof in proper written form to our corporate secretary.
To be timely for an annual general meeting, a shareholder’s notice to our secretary as to the business or nominations to be brought before the meeting must be delivered to or mailed and received at our registered office not less than 60 days nor more than 90 days before the first anniversary of the annual general meeting for the prior year. In the event that the date of the annual general meeting is advanced by more than 30 days or delayed by more than 60 days from such anniversary date, notice by the member must be so delivered by close of business on the day that is not earlier than 90 days prior to such annual general meeting and not later than the close of business on the later of (a) 60 days prior to the day of the contemplated annual general meeting or (b) ten days after the day on which public announcement of the date of the contemplated annual general meeting is first made by us. In no event shall the public announcement of an adjournment or postponement of an annual general meeting commence a new time period (or extend any time period) for the giving of a shareholder’s notice.
To be timely for nominations of a director at an extraordinary general meeting, notice must be delivered, or mailed and received no earlier than 150 days prior to the date of such extraordinary general meeting or, not later than the later of the 90th day prior to such extraordinary general meeting or the 10th day following the day the first public announcement of the date of the extraordinary general meeting is made by us.
For nominations to the board, the notice must include all information about the director nominee that is required to be disclosed in proxies for the election of directors under any applicable securities legislation. For other business that a shareholder proposes to bring before the meeting, the notice must include a brief description of the business, the reasons for proposing the business at the meeting and a discussion of any material interest of the shareholder in the business. Whether the notice relates to a nomination to the board of directors or to other business to be proposed at the meeting, the notice also must include information about the shareholder and the shareholder’s holdings of our shares. The chair of the meeting shall have the power and duty to determine whether any business proposed to be brought before the meeting was made or proposed in accordance with these procedures (as set out in our Articles of Association), and if any proposed business is not in compliance with these provisions, to declare that such defective proposal shall be disregarded.
Shareholders’ Suits
In Ireland, the decision to institute proceedings on behalf of a company is generally taken by the Company’s board of directors. In certain limited circumstances, a shareholder may be entitled to bring a derivative action on our behalf. The central question at issue in deciding whether a minority shareholder may be permitted to bring a derivative action is whether, unless the action is brought, a wrong committed against us would otherwise go unredressed. The cause of action may be against a director, another person or both.
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A shareholder may also bring proceedings against us in his or her own name where the shareholder’s rights as such have been infringed or where our affairs are being conducted, or the powers of the board of directors are being exercised, in a manner oppressive to any shareholder or shareholders or in disregard of their interests as shareholders. Oppression connotes conduct that is burdensome, harsh or wrong. This is an Irish statutory remedy under Section 212 of the Irish Companies Act and the court can grant any order it sees fit, including providing for the purchase or transfer of the shares of any shareholder.
Forum Selection
Our Articles of Association provide that unless the Company consents in writing to the selection of an alternative forum, the federal district courts of the United States of America shall be the exclusive forum for the resolution of any complaint asserting a cause of action arising under the Exchange Act or the Securities Act. Any person or entity purchasing or otherwise acquiring any interest in any security of the Company is deemed to have notice of and consented to the foregoing.
Subject to foregoing, the courts of Ireland have exclusive jurisdiction to settle any dispute arising out of or in connection with our Articles of Association and any proceeding, suit or action arising out of or in connection with the Articles of Association must be brought in the courts of Ireland. Under our Articles of Association, our shareholders are deemed to irrevocably waive any objection to proceedings, suits or actions arising out of or in connection with our Articles of Association in the courts of Ireland on the grounds of venue or on the grounds of forum non conveniens.
Inspection of Books and Records
Under Irish law, shareholders have the right to: (i) receive a copy of our Articles of Association; (ii) inspect and obtain copies of the minutes of general meetings and any resolutions; (iii) inspect and receive a copy of the register of shareholders, register of directors and secretaries, register of directors’ interests and other statutory registers maintained by us; (iv) inspect copies of directors’ service contracts where the unexpired portion of the term for which the contract is to be in force is three years or more or where the contract cannot, within the next ensuing three years, be terminated by the company without payment of compensation; (v) inspect copies of instruments creating charges; (vi) receive copies of statutory financial statements and directors’ and auditors’ reports which have previously been sent to shareholders prior to an annual general meeting; and (vii) receive financial statements of a subsidiary company of ours which have previously been sent to shareholders prior to an annual general meeting for the preceding ten years. Our auditors will also have the right to inspect all of our books, records and vouchers. The auditors’ report must be circulated to the shareholders with our financial statements prepared in accordance with Irish law with the notice of annual general meeting and must be presented to our shareholders at our annual general meeting.
Acquisitions
There are a number of mechanisms for acquiring an Irish public limited company, including:
| ● | a court-approved scheme of arrangement under the Irish Companies Act. A scheme of arrangement with one or more classes of shareholders requires a court order from the Irish High Court and the approval of a majority of the shareholders of each participating class or series voting on the scheme of arrangement representing 75% in value of the shares of such participating class or series held by the shareholders voting on the scheme of arrangement, in each case at the relevant meeting or meetings. The quorum for the meeting is two persons holding or representing by proxy at least one-third in nominal value of the issued shares, or class of shares. A scheme of arrangement, if authorized by the shareholder of each participating class or series and the court, is binding on all of the shareholders of each participating class or series; |
| ● | through a tender or takeover offer by a third party, in accordance with the Irish Takeover Rules (as defined below) and the Irish Companies Act, for all of our shares. Where the holders of 80% or more of our shares (excluding any shares already beneficially owned by the bidder) have accepted an offer for their shares, the remaining shareholders may also be statutorily required to transfer their shares, unless, within one month, the non-tendering shareholders can obtain an Irish court order otherwise providing. If the offeror has acquired acceptances of 80% of all of our shares but does not exercise its “squeeze-out” right, then the non-accepting shareholders also have a statutory right to require the bidder to acquire their shares on the same terms as the original offer, or such other terms as the bidder and the non-tendering shareholders may agree or on such term as an Irish court, on application of the bidder or non-tendering shareholder, may order. If our shares were to be listed on the Euronext Dublin or another regulated stock exchange in the European Union, the aforementioned 80% threshold would be increased to 90%; |
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| ● | by way of a transaction with a company incorporated in the European Economic Area which includes all member states of the European Union and Norway, Iceland and Liechtenstein (EEA) under the European Union (Cross-Border Conversions, Mergers and Divisions) Regulations 2023 (as amended). Such a transaction must be approved by a special resolution and by the Irish High Court. If we are being merged with another EEA company under the EU Cross-Border Mergers Directive (EU) 2019/2121 and the consideration payable to our shareholders is not all in the form of cash, our shareholders may be entitled to require their shares to be acquired at fair value; and |
| ● | by way of a merger with another Irish company under the Irish Companies Act which must be approved by a special resolution and by the Irish High Court. |
Appraisal Rights
Generally, under Irish law, shareholders of an Irish company do not have statutory appraisal rights. If we are being merged as the transferor company with another EEA company under the European Union (Cross-Border Conversions, Mergers and Divisions) Regulations 2023 (as amended) or if we are being merged with another Irish company under the Irish Companies Act, (i) any of our shareholders who voted against the special resolution approving the merger or (ii) if 90% of our shares are held by the successor company, any other of our shareholders, may be entitled to require that the successor company acquire its shares for cash.
Disclosure of Interests in Shares
Under the Irish Companies Act, there is a notification requirement for shareholders who acquire or cease to be interested in 3% of the shares of an Irish public limited company. Our shareholders must therefore make such a notification to us if, as a result of a transaction, the shareholder will become interested in 3% or more of our shares or if, as a result of a transaction, a shareholder who was interested in 3% or more of our shares ceases to be so interested. Where a shareholder is interested in 3% or more of our shares, the shareholder must notify us of any alteration of his or her interest that brings his or her total holding through the nearest whole percentage number, whether an increase or a reduction. The relevant percentage figure is calculated by reference to the aggregate nominal value of the shares in which the shareholder is interested as a proportion of the entire nominal value of our issued share capital (or any such class of share capital in issue). Where the percentage level of the shareholder’s interest does not amount to a whole percentage, this figure may be rounded down to the next whole number. All such disclosures should be notified to us within five business days of the transaction or alteration of the shareholder’s interests that gave rise to the notification requirement. If a shareholder fails to comply with these notification requirements, the shareholder’s rights in respect of any of our shares it holds will not be enforceable, either directly or indirectly. However, such person may apply to the court to have the rights attaching to such shares reinstated.
In addition to these disclosure requirements, under the Irish Companies Act, we may by notice in writing, require a person whom we know or have reasonable cause to believe to be, or at any time during the three years immediately preceding the date on which such notice is issued to have been, interested in shares comprised in our relevant share capital to: (i) indicate whether or not it is the case and (ii) where such person holds or has during that time held an interest in our ordinary shares, to provide additional information, including the person’s own past or present interests in our shares. If the recipient of the notice fails to respond within the reasonable time period specified in the notice, we may apply to court for an order directing that the affected shares be subject to certain restrictions, as prescribed by the Irish Companies Act, as follows:
| ● | any transfer of those shares, or in the case of unissued shares any transfer of the right to be issued with shares and any issue of shares, will be void; |
| ● | no voting rights will be exercisable in respect of those shares; |
| ● | no further shares will be issued in right of those shares or in pursuance of any offer made to the holder of those shares; and |
| ● | no payment will be made of any sums due from us on those shares, whether in respect of capital or otherwise. |
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Where our shares are subject to these restrictions, the court may order the shares to be sold and may also direct that the shares shall cease to be subject to these restrictions.
In the event we are in an offer period pursuant to the Irish Takeover Rules, accelerated disclosure provisions apply for persons holding an interest in our securities of 1.0% or more.
Irish Takeover Rules
A transaction in which a third party seeks to acquire 30% or more of our voting rights will be governed by the Irish Takeover Panel Act 1997 and the Irish Takeover Rules (the “Irish Takeover Rules”) made thereunder and will be regulated by the Irish Takeover Panel. The “General Principles” of the Irish Takeover Rules and certain important aspects of the Irish Takeover Rules are described below.
General Principles
The Irish Takeover Rules are built on the following General Principles, which will apply to any transaction regulated by the Irish Takeover Panel:
| ● | in the event of an offer, all holders of securities of the target company should be afforded equivalent treatment and, if a person acquires control of a company, the other holders of securities must be protected; |
| ● | the holders of the securities in the target company must have sufficient time and information to enable them to reach a properly informed decision on the offer; |
| ● | where it advises the holders of securities, the board of the target company must give its views on the effects of implementation of the offer on employment, conditions of employment and the locations of the target company’s places of business; |
| ● | the board of the target company must act in the interests of the Company as a whole and must not deny the holders of securities the opportunity to decide on the merits of the offer; |
| ● | false markets must not be created in the securities of the target company, the bidder or of any other company concerned by the offer in such a way that the rise or fall of the prices of the securities becomes artificial and the normal functioning of the markets is distorted; |
| ● | a bidder must announce an offer only after ensuring that he or she can fulfill in full, any cash consideration, if such is offered, and after taking all reasonable measures to secure the implementation of any other type of consideration; |
| ● | a target company must not be hindered in the conduct of its affairs for longer than is reasonable by an offer for its securities; and |
| ● | a substantial acquisition of securities (whether such acquisition is to be effected by one transaction or a series of transactions) shall take place only at an acceptable speed and shall be subject to adequate and timely disclosure. |
Mandatory Bid
Under certain circumstances, a person who acquires shares or other of our voting rights may be required under the Irish Takeover Rules to make a mandatory cash offer for our remaining outstanding shares at a price not less than the highest price paid for the shares by the acquirer (or any parties acting in concert with the acquirer) during the previous 12 months. This mandatory bid requirement is triggered if an acquisition of shares would (i) increase the aggregate holding of an acquirer (including the holdings of any parties acting in concert with the acquirer) to shares representing 30% or more of our voting rights, or (ii) in the case of a person holding (together with its concert parties) shares representing 30% or more of our voting rights, after giving effect to the acquisition, increase the percentage of the voting rights held by that person (together with its concert parties) by 0.05% within a 12-month period. Any person (excluding any parties acting in concert with the holder) holding shares representing more than 50% of the voting rights of a company is not subject to these mandatory offer requirements in purchasing additional securities.
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Voluntary Bid; Requirements to Make a Cash Offer and Minimum Price Requirements
A voluntary offer is an offer that is not a mandatory offer. If a person makes a voluntary offer to acquire outstanding ordinary shares of ours, the offer price must be no less than the highest price paid for our shares by the bidder or its concert parties during the three-month period prior to the commencement of the offer period. The Irish Takeover Panel has the power to extend the “look back” period to 12 months if the Irish Takeover Panel, taking into account the General Principles, believes it is appropriate to do so.
If the bidder or any party acting in concert with it has acquired our ordinary shares (i) during the period of 12 months prior to the commencement of the offer period which represent more than 10% of our total ordinary shares or (ii) at any time after the commencement of the offer period, the offer must be in cash (or accompanied by a full cash alternative) and the price per ordinary share must not be less than the highest price paid by the bidder or any party acting in concert with it during, in the case of (i), the 12-month period prior to the commencement of the offer period and, in the case of (ii), the offer period. The Irish Takeover Panel may apply this rule to a bidder who, together with any party acting in concert with it, has acquired less than 10% of our total ordinary shares in the 12-month period prior to the commencement of the offer period if the Irish Takeover Panel, taking into account the General Principles, considers it just and proper to do so.
An offer period will generally commence from the date of the first announcement of the offer or proposed offer.
Substantial Acquisition Rules
The Irish Takeover Rules also contain rules governing substantial acquisitions of shares which restrict the speed at which a person may increase his or her holding of shares and rights over shares to an aggregate of between 15% and 30% of our voting rights. Except in certain circumstances, an acquisition or series of acquisitions of shares or rights over shares representing 10% or more of our voting rights is prohibited if such acquisition(s), when aggregated with shares or rights already held, would result in the acquirer holding 15% or more but less than 30% of our voting rights and such acquisitions are made within a period of seven days. These rules also require accelerated disclosure of acquisitions of shares or rights over shares relating to such holdings.
Anti-Takeover Provisions
Shareholder Rights Plan
Our Articles of Association expressly authorize our board of directors to adopt a shareholder rights plan, subject to applicable law.
Frustrating Action
Under the Irish Takeover Rules, our board of directors is not permitted to take any action which might frustrate an offer for our shares once our board of directors has received an approach which may lead to an offer or has reason to believe an offer is imminent, subject to certain exceptions. Potentially frustrating actions such as (i) the issue of shares, options or convertible securities, (ii) material acquisitions or disposals, (iii) entering into contracts other than in the ordinary course of business or (iv) any action, other than seeking alternative offers, which may result in frustration of an offer, are prohibited during the course of an offer or at any time during which the board of directors has reason to believe an offer is imminent. Exceptions to this prohibition are available where:
| ● | the action is approved by our shareholders at a general meeting; |
| ● | the Irish Takeover Panel has given its consent, where: |
| ● | it is satisfied the action would not constitute frustrating action; |
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| ● | our shareholders that hold 50% of the voting rights state in writing that they approve the proposed action and would vote in favor of it at a general meeting; |
| ● | the action is taken in accordance with a contract entered into prior to the announcement of the offer; or |
| ● | the decision to take such action was made before the announcement of the offer and either has been at least partially implemented or is in the ordinary course of business. |
Business Combinations with Interested Shareholders
Our Articles of Association provide that, subject to certain exceptions, we may not engage in certain business combinations with any person that acquires beneficial ownership of 10% or more of our outstanding voting shares for a period of two years following the date on which the person became a 10% shareholder unless: (i) prior to the date on which the person becomes a 10% shareholder, a majority of our disinterested directors approved the business combination; and (ii) in certain circumstances, the business combination is authorized by a special resolution of disinterested shareholders.
Further Provisions
Certain other provisions of Irish law or our Articles of Association may be considered to have anti-takeover effects, including advance notice requirements for director nominations and other shareholder proposals, as well as those described under the headings “—Description of Share Capital—Capital Structure—Authorized and Issued Share Capital” (regarding issuance of preferred shares), “—Description of Share Capital—Pre-emption Rights, Share Warrants and Share Options,” “—Description of Share Capital—Disclosure of Interests in Shares,” “—Description of Share Capital—Appointment of Directors,” “—Description of Share Capital—Removal of Directors.”
Insider Dealing
The Irish Takeover Rules also provide that no person, other than the bidder, who is privy to confidential price-sensitive information concerning an offer made in respect of the acquisition of a company (or a class of its securities) or a contemplated offer shall deal in relevant securities of the target during the period from the time at which such person first has reason to suppose that such an offer, or an approach with a view to such an offer being made, is contemplated to the time of (i) the announcement of such offer or approach or (ii) the termination of discussions relating to such offer, whichever is earlier.
Corporate Governance
Our Articles of Association allocate authority over the day-to-day management of the Company to the board of directors. Our board of directors may then delegate management of the Company to committees of the board or such other persons as it thinks fit. Regardless of any delegation, the board of directors will remain responsible, as a matter of Irish law, for the proper management of the affairs of our Company. The board of directors may create new committees or change the responsibilities of existing committees from time to time. Committees may meet and adjourn as they determine proper. Unless otherwise determined by the board of directors, the quorum necessary for the transaction of business at any committee meeting shall be two of the members of the committee.
Legal Name; Incorporation; Fiscal Year; Registered Office
Our legal and commercial name is Dole plc. We were incorporated in Ireland in June 2017 as a dormant company and we re-registered as a public limited company and changed our name to Dole plc on April 26, 2021. Our registered address is 29 North Anne Street, Dublin 7, D07 PH36, Ireland, D07 PH36. As set forth in our Constitution, our purpose, among other things, is to carry on the business of a holding company and to coordinate the administration, finances and activities of any subsidiaries or associated companies.
Appointment of Directors
The Irish Companies Act provides for a minimum of two directors. Our Articles of Association provide that the number of directors will be not less than three and not more than fourteen. The authorized number of directors within the prescribed range will be determined solely by our board of directors and does not require approval or ratification by the shareholders in a general meeting. Our directors will be elected by way of an ordinary resolution at a general meeting save that directors in contested elections will be elected by a plurality of the votes of the shares present in person or represented by proxy at the relevant general meeting and entitled to vote on the election of directors. If the number of the directors is reduced below the fixed minimum number, the remaining director or directors may appoint an additional director or additional directors to make up such minimum or may convene a general meeting for the purpose of making such appointment. Casual vacancies may be filled by the board of directors.
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Our Articles of Association provide that our board of directors is divided into three classes serving staggered three-year terms. Shareholders do not have cumulative voting rights. Accordingly, the holder of a majority of the voting rights attaching to our ordinary shares will, as a practical matter, be entitled to control the election of all directors. At each annual general meeting, directors will be elected for a full term of three years to succeed those directors of the relevant class whose terms are expiring.
Under our Articles of Association, our board of directors has the authority to appoint directors to the board either to fill a vacancy or as an additional director. A vacancy on the board of directors created by the removal of a director may be filled by an ordinary resolution of the shareholders at the meeting at which such director is removed and, in the absence of such election or appointment, the remaining directors may fill the vacancy. The board of directors may fill a vacancy by an affirmative vote of a majority of the directors constituting a quorum. If there is an insufficient number of directors to constitute a quorum, the board may nonetheless act to fill such vacancies or call a general meeting of the shareholders. Under our Articles of Association, if the board fills a vacancy, the director will hold this position as a director for a term that will coincide with the remaining term of the relevant class of director. If there is an appointment to fill a casual vacancy or an addition to the board, the total number of directors shall not at any time exceed the number of directors from time to time fixed by the board in accordance with our Articles of Association.
Removal of Directors
The Irish Companies Act provides that, notwithstanding anything contained in the Articles of Association of a company or in any agreement between that company and a director, the shareholders may, by an ordinary resolution, remove a director from office before the expiration of his or her term; provided that notice of the intention to move any such resolution be given by the shareholders to the Company not less than 28 days before the meeting at which the director is to be removed, and the director will be entitled to be heard at such meeting. The power of removal is without prejudice to any claim for damages for breach of contract (e.g., employment agreement) that the director may have against us in respect of his or her removal.
Director Interested Transactions
Under the Irish Companies Act and our Articles of Association, a director who has an interest in a proposal, arrangement or contract is required to declare the nature of his or her interest at the first opportunity either (i) at a meeting of the board at which such proposal, arrangement or contract is first considered (provided such director knows this interest then exists, or in any other case, at the first meeting of the board after learning that he or she is or has become so interested) or (ii) by providing a general notice to the directors declaring that he or she is to be regarded as interested in any proposal, arrangement or contract with a particular person, and after giving such general notice will not be required to give special notice relating to any particular transaction. Provided the interested director makes such required disclosure, he or she shall be counted in determining the presence of a quorum at a meeting regarding the relevant proposal, arrangement or contract and will be permitted to vote on such proposal, arrangement or contract. Except for the matters specified in our Articles of Association as summarized below, a director will not and will be permitted to vote on such any proposal, arrangement or contract concerning a matter in which he has, directly or indirectly, an interest which is material or a duty which conflicts or may conflict with the interests of the Company.
A director shall be entitled to vote in respect of any resolutions concerning any of the following matters, namely:
| (i) | the giving of any security, guarantee or indemnity to him in respect of money lent by him to the Company or any of its subsidiary or associated companies; |
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| (ii) | the giving of any security, guarantee or indemnity to a third party in respect of a debt or obligation of the Company or any of its subsidiary or associated companies for which he himself has assumed responsibility; |
| (iii) | any proposal concerning any offer of shares or debentures or other securities of or by the Company in which offer he is or is to be interested as a participant in the underwriting or sub-underwriting thereof; |
| (iv) | any proposal concerning any other company in which he is interested, directly or indirectly and whether as an officer or shareholder or otherwise howsoever; provided that he is not the holder of or beneficially interested in 1% or more of the issued shares of any class of such company or of the voting rights available to members of such company (or of a third company through which his interest is derived) (any such interest being deemed for the purposes of our Articles of Association to be a material interest in all circumstances; |
| (v) | any proposal concerning the adoption, modification or operation of a superannuation fund or retirement benefits scheme under which he may benefit and which has been approved by or is subject to and conditional upon approval for taxation purposes by the appropriate revenue authorities; |
| (vi) | any proposal concerning the adoption, modification or operation of any scheme for enabling directors and/or employees of the Company and/or any subsidiary thereof to acquire shares in the Company or any arrangement for the benefit of directors and/or employees of the Company or any of its subsidiaries under which the director benefits or may benefit; or |
| (vii) | any proposal concerning the giving of any indemnity pursuant to our Article of Association or the discharge of the cost of any insurance cover purchased or maintained pursuant to our Article of Association. |
Under our Articles of Association, a director may be a director of, other officer of, or otherwise interested in, any company promoted by us or in which we are interested, and such director will not be accountable to us for any remuneration received from such employment or other interest. Our Articles of Association further provide that (i) no director will be prevented from contracting with us because of his or her position as a director, (ii) any contract entered into between a director and us will not be subject to avoidance and (iii) no director will be liable to account to us for any profits realized by virtue of any contract between such director and us because the director holds such office or the fiduciary relationship established thereby.
Directors’ Remuneration
Pursuant to our Articles of Association, the ordinary remuneration of directors who do not hold executive office shall not exceed in aggregate $2,500,000 per annum or such higher amount as may be determined from time to time by ordinary resolution of the shareholders and shall be divisible (unless such resolution shall provide otherwise) among the directors as they may agree, or, failing agreement, equally, except that any such director who shall hold office for part only of the period in respect of which such remuneration is payable shall be entitled only to rank in such division for a proportion of the remuneration related to the period during which he has held office. Any director who holds any executive office (including for this purpose the office of chair or deputy chair) or who serves on any committee, or who otherwise performs services which in the opinion of the directors are outside the scope of the ordinary duties of a Director, may be paid such extra remuneration by way of salary, commission or otherwise as the directors may determine.
Borrowing
Pursuant to our Articles of Association, among the directors’ powers are the right to borrow money and to mortgage or charge the Company’s undertaking, property and uncalled capital or any part thereof and to issue debentures, debenture stock, mortgages, bonds or such other securities whether outright or as security for any debt, liability or obligation of the Company or of any third party.
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Limitation on Liability of Directors and Indemnification
Under our Articles of Association every director, managing director, company secretary or other officer of the Company shall be entitled to be indemnified by the Company against all costs, charges, losses, expenses and liabilities incurred by him in the execution and discharge of his duties or in relation thereto including any liability incurred by him in defending any proceedings, civil or criminal, which relate to anything done or omitted or alleged to have been done or omitted by him as an officer or employee of the Company and in which judgment is given in his favor (or the proceedings are otherwise disposed of without any finding or admission of any material breach of duty on his part) or in which he is acquitted or in connection with any application under any statute for relief from liability in respect of any such act or omission in which relief is granted to him by the Court.
Duration; Dissolution; Rights upon Liquidation
Our duration will be unlimited. We may be dissolved and wound up at any time by way of a shareholders’ voluntary winding up or a creditors’ winding up. In the case of a shareholders’ voluntary winding-up, a special resolution of shareholders is required. We may also be dissolved by way of court order on the application of a creditor, or by the Companies Registration Office as an enforcement measure where we have failed to file certain returns. We may also be dissolved by the Director of Corporate Enforcement in Ireland where the affairs of the Company have been investigated by an inspector and it appears from the report or any information obtained by the Director of Corporate Enforcement that we should be wound up.
The rights of the shareholders to a return of our assets on dissolution or winding up, following the settlement of all claims of creditors, are prescribed in our Articles of Association or the terms of any shares issued by the directors from time to time. The holders of preferred shares in particular may have the right to priority in a dissolution or winding up. If the Articles of Association and terms of issue of the shares of the Company contain no specific provisions in respect of a dissolution or winding up then, subject to the shareholder priorities and the rights of any creditors, the assets will be distributed to shareholders in proportion to the paid-up nominal value of the shares held. Our Articles of Association provide that our ordinary shareholders may be entitled to participate in a winding up, and the method by which the property will be divided shall be determined by the liquidator, subject to a special resolution of the shareholders, but such rights of ordinary shareholders to participate may be subject to the rights of any preferred shareholders to participate under the terms of any series or class of preferred shares.
Share Certificates
Pursuant to the Irish Companies Act, a shareholder is entitled to be issued a share certificate on request and subject to payment of a nominal fee.
Stock Exchange Listing
Our ordinary shares are traded on the NYSE under the symbol “DOLE.”
No Sinking Fund
Our shares have no sinking fund provisions.
Transfer and Registration of Shares
Our transfer agent is Computershare Trust Company, N.A. The transfer agent maintains our share register, and registration in the share register will be determinative of membership in us. A shareholder of ours who only holds shares through a depository or nominee will not be the holder of record of such shares. Instead, the depository or other nominee will be the holder of record of those shares. Accordingly, a transfer of shares from a person who holds such shares through a depository or nominee to a person who also holds such shares through a depository or other nominee will not be registered in our official share register, as the depository or other nominee will remain the record holder of any such shares.
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A written instrument of transfer is required under Irish law in order to register on our official share register any transfer of shares (i) from a person who holds such shares directly to any other person, (ii) from a person who holds such shares through a depository or nominee to a person who holds such shares directly or (iii) from a person who holds such shares through a depository or nominee to another person who holds such shares through a depository or nominee where the transfer involves a change in the depository or other nominee that is the record owner of the transferred shares. An instrument of transfer is also required for a shareholder who directly holds shares to transfer those shares into his or her own broker account (or vice versa). Such instruments of transfer may give rise to Irish stamp duty, which must be paid prior to registration of the transfer on our official Irish share register. However, a shareholder who directly holds shares may transfer those shares into his or her own broker account (or vice versa) without giving rise to Irish stamp duty provided there is no change in the beneficial ownership of the shares as a result of the transfer and based on a confirmation received by the Company from the Irish Revenue Commissioners on July 8, 2021, at the time of the transfer there is no agreement in place for the sale of the shares by the beneficial owner to a third party.
Any transfer of our shares that is subject to Irish stamp duty will not be registered in the name of the buyer unless an instrument of transfer is duly stamped and provided to our transfer agent. Our Articles of Association allow us, in our absolute discretion, to create an instrument of transfer and pay (or procure the payment of) any stamp duty, which is the legal obligation of a transferee. In the event of any such payment, we are (on behalf of ourselves or our affiliates) entitled to (i) seek reimbursement from the transferee or transferor (at its discretion), (ii) set-off the amount of the stamp duty against future dividends payable to the transferee or transferor (at its discretion) and (iii) have a lien against the shares on which it has paid stamp duty. Parties to a share transfer may assume that any stamp duty arising in respect of a transaction in our shares has been paid unless one or both of such parties is otherwise notified by us.
Our Articles of Association delegate to our company secretary (or such other person as may be nominated by the secretary for this purpose) the authority to execute an instrument of transfer on behalf of a transferring party.
Our Articles of Association grant our board of directors general discretion to decline to register an instrument of transfer unless the transfer is in respect of one class of shares only, the instrument of transfer is accompanied by the certificate of shares to which it relates (if any) and such other evidence as the directors may reasonably require to show the right of the transferor to make the transfer, the instrument of transfer is in favor of not more than four transferees and it is lodged at our registered office or such other place as our directors or secretary may appoint.
The directors may suspend registration of transfers from time to time, not exceeding 30 days in aggregate each year, as our board of directors may from time to time determine (except as may be required by law).
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UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS FOR U.S. HOLDERS
The following discussion is a summary of U.S. federal income tax considerations generally applicable to the ownership and disposition of our ordinary shares by a U.S. Holder (as defined below) that acquires our ordinary shares in this offering and holds our ordinary shares as “capital assets” (generally, property held for investment) under the U.S. Internal Revenue Code of 1986, as amended (the “Code”). This discussion is based upon the Code, the U.S. Treasury Regulations promulgated thereunder, judicial decisions, published guidance of the Internal Revenue Service (the “IRS”), and other applicable authorities, all as in effect on the date of this prospectus, which are subject to differing interpretations or change, possibly with retroactive effect, which could result in U.S. federal income tax consequences different from those summarized below. There can be no assurance that the IRS or a court will not take a contrary position. This discussion, moreover, does not address the U.S. federal estate, gift or other non-income tax considerations, minimum tax, the Medicare tax on certain net investment income, or any state, local or non-U.S. tax considerations, relating to the ownership or disposition of our ordinary shares. The following summary does not address all aspects of U.S. federal income taxation that may be important to particular investors in light of their individual circumstances or to persons in special tax situations such as:
| ● | banks and other financial institutions; |
| ● | insurance companies; |
| ● | pension plans; |
| ● | regulated investment companies; |
| ● | real estate investment trusts; |
| ● | broker-dealers; |
| ● | traders that elect to use a mark-to-market method of accounting; |
| ● | certain former U.S. citizens or long-term residents; |
| ● | tax-exempt entities (including private foundations); |
| ● | holders who acquire their ordinary shares pursuant to any employee share option or otherwise as compensation; |
| ● | investors that will hold ordinary shares as part of a straddle, hedge, conversion, constructive sale or other integrated transaction for U.S. federal income tax purposes; |
| ● | investors that have a functional currency other than the U.S. dollar; |
| ● | persons that actually or constructively own ordinary shares representing 10% or more of our capital stock (by vote or value); or |
| ● | partnerships or other entities or arrangements taxable as partnerships for U.S. federal income tax purposes, or persons holding ordinary shares through such entities, |
all of whom may be subject to tax rules that differ significantly from those discussed below.
Each U.S. Holder is urged to consult its tax advisor regarding the application of U.S. federal taxation to its particular circumstances, and the state, local, non-U.S. and other tax considerations of the ownership and disposition of our ordinary shares.
Unless otherwise indicated, this discussion assumes that we are not, and will not become, a passive foreign investment company (“PFIC”), for U.S. federal income tax purposes. See “—Passive Foreign Investment Company Considerations” below.
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General
For purposes of this discussion, a “U.S. Holder” is a beneficial owner of our ordinary shares that is, for U.S. federal income tax purposes:
| ● | an individual who is a citizen or resident of the United States; |
| ● | a corporation (or other entity treated as a corporation for U.S. federal income tax purposes) created in, or organized under the law of the United States or any state thereof or the District of Columbia; |
| ● | an estate the income of which is includible in gross income for U.S. federal income tax purposes regardless of its source; or |
| ● | a trust (i) the administration of which is subject to the primary supervision of a U.S. court and which has one or more U.S. persons who have the authority to control all substantial decisions of the trust or (ii) that has otherwise validly elected to be treated as a U.S. person under the Code. |
Dividends
Any cash distributions (including the amount of any Irish tax withheld) paid on our ordinary shares out of our current or accumulated earnings and profits, as determined under U.S. federal income tax principles, will generally be includible in the gross income of a U.S. Holder as dividend income on the day actually or constructively received by the U.S. Holder. Because we do not intend to determine our earnings and profits on the basis of U.S. federal income tax principles, the full amount of any distribution we pay will generally be treated as a “dividend” for U.S. federal income tax purposes. Dividends received on our ordinary shares will not be eligible for the dividends received deduction generally allowed to corporations. Dividends received by individuals and certain other non-corporate U.S. Holders may be subject to tax at the lower capital gain tax rate applicable to “qualified dividend income,” provided that certain conditions are satisfied, including that (i) (A) our ordinary shares on which the dividends are paid are readily tradable on an established securities market in the United States, or (B) we are eligible for the benefits of the United States-Ireland income tax treaty (the “Treaty”), (ii) we are neither a PFIC nor treated as such with respect to such a U.S. Holder for the taxable year in which the dividend was paid and the preceding taxable year (see “—Passive Foreign Investment Company Considerations” below), and (iii) certain holding period requirements are met. We expect our ordinary shares, which are listed on the NYSE, will be considered readily tradable on an established securities market in the United States, although there can be no assurance in this regard. Additionally, we expect to be eligible for the benefits of the Treaty. If we are eligible for such benefits, dividends we pay on our ordinary shares, regardless of whether such shares are considered readily tradable on an established securities market in the United States, would be eligible for the reduced rates of taxation described in this paragraph, provided the other conditions described above are satisfied.
Dividends paid on our ordinary shares will generally be treated as income from foreign sources and will generally constitute passive category income for U.S. foreign tax credit purposes. Depending on the U.S. Holder’s individual facts and circumstances, a U.S. Holder may be eligible, subject to a number of complex limitations, to claim a foreign tax credit in respect of any nonrefundable foreign withholding taxes imposed on dividends received on our ordinary shares. A U.S. Holder who does not elect to claim a foreign tax credit for foreign taxes withheld may instead claim a deduction, for U.S. federal income tax purposes, in respect of such withholding, but only for a year in which such holder elects to do so for all creditable foreign income taxes. The rules governing the foreign tax credit are complex and their outcome depends in large part on the U.S. Holder’s individual facts and circumstances. Accordingly, U.S. Holders are urged to consult their tax advisors regarding the availability of the foreign tax credit under their particular circumstances.
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Sale or Other Disposition
A U.S. Holder will generally recognize capital gain or loss upon the sale or other disposition of our ordinary shares in an amount equal to the difference between the amount realized upon the disposition and the holder’s adjusted tax basis in such ordinary shares. Any capital gain or loss will be long-term if the ordinary shares have been held for more than one year. Any such gain or loss that a U.S. Holder recognizes will generally be treated as U.S.-source income or loss for foreign tax credit purposes, which will generally limit the availability of foreign tax credits. Long-term capital gain of individuals and certain other non-corporate U.S. Holders will generally be eligible for a reduced rate of taxation. The deductibility of a capital loss may be subject to limitations. U.S. Holders are urged to consult their tax advisors regarding the tax consequences if a non-U.S. tax is imposed on a disposition of our ordinary shares, including the availability of the foreign tax credit under their particular circumstances.
Passive Foreign Investment Company Considerations
A non-U.S. corporation, such as our company, will be classified as a PFIC for any taxable year if either (i) at least 75% of its gross income for such year consists of certain types of “passive” income, or (ii) at least 50% of the value of its assets (generally determined on the basis of a quarterly average) during such year is attributable to assets that produce passive income or are held for the production of passive income. Based on the current and anticipated value of our assets and the composition of our income and assets, we do not presently expect to be a PFIC for the current taxable year or the foreseeable future. However, while we do not expect to be or become a PFIC, no assurance can be given in this regard because the determination as to whether we are a PFIC for any taxable year is a fact-intensive determination made annually after the close of each taxable year that depends, in part, upon the composition and classification of our income and assets and the value of our goodwill and other unbooked intangibles (which may depend upon the market value of our ordinary shares from time-to-time, which may be volatile).
If we are classified as a PFIC in any year during which a U.S. Holder owns our ordinary shares, certain adverse tax consequences could apply to such U.S. Holder. Further, if we are classified as a PFIC for any year during which a U.S. Holder owns our ordinary shares, we will generally continue to be treated as a PFIC for all succeeding years during which such U.S. Holder owns our ordinary shares. Certain elections may be available (including a mark-to-market election) to U.S. Holders that may mitigate some of those adverse consequences. You should consult your tax advisors regarding the U.S. federal income tax consequences of owning and disposing of our ordinary shares if we are or become a PFIC.
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Our ordinary shares covered by this prospectus are being registered to permit the Selling Shareholders to sell or distribute such ordinary shares from time to time after the date of this prospectus and in one or more public or private transactions. We will not receive any of the proceeds from the sale or distribution of the ordinary shares offered by the Selling Shareholders. We will bear the fees and expenses incurred by us in connection with our obligation to register the ordinary shares pursuant to the Registration Rights Agreement.
The Selling Shareholders may act independently of us in making decisions with respect to the timing, manner and size of any offer and sale of their ordinary shares. The Selling Shareholders and certain of their successors, including certain transferees, assignees and donees (including charitable organizations), may make sales of the ordinary shares covered by this prospectus from time to time through one or more methods specified herein or through a combination of any of such methods or any other method permitted pursuant to applicable law. Such offers and sales may be made directly to purchasers, through underwriters, to dealers or through agents, on NYSE or any other stock exchange on which the ordinary shares are listed or otherwise at prices and under terms prevailing at the time of the sale, at prices related to the then-current market price, at fixed prices, at varying prices determined at the time of sale, at privately negotiated prices or any other method permitted pursuant to applicable law. Subject to any limitations set forth in the Registration Rights Agreement, such sales may be effected by a variety of methods, including the following:
| ● | through underwriters; |
| ● | through agents; |
| ● | to dealers; |
| ● | directly to one or more purchasers; |
| ● | in “at the market” offerings, within the meaning of Rule 415(a)(4) of the Securities Act, to or through a market maker or into an existing trading market on an exchange or otherwise; |
| ● | in block trades; |
| ● | through a combination of any of the above; and |
| ● | any other method permitted pursuant to applicable law. |
Any sale or distribution may be effected by the Selling Shareholders:
| ● | at market prices prevailing at the time of sale; |
| ● | at varying prices determined at the time of sale; |
| ● | at negotiated or fixed prices; or |
| ● | by any other method permitted pursuant to applicable law. |
At any time a particular offer of the ordinary shares is made, a prospectus supplement, if required, will be distributed and set forth the terms of each specific offering, including the name or names of any underwriters or agents, the purchase price of the ordinary shares and the proceeds to the Selling Shareholders from such sales or distribution, any delayed delivery arrangements, any options under which the underwriters may purchase additional ordinary shares from the Selling Shareholders, any underwriting discounts and other items constituting underwriters’ compensation, any offering price, any discounts or concessions allowed or re-allowed or paid to dealers and any securities exchange or market on which the ordinary shares may be listed. Any offering price and any discounts or concessions allowed or re-allowed or paid to dealers may be changed from time to time.
In some cases, the Selling Shareholders or dealers acting for them or on their behalf may also repurchase the ordinary shares and reoffer them to the public by one or more methods described above.
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In addition to the transactions described above, the Selling Shareholders may sell the ordinary shares offered by them pursuant to this prospectus in compliance with available exemptions from the registration requirements under the Securities Act, rather than pursuant to this prospectus.
The Selling Shareholders may decide to sell all or a portion of the ordinary shares offered by them pursuant to this prospectus or may decide not to sell any ordinary shares under this prospectus. In addition, the Selling Shareholders may transfer, sell or dispose of the ordinary shares by other means not described in this prospectus. The Selling Shareholders have the sole and absolute discretion not to accept any purchase offer or make any sale of securities if they deem the purchase price to be unsatisfactory at any particular time.
The Selling Shareholders and any other persons participating in the sale or distribution of the ordinary shares will be subject to applicable provisions of the Exchange Act and the rules and regulations thereunder, including Regulation M. Regulation M may limit the timing of purchases and sales of any of the ordinary shares by the Selling Shareholders and any other such persons. In addition, Regulation M may restrict the ability of any person engaged in the distribution of the ordinary shares to engage in market-making activities with respect to the ordinary shares being distributed for a period of up to five (5) business days before the distribution. This may affect the marketability of the ordinary shares and the ability of any person or entity to engage in market-making activities with respect to the ordinary shares.
We will pay the expenses of the registration of the ordinary shares offered and sold by the Selling Shareholders under the registration statement of which this prospectus forms a part, including, but not limited to, all registration and filing fees, fees and expenses of our counsel and accountants, and to reimburse the Selling Shareholders for any legal fees and expenses reasonably incurred in connection with defending against certain liabilities. The Selling Shareholders will pay any underwriting discounts and commissions applicable to the ordinary shares sold by them.
Through Underwriters
If underwriters are used in a sale or distribution, the ordinary shares will be acquired by the underwriters for their own account and may be resold from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale. The ordinary shares may be offered to the public either through underwriting syndicates represented by one or more managing underwriters or directly by one or more firms acting as underwriters. The underwriter or underwriters with respect to a particular underwritten offering and, if an underwriting syndicate is used, the managing underwriter or underwriters will be set forth on the cover of such prospectus supplement. Unless otherwise set forth in the prospectus supplement, the underwriters will be obligated to purchase all the ordinary shares if any are purchased.
During and after an offering through underwriters, the underwriters may purchase and sell or distribute the ordinary shares in the open market. These transactions may include overallotment and stabilizing transactions and purchases to cover syndicate short positions created in connection with the offering. The underwriters also may impose a penalty bid, under which selling concessions allowed to syndicate members or other broker-dealers for the ordinary shares they sell or distribute for their account may be reclaimed by the syndicate if the syndicate repurchases the ordinary shares in stabilizing or covering transactions. These activities may stabilize, maintain or otherwise affect the market price of the ordinary shares, which may be higher than the price that might otherwise prevail in the open market, and, if commenced, may be discontinued at any time.
Certain of the underwriters and their affiliates may engage in transactions with and may perform services for us or our affiliates in the ordinary course of business.
It is possible that one or more underwriters may make a market in our securities, but such underwriters will not be obligated to do so and may discontinue any market making at any time without notice. We cannot give any assurance as to the liquidity of the trading market for our securities.
Through Agents or to Dealers
The Selling Shareholders may sell or distribute the ordinary shares directly or through agents they designate from time to time. Unless otherwise indicated in a prospectus supplement, any such agent will be acting on a best efforts basis for the period of its appointment.
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If dealers are used in any of the sales or distribution of the ordinary shares covered by this prospectus, the Selling Shareholders will sell those ordinary shares to dealers as principals. The dealers may then resell the ordinary shares to the public at varying prices the dealers determine at the time of resale.
Direct Sales
The Selling Shareholders may sell or distribute the ordinary shares directly to institutional investors or others who may be deemed to be underwriters within the meaning of the Securities Act with respect to any sale thereof.
Delayed Delivery
If so indicated in a prospectus supplement, the Selling Shareholders may authorize agents, underwriters or dealers to solicit offers from certain types of institutions to purchase the ordinary shares from them at the public offering price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the future. These contracts will be subject only to those conditions set forth in the prospectus supplement, and the prospectus supplement will set forth the commission payable for solicitation of such contracts.
Derivative Transactions and Hedging
The Selling Shareholders and the underwriters may engage in derivative transactions involving the ordinary shares. These derivatives may consist of short sale transactions and other hedging activities. The underwriters may acquire a long or short position in the ordinary shares, hold or resell ordinary shares acquired and purchase options or futures on the ordinary shares and other derivative instruments with returns linked to or related to changes in the price of the ordinary shares. In order to facilitate these derivative transactions, the Selling Shareholders may enter into security lending or repurchase agreements with the underwriters. The underwriters may carry out the derivative transactions through sales or distributions of the ordinary shares to the public, including short sales, or by lending the ordinary shares in order to facilitate short sale transactions by others. The underwriters may also use the ordinary shares purchased or borrowed from the Selling Shareholders or others (or, in the case of derivatives, ordinary shares received from the Selling Shareholders in settlement of those derivatives) to directly or indirectly settle sales of the ordinary shares or close out any related open borrowings of the ordinary shares.
Loans of Securities
The Selling Shareholders may loan or pledge the ordinary shares to a financial institution or other third party that in turn may sell the ordinary shares using this prospectus and an applicable prospectus supplement.
General
Agents, dealers and direct purchasers that participate in the distribution of the offered ordinary shares may be underwriters as defined in the Securities Act and any discounts or commissions they receive from us and any profit on the resale of the offered ordinary shares by them may be treated as underwriting discounts and commissions under the Securities Act. Agents, dealers and underwriters may be entitled under agreements entered into with us to indemnification by us and the Selling Shareholders against certain civil liabilities, including liabilities under the Securities Act, or to contribution with respect to payments which such agents, dealers or underwriters may be required to make in respect thereof. Agents, dealers and underwriters may be customers of, engage in transactions with, or perform services on our behalf.
We may indemnify, in certain circumstances, the Selling Shareholders against certain liabilities to which they may become subject in connection with the sale of the ordinary shares offered by them pursuant to this prospectus, including liabilities arising under the Securities Act. The Selling Shareholders may indemnify us in certain circumstances against certain liabilities to which we may become subject in connection with the sale of such ordinary shares, including liabilities arising under the Securities Act.
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The following table sets forth the expenses (other than underwriting discounts and commissions or agency fees and other items constituting underwriters’ or agents’ compensation, if any) expected to be incurred by us in connection with a possible offering by the Selling Shareholders of ordinary shares registered under this registration statement. All amounts are estimated except for the SEC registration fee and FINRA filing fee.
| Expenses | Amount | |||
| SEC registration fee | $ | * | ||
| FINRA fee | ** | |||
| Printing expenses | ** | |||
| Legal fees and expenses | ** | |||
| Accounting fees and expenses | ** | |||
| Miscellaneous costs | ** | |||
| Total | $ | ** | ||
| * | The registrant is relying on Rule 456(b) and Rule 457(r) under the Securities Act to defer payment of all of the registration fee. |
| ** | These fees are calculated based on the ordinary shares offered and the number of issuances and accordingly cannot be estimated at this time. |
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WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration statement on Form F-3, of which this prospectus is part, with respect to the ordinary shares the Selling Shareholders may offer. This prospectus and any accompanying prospectus supplement do not contain all the information contained in the registration statement, including its exhibits and schedules. You should refer to the registration statement, including the exhibits and schedules, for further information about us and the ordinary shares the Selling Shareholders may offer. Statements we make in this prospectus and any accompanying prospectus supplement about certain contracts or other documents are not necessarily complete. When we make such statements, we refer you to the copies of the contracts or documents that are filed as exhibits to the registration statement, because those statements are qualified in all respects by reference to those exhibits.
We are subject to the periodic reporting and other informational requirements of the Exchange Act. Accordingly, we are required to file reports and other information with the SEC, including annual reports on Form 20-F and reports on Form 6-K. However, as a foreign private issuer, we are exempt under the Exchange Act from, among other things, the rules prescribing the furnishing and content of proxy statements, and our officers, directors and principal shareholders are exempt from the reporting and short-swing profit recovery provisions contained in Section 16 of the Exchange Act. In addition, we are not required under the Exchange Act to file periodic reports and financial statements with the SEC as frequently or as promptly as U.S. companies whose securities are registered under the Exchange Act.
The SEC also maintains an Internet site that contains reports, proxies and information statements, and other information regarding issuers that file electronically with the SEC. The address of that website is https://www.sec.gov.
We maintain a corporate website at https://www.doleplc.com. The information contained on or connected to, or accessible from, our website is not a part of this prospectus, and you should not rely on any such information in making your decision whether to purchase our ordinary shares.
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The SEC allows us to “incorporate by reference” into this prospectus the information in documents we file with it. This means that we can disclose important information to you by referring you to those documents. Each document incorporated by reference is current only as of the date of such document, and the incorporation by reference of such documents shall not create any implication that there has been no change in our affairs since the date thereof or that the information contained therein is current as of any time subsequent to its date. The information incorporated by reference is considered to be a part of this prospectus and should be read with the same care. When we update the information contained in documents that have been incorporated by reference by making future filings with the SEC, the information incorporated by reference in this prospectus is considered to be automatically updated and superseded. In other words, in the case of a conflict or inconsistency between information contained in this prospectus and information incorporated by reference into this prospectus, you should rely on the information contained in the document that was filed later.
We incorporate by reference the documents listed below:
| ● | our Annual Report on Form 20-F (File No. 001-40695) filed with the SEC for the fiscal year ended December 31, 2024, filed with the SEC on March 11, 2025; |
| ● | our Current Reports on Form 6-K furnished with the SEC on April 9, 2025, May 2, 2025, May 5, 2025, May 12, 2025 (Film No. 25932441) (Exhibit 99.1 only), May 22, 2025, August 5, 2025 and August 11, 2025 (Film No. 251200012) (Exhibit 99.1 only); and |
| ● | with respect to each offering of ordinary shares under this prospectus, each subsequent annual report on Form 20-F and each report of foreign private issuer on Form 6-K that indicates that it is being incorporated by reference, in each case, that we file with or furnish to the SEC on or after the date on which this prospectus is first filed with the SEC and until the termination or completion of that offering under this prospectus. |
Unless expressly incorporated by reference, nothing in this prospectus shall be deemed to incorporate by reference information furnished to, but not filed with, the SEC. Copies of all documents incorporated by reference in this prospectus, other than exhibits to those documents unless such exhibits are specifically incorporated by reference in this prospectus, will be provided at no cost to each person, including any beneficial owner, who receives a copy of this prospectus on the written or oral request of that person made to:
Dole
plc
29 North Anne Street
Dublin 7
D07 PH36
Ireland
Tel: 353-1-887-2600
Attention: Chief Financial Officer
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ENFORCEMENT OF CIVIL LIABILITIES
We are incorporated under the laws of Ireland. Many of our directors and officers, and some of the experts named in this prospectus, are residents of Ireland or otherwise reside outside of the United States, and all or a substantial portion of their assets, and all or a substantial portion of our assets, are located outside of the United States. We have appointed an agent for service of process in the United States, but it may be difficult for shareholders who reside in the United States to effect service within the United States upon those directors, officers and experts who are not residents of the United States.
In addition, it may not be possible to enforce court judgments obtained in the United States against us in Ireland based on the civil liability provisions of the U.S. federal or state securities laws. We have been advised by Arthur Cox LLP, our Irish counsel, that the United States currently does not have a treaty with Ireland providing for the reciprocal recognition and enforcement of judgments in civil and commercial matters. The European Union (excluding Denmark), among other countries, has acceded to the Convention of July 2, 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (the “2019 Hague Judgments Convention”). The United States is a signatory to the 2019 Hague Judgments Convention since March 2022, but, as of August 28, 2025, it has not ratified it. If the United States ratifies the 2019 Hague Judgments Convention, it will amend the position outlined below in respect of the recognition and enforcement of judgments which fall within the scope of the 2019 Hague Judgments Convention.
The following requirements must be met before a judgment of a U.S. court will be deemed to be enforceable in Ireland:
| ● | the judgment must be for a definite sum; |
| ● | the judgment must be final and conclusive; and |
| ● | the judgment must be provided by a court of competent jurisdiction. |
An Irish court will also exercise its right to refuse enforcement if the U.S. judgment was obtained by fraud, if the judgment violates Irish public policy, if the judgment is in breach of natural or constitutional justice or if it is irreconcilable with an earlier foreign judgment. There is some uncertainty as to whether the courts of Ireland would recognize or enforce judgments of U.S. courts obtained against us or our directors or officers based on the civil liabilities provisions of the U.S. federal or state securities laws or hear actions against us or those persons based on those laws. Therefore, a final judgment for the payment of money rendered by any U.S. federal or state court based on civil liability, whether or not based solely on U.S. federal or state securities laws, would not automatically be enforceable in Ireland.
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Certain legal matters will be passed upon for us by Skadden, Arps, Slate, Meagher & Flom LLP, Los Angeles, California. The validity of the ordinary shares offered by this prospectus will be passed upon for us by Arthur Cox LLP, Dublin, Ireland.
Additional legal matters may be passed upon for us or any underwriters, dealers or agents, by counsel that we will name in the applicable prospectus supplement.
34
The consolidated financial statements of Dole plc as of December 31, 2024 and 2023, and for each of the years in the three-year period ended December 31, 2024, and management’s assessment of the effectiveness of internal control over financial reporting as of December 31, 2024 have been incorporated by reference herein and in the registration statement in reliance upon the reports of KPMG, independent registered public accounting firm, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
| Item 8. | Indemnification of Directors, Officers and Employees |
To the fullest extent permitted by Irish law, our Articles of Association confer an indemnity on our directors and officers. However, this indemnity is limited by the Irish Companies Act, which prescribes that an advance commitment to indemnify only permits a company to pay the costs or discharge the liability of a director or corporate secretary where judgment is given in favor of the director or corporate secretary in any civil or criminal action in respect of such costs or liability, or where an Irish court grants relief because the director or corporate secretary acted honestly and reasonably and ought fairly to be excused. Any provision whereby an Irish company seeks to commit in advance to indemnify its directors or corporate secretary over and above the limitations imposed by the Irish Companies Act will be void under Irish law, whether contained in its memorandum and articles of association or any contract between the Company and the director or corporate secretary. This restriction does not apply to our executives who are not directors, the corporate secretary or other persons who would be considered “officers” within the meaning of that term under the Irish Companies Act.
Our Articles of Association also contain indemnification and expense advancement provisions for persons who are not directors or our corporate secretary.
We have entered into indemnification agreements for the benefit of each of our directors and executive officers. These agreements, among other things, shall require us to indemnify an indemnitee to the fullest extent permitted by applicable law, including indemnification of expenses such as attorneys’ fees, judgments, fines and settlement amounts incurred by the indemnitee in any action or proceeding, including any action or proceeding by us or in our right, arising out of the person’s services as a director or executive officer.
We are permitted under our Articles of Association and the Irish Companies Act to take out directors’ and officers’ liability insurance, as well as other types of insurance, for our directors, officers, employees and agents. We have purchased and maintain a directors’ and officers’ liability policy for such purpose for the benefit of our directors and officers and directors and officers of our subsidiaries.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to our directors, officers or persons controlling us pursuant to the foregoing provisions, we have been informed that, in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
| Item 9. | Exhibits |
The exhibits listed on the exhibit index at the end of this Registration Statement have been furnished together with this Registration Statement.
| Item 10. | Undertakings |
| (a) | The undersigned registrant hereby undertakes: |
| (i) | To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: |
| (1) | to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; |
| (2) | to reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and |
II-1
| (3) | to include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; |
provided, however, that paragraphs (a)(i)(1), (a)(i)(2) and (a)(i)(3) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Registration Statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the Registration Statement.
| (ii) | That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
| (iii) | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
| (iv) | To file a post-effective amendment to the Registration Statement to include any financial statements required by Item 8.A of Form 20-F at the start of any delayed offering or throughout a continuous offering. Financial statements and information otherwise required by Section 10(a)(3) of the Securities Act of 1933 need not be furnished; provided, that the registrant includes in the prospectus, by means of a post-effective amendment, financial statements required pursuant to this paragraph (a)(iv) and other information necessary to ensure that all other information in the prospectus is at least as current as the date of those financial statements. Notwithstanding the foregoing, a post-effective amendment need not be filed to include financial statements and information required by Section 10(a)(3) of the Securities Act of 1933 or Item 8.A of Form 20-F if such financial statements and information are contained in periodic reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this Form F-3. |
| (v) | That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser: |
| (1) | each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the Registration Statement as of the date the filed prospectus was deemed part of and included in the Registration Statement; and |
| (2) | each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date. |
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| (b) | The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
| (c) | Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue. |
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EXHIBIT INDEX
| * | To be filed as an exhibit to a post-effective amendment to this Registration Statement or as an exhibit to a report of foreign private issuer on Form 6-K that is incorporated herein by reference. |
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Pursuant to the requirements of the Securities Act, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Dublin, Ireland, on September 3, 2025.
| Dole plc | |||
| By: | /s/ Rory Byrne | ||
| Name: | Rory Byrne | ||
| Title: | Chief Executive Officer | ||
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENT, that each person whose signature appears below constitutes and appoints Rory Byrne, Carl McCann and Jacinta Devine and each of them, his, her or their true and lawful attorney-in-fact and agent, with full power of substitution and revocation, for him or her and in his or her name, place and stead, in any and all capacities, to execute any or all amendments including any post-effective amendments and supplements to this registration statement, and any additional registration statement filed pursuant to Rule 462, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities indicated on the date indicated below:
|
Signature and Name |
Title | Date | ||
| /s/ Rory Byrne | Director and Chief Executive Officer | September 3, 2025 | ||
| Rory Byrne | (Principal Executive Officer) | |||
| /s/ Carl McCann | Executive Chairman of the Board | September 3, 2025 | ||
| Carl McCann | ||||
| /s/ Jacinta Devine | Director and Chief Financial Officer | September 3, 2025 | ||
| Jacinta Devine | (Principal Financial and Accounting Officer) | |||
| /s/ Johan Lindén | Director and Chief Operating Officer | September 3, 2025 | ||
| Johan Lindén | ||||
| /s/ Imelda Hurley | Non-Executive Director | September 3, 2025 | ||
| Imelda Hurley | ||||
| /s/ Rose Hynes | Non-Executive Director | September 3, 2025 | ||
|
Rose Hynes |
||||
|
/s/ Michael Meghen |
Non-Executive Director | September 3, 2025 | ||
| Michael Meghen | ||||
| /s/ Helen Nolan | Non-Executive Director | September 3, 2025 | ||
|
Helen Nolan
|
||||
| /s/ Jimmy Tolan | Non-Executive Director | September 3, 2025 | ||
|
Jimmy Tolan
|
||||
| /s/ Kevin Toland | Non-Executive Director | September 3, 2025 | ||
|
Kevin Toland |
II-5
SIGNATURE OF AUTHORIZED U.S. REPRESENTATIVE OF REGISTRANT
Pursuant to the requirements of the Securities Act of 1933, as amended, the undersigned, the duly authorized representative in the United States of Dole plc has signed this registration statement on September 3, 2025.
| Corporation Service Company | |||
| By: | /s/ Melissa DeKoven | ||
| Name: | Melissa DeKoven | ||
| c/o Corporation Service Company | |||
| Title: | Assistant Secretary | ||
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Exhibit 5.1
Our Reference: DO282/036
3 September 2025
PRIVATE AND CONFIDENTIAL
Board of Directors
Dole plc
29 North Anne Street
Dublin 7
D07 PH36
Ireland
| Re: | Dole PLC (the “Company”) |
To whom it may concern:
| 1. | Basis of Opinion |
| 1.1 | We are acting as Irish counsel to the Company, registered number 606201, a public company limited by shares, incorporated under the laws of Ireland, in connection with: |
| (a) | the registration statement on Form F-3 to be filed with the United States Securities and Exchange Commission (the “SEC”) under the Securities Act of 1933, as amended (the “Securities Act”), on 3 September 2025 (the “F-3 Registration Statement”), pursuant to which Castle & Cook Holdings, Inc. and The Murdock Group, LLC (the “Selling Shareholders”) may offer and sell ordinary shares of the Company, par value €0.01 per share (“Ordinary Shares”), from time to time, in amounts, at prices and on terms that will be determined at the time of any such offering; and |
| (b) | the underwriting agreement to be entered into between the Company and the underwriters named in the F-3 Registration Statement (the “Underwriting Agreement”). |
| 1.2 | 11,917,263 Ordinary Shares were issued to the Selling Shareholders (the “Secondary Offering Shares”) in connection with the Share Exchange, the Merger and the Transaction Agreement (each as defined in the Form F-1 (No. 333-257621) filed with the SEC under the Securities Act on 28 April 2021 and amended on 10 June 2021, 19 July 2021, 22 July 2021 and 27 July 2021 (the “F-1 Registration Statement”)) and the other transactions as specified in the F-1 Registration Statement (the “Transaction”). |
| 1.3 | On 3 August 2021, the Company entered into a registration rights agreement with the Selling Shareholders, pursuant to which the Selling Shareholders were granted registration rights and the F-3 Registration Statement describes the general manner in which the Secondary Offering Shares may be offered and sold by the Selling Shareholders. |
| 1.4 | This Opinion is confined to and given in all respects on the basis of the laws of Ireland (meaning Ireland exclusive of Northern Ireland) in force as at the date of this Opinion as currently applied by the courts of Ireland. We have made no investigations of, and we express no opinion as to the laws of, any other jurisdiction or their effect on this Opinion. This Opinion speaks only as of its date. We assume no obligation to update this Opinion at any time in the future or to advise you of any change in law, change in interpretation of law or change in the practice of the Irish Revenue Commissioners which may occur after the date of this Opinion. |
| 1.5 | This Opinion is also strictly confined to: |
| (a) | the matters expressly stated herein at paragraph 2 below and is not to be read as extending by implication or otherwise to any other matter; |
| (b) | the documents listed in the Schedule to this Opinion (the “Documents”); and |
| (c) | the searches listed at 1.8 below. |
| 1.6 | In giving this Opinion, we have examined copies of the Documents sent to us by email in pdf or other electronic format. |
| 1.7 | For the purpose of giving this Opinion, we have caused to be made the following legal searches against the Company on 3 September 2025 (collectively the “Searches”): |
| (a) | on the file of the Company maintained by the Registrar of Companies in Dublin for mortgages, debentures or similar charges or notices thereof and for the appointment of any receiver, examiner or liquidator; |
| (b) | in the Judgments Office of the High Court for unsatisfied judgments, orders, decrees and the like for the five years immediately preceding the date of the search; and |
| (c) | in the Central Office of the High Court in Dublin for any proceedings and petitions filed in the last two years. |
2
| 1.8 | This Opinion is governed by and is to be construed in accordance with the laws of Ireland as interpreted by the courts of Ireland at the date of this Opinion. |
| 1.9 | No opinion is expressed as to the taxation consequences of any of the matters referred to in the F-3 Registration Statement or the transactions referred to therein or contemplated thereby. |
| 2. | Opinion |
Subject to the assumptions set out in this Opinion and to any matters not disclosed to us, we are of the opinion that:
| 2.1 | the Company is a public limited company, is duly incorporated and validly existing under the laws of Ireland and had the requisite corporate authority to issue the Secondary Offering Shares; |
| 2.2 | the Secondary Offering Shares were duly authorised pursuant to resolutions of the board of directors of the Company or a duly appointed committee thereof; and |
| 2.3 | the Secondary Offering Shares were validly issued, fully paid or credited as fully paid and non-assessable (which term means that no further sums were required to be paid by the holders thereof in connection with the issue of the Secondary Offering Shares). |
| 3. | Assumptions |
For the purpose of giving this Opinion we assume the following, without any responsibility on our part if any assumption proves to have been untrue as we have not verified independently any assumption:
F-3 Registration Statement and the Secondary Offering Shares
| 3.1 | that the F-3 Registration Statement will have become effective under the Securities Act and that the Company complies with the statements set out therein; |
| 3.2 | the Underwriting Agreement will have become effective and binding on the parties thereto and the investors will actually pay in full the amount that they have agreed to pay to purchase the Secondary Offering Shares; |
| 3.3 | that the Secondary Offering Shares were issued (the “Issuance Event”) in accordance with the appropriate resolutions and authorities of the shareholders and directors of the Company passed prior to the issue of the Secondary Offering Shares (“Closing”) and in accordance with the terms of the Transaction Agreement as defined in the F-1 Registration Statement; |
| 3.4 | there was no fraud on the part of the Company and its respective officers, employees, agents and advisers and that the Company effected the Issuance Event in good faith, for its legitimate and bona fide business purposes; |
| 3.5 | that completion of the Transaction (as described in the F-1 Registration Statement) was consummated as described in the F-1 Registration Statement; |
| 3.6 | that (i) the Secondary Offering Shares will be quoted on the New York Stock Exchange at the time of issuance of the Secondary Offering Shares and will continue to be so quoted or (ii) the Secondary Offering Shares will not derive their value or the greater part of their value directly or indirectly from land in Ireland, minerals in Ireland or any rights, interests or other assets in relation to mining or minerals or the searching for minerals or exploration or exploitation rights on the Irish continental shelf; |
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Authenticity and bona fides
| 3.7 | the completeness and authenticity of all Documents submitted to us as originals or copies of originals (and in the case of copies, conformity to the originals of such copies), the genuineness of all signatories, stamps and seals thereon and where incomplete or draft Documents have been submitted to us that the original executed versions of such Documents are identical to the last draft of the Documents submitted to us; |
| 3.8 | that the copies produced to us of minutes of meetings and/or resolutions are true and correct copies of the original documents, and the signatures on such documents are genuine; |
| 3.9 | that the representations contained in the Officer’s Certificate of the secretary of the Company dated on or around 3 September 2025 are correct as to questions of fact; |
| 3.10 | that the persons identified as the directors of the Company are actually serving as such and that any certificates representing the Secondary Offering Shares were properly executed by one or more such persons; |
Constitution and Resolutions
| 3.11 | that the constitution of the Company included in Schedule 2 to this Opinion is the current constitution of the Company and that there are no other terms governing the Secondary Offering Shares other than those set out in the constitution; |
Accuracy of Searches and Warranties
| 3.12 | the accuracy and completeness of the information disclosed in the Searches and that such information has not since the time of such Searches or enquiry been altered. It should be noted that searches at the Companies Registration Office, Dublin, do not necessarily reveal whether or not a prior charge has been created or a resolution has been passed or any other action taken for the winding-up of or the appointment of a receiver or an examiner to the Company; and |
| 3.13 | the truth, completeness and accuracy of all representations and statements as to factual matters contained in the Documents. |
| 4. | Disclosure |
| 4.1 | This Opinion is addressed to you in connection with the registration of the Secondary Offering Shares with the SEC. We hereby consent to the inclusion of this Opinion as an exhibit to the F-3 Registration Statement to be filed with the SEC and to the use of our name in the proxy statement/prospectus that forms part of the F-3 Registration Statement. |
| Yours faithfully, | |
 |
|
| ARTHUR COX LLP |
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Schedule 1
Documents Examined
| 1. | The F-3 Registration Statement and the documents incorporated by reference therein. |
| 2. | The F-1 Registration Statement and the documents incorporated by reference therein. |
| 3. | The Transaction Agreement dated 16 February 2021 as amended on 23 April 2021, between Total Produce plc, Total Produce USA Holdings Inc., the Company, TP-Dole Merger Sub, LLC, DFC Holdings, LLC, Dolicious Corporation, Castle & Cooke Holdings, Inc. and The Murdock Group, LLC. |
| 4. | The Underwriting Agreement. |
| 5. | A copy of the resolution of the board of directors of the Company dated 2 July 2021 approving the issue of the Secondary Offering Shares. |
| 6. | A copy of the resolution of the board of directors of the Company dated 18 July 2021 approving the final version of the F-1 Registration Statement. |
| 7. | A copy of the resolution in writing of the shareholders of the Company dated 2 July 2021 approving the adoption of the Company’s Constitution. |
| 8. | A copy of the resolution of the board of directors of the Company dated 11 November 2024 approving the final version of the F-3 Registration Statement. |
| 9. | A copy of the Constitution of the Company in the form effective on Closing as adopted on 2 July 2021. |
| 10. | A Corporate Certificate executed by the secretary of the Company dated on or around 3 September 2025. |
| 11. | A copy of the Certificate of Incorporation of the Company on registration as a public limited company under the Companies Act 2014 of Ireland dated 26 April 2021. |
| 12. | Letter of Status from the Irish Companies Registration Office in respect of the Company dated 9 December 2021. |
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Schedule 2
Constitution
Companies Act 2014
PUBLIC LIMITED COMPANY
CONSTITUTION
OF
DOLE PUBLIC LIMITED COMPANY
MEMORANDUM OF ASSOCIATION
| 1. | The name of the Company is DOLE PUBLIC LIMITED COMPANY. |
| 2. | The Company is a public limited company, registered under Part 17 of the Companies Act 2014. |
| 3. | The objects for which the Company is established are: |
| (a) | To acquire and hold controlling and other interests in the share or loan capital of any company or companies. |
| (b) | To carry on the business of a holding company and to co-ordinate the administration, finances and activities of any subsidiary companies or associated companies, to do all lawful acts and things whatever that are necessary or convenient in carrying on the business of such a holding company and in particular to carry on in all its branches the business of a management services company, to act as managers and to direct or coordinate the management of other companies or of the business, property and estates of any company or person and to undertake and carry out all such services in connection therewith as may be deemed expedient by the Company’s board of directors and to exercise its powers as a shareholder of other companies. |
| (c) | To carry on the businesses of manufacturer, distributor, wholesaler, retailer, service provider, investor, designer, trader and any other business (except the issuing of policies of insurance) which may seem to the Company’s board of directors capable of being conveniently carried on in connection with these objects or calculated directly or indirectly to enhance the value of or render more profitable any of the Company’s property. |
| (d) | To purchase, acquire, develop, re-claim, improve, cultivate and work lands and hereditaments of any estate or interest whatsoever, and any rights, privileges or easements over or in respect thereof and erect and build thereon factories, houses, offices and other buildings and to hold, occupy, lease, mortgage, sell or otherwise deal with the same. |
| (e) | To lay out land for building purposes, and to build on, improve, let on building leases, advance money to persons building on and otherwise develop the same. |
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| (f) | To acquire, improve, manage, work, develop, exercise all rights in respect of, lease, mortgage, sell, dispose of, turn to account and otherwise deal with property of all kinds, and in particular lands, buildings, concessions and patents. |
| (g) | To purchase, take on lease, or otherwise acquire, any mines, mining rights, and metalliferous land in Ireland or elsewhere, and any interest therein and to explore, work, exercise, develop and turn to account the same. |
| (h) | To carry on the businesses of an investment, estate and trust company and to raise money on such terms and conditions as may be thought desirable, and invest the amount thereof in or upon or otherwise acquire and hold shares, stocks, debentures, debenture stocks, bonds mortgages, obligations and securities of any kind issued or guaranteed by any public or private company, corporation or undertaking of whatever nature wherever situated or carrying on business, and shares, stocks, debentures, debenture stocks, bonds, obligations and other securities of Ireland or any other government or authority supreme, municipal, local or otherwise in any part of the world. |
| (i) | To carry on all or any of the businesses aforesaid either as a separate business or as the principal business of the Company, and to carry on any other business (whether manufacturing or otherwise) which may seem to the Company capable of being conveniently carried on in connection with the above objects or calculated directly or indirectly to enhance the value of or render more profitable any of the company’s property. |
| (j) | To incorporate or cause to be incorporated any one or more subsidiaries of the Company (within the meaning of Section 7 of the Companies Act 2014) for the purpose of carrying on any business. |
| (k) | To acquire and undertake the whole or any part of the business, property and liabilities of any person or company carrying on any business which the Company is authorised to carry on, and as part of the consideration for such acquisition to undertake all or any of the liabilities of such person, firm or company, or to acquire an interest in, amalgamate with, or enter into any arrangement for sharing profits, or for co-operation, or for mutual assistance with any such person, firm or company and to give or accept by way of consideration for any of the acts or things aforesaid or property acquired, any shares, debentures, debenture stock or securities that may be agreed upon, and to hold and retain or sell, mortgage or deal with any shares, debentures, debenture stock or securities so received. |
| (l) | To apply for, purchase or otherwise acquire any patents, trade marks, brevets d’invention, licences, copyrights, concessions, registered designs and the like conferring any rights of any sort to use or any secret or other information as to any invention which may seem capable of being used for any of the purposes of the Company or the acquisition of which may seem calculated directly or indirectly to benefit the Company, and to use, exercise, develop or grant licences in respect of or otherwise turn to account the property rights or information so acquired. |
| (m) | To enter into partnership or into any arrangement for sharing profits, union of interests, co-operation, joint venture, reciprocal concession or otherwise with any person or company carrying on or engaged in or about to carry on or engage in any business or transaction which the Company is authorised to carry on or engage in or any business or transaction capable of being conducted so as directly or indirectly to benefit the Company. |
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| (n) | To purchase or otherwise acquire shares and securities of the Company or any company and to sell, hold, re-issue or otherwise deal with the same and to amalgamate with any other company or person. |
| (o) | To enter into any arrangements with any governments or authorities, supreme, municipal, local or otherwise, that may seem conducive to the Company’s objects or any of them and to obtain from any such government or authority any rights, privileges and concessions which the board of directors think desirable to obtain and to carry out, exercise and comply with any such arrangements, rights, privileges and concessions. |
| (p) | To establish and support or aid in the establishment and support of associations, institutions, funds, trusts and conveniences calculated to benefit directors and ex-directors, employees or ex-employees of the Company or the dependents or connections of such persons and (without prejudice to the generality of the foregoing) to grant gratuities, pensions or allowances on retirement or death to or in respect of any such persons and including the establishment of equity award plans, enabling directors, employees and agents of the Company or its subsidiaries or other persons aforesaid to become shareholders in the Company, or otherwise to participate in the profits of the Company upon such terms and in such manner as the Company thinks fit, and to make payments towards insurance and to subscribe or guarantee money for charitable or benevolent objects or for any exhibition or for any public, general or useful object, or any other object whatsoever which the board of directors may think advisable. |
| (q) | To establish and contribute to any scheme for the purchase by trustees of shares in the Company to be held for the benefit of the directors, employees and agents of the Company and its subsidiaries and subject to the Companies Act 2014 to lend or otherwise provide money to the trustees of such schemes or the Company’s employees or the employees of any of its subsidiary or associated companies to enable them to purchase shares of the Company. |
| (r) | To establish any scheme or otherwise to provide for the purchase by or on behalf of customers of the Company of shares in the Company. |
| (s) | To promote any company or companies for the purpose of acquiring all or any of the assets and liabilities of the Company or for any other purpose which may seem directly or indirectly calculated to benefit the Company. |
| (t) | Generally to purchase, take on lease or in exchange, hire or otherwise acquire any real and personal property and any rights or privileges which the board of directors may think necessary or convenient for the purposes of the Company’s business. |
| (u) | To develop and turn to account any land acquired by the Company or in which it is interested and in particular by laying out and preparing the same for building purposes, constructing, altering, pulling down, decorating, maintaining, fitting up and improving buildings and conveniences, letting on building leases or building agreement and by advancing money to and entering into contracts and arrangements of all kinds with builders, tenants and others. |
| (v) | To construct, maintain and alter any building or works necessary or convenient for any of the purposes of the Company. |
| (w) | To invest and deal with the monies of the Company not immediately required in such manner as may from time to time be determined. |
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| (x) | To lend and advance money or give credit to such persons or companies whether with or without security and on such terms as may seem expedient, and in particular to customers and others having dealings with the Company; and to give guarantees or become security for any liabilities or obligations (present or future) of any persons or companies and generally to give any guarantees, indemnities and security on such terms and conditions as the board of directors may think fit. |
| (y) | To borrow or raise money or capital in any manner and on such terms and subject to such conditions and for such purposes as the Company’s board of directors shall think fit or expedient, whether alone or jointly and/or severally with any other person or company, including, without prejudice to the generality of the foregoing, whether by the issue of debentures or debenture stock (perpetual or otherwise) or otherwise, and to secure, with or without consideration, the payment or repayment of any money borrowed, raised or owing or any debt, obligation or liability of the Company or of any other person or company whatsoever in such manner and on such terms and conditions as the Company’s board of directors shall think fit or expedient and, in particular by mortgage, charge, lien, pledge or debenture or any other security of whatsoever nature or howsoever described, perpetual or otherwise, charged upon all or any of the Company’s property, both present and future, and to purchase, redeem or pay off any such securities or borrowings and also to accept capital contributions from any person or company in any manner and on such terms and conditions and for such purposes as the Company’s board of directors shall think fit or expedient. |
| (z) | To guarantee, support or secure, whether by personal covenant or by mortgaging or charging all or any part of the undertaking, property and assets (both present and future) and uncalled capital of the Company, or by both such methods, the performance of the obligations of, and the repayment or payment of the principal amounts of and premiums, interest and dividends on any security (including any security denominated or repayable in a currency other than the currency of the State) of any person firm or company including (without prejudice to the generality of the foregoing) any company which is for the time being the Company’s holding company or subsidiary as defined by the Companies Act 2014 or another subsidiary as defined by the said Section of the Company’s holding company or otherwise associated with the Company in business. |
| (aa) | To engage in currency exchange, interest rate and/or commodity or index linked transactions (whether in connection with or incidental to any other contract, undertaking or business entered into or carried on by the Company or whether as an independent object or activity) including, but not limited to, dealings in foreign currency, spot and forward rate exchange contracts, futures, options, forward rate agreements, swaps, caps, floors, collars, commodity or index linked swaps and any other foreign exchange, interest rate or commodity or index linked arrangements and such other instruments as are similar to or derive from any of the foregoing whether for the purpose of making a profit or avoiding a loss or managing a currency or interest rate exposure or any other purpose and to enter into any contract for and to exercise and enforce all rights and powers conferred by or incidental, directly or indirectly, to such transactions or termination of any such transactions. |
| (bb) | To remunerate any person or company for services rendered or to be rendered in placing or assisting to place or guaranteeing the placing of any of the shares of the Company’s capital or any debentures, debenture stock or other securities of the Company or in or about the formation or promotion of the Company or the conduct of its business. |
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| (cc) | To pay all costs, charges, fees and expenses incurred or sustained in or about the promotion, establishment, formation and registration of the Company. |
| (dd) | To draw, make, accept, endorse, discount, execute and issue promissory notes, bills of exchange, bills of lading, warrants, debentures and other negotiable or transferable instruments. |
| (ee) | To undertake and execute any trusts the undertaking whereof may seem desirable and either gratuitously or otherwise. |
| (ff) | To sell or dispose of the undertaking of the Company or any part thereof for such consideration as the board of directors may think fit, and including for shares, debentures or securities of any other company having objects altogether or in part similar to those of the Company. |
| (gg) | To adopt such means of making known the products and services of the Company as may seem expedient and in particular by advertising in the press, by circulars, by purchase and exhibition of works of art or interest, by publication of books and periodicals and by granting prizes, rewards and donations. |
| (hh) | To obtain any enactment for enabling the Company to carry any of its objects into effect or for effecting any modification of the Company’s constitution or for any other purpose which may seem expedient and to oppose any proceedings or applications which may seem calculated directly or indirectly to prejudice the Company’s interests. |
| (ii) | To procure the Company to be registered or recognised in any country or place, whether as a branch or otherwise. |
| (jj) | To sell, improve, manage, develop, exchange, lease, mortgage, enfranchise, dispose of, turn to account or otherwise deal with all or any of the property and rights of the Company. |
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| (kk) | To promote freedom of contract, and to resist, insure against, counteract and discourage interference therewith, to join any lawful federation, union or association or do any other lawful act or thing with a view to preventing or resisting directly or indirectly any interruption of or interference with the Company’s or any other trade or business or providing or safeguarding against the same, or resisting or opposing any strike, movement or organisation, which may be thought detrimental to the interests of the Company or its employees and to subscribe to any association or fund for any such purposes. |
| (ll) | To make gifts to any person or company including, without prejudice to the generality of the foregoing, capital contributions and to grant bonuses to the Directors or any person or persons who are or have been in the employment of the Company. |
| (mm) | To grant, convey, transfer or otherwise dispose of any property or asset of the Company of whatever nature or tenure for such price, consideration, sum or other return whether equal to or less than the market value thereof and whether by way of the gift or otherwise the Directors shall deem fit and to grant any fee farm grant or lease or to enter into any agreement for letting or hire of any such property or assets for a rent or return equal to or less than the market or rack rent therefor or at no rent and subject to or free from covenants and restrictions as the Directors shall deem appropriate. |
| (nn) | To do all or any of the above things in any part of the world and as principals, agents, contractors, trustees or otherwise and by or through trustees, agents or otherwise and either alone or in conjunction with others. |
| (oo) | To distribute any of the property of the Company in specie among the members. |
| (pp) | To do anything which appears to the Company’s board of directors to be requisite, advantageous or incidental to, or which appears to the Company to facilitate, either directly or indirectly, the attainment of the above objects or any of them. |
NOTE: It is hereby declared that the word “Company” in this clause, except where used in reference to this Company shall be deemed to include any partnership or other body of persons whether incorporated or not incorporated and whether domiciled in Ireland or elsewhere.
| 4. | The liability of the members is limited. |
| 5. | The authorised share capital of the Company is US$3,300,000 divided into 300,000,000 Ordinary Shares with a nominal value of US$0.01 each and 300,000,000 Preferred Shares with a nominal value of US$0.001 each and €25,000 divided into 25,000 euro shares with a nominal value of €1.00 each. |
| 6. | The shares forming the capital, may be increased or reduced and be divided into such classes and issued with any special rights, privileges and conditions or with such qualifications as regards preference, dividend, capital, voting or other special incidents, and be held upon such terms as may be attached thereto or as may from time to time be provided by the original or any substituted or amended articles of association and regulations of the Company for the time being, but so that where shares are issued with any preferential or special rights attached thereto such rights shall not be alterable otherwise than pursuant to the provisions of the Company’s articles of association for the time being. |
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DOLE PUBLIC LIMITED COMPANY
ARTICLES OF ASSOCIATION
(as amended by Special Resolution dated 2 July 2021)
PART I - INTERPRETATION AND GENERAL
| 1. | Interpretation |
| (a) | Sections 77 to 81, 95(1)(a), 95(2)(a), 96, 124, 125(3), 144(3), 144(4), 148(2), 158(3), 159 to 165, 181(1), 182(2), 182(5), 183(3), 187, 188, 218(5), 229, 230, 338(5), 338(6), 618(1)(b), 1090, 1092 and 1113 of the Act shall not apply to the Company. |
| (b) | In these Articles the following expressions shall have the following meanings: |
|
“Act” |
means the Companies Act 2014 and every statutory modification and re-enactment thereof for the time being in force; | |
| “Acts” | the Companies Act 2014 and all statutory instruments which are to be read as one with, or construed or read together as one with, the Act; | |
| “Adoption Date” | means the effective date of adoption of these Articles; | |
| “Address” | includes any number or address used for the purposes of communication by way of electronic mail or other electronic communication; | |
| “advanced electronic signature | the meaning given to that expression in the Electronic Commerce Act, 2000; | |
| “Approved Exchange” | The New York Stock Exchange, Nasdaq (or such body or bodies as may succeed to its functions) and any stock and/or investment exchange(s) which may be approved at any time by the Board for the purpose of the listing any shares in the Company on such exchange(s); | |
| “Approved Market” | any market operated by an Approved Exchange; | |
| “Approved Nominee” | means a nominee of a Central Securities Depository or a person appointed under contractual arrangements with the Company to hold shares or rights or interests in shares of the Company on a nominee basis; | |
| “Article” | means an article of these Articles; |
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| “Articles” | these Articles of association as from time to time and for the time being in force; | |
| “Auditors” | the statutory auditors for the time being of the Company; | |
| “Board” | the Board of Directors of the Company or the Directors present at a duly convened meeting of Directors at which a quorum is present; | |
| “C&C Parties” | has the same meaning as in the Transaction Agreement; | |
| “Central Securities Depository” | has the meaning given to that term by CSDR; | |
| “Chief Executive Officer” | shall include any equivalent office; | |
| “Chair” | means the person occupying the position of Chair of the Board from time to time; | |
| “Clear Days” | means in relation to the period of a notice, that period excluding the day when the notice is given or deemed to be given and the day for which it is given or on which it is to take effect; | |
| “Company” | means the company whose name appears in the heading to these Articles; | |
| “Company Secretary” | means the person or persons appointed as company secretary or joint company secretary of the Company from time to time and shall include any assistant or deputy secretary; | |
| “Completion” | has the same meaning as in the Transaction Agreement; | |
| “Consideration Shares” | has the same meaning as in the Transaction Agreement; | |
| “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 depositaries and amending Directives 98/26/EC and 2014/65/EU and Regulation (EU) No 236/2012; | |
| “Directors” | the Directors for the time being of the Company or any of them acting as the board of Directors of the Company; |
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| “DTC” | The Depository Trust Company; | |
| “electronic communication” | the meaning given to that term in the Electronic Commerce Act, 2000, as amended and in addition includes in the case of notices or documents issued on behalf of the Company, such documents being made available or displayed on a website of the Company (or a website designated by the Board); | |
| “electronic signature” | the meaning given to that term in the Electronic Commerce Act, 2000; | |
| “Euroclear Bank” | means Euroclear Bank SA/NV, a company incorporated in Belgium; | |
| “Euroclear Nominees” | means Euroclear Nominees Limited, a wholly owned subsidiary of Euroclear Bank, registered in England and Wales; | |
| “euro shares” | means the euro shares with a nominal value of €1.00 each in the capital of the Company; | |
| “Exchange Act” | means the Securities Exchange Act of 1934 of the United States, as amended; | |
| “Holder” | in relation to any share, the member whose name is entered in the Register as the holder of the share or, where the context permits, the members whose names are entered in the Register as the joint holders of shares; | |
| “IPO” | has the same meaning as in the Transaction Agreement; | |
| “Memorandum” | means the memorandum of association of the Company; | |
| “Merger” | has the same meaning as in the Transaction Agreement; | |
| “Notes” | the Notes appearing at the end of the Takeover Rules as amended from time to time; | |
| “offer period” | has the same meaning as in the Takeover Rules; | |
| “Office” | the registered office for the time being of the Company with the meaning of Section 50 of the Act; |
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| “Ordinary Shares” | means the ordinary shares with a nominal value of US$0.01 each in the capital of the Company; | |
| “owner of a share” | has the same meaning as in section 101 of the Act; | |
| “Preferred Shares” | means the preferred shares with a nominal value of US$0.01 each in the capital of the Company; | |
| “Receiving Agent” | such agent as the Company may appoint from time to time with responsibility for assisting the Company in (inter alia) the settlement of the Share Exchange and the Merger; | |
| “Redeemable Shares” | means redeemable shares as defined by section 64 of the Act; | |
| “Register” | the register of members to be kept as required by the Act; | |
| “Registrar” |
the person or persons appointed from time to time to maintain the Register; | |
| “Regulations Governing Uncertificated Shares” |
Sections 1087B and 1087C of the Act and the Companies Act, 1990 (Uncertificated Securities) Regulations, 1996, S.I. No. 68 of 1996 and the Companies Act, 1990 (Uncertified Securities) (Amendment) Regulations 2005, including any modification thereof or any regulations in substitution therefore made under Section 1086 of the Act and for the time being in force; | |
| “Seal” | the common seal of the Company or (where relevant) the official securities seal kept by the Company pursuant to the Acts; | |
| “Securities Settlement System” | means a securities settlement system (as defined in the CSDR) operated by a Central Securities Depository; | |
| “Section 1062 Notice” | notice issued in accordance with Section 1062 of the Act; | |
| “Share Exchange” | means the acquisition by the Company of 100% of the issued share capital of Total Produce plc in exchange for issuing Ordinary Shares to Total Produce plc’s existing shareholders on the terms and in accordance with the Transaction Agreement; |
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| “State” | Ireland; | |
| “Stock Exchange” | means any securities exchange or other system on which the shares of the Company may be listed or otherwise authorised for trading from time to time in circumstances where the Company has approved such listing or trading; | |
| “Takeover Rules” | means Irish Takeover Panel Act, 1997, Takeover Rules, 2013 as amended from time to time; | |
| “Total Produce Shares” | has the same meaning as in the Transaction Agreement; | |
| “Transaction Agreement” | means the transaction agreement dated 16 February 2021 entered into between Total Produce plc, Dole Food Company, Inc. and affiliates of Castle & Cooke, Inc. in respect of their combination under the Company; | |
| “Treasury Shares” | shares in the Company which have been redeemed or purchased by the Company, as are being held by the Company, as treasury shares in accordance with Section 109 of the Act; | |
| “uncertificated form” |
in respect of any share, means a share the title to which is recorded on the Register as being held in uncertificated form and title to which by virtue of the Regulations Governing Uncertificated Shares may be transferred by means of a Central Securities Depository; | |
| “warrants to subscribe” | a warrant or certificate or similar document indicating the right of the registered holder thereof (other than under a share option scheme for employees) to subscribe for shares in the Company. |
| (c) | Expressions in these Articles referring to writing shall be construed, unless the contrary intention appears, as including references to printing, lithography, photography and any other modes or representing or reproducing words in a visible form except as provided in these Articles and/or where it constitutes writing in electronic form sent to the Company, the Company has agreed to its receipt in such form. Expressions in these Articles referring to execution of any document shall include any mode of execution whether under seal or under hand or any mode of electronic signature as shall be approved by the Directors. Expressions in these Articles referring to receipt of any electronic communications shall, unless the contrary intention appears, be limited to receipt in such manner as the Company has approved. |
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| (d) | Unless specifically defined herein or the context otherwise requires, words or expressions contained in these Articles shall bear the same meaning as in the Acts but excluding any statutory modification thereof not in force when these Articles become binding on the Company. |
| (e) | The headings and captions included in these Articles are inserted for convenience of reference only and shall not be considered a part of or affect the construction or interpretation of these Articles. |
| (f) | References in these Articles to any enactment or any section or any regulation or provision thereof shall mean such enactment, section or provision as the same may be amended and may be from time to time and for the time being in force. |
| (g) | In these Articles the masculine gender shall include the feminine and neuter, and vice versa, and the singular number shall include the plural, and vice versa, and words importing persons shall include firms or companies. |
| (h) | References in these Articles to Euro or cent or € or c shall mean the currency for the time being of the State. |
| (i) | Reference herein to a share (or to a holding of shares) being in uncertificated form are references to that share being an uncertificated unit of a security. |
PART II - SHARE CAPITAL AND RIGHTS
| 2. | Share capital |
The authorised share capital of the Company is US$3,300,000 divided into 300,000,000 Ordinary Shares with a nominal value of US$0.01 each and 300,000,000 Preferred Shares with a nominal value of US$0.001 each and €25,000 divided into 25,000 euro shares with a nominal value of €1.00 each.
| 3. | Rights attaching to shares |
Without prejudice to any special rights conferred on the Holders of any existing shares or class of shares and subject to the provisions of the Act, any share may be issued with such rights or restrictions as the Company may by ordinary resolution determine.
| 4. | Rights attaching to Ordinary Shares |
| (a) | The rights attaching to the Ordinary Shares shall include the following: |
| (i) | the right to attend any general meeting of the Company and to exercise one vote per Ordinary Share held at any general meeting of the Company provided however this right is subject to the power of the Board to set record dates for the purposes of determining the identity of members entitled to notice of and/or to vote at a general meeting and the authority of the Board and chair of such meetings to maintain order and security; |
| (ii) | the right to participate pro rata in all dividends declared by the Company by reference to such dividend record date as shall be specified by the Board for the purposes of determining the members entitled to receive payment of any dividend; and |
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| (iii) | the right, in the event of the Company’s winding up, to participate pro rata in the total assets of the Company. |
| (b) | The rights attaching to the Ordinary Shares may be subject to the terms of issue of any series or class of Preferred Shares allotted by the Board from time to time in accordance with Article 5. |
| 5. | Rights attaching to Preferred Shares |
| (a) | The Board is empowered to cause the Preferred Shares to be issued from time to time as shares of one or more series of Preferred Shares, and in the resolution or resolutions providing for the issue of Preferred Shares of each particular series, before issuance, the Board is expressly authorised to fix: |
| (i) | the distinctive designation of such series and the number of shares which shall constitute such series, which number may be increased (except as otherwise provided by the Board in creating such series) or decreased (but not below the number of shares thereof then in issue) from time to time by resolution of the Board; |
| (ii) | the rate of dividends payable on shares of such series, if any, whether or not and upon what conditions dividends on shares of such series shall be cumulative and, if cumulative, the date or dates from which dividends shall accumulate and the preference or relation which such dividends shall bear to the dividends payable on any other class or classes or on any other series of share capital; |
| (iii) | the terms, if any, on which shares of such series may be redeemed, including without limitation, the redemption price or prices for such series, which may consist of a redemption price or scale of redemption prices applicable only to redemption in connection with a sinking fund (which term as used herein shall include any fund or requirement for the periodic purchase or redemption of shares), and the same or a different redemption price or scale of redemption prices applicable to any other redemption; |
| (iv) | the terms and amount of any sinking fund provided for the purchase or redemption of shares of such series; |
| (v) | the amount or amounts which shall be paid to the holders of shares of such series in case of liquidation, dissolution or winding up of the Company, whether voluntary or involuntary; |
| (vi) | the terms, if any, upon which the holders of shares of such series may convert shares thereof into shares of any other class or classes or of any one or more series of the same class or of another class or classes; |
| (vii) | the voting rights, full or limited, if any, of the shares of such series; and whether or not and under what conditions the shares of such series (alone or together with the shares of one or more other series having similar provisions) shall be entitled to vote separately as a single class, for the election of one or more additional Directors, in case of dividend arrears or other specified events, or upon other matters; |
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| (viii) | whether or not the holders of shares of such series, as such, shall have any pre-emptive or preferential rights to subscribe for or purchase shares of any class or series of shares of the Company, now or hereafter authorised, or any securities convertible into, or warrants or other evidences of optional rights to purchase or subscribe for, shares of any class or series of the Company, now or hereafter authorised; |
| (ix) | the limitations and restrictions, if any, to be effective while any shares of such series are outstanding upon the payment of dividends, or the making of other distributions on, and upon the purchase, redemption or other acquisition by the Company of, any other class or classes of shares ranking junior to the shares of such series either as to dividends or upon liquidation, dissolution or winding up; |
| (x) | the conditions or restrictions, if any, upon the creation of indebtedness of the Company or upon the issuance of any additional shares (including additional shares of such series or of any other class) ranking on a parity with or prior to the shares of such series as to dividends or distribution of assets upon liquidation; and |
| (xi) | such other rights, preferences and limitations as may be permitted to be fixed by the Board of the Company under the laws of Ireland as in effect at the time of the creation of such series. |
| (b) | The Board is authorised to change the designations, rights, preferences and limitations of any series of Preferred Shares theretofore established, no shares of which have been issued. |
| (c) | The rights conferred upon the member of any pre-existing shares in the share capital of the Company shall be deemed not to be varied by the creation, issue and allotment of Preferred Shares in accordance with these Articles. |
| 6. | Rights attaching to euro shares |
| (a) | Subject to Article 6(b), the euro shares shall rank pari passu in all respects with the Ordinary Shares, such that in advance of the exercise of Article 6(b), the rights attaching to the euro shares shall include the following: |
| (i) | the right to attend any general meeting of the Company and to exercise one vote per euro share held at any general meeting of the Company provided however this right is subject to the power of the Board to set record dates for the purposes of determining the identity of members entitled to notice of and/or to vote at a general meeting and the authority of the Board and chair of such meetings to maintain order and security; |
| (ii) | the right to participate pro rata in all dividends declared by the Company by reference to such dividend record date as shall be specified by the Board for the purposes of determining the members entitled to receive payment of any dividend; and |
| (iii) | the right, in the event of the Company’s winding up, to participate pro rata in the total assets of the Company. |
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| (b) | Immediately on the issue of any Ordinary Shares pursuant to the terms of the Share Exchange, the euro shares shall have the following rights and privileges and shall be subject to the restrictions set out in this Article 6(b) without the requirement of any approval by the Board or any shareholders of the Company: |
| (i) | the euro shares are non-voting shares and do not convey upon the holder the right to be paid a dividend or to receive notice of or to attend, vote or speak at a general meeting; |
| (ii) | the euro shares confer the right on a return of capital, on a winding-up or otherwise, only to the repayment of the nominal value paid up on the euro shares after repayment of the nominal value of the Ordinary Shares; and |
| (iii) | the right of the Company to call for the transfer or surrender to the Company of all of the euro shares as permitted by section 102 of the Act and any Director (the “Agent”) is appointed the attorney of the holder of a euro share with an irrevocable instruction to the Agent to execute all or any forms of transfer and/or renunciation and/or other documents in the Agent’s discretion in relation to the euro shares in favour of the Company or as it may direct and to deliver such forms of transfer and/or renunciation and/or other documents together with any certificate(s) and/or other documents for registration and to do all such other acts and things as may in the reasonable opinion of the Agent be necessary or expedient for the purpose of, or in connection with, the acquisition by the Company of the euro shares for nil consideration and to vest the said euro shares in the Company. |
| 7. | Redeemable shares |
Unless the Board determines otherwise, any share in the capital of the Company shall be deemed to be a Redeemable Share on, and from the time of, the existence or creation of an agreement, transaction or trade between the Company and any owner of a share (who may or may not be a member) pursuant to which the Company acquires or will acquire a share in the capital of the Company, or an interest in shares in the capital of the Company, from the relevant person, save for an acquisition for nil consideration pursuant to section 102(1)(a) of the Act. In these circumstances, the acquisition of such shares by the Company, save where acquired for nil consideration in accordance with the Act, shall constitute the redemption of a Redeemable Share in accordance with Chapter 6 of Part 3 of the Act. No resolution, whether special or otherwise, shall be required to be passed to deem any share in the capital of the Company a Redeemable Share. A share shall not be deemed to be a Redeemable Share under this article if it would cause a breach of the limit in Section 1071(b) of the Act. Subject as aforesaid, the Company may cancel any shares so redeemed or may hold them as Treasury Shares and re-issue such Treasury Shares as shares of any class or classes or cancel them.
| 8. | Variation of rights |
| (a) | Without prejudice to the authority conferred on the Board pursuant to Article 5 to issue Preferred Shares in the capital of the Company, whenever the share capital is divided into different classes of shares, the rights attached to any class may be varied or abrogated with the consent in writing of the Holders of 75% in nominal value of the issued shares of that class, or with the sanction of a special resolution passed at a separate general meeting of the Holders of the shares of the class, and may be so varied or abrogated either whilst the Company is a going concern or during or in contemplation of a winding-up. The quorum at any such separate general meeting, other than an adjourned meeting, shall be two persons holding or representing by proxy at least one-third in nominal value of the issued shares of the class in question and the quorum at an adjourned meeting shall be one person holding shares of the class in question or his proxy. |
| (b) | The redemption or purchase of Preferred Shares or any class or series of Preferred Shares shall not constitute a variation of rights of the holders of Preferred Shares. |
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| (c) | The issue, redemption or purchase of any of the Preferred Shares shall not constitute a variation of the rights of the holders of Ordinary Shares. |
| (d) | The issue of Preferred Shares or any class or series of Preferred Shares which rank pari passu with, or junior to, any existing Preferred Shares or class of Preferred Shares shall not constitute a variation of the existing Preferred Shares or class of Preferred Shares. |
| (e) | The rights conferred upon the holders of the shares of any class issued with other rights shall not, unless otherwise expressly provided by the terms of issue of the shares of that class, be deemed to be varied by the creation or issue of further shares ranking pari passu therewith. |
| 9. | Trusts not recognised |
No person shall be recognised by the Company as holding any share upon any trust, and the Company shall not be bound by or be compelled in any way to recognise (even when having notice thereof) any equitable, contingent, future or partial interest in any share or any interest in any fractional part of a share or (except only as by these Articles or by law otherwise provided) any other rights in respect of any share except an absolute right to the entirety thereof in the Holder. This shall not preclude:
| (a) | the Company from requiring the members or a transferee of shares to furnish the Company with information as to the beneficial ownership of any share when such information is reasonably required by the Company; or |
| (b) | the Directors, where they consider it appropriate, providing the information given to the members to the participants recorded as having an entitlement to shares in the Company on the securities accounts of the participants of the securities settlement system operated by a Central Securities Depository. |
| 10. | Disclosure of interests |
| (a) | If at any time the Directors are satisfied that any member, or any other person appearing to be interested in shares held by such member: |
| (A) | has been duly served with a notice under Section 1062 of the Act (a “Section 1062 notice”) and is in default for the prescribed period (as defined in sub-paragraph (g)(ii) below) in supplying to the Company the information thereby required; |
| (B) | in purported compliance with such a notice, has made a statement which is false or inadequate in a material particular; or |
| (C) | has failed to comply with the notification requirement in Article 10(i) below, |
then the Directors may, in their absolute discretion at any time thereafter by notice (a “direction notice”) to such member direct that:
| (i) | in respect of the shares in relation to which the default occurred (the “default shares”) the member shall not be entitled to attend or to vote at a general meeting either personally or by proxy or to exercise any other right conferred by membership in relation to meetings of the Company; |
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| (ii) | where the nominal value of the default shares represents at least 0.25 per cent of the nominal value of the issued shares of the class concerned, then the direction notice may additionally direct that: |
| (A) | except in a liquidation of the Company, no payment shall be made of any sums due from the Company on the default shares, whether in respect of capital or dividend or otherwise, and the Company shall not have any liability to pay interest on any such payment when it is finally paid to the member; |
| (B) | no other distribution shall be made on the default shares; |
| (C) | no transfer of any of the default shares held by such member shall be registered unless: |
| (I) | the member is not himself in default as regards supplying the information requested and the transfer when presented for registration is accompanied by a certificate by the member in such form as the Directors may in their absolute discretion require to the effect that after due and careful enquiry the member is satisfied that no person in default as regards supplying such information is interested in any of the shares the subject of the transfer; or |
| (II) | the transfer is an approved transfer (as defined in sub- paragraph (g)(iii)). |
The Company shall send to each other person appearing to be interested in the shares the subject of any direction notice a copy of the notice, but the failure or omission by the Company to do so shall not invalidate such notice.
| (b) | Where any person appearing to be interested in the default shares has been duly served with a direction notice or copy thereof and the default shares which are the subject of such direction notice are held by an Approved Nominee, the provisions of this Article shall be treated as applying only to such default shares held by the Approved Nominee and not (insofar as such person’s apparent interest is concerned) to any other shares held by the Approved Nominee. |
| (c) | Where the member upon whom a Section 1062 notice is served is an Approved Nominee acting in its capacity as such, the obligations of the Approved Nominee as a member of the Company shall be limited to disclosing to the Company such information relating to any person appearing to be interested in the shares held by it as has been recorded by it pursuant to the arrangements entered into by the Company or approved by the Directors pursuant to which it was appointed as an Approved Nominee. |
| (d) | Any direction notice shall cease to have effect: |
| (i) | in relation to any shares which are transferred by such member by means of an approved transfer; or |
| (ii) | when the Directors are satisfied that such member and any other person appearing to be interested in shares held by such member, has given to the Company the information required by the relevant Section 1062 notice. |
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| (e) | The Directors may at any time give notice cancelling a direction notice. |
| (f) | Unless otherwise required by applicable law, where a notice is served pursuant to the terms of this Article 10 on the Holder of a share and such Holder is a Central Securities Depository (or its nominee(s)) acting in its capacity as operator of a Securities Settlement System, the obligations of the Central Securities Depository (or its nominee(s)) as a Holder pursuant to this Article shall be limited to disclosing to the Company in accordance with this Article such information relating to the ownership of or interests in the share concerned as has been recorded by it pursuant to the rules made and practices instituted by the Central Securities Depository, provided that nothing in this Article shall in any other way restrict the powers of the Directors under this Article. For the purposes of this Article, a person, other than the Holder of a share, shall be treated as appearing to be or to have been interested in that share if the Holder has informed the Company that the person is, or may be, or has been, or may have been, so interested, or if the Company (after taking account of any information obtained from the Holder or, pursuant to a Section 1062 notice, from anyone else) knows or has reasonable cause to believe that the person is, or may be, or has been, or may have been, so interested. |
| (g) | For the purposes of this Article: |
| (i) | a person shall be treated as appearing to be interested in any shares if the member holding such shares has given to the Company a notification under the said Section 1062 which either: |
| (A) | names such person as being so interested; or |
| (B) | fails to establish the identities of all those interested in the shares and (after taking into account the said notification and any other relevant Section 1062 notification) the Company knows or has reasonable cause to believe that the person in question is or may be interested in the shares; |
| (ii) | the prescribed period is 28 days from the date of service of the said Section 1062 notice unless: |
| (A) | the nominal value of the default shares represents at least 0.25 per cent of the nominal value of the issued shares of that class, when the prescribed period is 14 days from that date; or |
| (B) | the Company is in an offer period, when the prescribe period is 12.00 noon on the next business day from that date. |
| (iii) | a transfer of shares is an approved transfer if but only if: |
| (A) | it is a transfer of shares to an offeror by way or in pursuance of acceptance of an offer made to all the Holders (or all the Holders other than the person making the offer and his nominees) of the shares in the Company to acquire those shares or a specified proportion of them; or |
| (B) | the Directors are satisfied that the transfer is made pursuant to a sale of the whole of the beneficial ownership of the shares the subject of the transfer to a party unconnected with the member and with other persons appearing to be interested in such shares; or |
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| (C) | the transfer results from a sale made through a stock exchange on which the Company’s shares are normally traded. |
| (h) | Nothing contained in this Article shall limit the power of the Company under Section 1066 of the Act. |
| (i) | Where any member, or any other person with an interest in shares held by such member, is deemed by Section 1048 or 1050 of the Act to have an interest in 3% or more of the issued share capital of the Company, such member or person shall be required to notify the Company both of the existence of such interest and any event which results in the member or person ceasing to be so interested. Such notification shall be made in the same manner and within the same time period as specified in Sections 1052 and 1053 of the Act. |
| (j) | For the purpose of establishing whether or not the terms of any notice served under this Article shall have been complied with the decision of the Directors in this regard shall be final and conclusive and shall bind all persons interested. |
| 11. | Allotment of shares |
| (a) | Subject to the provisions of the Acts relating to authority, pre-emption or otherwise in regard to the issue of, or the grant of options over, or other rights to subscribe for, new shares and of any resolution of the Company in general meeting passed pursuant thereto, all unissued shares (including Treasury Shares) for the time being in the capital of the Company shall be at the disposal of the Directors (and any committee established under Article 89 and so authorised by the Directors and any person so authorised by the Directors or such committee) and (subject to the provisions of the Acts) they may allot, grant options over or otherwise dispose of them to such persons on such terms and conditions and at such times as they may consider to be in the best interests of the Company and its shareholders, and except as provided in the Act no share shall be issued at a discount and so that, in the case of shares offered to the public for subscription, the amount payable on application on each share shall not be less than one-quarter of the nominal amount of the share and the whole of any premium thereon. |
| (b) | Without prejudice to the generality of the powers conferred on the Directors by the other paragraphs of this Article and subject to any requirement to obtain the approval of the members under any laws, regulations or the rules of any Stock Exchange, the Directors may grant from time to time options to subscribe for the unallotted shares in the capital of the Company to persons in the service or employment of the Company or any subsidiary or associated company of the Company (including Directors holding executive offices) on such terms and subject to such conditions as may be approved from time to time by the Directors or by any committee thereof appointed by the Directors for the purpose of such approval. |
| (c) | The Company may issue warrants to subscribe (by whatever name they are called) to any person to whom the Company has granted the right to subscribe for shares in the Company (other than under a share option scheme for employees) certifying the right of the registered holder thereof to subscribe for shares in the Company upon such terms and conditions as the right may have been granted. |
| (d) | The Directors are hereby generally and unconditionally authorised to exercise all the powers of the Company to allot relevant securities within the meaning of section 1021 of the Act. The maximum amount of relevant securities which may be allotted under the authority hereby conferred shall be the amount of the authorised but unissued share capital of the Company at the Adoption Date. The authority hereby conferred shall expire on the date which is five (5) years after the Adoption Date unless and to the extent that such authority is renewed, revoked or extended prior to such date. The Company may before such expiry make an offer or agreement which would or might require relevant securities to be allotted after such expiry and the Directors may allot relevant securities in pursuance of such offer or agreement, notwithstanding that the authority hereby conferred has expired. |
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| (e) | The Directors are hereby empowered pursuant to sections 1022 and 1023 of the Act to allot equity securities (within the meaning of the said section 1023) for cash pursuant to the authority conferred by Article 11(d) as if section 1022(1) of the Act did not apply to any such allotment. The authority conferred by this Article 11(e) shall expire on the date which is five (5) years after the Adoption Date unless previously renewed, varied or revoked; provided that the Company may before the expiry of such authority make an offer or agreement which would or might require equity securities to be allotted after such expiry and the Directors may allot equity securities in pursuance of such an offer or agreement as if the power conferred by this Article 11(e) had not expired. |
| (f) | The Company may issue permissible letters of allotment (as defined by section 1019 of the Act) to the extent permitted by the Act. |
| 12. | Financial Assistance for acquisition of Shares |
The Company may give financial assistance for the purpose of an acquisition of its shares or, where the Company is a subsidiary, its holding company where permitted by sections 82 and 1043 of the Act.
| 13. | Payment of commission |
The Company may exercise the powers of paying commissions conferred by the Acts. Subject to the provisions of the Acts, any such commission may be satisfied by the payment of cash or by the allotment of fully or partly paid shares or partly in one way and partly in the other. On any issue of shares the Company may also pay such brokerage as may be lawful.
| 14. | Payment by instalments |
If by the conditions of allotment of any share the whole or part of the amount or issue price thereof shall be payable by instalments, every such instalment when due shall be paid to the Company by the person who for the time being shall be the Holder of the share.
PART III - SHARE CERTIFICATES, ISSUE OF NEW SHARES FOR THE SHARE EXCHANGE AND THE MERGER AND ISSUE OF SHARES INTO A CENTRAL SECURITIES DEPOSITORY
| 15. | Issue of certificates |
| (a) | Unless otherwise determined by the Directors or the rights attaching to or by the terms of issue of any particular shares, or to the extent required by the Act, any Stock Exchange, depository or any operator of any clearance or settlement system, no person whose name is entered as a member in the Register shall be entitled to receive a share certificate for any shares of any class held by him or her in the capital of the Company (nor on transferring part of a holding, to a certificate for the balance). |
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| (b) | Any share certificate, if issued, shall specify the number of shares in respect of which it is issued and the amount paid thereon or the fact that they are fully paid, as the case may be, and may otherwise be in such form as shall be determined by the Directors. Such certificates may be under seal. All certificates for shares in the capital of the Company shall be consecutively numbered or otherwise identified and shall specify the shares in the capital of the Company to which they relate. The name and address of the person to whom the shares represented thereby are issued, with the number of shares and date of issue, shall be entered in the Register. All certificates surrendered to the Company for transfer shall be cancelled and no new certificate shall be issued until the former certificate for a like number of shares in the capital of the Company shall have been surrendered and cancelled. The Directors may authorise certificates to be issued with the seal and authorised signature(s) affixed by some method or system of mechanical process. In respect of a share or shares in the capital of the Company held jointly by several persons, the Company shall not be bound to issue a certificate or certificates to each such person, and the issue and delivery of a certificate or certificates to one of several joint holders shall be sufficient delivery to all such holders. If a share certificate is defaced, worn out, lost or destroyed, it may be renewed on such terms (if any) as to evidence and indemnity and on the payment of such expenses reasonably incurred by the Company in investigating such evidence, as the Directors may prescribe, and, in the case of defacement or wearing out, upon delivery of the old certificate. |
| 16. | Issue of new shares for the Share Exchange, the Merger and the IPO |
| (a) | For the purpose of issuing the Ordinary Shares required for the settlement of the Company’s obligations under the Share Exchange insofar as such obligations relate to Total Produce Shares which were registered in the name of Euroclear Nominees immediately prior to Completion, the Board is irrevocably instructed to appoint any person (including any officer or employee of the Company, the Registrar, Receiving Agent, Cede & Co and DTC) as attorney or agent to do everything necessary to complete the issue of such Ordinary Shares by either: |
| (i) | registering the Ordinary Shares in the name of Cede & Co (as nominee DTC) and instructing DTC to credit book-entry interest representing such Ordinary Shares to the DTC participant account of Euroclear Bank and do all such other things and execute and deliver all such documents and electronic communications as may be required by DTC or Euroclear Bank as may, in the opinion of such attorney or agent, be necessary or desirable to vest such Ordinary Shares in the name of Cede & Co (as nominee of the DTC) and instruct DTC to issue and credit book-entry interests representing such Ordinary Shares to the nominated DTC participant account of Euroclear Bank; or |
| (ii) | registering the Ordinary Shares in the name of Euroclear Nominees and doing such other things as Euroclear Nominees may reasonable require for such Ordinary Shares to be admitted to the Central Securities Depository operated by DTC, whereby the Ordinary Shares will be transferred to Cede & Co. (as nominee of the DTC), causing DTC to credit the relevant book-entry interest representing such Ordinary Shares to the nominated DTC participant account of Euroclear Bank. |
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| (b) | For the purpose of issuing the Ordinary Shares required for the settlement of the Company’s obligations under the Share Exchange insofar as such obligations relate to Total Produce Shares which were registered in certificated form immediately prior to Completion: |
| (i) | the Board is irrevocably instructed to appoint any person (including any officer or employee of the Company, the Registrar, the Receiving Agent, Cede & Co and DTC) as attorney or agent to do everything necessary to complete the issue of such Ordinary Shares and take any action necessary or desirable to enable such Ordinary Shares to be recorded in book-entry form in the records of Dole plc; and |
| (ii) | the Registrar and the Company Secretary are authorised to release such personal data of the Holders of the Ordinary Shares to the extent required to effect such registration in book-entry form in the records of Dole plc. |
| (c) | For the purpose of discharging the Company’s obligations under the Merger, the Company shall issue the Consideration Shares on Completion to the C&C Parties in accordance with the terms of the Transaction Agreement and in such manner as the Company shall agree with the C&C Parties. |
| (d) | For the purpose of issuing the Ordinary Shares required for the settlement of the Company’s obligations under the IPO, the Board is irrevocably instructed to appoint any person (including any officer or employee of the Company, the Registrar, Receiving Agent, Cede & Co and DTC) as attorney or agent to do everything necessary to complete the issue of such Ordinary Shares by registering the Ordinary Shares in the name of Cede & Co (as nominee DTC) and instructing DTC to credit book-entry interest representing such Ordinary Shares to such DTC's accounts as are notified to the Company by the underwriters in the IPO. |
| (e) | Any attorney or agent appointed pursuant to this Article is empowered to give such receipts or indemnities on behalf of the Company as may be required for the withdrawal of all Total Produce Shares from Euroclear Bank. |
| (f) | Notwithstanding any contrary provision in these Articles, the Company shall not be obliged to issue any certificates in respect of the Ordinary Shares issued in accordance with this Article. |
| 17. | Issue or transfer of shares into a Central Securities Depository |
| (a) | Notwithstanding anything in these Articles to the contrary and subject to the rules of the applicable Central Securities Depository, the Directors may permit any class of shares to be held, and trades in those shares to be settled, through a Securities Settlement System operated by a Central Securities Depository. Without prejudice to the generality and effectiveness of the foregoing: |
| (1) | the Directors may make such arrangements or regulations (if any) as they may from time to time in their absolute discretion think fit for the purpose of implementing and/or supplementing the provisions of this Article and the facilities and requirements of the Securities Settlement System and such arrangements and regulations (as the case may be) shall have the same effect as if set out in this Article; |
the Directors may utilise the Securities Settlement System to the fullest extent available from time to time in the exercise of the Company’s powers or functions under the Acts or these Articles or otherwise in effecting any actions;
for the purposes of Article 119, any payment in the case of shares held through a Securities Settlement System may be made by means of the Securities Settlement System (subject always to the facilities and requirements of the Securities Settlement System) and without prejudice to the generality of the foregoing, the making of a payment in accordance with the facilities and requirements of the Securities Settlement System concerned shall be a good discharge to the Company;
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where any class of shares in the capital of the Company is held through a Securities Settlement System and the Company is entitled under any provisions of the Acts, or the rules made and practices instituted by the Central Securities Depository or under these Articles, to dispose of, forfeit, enforce a lien or sell or otherwise procure the sale of any such shares, such entitlement (to the extent permitted by the Acts and the rules made and practices instituted by the Central Securities Depository):
shall include the right to require the Central Securities Depository of such Securities Settlement System to take such steps as may be necessary to sell or transfer such shares and/or to appoint any person to take such other steps in the name of the central securities depository (or its nominees(s)) as may be required to effect a transfer of such shares and such steps shall be as effective as if they had been taken by the Central Securities Depository (or its nominee(s)); and
shall be treated as applying only to such shares held by the Central Securities Depository or its nominee(s) and not to any other shares held by the Central Securities Depository or its nominee(s).
| (b) | Once registered recorded in the book-entries of a Central Securities Depository, the relevant shares are to be held on a fungible basis so that a Holder of such shares shall not be entitled to require the return of exactly the same shares as were originally issued or transfer into the Central Securities Depository. |
PART IV - LIEN ON SHARES
| 18. | Extent of lien |
The Company shall have a first and paramount lien on every share (not being a fully paid share) for all moneys (whether presently payable or not) payable at a fixed time or called in respect of that share. The Directors, at any time, may declare any share to be wholly or in part exempt from the provisions of this Article. The Company’s lien on a share shall extend to all moneys payable in respect of it.
| 19. | Power of sale |
The Company may sell in such manner as the Directors determine any share on which the Company has a lien if a sum in respect of which the lien exists is presently payable and is not paid within fourteen Clear Days after notice demanding payment, and stating that if the notice is not complied with the share may be sold, has been given to the Holder of the share or to the person entitled to it by reason of the death or bankruptcy of the Holder.
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| 20. | Power to effect transfer |
To give effect to a sale, the Directors may authorise some person to execute an instrument of transfer of the share sold to, or in accordance with the directions of, the purchaser. The transferee shall be entered in the Register as the Holder of the share comprised in any such transfer and he shall not be bound to see to the application of the purchase monies nor shall his title to the share be affected by any irregularity in or invalidity of the proceedings in reference to the sale, and after the name of the transferee has been entered in the Register, the remedy of any person aggrieved by the sale shall be in damages only and against the Company exclusively. Where a share, which is to be sold as provided for in this Part IV, is held in uncertificated form, the Directors may authorise some person to do all that is necessary under the Regulations Governing Uncertificated Shares to change such share into certificated form prior to its sale under this Part.
| 21. | Proceeds of sale |
The net proceeds of the sale, after payment of the costs, shall be applied in payment of so much of the sum for which the lien exists as is presently payable and any residue (upon surrender to the Company for cancellation of the certificate for the shares sold and subject to a like lien for any moneys not presently payable as existed upon the shares before the sale) shall be paid to the person entitled to the shares at the date of the sale.
PART V - CALLS ON SHARES AND FORFEITURE
| 22. | Making of calls |
Subject to the terms of allotment, the Directors may make calls upon the members in respect of any monies unpaid on their shares and each member (subject to receiving at least fourteen Clear Days’ notice specifying when and where payment is to be made) shall pay to the Company as required by the notice the amount called on his shares. A call may be required to be paid by instalments. A call may be revoked before receipt by the Company of a sum due thereunder, in whole or in part and payment of a call may be postponed in whole or in part, in each case as the Directors may determine. A person upon whom a call is made shall remain liable for calls made upon him notwithstanding the subsequent transfer of the shares in respect of which the call was made.
| 23. | Time of call |
A call shall be deemed to have been made at the time when the resolution of the Directors authorising the call was passed.
| 24. | Liability of joint Holders |
The joint Holders of a share shall be jointly and severally liable to pay all calls in respect thereof.
| 25. | Interest on calls |
If a call remains unpaid after it has become due and payable the person from whom it is due and payable shall pay interest on the amount unpaid from the day it became due until it is paid at the rate fixed by the terms of allotment of the share or in the notice of the call or, if no rate is fixed, at a rate not exceeding five per cent per annum or such other rate as may be specified by an order under section 2(7) of the Act, but the Directors may waive payment of the interest wholly or in part.
| 26. | Instalments treated as calls |
An amount payable in respect of a share on allotment or at any fixed date, whether in respect of nominal value or as an instalment of a call, shall be deemed to be a call and if it is not paid the provisions of these Articles shall apply as if that amount had become due and payable by virtue of a call.
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| 27. | Power to differentiate |
Subject to the terms of allotment, the Directors may make arrangements on the issue of shares for a difference between the Holders in the amounts and times of payment of calls on their shares.
| 28. | Interest on moneys advanced |
The Directors, if they think fit, may receive from any member willing to advance the same all or any part of the moneys uncalled and unpaid upon any shares held by him, and upon all or any of the moneys so advanced may pay (until the same would, but for such advance, become payable) interest at such rate, not exceeding (unless the Company in general meeting otherwise directs) fifteen per cent. per annum, or such other rate as may be specified by an order under section 2(7) of the Act) as may be agreed upon between the Directors and the member paying such consideration in advance.
| 29. | Notice requiring payment |
| (a) | If a member fails to pay any call or instalment of a call on the day appointed for payment thereof, the Directors, at any time thereafter during such times as any part of the call or instalment remains unpaid, may serve a notice on him requiring payment of so much of the call or instalment as is unpaid together with any interest which may have accrued. |
| (b) | The notice shall name a further day (not earlier than the expiration of fourteen Clear Days from the date of service of the notice) on or before which the payment required by the notice is to be made, and shall state that in the event of non-payment at or before the time appointed the shares in respect of which the call was made will be liable to be forfeited. |
| (c) | If the requirements of any such notice as aforesaid are not complied with then, at any time thereafter before the payment required by the notice has been made, any shares in respect of which the notice has been given may be forfeited by a resolution of the Directors to that effect. The forfeiture shall include all dividends or other moneys payable in respect of the forfeited shares and not paid before forfeiture. The Directors may accept a surrender of any share liable to be forfeited hereunder. |
| (d) | On the trial or hearing of any action for the recovery of any money due for any call it shall be sufficient to prove that the name of the member sued is entered in the Register as the Holder, or one of the Holders, of the shares in respect of which such debt accrued, that the resolution making the call is duly recorded in the minute book and that notice of such call was duly given to the member sued, in pursuance of these Articles, and it shall not be necessary to prove the appointment of the Directors who made such call nor any other matters whatsoever, but the proof of the matters aforesaid shall be conclusive evidence of the debt. |
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| 30. | Power of disposal |
A forfeited share may be sold or otherwise disposed of on such terms and in such manner as the Directors think fit and at any time before a sale or disposition the forfeiture may be cancelled on such terms as the Directors think fit. Where for the purposes of its disposal such a share is to be transferred to any person, the Directors may authorise some person to execute an instrument of transfer of the share to that person. The Company may receive the consideration, if any, given for the share on any sale or disposition thereof and may execute a transfer of the share in favour of the person to whom the share is sold or disposed of and thereupon he shall be registered as the Holder of the share and shall not be bound to see to the application of the purchase money, if any, nor shall his title to the share be affected by any irregularity or invalidity in the proceedings in reference to the forfeiture, sale or disposal of the share. Where a share, which is to be sold as provided for in this Part V, is held in uncertificated form, the Directors may authorise some person to do all that is necessary under the Regulations Governing Uncertificated Shares to change such share into certificated form prior to its sale under this Part.
| 31. | Effect of forfeiture |
A person whose shares have been forfeited shall cease to be a member in respect of the forfeited shares, but nevertheless shall remain liable to pay to the Company all moneys which, at the date of forfeiture, were payable by him to the Company in respect of the shares, without any deduction or allowance for the value of the shares at the time of forfeiture but his liability shall cease if and when the Company shall have received payment in full of all such moneys in respect of the shares.
| 32. | Statement of Forfeiture |
A statement in writing that the maker of the statement is a Director or the Company Secretary of the Company, and that a share in the Company has been duly forfeited on the date stated in the statement, shall be conclusive evidence of the facts therein stated as against all persons claiming to be entitled to the share.
| 33. | Payment of sums due on share issues |
The provisions of these Articles as to forfeiture shall apply in the case of non-payment of any sum which, by the terms of issue of a share, becomes payable at a fixed time, whether on account of the nominal value of the share or by way of premium, as if the same had been payable by virtue of a call duly made and notified.
| 34. | Surrender of shares |
The Directors may accept the surrender of any share which the Directors have resolved to have been forfeited upon such terms and conditions as may be agreed and, subject to any such terms and conditions, a surrendered share shall be treated as if it has been forfeited.
PART VI - CONVERSION OF SHARES INTO STOCK
| 35. | Conversion of shares into stock |
The Company by ordinary resolution may convert any paid up shares into stock and reconvert any stock into paid up shares of any denomination.
| 36. | Transfer of stock |
The Holders of stock may transfer the same or any part thereof, in the same manner, and subject to the same regulations, as and subject to which the shares from which the stock arose might have been transferred before conversion, or as near thereto as circumstances admit. The Directors may fix from time to time the minimum amount of stock transferable but so that such minimum shall not exceed the nominal amount of each share from which the stock arose.
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| 37. | Rights of stockholders |
| (a) | The Holders of stock shall have, according to the amount of stock held by them, the same rights, privileges and advantages in relation to dividends, voting at meetings of the Company and other matters as if they held the shares from which the stock arose, but no such right, privilege or advantage (except participation in the dividends and profits of the Company and in the assets on winding up) shall be conferred by an amount of stock which, if existing in shares, would not have conferred that right, privilege or advantage. |
| (b) | Such of these Articles as are applicable to paid up shares shall apply to stock, and the words “share” and “shareholder” therein shall include “stock” and “stockholder”. |
PART VII - TRANSFER OF SHARES
| 38. | Form of instrument of transfer |
Subject to the restrictions of these Articles, Article 3(2) of CSDR (if applicable) and to such of the conditions of issue as may be applicable, the shares of any member may be transferred by instrument in writing in any usual or common form or any other form which the Directors may approve. The Directors may also permit title to any shares in the Company to be transferred without a written instrument where permitted by the Acts and the Regulations Governing Uncertificated Shares subject to compliance with the requirements imposed under the relevant provisions of the Acts and any additional requirements which the Directors may approve.
| 39. | Execution of instrument of transfer |
| (a) | The instrument of transfer of any share shall be executed by or on behalf of the transferor and, in cases where the share is not fully paid, by or on behalf of the transferee. The transferor shall be deemed to remain the Holder of the share until the name of the transferee is entered in the Register in respect thereof. |
| (b) | The instrument of transfer of any share may be executed for and on behalf of the transferor by the Company Secretary or any other party designated by the Board for such purpose, and the Company Secretary or any other party designated by the Board for such purpose shall be deemed to have been irrevocably appointed agent for the transferor of such share or shares with full power to execute, complete and deliver in the name of and on behalf of the transferor of such share or shares all such transfers of shares held by the members in the share capital of the Company. Any document which records the name of the transferor, the name of the transferee, the class and number of shares agreed to be transferred, the date of the agreement to transfer shares and the price per share, shall, once executed by the transferor or the Company Secretary or any other party designated by the Board for such purpose as agent for the transferor, be deemed to be a proper instrument of transfer for the purposes of the Act. The transferor shall be deemed to remain the member holding the share until the name of the transferee is entered on the Register in respect thereof, and neither the title of the transferee nor the title of the transferor shall be affected by any irregularity or invalidity in the proceedings in reference to the sale should the Directors so determine. |
| (c) | Notwithstanding the provisions of these Articles and subject to any regulations made under Section 1086 of the Act, title to any shares in the Company may also be evidenced and transferred without a written instrument in accordance with the Regulations Governing Uncertificated Shares and/or section 1086 of the Act or any regulations made thereunder. The Directors shall have the power to permit any class of shares to be held in uncertificated form and to implement any arrangements they think fit for such evidencing and transfer which accord with such regulations and in particular shall, where appropriate, be entitled to disapply or modify all or part of the provisions in these Articles with respect to the requirement for written instruments of transfer and share certificates (if any), in order to give effect to such regulations. |
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| (d) | The Company, at its absolute discretion and insofar as the Acts or any other applicable law permits, may, or may procure that a subsidiary of the Company shall, pay Irish stamp duty arising on a transfer of shares on behalf of the transferee of such shares of the Company. If stamp duty resulting from the transfer of shares in the Company which would otherwise be payable by the transferee is paid by the Company or any subsidiary of the Company on behalf of the transferee, then in those circumstances, the Company shall, on its behalf or on behalf of its subsidiary (as the case may be), be entitled to (i) seek reimbursement of the stamp duty from the transferee, (ii) set off the stamp duty against any dividends payable to the transferee of those shares and (iii) to the extent permitted by section 1042 of the Act, claim a first and paramount lien on the shares on which stamp duty has been paid by the Company or its subsidiaries for the amount of stamp duty paid. |
| 40. | Refusal to register transfers |
| (a) | The Directors in their absolute discretion and without assigning any reason therefor may decline to register: |
| (i) | any transfer or renunciation of a renounceable letter of allotment in respect of a share which is not fully paid; or |
| (ii) | any transfer to or by a minor or person of unsound mind, |
but this shall not apply to a transfer or renunciation in respect of such a share which are listed or dealt in on any Approved Market on the grounds that they are partly paid shares in circumstances where such refusal would prevent dealings in such shares from taking place on an open and proper basis.
| (b) | The Directors may decline to recognise any instrument of transfer or renunciation in respect of a share unless: |
| (i) | it (being a transfer or renunciation which is not effected in a manner permitted by Article 39(c)) is accompanied by the certificate of the shares to which it relates (if any) and such other evidence as the Directors may reasonably require to show the right of the transferor to make the transfer; |
| (ii) | it is in respect of one class of share only; |
| (iii) | it is in favour of not more than four transferees; |
| (iv) | the instrument of transfer is duly stamped if required and lodged at the Office or at such other place as the Directors may appoint; |
| (v) | they are satisfied that all applicable consents, authorisations, permissions or approvals of any governmental body or agency in Ireland or any other applicable jurisdiction required to be obtained under relevant law prior to such transfer have been obtained; and |
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| (vi) | they are satisfied that the transfer would not violate the terms of any agreement to which the Company (or any of its subsidiaries) and the transferor are party or subject. |
| (c) | The Directors may decline to register any transfer of shares in uncertificated form only in such circumstances as may be permitted or required by the Regulations Governing Uncertificated Shares. |
| (d) | Subject to any directions of the Board from time to time in force, the Company Secretary or any other party designated by the Board for such purpose may exercise the powers and discretions of the Board under this Article 40. |
| 41. | Procedure on refusal |
If the Directors refuse to register a transfer then, within two months after the date on which the transfer was lodged with the Company, they shall send to the transferee notice of the refusal.
| 42. | Absence of registration fees |
No fee shall be charged for the registration of any instrument of transfer or other document relating to or affecting the title to any share.
| 43. | Retention of transfer instruments |
The Company shall be entitled to retain any instrument of transfer which is registered, but any instrument of transfer which the Directors refuse to register shall be returned to the person lodging it when notice of the refusal is given.
| 44. | Renunciation of allotment |
Nothing in these Articles shall preclude the Directors from recognising a renunciation of the allotment of any shares by the allottee in favour of some other person.
PART VIII - TRANSMISSION OF SHARES
| 45. | Death of a member |
If a member dies the survivor or survivors where he was a joint Holder, and his personal representatives where the deceased was a sole Holder or the only survivor of joint Holders, shall be the only persons recognised by the Company as having any title to his interest in the shares; but nothing herein contained shall release the estate of a deceased member from any liability in respect of any share which had been jointly held by him.
| 46. | Transmission on death or bankruptcy |
A person becoming entitled to a share in consequence of the death or bankruptcy of a member may elect, upon such evidence being produced as the Directors may properly require, either to become the Holder of the share or to have some person nominated by him registered as the transferee. If he elects to become the Holder he shall give notice to the Company to that effect. If he elects to have another person registered he shall execute an instrument of transfer of the share to that person. All of these Articles relating to the transfer of shares shall apply to the notice or instrument of transfer as if it were an instrument of transfer executed by the member and the death or bankruptcy of the member had not occurred.
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| 47. | Rights before registration |
A person becoming entitled to a share by reason of the death or bankruptcy of a member (upon supplying to the Company such evidence as the Directors may reasonably require to show his title to the share) shall have the rights to which he would be entitled if he were the Holder of the share, except that, before being registered as the Holder of the share, he shall not be entitled in respect of it to attend or vote at any meeting of the Company or at any separate meeting of the Holders of any class of shares in the Company, so, however, that the Directors, at any time, may give notice requiring any such person to elect either to be registered himself or to transfer the share and, if the notice is not complied with within ninety days, the Directors thereupon may withhold payment of all dividends, bonuses or other moneys payable in respect of the share until the requirements of the notice have been complied with.
PART IX - ALTERATION OF SHARE CAPITAL
| 48. | Increase of capital |
| (a) | The Company from time to time by ordinary resolution may increase the share capital by such sum, to be divided into shares of such amount, as the resolution shall prescribe. |
| (b) | Subject to the provisions of the Acts, the new shares shall be issued to such persons, upon such terms and conditions and with such rights and privileges annexed thereto as the general meeting resolving upon the creation thereof shall direct and, if no direction be given, as the Directors shall determine and in particular such shares may be issued with a preferential or qualified right to dividends and in the distribution of the assets of the Company and with a special, or without any, right of voting. |
| (c) | Except so far as otherwise provided by the conditions of issue or by these Articles, any capital raised by the creation of new shares shall be considered part of the pre-existing ordinary capital and shall be subject to the provisions herein contained with reference to calls and instalments, transfer and transmission, forfeiture, lien and otherwise. |
| 49. | Variation of Company capital |
| (a) | The Company, by ordinary resolution and in accordance with section 83 of the Act, may: |
| (i) | consolidate and divide all or any of its share capital into shares of larger nominal value than its existing shares; |
| (ii) | subdivide its shares, or any of them, into shares of smaller nominal value, so however that in the sub-division the proportion between the amount paid and the amount, if any , unpaid on each reduced share shall be the same as it was in the case of the share from which the reduced share is derived (and so that the resolution whereby any share is sub-divided may determine that, as between the Holders of the shares resulting from such sub-division, one or more of the shares may have, as compared with the others, any such preferred, deferred or other rights or be subject to any such restrictions as the Company has power to attach to unissued or new shares); |
| (iii) | increase the nominal value of any of its shares by the addition to them of any undenominated capital; |
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| (iv) | reduce the nominal value of any of its shares by the deduction from them of any part of that value, subject to the crediting of the amount of the deduction to undenominated capital, other than the share premium account; |
| (v) | without prejudice or limitation to Part XXII of these Articles and the powers conferred on the Directors thereby, convert any undenominated capital into shares for allotment as bonus shares to holders of existing shares; |
| (vi) | increase its share capital by new shares of such amount as it thinks expedient; or |
| (vii) | cancel any shares which, at the date of the passing of the resolution, have not been taken or agreed to be taken by any person and reduce the amount of its authorised share capital by the amount of the shares so cancelled. |
| (b) | Subject to the provisions of these Articles, the Company may by special resolution, and subject to the provisions of the Act governing the variation of rights attached to classes of shares and the amendment of these Articles, convert any of its shares into Redeemable Shares. |
| 50. | Fractions on consolidation |
Subject to the provisions of these Articles, whenever as a result of a consolidation of shares any members would become entitled to fractions of a share, the Directors may sell, on behalf of those members, the shares representing the fractions for the best price reasonably obtainable to any person and distribute the proceeds of sale in due proportion among those members, and the Directors may authorise some person to execute an instrument of transfer of the shares to, or in accordance with the directions of, the purchaser. The transferee shall not be bound to see to the application of the purchase money nor shall his title to the shares be affected by any irregularity in or invalidity of the proceedings in reference to the sale.
| 51. | Purchase of own shares |
The Company is authorised, for the purposes of section 105(4)(a) of the Act, but subject to section 1073 of the Act, to acquire its own shares.
| 52. | Reduction of capital |
| (a) | The Company may, in accordance with the provisions of sections 84 to 87 of the Act, reduce its company capital in any way it thinks expedient and, without prejudice to the generality of the foregoing, may thereby: |
| (i) | extinguish or reduce the liability on any of its shares in respect of share capital not paid up; |
| (ii) | either with or without extinguishing or reducing liability on any of its shares, cancel any paid up company capital which is lost or unrepresented by available assets; or |
| (iii) | either with or without extinguishing or reducing liability on any of its shares, pay off any paid up company capital which is in excess of the wants of the Company. |
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| (b) | Unless the special resolution provides otherwise, a reserve arising from the reduction of company capital is to be treated for all purposes as a realised profit in accordance with section 117(9) of the Act. Nothing in this Article 52 shall, however, prejudice or limit the Company’s ability to perform or engage in any of the actions described in section 83(1) of the Act by way of ordinary resolution only. |
PART X - GENERAL MEETINGS
| 53. | Location of General Meetings |
| (a) | All general meetings of the Company shall be held in such place and at such time as the Directors shall determine. |
| (b) | An annual general meeting or extraordinary general meeting of the Company may be held outside of Ireland. The Company shall make, at its expense, all necessary arrangements to ensure that members can by technological means participate in any such meeting without leaving Ireland. |
| (c) | A general meeting of the Company may be held in two or more venues (whether inside or outside of Ireland) at the same time using any technology that provides members, as a whole, with a reasonable opportunity to participate, and such participation shall be deemed to constitute presence in person at the meeting. |
| 54. | Annual general meetings |
The Company shall hold in each year a general meeting as its annual general meeting in addition to any other meeting in that year and shall specify the meeting as such in the notices calling it. Not more than fifteen months shall elapse between the date of one annual general meeting and that of the next.
| 55. | Extraordinary general meetings |
All general meetings other than annual general meetings shall be called extraordinary general meetings.
| 56. | Closing Register or Fixing Record Date |
| (a) | For the purpose of determining members entitled to notice of or to vote at any meeting of members or any adjournment thereof, or members entitled to receive payment of any dividend, or in order to make a determination of members for any other proper purpose, the Board may provide, subject to the requirements of section 174 of the Act, that the Register shall be closed for transfers at such times and for such periods, not exceeding in the whole thirty days in each year. If the Register shall be so closed for the purpose of determining members entitled to notice of, or to vote at, a meeting of members, such Register shall, subject to applicable law and Stock Exchange rules, be so closed for at least five days immediately preceding such meeting and the record date for such determination shall be the date of the closure of the Register. |
| (b) | In lieu of, or apart from, closing the Register, the Board may fix in advance a date as the record date: |
| (i) | for any such determination of members entitled to notice of or to vote at a meeting of the members, which record date shall not, subject to applicable law and Stock Exchange rules, be more than sixty days before the date of such meeting, and |
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| (ii) | for the purpose of determining the members entitled to receive payment of any dividend or other distribution, or in order to make a determination of members for any other proper purpose, which record date shall not, subject to applicable law and Stock Exchange rules, be more than sixty days prior to the date of payment of such dividend or other distribution or the taking of any action to which such determination of members is relevant. |
| (c) | If the Register is not so closed and no record date is fixed for the determination of members entitled to notice of or to vote at a meeting of members, the date immediately preceding the date on which notice of the meeting is deemed given under these Articles shall be the record date for such determination of members. Where a determination of members entitled to vote at any meeting of members has been made as provided in these Articles, such determination shall apply to any adjournment thereof; provided, however, that the Board may fix a new record date of the adjourned meeting, if they think fit. |
| 57. | Convening general meetings |
The Directors may convene general meetings. Extraordinary general meetings may also be convened on such requisition, or in default may be convened by such requisitionists, and in such manner as may be provided by the Acts. If at any time the number of Directors is less than three, any Director or any two members of the Company may convene an extraordinary general meeting in the same manner as nearly as possible as that in which general meetings may be convened by the Directors.
| 58. | Class meetings |
All provisions of these Articles relating to general meetings of the Company shall, mutatis mutandis, apply to every separate general meeting of the Holders of any class of shares in the capital of the Company, except that:
| (a) | the necessary quorum shall be two or more persons holding or representing by proxy at least one-third in nominal value of the issued shares of the class or, at any adjourned meeting of such Holders, one Holder present in person or by proxy, whatever the amount of his holding, shall be deemed to constitute a meeting; and |
| (b) | any Holder of shares of the class present in person or by proxy may demand a poll; and |
| (c) | on a poll, each Holder of shares of the class shall have one vote in respect of every share of the class held by him. |
| 59. | Notice of general meetings |
| (a) | Subject to the provisions of the Acts allowing a general meeting to be called by shorter notice, an annual general meeting and an extraordinary general meeting called for the passing of a special resolution shall be called by at least twenty-one Clear Days’ notice. Any other extraordinary general meeting shall also be called by at least twenty-one days’ notice, except that it may be called by fourteen days’ notice where: |
| (i) | all members, who hold shares that carry rights to vote at the meeting, are permitted to vote by electronic means at the meeting; and |
| (ii) | a special resolution reducing the period of notice to fourteen days has been passed at the immediately preceding annual general meeting, or at a general meeting held since that meeting. |
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| (b) | Any notice convening a general meeting shall specify the time and place of the meeting and, in the case of special business, the general nature of that business and, in reasonable prominence, that a member entitled to attend and vote is entitled to appoint a proxy to attend, speak and vote in his place and that a proxy need not be a member of the Company. It shall also give particulars of any Directors who are to retire by rotation or otherwise at the meeting and of any persons who are recommended by the Directors for appointment or re-appointment as Directors at the meeting or in respect of whom notice has been duly given to the Company of the intention to propose them for appointment or re-appointment as Directors at the meeting. Subject to any restrictions imposed on any shares, the notice shall be given to all the members, the assignee in bankruptcy of a bankrupt member of the Company (being a bankrupt member who is entitled to vote at the meeting), to the Directors and unless the Company is entitled to and has availed itself of the audit exemption under the Act, the Auditors (who shall also be entitled to receive other communications relating to any general meeting which a member is entitled to receive). |
| (c) | The accidental omission to give notice of a meeting to, or the non-receipt of notice of a meeting by, any person entitled to receive notice shall not invalidate the proceedings at the meeting. |
| (d) | In cases where instruments of proxy are sent out with notices, the accidental omission to send such instrument of proxy to, or the non-receipt of such instrument of proxy by, any person entitled to receive such notice shall not invalidate any resolution passed or any proceeding at any such meeting. A member present, either in person or by proxy, at any general meeting of the Company or of the holders of any class of shares in the Company will be deemed, subject to Article 59(f), to have received notice of that meeting and, where required, of the purpose for which it was called. |
| (e) | Where, by any provision contained in the Acts, extended notice is required of a resolution, the resolution shall not be effective (except where the Directors of the Company have resolved to submit it) unless notice of the intention to move it has been given to the Company not less than twenty-eight days (or such shorter period as the Acts permit) before the meeting at which it is moved, and the Company shall give to the members notice of any such resolution as required by and in accordance with the provisions of the Acts. |
| (f) | Whenever any notice is required to be given by law or by these Articles to any person or persons, a waiver thereof in writing, signed by the person or persons entitled to the notice whether before or after the time stated therein, shall be deemed equivalent thereto. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened. |
PART XI - PROCEEDINGS AT GENERAL MEETINGS
| 60. | Quorum for general meetings |
| (a) | No business other than the appointment of the chair of the meeting shall be transacted at any general meeting unless a quorum of members is present at the time when the meeting proceeds to business. Except as provided in relation to an adjourned meeting, two persons in person or by proxy and having the right to attend and vote at the meeting and together holding shares representing more than 50% of the votes that may be cast by all members at the relevant time shall be a quorum. For the avoidance of doubt, at any time when the Company is a single-member company, one member of the Company present in person or by proxy at a general meeting of it shall be a quorum. |
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| (b) | If such a quorum is not present within half an hour from the time appointed for the meeting, the meeting shall stand adjourned to the same day in the next week at the same time and place, or to such time and place as the Directors may determine. If at the adjourned meeting such a quorum is not present within half an hour from the time appointed for the meeting, the meeting, if convened otherwise than by resolution of the Directors, shall be dissolved, but if the meeting shall have been convened by resolution of the Directors, a proxy appointed by a Central Securities Depository entitled to be counted in a quorum present at the meeting shall be a quorum provide that the proxy represents more than 33% of the votes that may be cast by all members at the relevant time. |
| 61. | Special business |
All business shall be deemed special that is transacted at an extraordinary general meeting. All business that is transacted at an annual general meeting shall also be deemed special, with the exception of declaring a dividend, the review by the members of the Company’s affairs, the consideration of the Company’s statutory financial statements and report of the Directors and the report of the Auditors on those statements, and the election of Directors in the place of those retiring (whether by rotation or otherwise), the fixing of the remuneration of the Directors, the re-appointment of the retiring Auditors (subject to Sections 380 and 382 to 385 of the Act) and the fixing of the remuneration of the Auditors.
| 62. | Ordinary Resolutions |
Except where a greater majority is required by the Act or these Articles, any question proposed for a decision of the members at any general meeting of the Company or a decision of any class of members at a separate meeting of any class of shares shall be decided by an ordinary resolution.
| 63. | Business properly brought before General Meetings |
| (a) | At any meeting of the members, only such business shall be conducted as shall have been properly brought before such meeting. To be properly brought before an annual general meeting, business must be: |
| (i) | specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board; |
| (ii) | otherwise properly brought before the meeting by or at the direction of the Board; or |
| (iii) | otherwise properly brought before the meeting by a member. |
| (b) | Without prejudice to any procedure which may be permitted under the Act, for business to be properly brought before an annual general meeting by a member: |
| (i) | the member shall have owned such minimum number of Ordinary Shares for such period as shall be specified by the Board or, if applicable to the Company, as shall be specified in Rule 14a-8 of the Exchange Act from time to time; |
| (ii) | the proposal by the member shall be excludable by the Act, these Articles, Rule 14a-8 of the Exchange Act (if applicable to the Company) or where Rule 14a-8 is not applicable to the Company, by the determination of the Board having regard to the substantive bases for exclusion of proposals as contemplated by Rule 14a-8 of the Exchange Act; |
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| (iii) | the member must have given timely notice thereof in writing to the Company Secretary. To be timely, a member’s notice must be received not less than 60 days nor more than 90 days prior to the first anniversary of the preceding year’s annual general meeting; provided, however, that in the event that the date of the annual general meeting is advanced by more than 30 days or delayed by more than 60 days from such anniversary, notice by the member to be timely must be so received not earlier than the 90th day prior to such annual general meeting and not later than the close of business on the later of: |
| (A) | the 60th day prior to such annual general meeting; or |
| (B) | the tenth day following the date on which notice of the date of the annual general meeting was mailed or public disclosure thereof was made by the Company, |
For the avoidance of doubt, in no event shall the adjournment or postponement of any general meeting, or the public announcement of such an adjournment or postponement, commence a new time period (or extend any time period) for the giving of a member’s notice to the Company Secretary pursuant to this Article 63(b).
| (iv) | each such notice shall set forth as to each matter the member proposes to bring before the annual general meeting: |
| (A) | a brief description of the business desired to be brought before the annual general meeting and the reasons for conducting such business at the meeting; |
| (B) | the name and address, as they appear on the Register, of the member proposing such business; |
| (C) | the class, series and number of shares of the Company which are beneficially owned by the member; |
| (D) | whether and the extent to which any hedging, derivative or other transaction is in place or has been entered into within the prior six months preceding the date of delivery of the notice by or for the benefit of the member with respect to the Company or its subsidiaries or any of their respective securities, debt instruments or credit ratings, the effect or intent of which transaction is to give rise to gain or loss as a result of changes in the trading price of such securities or debt instruments or changes in the credit ratings for the Company, its subsidiaries or any of their respective securities or debt instruments (or, more generally, changes in the perceived creditworthiness of the Company or its subsidiaries), or to increase or decrease the voting power of the member, and if so, a summary of the material terms thereof; and |
| (E) | any material interest of the member in such business. |
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| (c) | To be properly brought before an extraordinary general meeting, business must be: |
| (i) | specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board or by the Company Secretary pursuant to the applicable provisions of these Articles; |
| (ii) | otherwise properly brought before the meeting by or at the direction of the Board; or |
| (iii) | otherwise properly brought before the meeting by any members of the Company pursuant to the valid exercise of power granted to them under the Act. |
| (d) | The chair of the meeting shall, if the facts warrant, determine and declare to the meeting that business was not properly brought before the meeting and in accordance with the provisions of these Articles, and if he or she should so determine, any such business not properly brought before the meeting shall not be transacted. Nothing herein shall be deemed to affect any rights of members to request inclusion of proposals in the resolutions to be voted on at the annual general meeting as set out in the notice convening the meeting. |
| 64. | Chair of general meetings |
| (a) | The Chair or, in his absence, some other Director nominated by the Board, shall preside as chair at every general meeting of the Company. If at any general meeting none of such persons shall be present within fifteen minutes after the time appointed for the holding of the meeting and willing to act, the Directors present shall elect one of their number to be chair of the meeting and, if there is only one Director present and willing to act, he shall be chair. |
| (b) | If at any meeting no Director is willing to act as chair or if no Director is present within fifteen minutes after the time appointed for holding the meeting, the members present (whether in person or by proxy) and entitled to vote shall choose one of the members or a proxy present at the meeting to be chair of the meeting. |
| (c) | At each meeting of members, the chair of the meeting shall fix and announce the date and time of the opening and the closing of the polls for each matter upon which the members will vote at the meeting and shall determine the order of business and all other matters of procedure. |
| (d) | The Directors may adopt such rules, regulations and procedures for the conduct of any meeting of the members as they deem appropriate. Except to the extent inconsistent with any applicable rules, regulations and procedures adopted by the Board, the chair of any meeting may adopt such rules, regulations and procedures for the meeting, which need not be in writing, and take such actions with respect to the conduct of the meeting, as the chair of the meeting deems appropriate, to maintain order and safety and for the conduct of the meeting. |
| 65. | Directors’ and Auditors’ right to attend general meetings |
A Director shall be entitled, notwithstanding that he is not a member, to attend and speak at any general meeting and at any separate meeting of the Holders of any class of shares in the Company. The Auditors shall be entitled to attend any general meeting and to be heard on any part of the business of the meeting which concerns them as the Auditors.
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| 66. | Adjournment of general meetings |
The chair of the meeting, with the consent of a meeting at which a quorum is present, may (and if so directed by the meeting, shall) adjourn the meeting from time to time (or sine die) and from place to place, but no business shall be transacted at any adjourned meeting other than business which might properly have been transacted at the meeting had the adjournment not taken place. Where a meeting is adjourned sine die, the time and place for the adjourned meeting shall be fixed by the Directors. When a meeting is adjourned for thirty days or more, notice shall be given as in the case of an original meeting specifying the time and meeting and the general nature of the business to be transacted. Save as aforesaid it shall not be necessary to give any notice of an adjourned meeting.
| 67. | Voting |
| (a) | At any general meeting a resolution put to the vote of the meeting shall be decided on a poll. |
| (b) | Save as provided in paragraph (c) of this Article, a poll shall be taken in such manner as the chair of the meeting directs and he may appoint scrutineers (who need not be members) and fix a time and place for declaring the result of the poll. The result of the poll shall be deemed to be the resolution of the meeting at which the poll was demanded. |
| (c) | A poll demanded on the election of a chair of the meeting or on a question of adjournment shall be taken forthwith. A poll demanded on any other question shall be taken either forthwith or at such time (not being more than thirty days after the poll is demanded) and place as the chair of the meeting may direct. The demand for a poll shall not prevent the continuance of a meeting for the transaction of any business other than the question on which the poll was demanded. |
| (d) | No notice need be given of a poll not taken forthwith if the time and place at which it is to be taken are announced at the meeting at which it is demanded. In any other case at least seven Clear Days’ notice shall be given specifying the time and place at which the poll is to be taken. |
| (e) | If authorised by the Directors, any vote taken by written ballot may be satisfied by a ballot submitted by electronic and/or telephonic transmission, provided that any such electronic or telephonic submission must either set forth or be submitted with information from which it can be determined that the electronic or telephonic submission has been authorised by the member or proxy. |
| 68. | Votes of members |
| (a) | Votes may be given either personally or by proxy or a duly authorised representative of a corporate member. |
| (b) | On a poll taken at a meeting of the members of the Company or a meeting of any class of members of the Company, a member, whether present in person or by proxy, entitled to more than one vote need not, if he votes, use all his votes or cast all the votes he uses in the same way. |
| (c) | Subject to any rights or restrictions for the time being attached to any class or classes of shares in the capital of the Company, every member of record present in person or by proxy shall have one vote for each share registered in his or her name in the Register. |
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| (d) | A person shall be entered on the Register by the record date specified by the Board in respect of the relevant general meeting in order to exercise the right of a member to participate and vote at the general meeting and any change to an entry on the Register after the record date shall be disregarded in determining the right of any person to attend and vote at the meeting. |
| (e) | Subject to such requirements and restrictions as the Directors may specify, the Company may permit members to vote by correspondence in advance of a general meeting in respect of one or more of the resolutions proposed at a meeting. Where the Company permits members to vote by correspondence, it shall only count votes cast in advance by correspondence, where such votes are received at the address and before the date and time specified by the Company, provided the date and time is no more than 24 hours before the time at which the vote is to be concluded. |
| 69. | No chair casting vote |
Where there is an equality of votes, the chair of the meeting shall not have a second or casting vote.
| 70. | Voting by joint Holders |
Where there are joint Holders of a share, the vote of the senior who tenders a vote, whether in person or by proxy, in respect of such share shall be accepted to the exclusion of the votes of the other joint Holders; and for this purpose seniority shall be determined by the order in which the names of the Holders stand in the Register in respect of the share.
| 71. | Voting by incapacitated Holders |
A member who has made an enduring power of attorney, or a member in respect of whom an order has been made by any court having jurisdiction in cases of unsound mind, may vote by his or her committee, donee of an enduring power of attorney, receiver, guardian or other person appointed by the foregoing court, and any such committee, donee of an enduring power of attorney, receiver, guardian or other persons appointed by the foregoing court may speak or vote by proxy. Evidence to the satisfaction of the Directors of the authority of the person claiming to exercise the right to vote shall be received at the Office or at such other Address as is specified in accordance with these Articles for the receipt of appointments of proxy, not less than forty eight hours before the time for holding the meeting or adjourned meeting at which such person claims to vote (subject to the requirements of the Acts) and in default the right to vote shall not be exercisable.
| 72. | Written Resolution of the Members |
| (a) | For so long as the Company has more than one shareholder, unanimous consent of the holders of the Ordinary Shares shall be required before the shareholders may act by way of written resolution in lieu of holding a meeting. |
| (b) | Except in the case of the removal of statutory auditors or Directors and subject to the Act and the provisions of Article 72(a), anything which may be done by resolution in general meeting of all or any class or resolution in writing, signed by all of the holders or any class thereof or their proxies (or in the case of a holder that is a corporation (whether or not a company within the meaning of the Acts) on behalf of such holder) being all of the holders of the Company or any class thereof, who at the date of the resolution in writing would be entitled to attend a meeting and vote on the resolution shall be valid and effective for all purposes as if the resolution had been passed at a general meeting of the Company or any class thereof duly convened and held, and if described as a Special Resolution shall be deemed to be a Special Resolution within the meaning of the Acts. Any such resolution in writing may be signed in as many counterparts as may be necessary. |
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| (c) | For the purposes of any written resolution under Article 72(b), the date of the resolution in writing is the date when the resolution is signed by, or on behalf of, the last holder to sign and any reference in any enactment to the date of passing of a resolution is, in relation to a resolution in writing made in accordance with this section, a reference to such date. |
| (d) | A resolution in writing made in accordance with Article 72(b) is valid as if it had been passed by the Company in general meeting or, if applicable, by a meeting of the relevant class of holders of the Company, as the case may be. A resolution in writing made in accordance with this section shall constitute minutes for the purposes of the Act and these Articles. |
| (e) | At any time that the Company is a single-member company, its sole member may pass any resolution as a written decision in accordance with section 196 of the Act. |
| 73. | Default in payment of calls |
Unless the Directors otherwise determine, no member shall be entitled to vote at any general meeting or any separate meeting of the Holders of any class of shares in the Company, either in person or by proxy, or to exercise any privilege as a member in respect of any share held by him unless all moneys then payable by him in respect of that share have been paid.
| 74. | Restriction of voting rights |
| (a) | If at any time the Directors shall determine that a Specified Event (as defined in paragraph (g)) shall have occurred in relation to any share or shares the Directors may serve a notice to such effect on the Holder or Holders thereof. Upon the service of any such notice (in these Articles referred to as a “Restriction Notice”) no Holder or Holders of the share or shares specified in such Restriction Notice shall be entitled, for so long as such Restriction Notice shall remain in force, to attend or vote at any general meeting or either personally or by proxy. |
| (b) | A Restriction Notice shall be cancelled by the Directors as soon as reasonably practicable, but in any event not later than forty-eight hours, after the Holder or Holders concerned shall have remedied the default by virtue of which the Specified Event shall have occurred. A Restriction Notice shall automatically cease to have effect in respect of any share transferred upon registration of the relevant transfer provided that a Restriction Notice shall not cease to have effect in respect of any transfer where no change in the beneficial ownership of the share shall occur and for this purpose it shall be assumed that no such change has occurred where a transfer form in respect of the share is presented for registration having been stamped at a reduced rate of stamp duty by virtue of the transferor or transferee claiming to be entitled to such reduced rate as a result of the transfer being one where no beneficial interest passes. |
| (c) | The Directors shall cause a notation to be made in the Register against the name of any Holder or Holders in respect of whom a Restriction Notice shall have been served indicating the number of shares specified in such Restriction Notice and shall cause such notation to be deleted upon cancellation or cesser of such Restriction Notice. |
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| (d) | Any determination of the Directors and any notice served by them pursuant to the provisions of this Article shall be conclusive as against the Holder or Holders of any share and the validity of any notice served by the Directors in pursuance of this Article shall not be questioned by any person. |
| (e) | If, while any Restriction Notice shall remain in force in respect of any Holder or Holders of any shares, such Holder or Holders shall be issued with any further shares as a result of such Holder or Holders not renouncing any allotment of shares made to him or them pursuant to a capitalisation issue under Part XXII of these Articles, the Restriction Notice shall be deemed also to apply to such Holder or Holders in respect of such further shares on the same terms and conditions as were applicable to the said Holder or Holders immediately prior to such issue of further shares. |
| (f) | Where a Restriction Notice is served on a Central Securities Depository or its nominee(s) acting in its capacity as operator of a Securities Settlement System, the provisions of this Article shall be treated as applying only to such number of shares as is equal to the number of shares specified in such Restriction Notice held by the Central Securities Depository or its nominee(s) and not to any other shares held by the Central Securities Depository or its nominee(s). |
| (g) | For the purpose of these Articles, the expression “Specified Event” in relation to any share shall mean the failure by the Holder or Holders thereof to pay any call or instalment of a call in the manner and at the time appointed for payment thereof or failure to comply, to the satisfaction of the Directors, with the terms of any Section 1062 Notice within such period as may be specified in such notice (which shall not be less than twenty-eight days from the date of service of such notice). |
| 75. | Time for objection to voting |
No objection shall be raised to the qualification of any voter except at the meeting or adjourned meeting at which the vote objected to is tendered and every vote not disallowed at such meeting shall be valid. Any such objection made in due time shall be referred to the chair of the meeting whose decision shall be final and conclusive.
| 76. | Appointment of proxy |
| (a) | Every member entitled to attend and vote at a general meeting may appoint a proxy or (subject to the following provisions) proxies to attend, speak and vote on his behalf 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 a different share or shares held by him. The appointment of a proxy shall be in writing in any usual form or in any other form which the Directors may approve and shall be signed by or on behalf of the appointer. The signature on such appointment need not be witnessed. A body corporate may sign a form of proxy under its common seal, under the hand of a duly authorised officer thereof or in such manner as the Directors may approve. A proxy need not be a member of the Company. A member shall be entitled to appoint a proxy or proxies by electronic means, to an address specified by the Company. |
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| (b) | In relation to any shares which are held in uncertificated form, appointments of a proxy may be made by means of electronic communication in the form of an Uncertificated Proxy Instruction, (that is, a properly authenticated dematerialised instruction, and or other instruction or notification, which is sent by means of the Securities Settlement System concerned and received by such participant in that system acting on behalf of the company as the Directors may prescribe in such form and subject to such terms and conditions as may from time to time be prescribed by the Directors (subject always to the facilities and requirements of the Securities Settlement System concerned); and may in a similar manner permit supplements to, or amendments or revocations of, any such Uncertificated Proxy Instruction to be made by like means. The Directors may in addition prescribe the method of determining the time at which any such properly authenticated dematerialised instruction (and or other instruction or notification) is to be treated as received by the Company or such participant. The Directors may treat any such Uncertificated Proxy Instruction which purports to be or is expressed to be sent on behalf of a holder of a share as sufficient evidence of the authority of a person sending that instruction to send it on behalf of that holder. |
| (c) | The directors may send, at the expense of the Company, by post, electronic mail or otherwise, to the members forms for the appointment of a proxy (in such form as the Directors may approve and with or without stamped envelope for there return) for use at any general meeting or at any class meeting either in blank or nominating any one or more of the directors or any other persons in the alternative. The proxy form must make provision for three-way voting on all resolutions intended to be proposed, other than resolutions which are merely procedural. If for the purpose of any meeting invitations to appoint as proxy a person or one of the number of persons specified in the invitations are issued at the expense of the company, such invitations shall be issued to all (and not to some only) of the members entitled to be sent a notice of the meeting and to vote thereat by proxy but the accidental omission to issue such invitation to, or the non-receipt to such invitations by, any member shall not invalidate the proceedings at any such meeting. |
| 77. | Bodies corporate acting by representatives at meetings |
Any body corporate which is a member of the Company may, by resolution of its directors or other governing body, authorise such person or persons as it thinks fit to act as its representative or representatives at any meeting of the Company or any class of members of the Company, and, subject to evidence being furnished to the Company of such authority as the Directors may reasonably require, any person so authorised shall be entitled to exercise the same powers on behalf of the body corporate which he represents as that body corporate could exercise if it were an individual member of the Company (or a proxy appointed to act on behalf of a member of the Company, as applicable) or, where more than one such representative is so authorized, all or any of the rights attached to the shares in respect of which he is so authorised. Where a member or a proxy appoints more than one representative in relation to a general meeting, each representative must be appointed to exercise rights attached to a different share or shares held by the member or in respect of which the proxy has been appointed.
| 78. | Receipt of proxy appointment |
Where the appointment of a proxy and the power of attorney or other authority, if any, under which it is created (whether by electronic signature, advanced electronic signature or otherwise), or a certified copy of that power or authority or any other proof or confirmation of that power or authority acceptable to the Directors is to be received by the Company:
| (a) | in physical form it shall be deposited at the Office or (at the option of the member) at such other place or places (if any) in Ireland as is specified for that purpose in, or by way or note to, the notice convening the meeting, or |
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| (b) | in electronic form, it may be so received where an Address has been specified by the Company for the purpose of receiving electronic communications: |
| (i) | in the notice convening the meeting; or |
| (ii) | in any appointment of proxy sent out by the Company in relation to the meeting; or |
| (iii) | in any invitation contained in an electronic communication to appoint a proxy issued by the Company in relation to the meeting; |
provided it is so received by the Company not less than forty eight hours or such other time as may be communicated to the members before the time for holding the meeting or adjourned meeting at which such person claims to vote (subject to the requirements of the Acts), and in default shall not be treated as valid provided that in the case of a meeting which is adjourned to, or a poll which is to be taken on, a date not later than the record date of the meeting which was adjourned or at which the poll was demanded, it shall be sufficient if the appointment of proxy and any other authority and certification thereof as aforesaid is so received by the Company at the commencement of the adjourned meeting or the taking of the poll and an appointment of proxy relating to more than one meeting (including any adjournment thereof) having once been so received for the purposes of any meeting shall not require to be delivered, deposited or received again for the purposes of any subsequent meeting to which it relates. Where any class of shares in the capital of the Company is held through a settlement system, the Directors may determine that it shall be sufficient if the appointment of a proxies and any such authority and certification thereof as aforesaid is received by the Company at such Address and in such manner and time as may be specified by the Directors not being later than the commencement of the meeting, adjourned meeting or (as the case may be) of the taking of the poll.
| (c) | Without limiting the foregoing, in relation to any shares which are deposited in a Central Securities Depository, the Directors may from time to time: |
| (i) | permit appointments of a proxy to be made by means of an electronic communication (including a properly authenticated instruction, and/or other instruction or notification, which is sent by means of the relevant Securities Settlement System concerned and received by such Central Securities Depository in such form and subject to such terms and conditions as may from time to time be prescribed by the Directors (subject always to the facilities and requirements of the relevant Securities Settlement System concerned)); and may in a similar manner permit supplements to, or amendments or revocations of, any such proxy instruction to be made by like means. The Directors may in addition prescribe the method of determining the time at which any such properly authenticated instruction (and/or other instruction or notification) is to be treated as received by the Company or such Central Securities Depository. The Directors may treat any such proxy instruction which purports to be or is expressed to be sent on behalf of a holder of a share as sufficient evidence of the authority of the person sending that instruction to send it on behalf of that holder; |
| (ii) | agree with the Central Securities Depository for such other proxy arrangements to operate, including an arrangement where the chair of all meetings of shareholders shall, unless otherwise directed, be the proxy for all shareholder meetings in respect of all shares deposited in such Central Securities Depository on the basis that such chair shall only vote as proxy in accordance with such instructions as the Central Securities Depository may give; and |
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| (iii) | agree with the Central Securities Depository that where shares have been deposited in another Central Securities Depository that proxy instructions may be given via the systems of that other Central Securities Depository to the exclusion of the first Central Securities Depository. |
| 79. | Effect of proxy appointment and revocation of proxy |
| (a) | Effect of proxy appointments: |
| (i) | receipt by the Company of an appointment of a proxy in respect of a meeting shall not preclude a member from attending and voting at the meeting or at any adjournment thereof. However, if that member votes at the meeting or at any adjournment thereof, then as regards to the resolution(s) any proxy notice delivered to the Company by or on behalf of that same member shall on a poll, be invalid to the extent that such member votes in respect of the shares to which the proxy notice relates; and |
| (ii) | an appointment of a proxy shall be valid, unless the contrary is stated therein, as well for any adjournment of the meeting as for the meeting to which it relates and shall be deemed to confer authority to speak at a general meeting and to demand or join in demanding a poll. |
| (b) | A proxy shall have the right to exercise all or any of the rights of his appointer, or (where more than one proxy is appointed) all or any of the rights attached to the shares in respect of which he has appointed to the proxy to attend, to demand or join in demanding a poll and to speak and vote at a general meeting of the Company. Unless his appointment provides otherwise, a proxy may vote or abstain in his discretion on any resolution put to the vote. |
| (c) | A vote given or poll demanded in accordance with the terms of an appointment of a proxy or a resolution authorising a representative to act on behalf of a body corporate shall be valid notwithstanding the previous death, insanity or winding up of the principal or revocation of the proxy or of the authority under which the proxy or authority was executed or the transfer of the share in respect of which the proxy or authority is given, if no notice in writing (whether in electronic form or otherwise) of such death, insanity, winding up, revocation or transfer as aforesaid is received by the Company at the Office, at least one hour before the commencement of the meeting or adjourned meeting at which the proxy is used or the representative acts provided however that where such intimation is given in electronic form it shall have been received by the Company at least 24 hours (or such lesser time as the Directors may specify) before the commencement of the meeting. |
PART XII – DIRECTORS
| 80. | Number of Directors |
The number of Directors shall not be not less than three nor more than fourteen, with the exact number of Directors determined from time to time solely by a resolution passed with the approval of a majority of the Directors then in office and in accordance with and subject to the provisions of these Articles.
| 81. | Share qualification |
A Director shall not require a share qualification.
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| 82. | Ordinary remuneration of Directors |
| (a) | Each Director shall be paid a fee for the services (which shall be deemed to accrue from day to day) at such rate as may from time to time be determined by the Board. |
| (b) | Without prejudice to any amounts payable or equity awards under any other provision of these Articles, the ordinary remuneration of Directors who do not hold executive office shall not exceed in aggregate $2,500,000 per annum or such higher amount as the Company may from time to time by ordinary resolution determine and shall be divisible (unless such resolution shall provide otherwise) among the Directors as they may agree, or, failing agreement, equally, except that any such Director who shall hold office for part only of the period in respect of which such remuneration is payable shall be entitled only to rank in such division for a proportion of the remuneration related to the period during which he has held office. |
| 83. | Special remuneration of Directors |
Any Director who holds any executive office (including for this purpose the office of Chair or deputy chair) or who serves on any committee, or who otherwise performs services which in the opinion of the Directors are outside the scope of the ordinary duties of a Director, may be paid such extra remuneration by way of salary, commission or otherwise as the Directors may determine.
| 84. | Expenses of Directors and use of Company property |
| (a) | The Directors may be paid all travelling, hotel and other expenses properly incurred by them in connection with their attendance at meetings of Directors or committees of Directors or general meetings or separate meetings of the Holders of any class of shares or of debentures of the Company or otherwise in connection with the discharge of their duties. |
| (b) | A Director is expressly permitted (for the purposes of section 228(1)(d) of the Act) to use vehicles, telephones, computers, aircraft, accommodation and any other Company property where such use is approved by the Board or by a person so authorised by the Board or where such use is in accordance with a Director’s terms of employment, letter of appointment or other contract or in the course of the discharge of the Director’s duties or responsibilities or in the course of the discharge of a Director’s employment. |
| 85. | Alternate Directors |
| (a) | Any Director may appoint by writing (whether in electronic form or otherwise) under his hand any person (including another Director) to be his alternate provided always that no such appointment of a person other than a Director as an alternate shall be operative unless and until such appointment shall have been approved by resolution of the Directors. Any such authority may be sent by delivery, post, electronic mail or any other means of communication approved by the Directors and may bear a printed, facsimile, electronic or advanced electronic signature of the Director giving such authority. |
| (b) | An alternate Director shall be entitled, subject to his giving to the Company an Address within the State, to receive notices of all meetings of the Directors and of all meetings of committees of Directors of which his appointor is a member, to attend and vote at any such meeting at which the Director appointing him is not personally present and in the absence of his appointor to exercise all the powers, rights, duties and authorities of his appointor as a Director (other than the right to appoint an alternate hereunder). |
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| (c) | Save as otherwise provided in these Articles, an alternate Director shall be deemed for all purposes to be a Director and shall alone be responsible for his own acts and defaults and he shall not be deemed to be the agent of the Director appointing him. The remuneration of any such alternate Director shall be payable out of the remuneration paid to the Director appointing him and shall consist of such portion of the last mentioned remuneration as shall be agreed between the alternate and the Director appointing him. |
| (d) | A Director may revoke at any time the appointment of any alternate appointment by him. If a Director shall die or cease to hold the office of Director the appointment of his alternate shall thereupon cease and determine. |
| (e) | If a Director retires by rotation or otherwise but is re-appointed or deemed to have been reappointed at the meeting at which he retires, any appointment of an alternate Director made by him which was in force immediately prior to his retirement shall continue after his re-appointment. |
| (f) | Any appointment or revocation by a Director under this Article shall be effected by notice in writing (whether in electronic form or otherwise) given under his hand to the Company Secretary or deposited or received at the Office or in any other manner approved by the Directors. |
PART XIII - POWERS OF DIRECTORS
| 86. | Directors’ powers |
| (a) | Subject to the provisions of the Acts, the Memorandum of the Company and these Articles and to any directions by the members given by special resolution, not being inconsistent with these Articles or with the Acts, the business of the Company shall be managed by the Directors who may do all such acts and things and exercise all the powers of the Company as are not by the Acts or by these Articles required to be done or exercised by the Company in general meeting. No alteration of the Memorandum of the Company or of these Articles and no such direction shall invalidate any prior act of the Directors which would have been valid if that alteration had not been made or that direction had not been given. The powers given by this Article shall not be limited by any special power given to the Directors by these Articles and a meeting of Directors at which a quorum is present may exercise all powers exercisable by the Directors. |
| (b) | The acts of the Board or of any committee established by the Board or any delegee of the Board or any such committee shall be valid notwithstanding any defect which may afterwards be discovered in the appointment or qualification of any Director, committee member or delegee. |
| 87. | Power to delegate |
Without prejudice to the generality of the last preceding Article and section 40 of the Act, the Directors may delegate any of their powers to any such person or persons as they think fit, including any committee pursuant to Article 89. Any such delegation may be made subject to any conditions the Directors may impose, and either collaterally with or to the exclusion of their own powers and may be revoked.
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| 88. | Appointment of attorneys |
The Directors, from time to time and at any time by power of attorney under seal, may appoint any company, firm or person or fluctuating body of persons, whether nominated directly or indirectly by the Directors, to be the attorney or attorneys of the Company for such purposes and with such powers, authorities and discretions (not exceeding those vested in or exercisable by the Directors under these Articles) and for such period and subject to such conditions as they may think fit. Any such power of attorney may contain such provisions for the protection of persons dealing with any such attorney as the Directors may think fit and may authorise any such attorney to sub-delegate all or any of the powers, authorities and discretions vested in him.
| 89. | Committees |
| (a) | The Directors may establish one or more committees consisting in whole or in part of members of the Board. The composition, function, power and obligations of any such committee will be determined by the Board from time to time. |
| (b) | A committee established under Article 89(a) (a “committee”) may elect a chair of its meetings; if no such chair is elected, or if at any meeting the chair is not present after the time appointed for holding it, the members of the committee present may choose one of their number to be chair of the meeting. |
| (c) | A committee may meet and adjourn as it thinks proper. Committee meetings shall take place at such time and place as the relevant committee may determine. Questions arising at any meeting of a committee shall be determined (subject to Article 89(a)) by a majority of votes of the members of the committee present, and where there is an equality of votes, the chair of the committee shall not have a second or casting vote. |
| (d) | Where any committee is established by the Directors: |
| (i) | the meetings and proceedings of such committee shall be governed by the provisions of these Articles regulating the meetings and proceedings of the Directors so far as the same are applicable and are not superseded by any regulations imposed upon such committee by the Directors; and |
| (ii) | the Directors may authorise, or may authorise such committee to authorise, any person who is not a Director to attend all or any meetings of any such committee on such terms as the Directors or the committee think fit, provided that any such person shall not be entitled to vote at meetings of the committee. |
| 90. | Borrowing powers |
The Directors may exercise all the powers of the Company to borrow or raise money and to mortgage or charge its undertaking, property, assets, and uncalled capital or any part thereof and subject to Part 3 of the Act to issue debentures, debenture stock and other securities whether outright or as collateral security for any debt, liability or obligation of the Company or of any third party, without any limitation as to amount.
| 91. | Execution of negotiable instruments |
All cheques, promissory notes, drafts, bills of exchange and other negotiable instruments and all receipts for moneys paid to the Company shall be signed, drawn, accepted, endorsed or otherwise executed, as the case may be, by such person or persons and in such manner as the Directors shall determine from time to time by resolution.
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PART XIV - APPOINTMENT AND RETIREMENT OF DIRECTORS
| 92. | Appointment of Directors |
| (a) | The Board, upon recommendations of the nomination and governance committee (or equivalent committee established by the Board) shall propose nominees for election to the office of Director at each annual general meeting. Such nominees need not be notified in accordance with Article 95. |
| (b) | The Directors may be appointed by the members in general meeting, provided that no person other than a Director retiring at the meeting shall, save where recommended by the Board, be eligible for election to the office of Director at any general meeting unless the requirements of Article 95 or 96, as applicable, as to his or her eligibility for that purpose have been complied with. |
| (c) | The Company may from time to time, by ordinary resolution, increase or reduce the number of Directors provided that any resolution to appoint a director approved by the members that would result in the maximum number of Directors being exceeded shall be deemed to constitute an ordinary resolution increasing the maximum number of Directors to the number that would be in office following such a resolution of appointment. |
| 93. | Director Classes and Resignations |
The Directors shall be divided into three classes, designated Class I, Class II and Class III. The initial division of the Board into classes shall be made by the decision of the affirmative vote of a majority of the Directors in office and each class need not be of equal size or number.
| (a) | The term of the initial Class I directors shall terminate at the conclusion of the Company’s annual general meeting to be held in 2022; the term of the initial Class II directors shall terminate on the conclusion of the Company’s annual general meeting to be held in 2023; and the term of the initial Class III directors shall terminate on the conclusion of the Company’s annual general meeting to be held in 2024. |
| (b) | At each annual general meeting of the Company beginning with the Company’s 2022 annual general meeting, all of the Directors of the class of directors whose term expires on the conclusion of that annual general meeting shall retire from office. |
| (c) | Every Director of the class retiring shall be eligible to stand for re-election at the annual general meeting at which he or she retires and may be re-elected for a term not exceeding three years. |
| (d) | Any resolution at an annual general meeting which proposed in accordance with these Articles to appoint a person as a Director to fill a vacancy created by the retirement of a Director at the conclusion of that meeting, may not appoint that person as a Director for a term exceeding three years. |
| (e) | The resolution appointing or re-electing any Director must designate the Director as a Class I, Class II or Class III Director. |
| (f) | If the number of Directors is changed, any increase or decrease shall be apportioned among the classes so as to maintain the number of Directors in each class as nearly equal as possible or as the Chair may otherwise direct. In no case will a decrease in the number of Directors shorten the term of any incumbent Director. |
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| (g) | A Director shall hold office until the conclusion of the annual general meeting for the year in which his term expires and shall qualify, subject however, to prior death, resignation, retirement, disqualification or removal from office. |
| (h) | Any vacancy on the Board, including a vacancy that results from an increase in the number of Directors or from the death, resignation, retirement, disqualification or removal of a Director, shall be deemed a casual vacancy. Subject to the terms of any one or more classes or series of Preferred Shares, any casual vacancy may be filled at any time by the decision of a majority of the Board then in office, provided that a quorum is present and provided that the appointment: |
| (i) | is for a term not exceeding three years; and |
| (ii) | does not cause the number of Directors to exceed any number fixed by or in accordance with these Articles as the maximum number of Directors. |
| (i) | Any Director of such class elected to fill a vacancy resulting from an increase in the number of Directors of such class shall hold office for a term that shall coincide with the remaining term of that class. Any Director elected to fill a vacancy not resulting from an increase in the number of Directors shall have the same remaining term as that of his predecessor. A Director retiring at a meeting shall retain office until the close or adjournment of the meeting. |
| 94. | Contested Elections |
Each Director shall be elected by an ordinary resolution at such meeting, provided that if, as of, or at any time prior to, fourteen days before the date of mailing or distribution by any other means of the notice for the annual general meeting, the number of Director nominees exceeds the number of Directors to be elected (a “contested election”), each of those nominees shall be voted upon as a separate resolution and the Directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at any such meeting and entitled to vote on the election of Directors.
For the purposes of this Article, “elected by a plurality” means the election of those director nominees, equalling in number to the number of positions to be filled at the relevant general meeting, that received the highest number of votes.
| 95. | Director Member nominations at annual general meeting |
For nominations of persons for election to the Board (other than Directors to be nominated by any series of Preferred Shares, voting separately as a class) to be properly brought by a member before an annual general meeting by a member, such member must be entitled to vote in the election of Directors generally and have given timely notice thereof in writing to the Company Secretary. To be timely, a member’s notice shall be delivered to the Company Secretary at the registered office of the Company, or such other address as the Company Secretary may designate, not less than 60 days nor more than 90 days prior to the first anniversary of the preceding year’s annual general meeting, provided, however, that in the event that the date of the annual general meeting is advanced by more than 30 days or delayed by more than 60 days from such anniversary, notice by the member to be timely must be so received not earlier than the 90th day prior to such annual general meeting and not later than the close of business on the later of:
| (a) | the 60th day prior to such annual general meeting; and |
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| (b) | the 10th day following the day on which notice of the date of the annual general meeting was mailed or public disclosure thereof was made by the Company, |
whichever event in this clause first occurs. Each such member’s notice shall set forth:
| (i) | the name and address of the member who intends to make the nomination and of the person or persons to be nominated; |
| (ii) | a representation that the member is a holder of record of shares of the Company entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to nominate the person or persons specified in the notice; |
| (iii) | a description of all arrangements or understandings between the member and each nominee and any other person or persons (naming such person or persons) relating to the nomination or nominations; |
| (iv) | the class and number of shares of the Company which are beneficially owned by such member and by any other members known by such member to be supporting such nominees as of the date of such member’s notice; |
| (v) | whether and the extent to which any hedging, derivative or other transaction is in place or has been entered into within the prior six months preceding the date of delivery of the notice by or for the benefit of the member with respect to the Company or its subsidiaries or any of their respective securities, debt instruments or credit ratings, the effect or intent of which transaction is to give rise to gain or loss as a result of changes in the trading price of such securities or debt instruments or changes in the credit ratings for the Company, its subsidiaries or any of their respective securities or debt instruments (or, more generally, changes in the perceived creditworthiness of the Company or its subsidiaries), or to increase or decrease the voting power of the member, and if so, a summary of the material terms thereof; |
| (vi) | the consent of each nominee to serve as a Director if so elected; and |
| (vii) | for each nominee who is not an incumbent Director: |
| (A) | their name, age, business address and residential address; |
| (B) | their principal occupation or employment; |
| (C) | the class, series and number of securities of the Company that are owned of record or beneficially by such person; |
| (D) | the date or dates the securities were acquired and the investment intent of each acquisition; |
| (E) | any other information relating to such person that is required to be disclosed in proxies for the election of Directors under any applicable securities legislation; and |
| (F) | any information the Company may require any proposed director nominee to furnish such as it may reasonably require to comply with applicable law and to determine the eligibility of such proposed nominee to serve as a Director and whether such proposed nominee would be considered independent as a Director or as a member of the audit or any other committee of the Board under the various rules and standards applicable to the Company. |
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| 96. | Director Member nominations at extraordinary general meeting |
For nominations of persons for election to the Board (other than directors to be nominated by any series of Preferred Shares, voting separately as a class) to be properly brought before a general meeting called for the purpose of the election of directors, other than an annual general meeting by a member, such member must have given timely notice thereof in writing to the Company Secretary. To be timely, a member’s notice shall be delivered to the Company Secretary at the registered office of the Company or such other address as the Company Secretary may designate, not earlier than the 150th day prior to such general meeting and not later than the later of the 90th day prior to such general meeting or the 10th day following the day on which public announcement is first made of the date of the general meeting and of the nominees proposed by the Board to be elected at such meeting. Such member’s notice shall set forth the same information as is required by Article 95(b).
PART XV - DISQUALIFICATION AND REMOVAL OF DIRECTORS
| 97. | Disqualification of Directors |
The office of a Director shall be vacated ipso facto if:
| (a) | he is restricted or disqualified from acting as a director of any company under the provisions of Part 14 of the Act; |
| (b) | he becomes bankrupt or makes any arrangement or composition with his creditors generally; |
| (c) | in the opinion of a majority of his co-Directors, he becomes incapable by reason of mental disorder of discharging his duties as a Director; |
| (d) | (not being a Director holding for a fixed term an executive office in his capacity as a Director) he resigns his office by notice to the Company; |
| (e) | he is convicted of an indictable offence, unless the Directors otherwise determine; |
| (f) | he shall have been absent for more than six consecutive months without permission of the Directors from meetings of the Directors held during that period and his alternate Director (if any) shall not have attended any such meeting in his place during such period, and the Directors pass a resolution that by reason of such absence he has vacated office; or |
| (g) | he is required in writing (whether in electronic form or otherwise) by not less than three quarters of his co-Directors to resign. |
| 98. | Removal of Directors |
The Company, by ordinary resolution of which notice has been given in accordance with the provisions of the Acts, may remove any Director before the expiry of his period of office notwithstanding anything in these Articles or in any agreement between the Company and such Director and may, if thought fit, by ordinary resolution appoint another Director in his stead. The person appointed shall be subject to retirement at the same time as if he had become a Director on the date on which the Director in whose place he is appointed was last appointed a Director. Nothing in this Article shall be taken as depriving a person removed hereunder of compensation or damages payable to him in respect of the termination of his appointment as Director or of any appointment terminating with that of Director.
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PART XVI - DIRECTORS’ OFFICES AND INTERESTS
| 99. | Officers and Executives |
| (a) | The Directors may from time to time appoint one or more of themselves to the office of Chief Executive Officer (by whatever name called) or to any other executive office with the Company on such terms and for such period as they may determine and, without prejudice to the terms of any contract entered into in any particular case, may revoke any such appointment at any time. |
| (b) | A Director holding any such executive office shall receive such remuneration, whether in addition to or in substitution for his ordinary remuneration as a Director and whether by way of salary, commission, participation in profits or otherwise or partly in one way and partly in another, as the Directors may determine. |
| (c) | The appointment of any Director to the office of Chair or Chief Executive Officer shall determine automatically if he ceases to be a Director but without prejudice to any claim for damages for breach of any contract of service between him and the Company. |
| (d) | The appointment of any Director to any other executive office shall not determine automatically if he ceases from any cause to be a Director unless the contract or resolution under which he holds office shall expressly state otherwise, in which event such determination shall be without prejudice to any claim for damages for breach of any contract of service between him and the Company. |
| (e) | The Board may appoint any person whether or not he or she is a Director, to hold such executive or official position (except that of Auditor) as the Board may from time to time determine. The same person may hold more than one office of executive or official position. |
| (f) | The Board shall determine from time to time, the powers and duties of any such office holder or official appointed under Articles 99(a) and/or Article 99(c), and subject to the provisions of the Act and these Articles, the Directors may confer upon an office holder or official any of the powers exercisable by them upon such terms and conditions and with such restrictions as they may think fit and in conferring any such powers, the Directors may specify that the conferral is to operate either: (a) so that the powers concerned may be exercised concurrently by them and the relevant office holder; or (b) to the exclusion of their own such powers. |
| (g) | The Directors may (a) revoke any conferral of powers under Article 99(f) or (b) amend any such conferral (whether as to the powers conferred or the terms, conditions or restrictions subject to which the conferral is made). The use or inclusion of the word “officer” (or similar words) in the title of any executive or other position shall not be deemed to imply that the person holding such executive or other position is an “officer” of the Company within the meaning of the Act. |
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| 100. | Directors’ interests |
| (a) | Subject to the provisions of the Acts, and provided that he has disclosed to the Directors the nature and extent of any material interest of his, a Director notwithstanding his office: |
| (i) | may be a party to, or otherwise interested in, any transaction or arrangement with the Company or any subsidiary or associated company thereof or in which the Company or any subsidiary or associated company thereof is otherwise interested; |
| (ii) | may be a director or other officer of, or employed by, or a party to any transaction or arrangement with, or otherwise interested in, any body corporate promoted by the Company or in which the Company or any subsidiary or associated company thereof is otherwise interested; and |
| (iii) | shall not be accountable, by reason of his office, to the Company for any benefit which he derives from any such office or employment or from any such transaction or arrangement or from any interest in any such body corporate and no such transaction or arrangement shall be liable to be avoided on the ground of any such interest or benefit. |
| (b) | No Director or intending Director shall be disqualified by his office from contracting with the Company either as vendor, purchaser or otherwise, nor shall any such contract or any contract or arrangement entered into by or on behalf of the other Company in which any Director shall be in any way interested be avoided nor shall any Director so contracting or being so interested be liable to account to the Company for any profit realised by any such contract or arrangement by reason of such Director holding that office or of the fiduciary relationship thereby established. The nature of a Director’s interest must be declared by him at the meeting of the Directors at which the question of entering into the contract or arrangement is first taken into consideration, or if the Director was not at the date of that meeting interested in the proposed contract or arrangement at the next meeting of the Directors held after he became so interested, and in a case where the Director becomes interested in a contract or arrangement after it is made at the first meeting of the Directors held after he becomes so interested. |
| (c) | A copy of every declaration made and notice given under this Article shall be entered within three days after the making or giving thereof in a book kept for this purpose. Such book shall be open for inspection without charge by any Director, Company Secretary, Auditor or member of the Company at the Office and shall be produced at every general meeting of the Company and at any meeting of the Directors if any Director so requests in sufficient time to enable the book to be available at the meeting. |
| (d) | For the purposes of this Article: |
| (i) | a general notice given to the Directors that a Director is to be regarded as having an interest of the nature and extent specified in the notice in any transaction or arrangement in which a specified person or class of persons is interested shall be deemed to be a disclosure that the Director has an interest in any such transaction of the nature and extent so specified; and |
| (ii) | an interest of which a Director has no knowledge and of which it is unreasonable to expect him to have knowledge shall not be treated as an interest of his. |
| 101. | Restriction on Directors’ voting |
| (a) | Save as otherwise provided by these Articles, a Director shall not vote at a meeting of the Directors or a committee of Directors on any resolution concerning a matter in which he has, directly or indirectly, an interest which is material or a duty which conflicts or may conflict with the interests of the Company. A Director shall not be counted in the quorum present at a meeting in relation to any such resolution on which he is not entitled to vote. |
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| (b) | A Director shall be entitled (in the absence of some other material interest than is indicated below) to vote (and be counted in the quorum) in respect of any resolutions concerning any of the following matters, namely: |
| (i) | the giving of any security, guarantee or indemnity to him in respect of money lent by him to the Company or any of its subsidiary or associated companies or obligations incurred by him or by any other person at the request of or for the benefit of the Company or any of its subsidiary or associated companies; |
| (ii) | the giving of any security, guarantee or indemnity to a third party in respect of a debt or obligation of the Company or any of its subsidiary or associated companies for which he himself has assumed responsibility in whole or in part and whether alone or jointly with others under a guarantee or indemnity or by the giving of security; |
| (iii) | any proposal concerning any offer of shares or debentures or other securities of or by the Company or any of its subsidiary or associated companies for subscription, purchase or exchange in which offer he is or is to be interested as a participant in the underwriting or sub-underwriting thereof; |
| (iv) | any proposal concerning any other company in which he is interested, directly or indirectly and whether as an officer or shareholder or otherwise howsoever, provided that he is not the Holder of or beneficially interested in 1% or more of the issued shares of any class of such company or of the voting rights available to members of such company (or of a third company through which his interest is derived) (any such interest being deemed for the purposes of this Article to be a material interest in all circumstances; |
| (v) | any proposal concerning the adoption, modification or operation of a superannuation fund or retirement benefits scheme under which he may benefit and which has been approved by or is subject to and conditional upon approval for taxation purposes by the appropriate Revenue authorities; |
| (vi) | any proposal concerning the adoption, modification or operation of any scheme for enabling directors and/or employees of the Company and/or any subsidiary thereof to acquire shares in the Company or any arrangement for the benefit of directors and/or employees of the Company or any of its subsidiaries under which the Director benefits or may benefit; or |
| (vii) | any proposal concerning the giving of any indemnity pursuant to Article 148 or the discharge of the cost of any insurance cover purchased or maintained pursuant to Article 102. |
| (c) | Where proposals are under consideration concerning the appointment (including fixing or varying the terms of appointment) of two or more Directors to offices or employments with the Company or any company in which the Company is interested, such proposals may be divided and considered in relation to each Director separately and in such case each of the Directors concerned (if not debarred from voting under sub-paragraph (b) (iv) of this Article) shall be entitled to vote (and be counted in the quorum) in respect of each resolution except that concerning his own appointment. |
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| (d) | Nothing in Section 228(1)(e) of the Act shall restrict a director from entering into any commitment which has been approved by the Board or has been approved pursuant to such authority as may be delegated by the Board in accordance with these Articles. It shall be the duty of each Director to obtain the prior approval of the Board, before entering into any commitment permitted by Sections 228(1)(e)(ii) and 228(2) of the Act. |
| (e) | If a question arises at a meeting of Directors or of a committee of Directors as to the materiality of a Director’s interest or as to the right of any Director to vote and such question is not resolved by his voluntarily agreeing to abstain from voting, such question may be referred, before the conclusion of the meeting, to the chairman of the meeting and his ruling in relation to any Director other than himself shall be final and conclusive. In relation to the Chairman, such question may be resolved by a resolution of a majority of the Directors (other than the Chairman) present at the meeting at which the question first arises. |
| (f) | For the purposes of this Article, an interest of a person who is the spouse or a minor child of a Director shall be treated as an interest of the Director and, in relation to an alternate Director, an interest of his appointor shall be treated as an interest of the alternate Director. |
| (g) | The Company by ordinary resolution may suspend or relax the provisions of this Article to any extent or ratify any transaction not duly authorised by reason of a contravention of this Article. |
| 102. | Entitlement to grant pensions and insurance |
| (a) | The Directors may provide benefits, whether by way of pensions, gratuities or otherwise, for any Director, former Director or other officer or former officer of the Company or to any person who holds or has held any employment with the Company or with any body corporate which is or has been a subsidiary or associated company of the Company or a predecessor in business of the Company or of any such subsidiary or associated company and to any member of his family or any person who is or was dependent on him and may set up, establish, support, alter, maintain and continue any scheme for providing all or any such benefits and for such purposes any Director accordingly may be, become or remain a member of, or rejoin, any scheme and receive or retain for his own benefit all benefits to which he may be or become entitled thereunder. The Directors may pay out of the funds of the Company any premiums, contributions or sums payable by the Company under the provisions of any such scheme in respect of any of the persons or class of persons above referred to who are or may be or become members thereof. |
| (b) | Subject to the provisions of Article 147, the Directors shall have the power to purchase and maintain insurance for or for the benefit of any persons who are or were at any time, directors, officers, or employees of the Company, or of any other company which is its holding company or in which the Company or such holding company has any interest whether direct or indirect or which is in any way allied to or associated with the Company, or of any subsidiary undertaking of the Company or any such other company, or who are or were at any time trustees of any pension fund in which employees of the Company, or any other company or such subsidiary undertaking are interested, including (without prejudice to the generality of the foregoing) insurance against any liability incurred by such persons in respect of any act or omission when in the actual or purported execution or discharge of their duties or in the exercise or purported exercise of their powers or otherwise in relation to their duties, powers or offices in relation to the Company or any such other company, subsidiary undertaking or pension fund. |
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PART XVII - PROCEEDINGS OF DIRECTORS
| 103. | Convening and regulation of Directors’ meetings |
| (a) | Subject to the provisions of these Articles, the Directors may regulate their proceedings as they think fit. Such meetings shall take place at such time and place as the Directors may determine. A Director may, and the Company Secretary at the request of a Director shall, call a meeting of the Directors. Any Director may waive notice of any meeting and any such waiver may be retrospective. |
| (b) | All Directors shall be entitled to reasonable notice of any meeting of the Directors. Notice of a meeting of the Directors or any other notice require to be given to, or by, a Director shall be deemed to be duly given to a Director if it is given to him personally or by word of mouth or sent in writing by delivery, post, electronic mail or any other means of communication approved by the Directors to him at his last known Address or any other Address given by him to the Company for this purpose. Nothing in this Article or any other provision of the Act enables a person, other than a Director, to object to the notice given for any meeting of the Directors. |
| (c) | The Directors may establish attendance and procedural guidelines from time to time about how their meetings are to be conducted consistent with good corporate governance and applicable tax requirements. |
| 104. | Quorum for Directors’ meetings |
| (a) | The quorum for the transaction of the business of the Directors may be fixed by the Directors and unless so fixed at any other number shall be two Directors. A person who holds office only as an alternate Director shall, if his appointor is not present, be counted in the quorum but notwithstanding that such person may act as alternate Director for more than one Director he shall not count as more than one for the purposes of determining whether a quorum is present. |
| (b) | The continuing Directors or a sole Director may act notwithstanding any vacancies in their number provided that if the number of the Directors is reduced below the prescribed minimum the remaining Director or Directors shall appoint forthwith an additional Director or additional Directors to make up such minimum or shall convene a general meeting of the Company for the purpose of making such appointment and apportion the Directors among the classes so as to maintain the number of Directors in each class as equal as possible. |
| 105. | Voting at Directors’ meetings |
| (a) | Questions arising at any meeting of Directors shall be decided by a majority of votes. Where there is an equality of votes, the chair of the meeting shall have a second or casting vote. |
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| (b) | Subject as hereinafter provided, each Director present and voting shall have one vote and in addition to his own vote shall be entitled to one vote in respect of each other Director not present at the meeting who shall have authorised him in respect of such meeting to vote for such other Director in his absence. Any such authority may relate generally to all meetings of the Directors or to any specified meeting or meetings and must be in writing and may be sent by delivery, post, electronic mail or any other means of communication approved by the Directors and may bear a printed, facsimile, electronic signature or advanced electronic signature of the Director giving such authority. The authority must be delivered to the Secretary for filing prior to or must be produced at the first meeting at which a vote is to be cast pursuant thereto provided that no Director shall be entitled to any vote at a meeting on behalf of another Director pursuant to this paragraph if the other Director shall have appointed an alternate Director and that alternate Director is present at the meeting at which the Director proposes to vote pursuant to this paragraph. |
| 106. | Telecommunication meetings |
A meeting of the Directors or of a committee referred to in Article 89 may consist of a conference between some or all of the Directors or, as the case may be, members of the committee who are not all in one place, but each of whom is able (directly or by means of telephonic, video or other electronic communication) to speak to each of the others and to be heard by each of the others and:
| (a) | a Director or as the case may be a member of the committee taking part in such a conference shall be deemed to be present in person at the meeting and shall be entitled to vote (subject to Article 109(c)) and be counted in a quorum accordingly; and |
| (b) | such a meeting shall be deemed to take place: |
| (i) | where the largest group of those Directors participating in the conference is assembled; |
| (ii) | if there is no such group, where the chair of the meeting then is; or |
| (iii) | if neither subparagraph (i) or (ii) applies, in such location as the meeting itself decides. |
| 107. | Chair of the Board |
The Directors may elect a Chair and determine the period for which he or she is to hold office, but if no such Chair is elected, or, if at any meeting the Chair is not present after the time appointed for holding it, the Directors present may choose one of their members to be chair of a Board meeting. The Chair shall vacate office if he or she vacates his or her office as a Director (otherwise than by the expiration of his or her term of office at a general meeting of the Company at which he or she is re-appointed).
| 108. | Validity of acts of Directors |
All acts done by any meeting of the Directors or of a committee of Directors or by any person acting as a Director, notwithstanding that it be afterwards discovered that there was some defect in the appointment of any such Director or person acting as aforesaid, or that they or any of them were disqualified from holding office or had vacated office, shall be as valid as if every such person had been duly appointed and was qualified and had continued to be a Director and had been entitled to vote.
| 109. | Directors’ resolutions or other documents in writing |
| (a) | A resolution or other document in writing (in electronic form or otherwise) signed (whether by electronic signature, advanced electronic signature or otherwise as approved by the Directors) by all the Directors entitled to receive notice of a meeting of Directors or of a committee of Directors shall be as valid as if it had been passed at a meeting of Directors or (as the case may be) a committee of Directors duly convened and held. Such resolution or document may consist of several documents in the like form each signed by one or more Directors and for all purposes shall take effect from the time that it is signed by the last Director. |
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| (b) | Such resolution or other document or documents when duly signed may be delivered or transmitted (unless the Directors shall otherwise determine either generally or in any specific case) by facsimile transmission, electronic mail or some other similar means of transmitting the contents of documents. A resolution or other documents signed (whether by electronic signature, advanced electronic signature or otherwise as approved by the Directors) by an alternate Director need not also be signed by his appointor and, if it is signed by a Director who has appointed an alternate Director, it need not be signed by the alternate Director in that capacity. |
| (c) | Subject to Article 109(d), where one or more of the Directors (other than a majority of them) would not, by reason of: |
| (i) | the Act or any other enactment; |
| (ii) | these Articles; or |
| (iii) | an applicable rule of law or a Stock Exchange, |
be permitted to vote on a resolution such as is referred to in Article 109(a) if it were sought to pass the resolution at a meeting of the Directors duly convened and held, then such a resolution, notwithstanding anything in Article 109(a), shall be valid for the purposes of that subsection if the resolution is signed by those of the Directors who would have been permitted to vote on it had it been sought to pass it at such a meeting.
| (d) | In a case falling within Article 109(c), the resolution shall state the name of each Director who did not sign it and the basis on which he or she did not sign it. |
| (e) | For the avoidance of doubt, nothing in Article 109(a) to 109(d) dealing with a resolution that is signed by other than all of the Directors shall be read as making available, in the case of an equality of votes, a second or casting vote to the one of their number who would, or might have been, if a meeting had been held to transact the business concerned, chair of that meeting. |
PART XVIII - THE COMPANY SECRETARY
| 110. | Appointment of Company Secretary |
The Directors may appoint a sole or joint Company Secretary, an assistant company secretary and a deputy company secretary for such term, at such remuneration and upon such conditions as they may think fit and any such person so appointed may be removed by them. Any provision of the Acts or these Articles requiring or authorising a thing to be done by or to a Director and the Company Secretary shall not be satisfied by its being done by or to the same person acting both as a Director and as, or in the place of, the Company Secretary.
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PART XIX - THE SEAL
| 111. | Use of Seal |
The Directors shall ensure that the Seal (including any official securities seal kept pursuant to the Acts) shall be used only by the authority of the Directors or of a committee authorised by the Directors or by any one or more persons severally or jointly so authorised by the Directors or such a committee, and the use of the seal shall be deemed to be authorised for these purposes where the matter or transaction pursuant to which the seal is to be used has been so authorised.
| 112. | Seal for use abroad |
The Company may exercise the powers conferred by the Acts with regard to having an official seal for use abroad or one or more duplicate common seals and such powers shall be vested in the Directors.
| 113. | Signature of sealed instruments |
Any instrument to which a Company’s seal shall be affixed shall be signed by any one of the following:
| (a) | a Director; |
| (b) | the Company Secretary; or |
| (c) | any other person authorised to sign by (i) the Directors or (ii) a committee or a person with the authority to use the seal under Regulation 111, |
and the countersignature of a second such person shall not be required.
PART XX - DIVIDENDS AND RESERVES
| 114. | Declaration of dividends |
Subject to the provisions of the Acts, the Company by ordinary resolution may declare dividends in accordance with the respective rights of the members, but no dividend shall exceed the amount recommended by the Directors.
| 115. | Interim and final dividends |
| (a) | Subject to the provisions of the Acts, the Directors may declare and pay interim dividends if it appears to them that they are justified by the profits of the Company available for distribution. |
| (b) | If the share capital is divided into different classes, the Directors may declare and pay interim dividends on shares which confer deferred or non-preferred rights with regard to dividend as well as on shares which confer preferential rights with regard to dividend, but subject always to any restrictions for the time being in force (whether under these Articles, under the terms of issue of any shares or under any agreement to which the Company is a party, or otherwise) relating to the application, or the priority of application, of the Company’s profits available for distribution or to the declaration or as the case may be the payment of dividends by the Company. Provided the Directors act in good faith they shall not incur any liability to the Holders of shares conferring preferred rights for any loss they may suffer by the lawful payment of an interim dividend on any shares having deferred or non-preferred rights. |
| (c) | Unless otherwise specified by the Directors at the time of declaring a dividend, the dividend shall be a final dividend. |
| (d) | Where the Directors specify that a dividend is an interim dividend at the time it is declared, such interim dividend shall not constitute a debt recoverable against the Company and the declaration may be revoked by the Directors at any time prior to its payment provided that the holders of the same class of share are treated equally on any revocation. |
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| 116. | Mode of payment of dividends or other monies |
| (a) | Except as otherwise provided by the rights attached to shares, all dividends shall be declared and paid according to the amounts paid up on the shares on which the dividend is paid. Subject as aforesaid, all dividends shall be apportioned and paid proportionately to the amounts paid or credited as paid on the shares during any portion or portions of the period in respect of which the dividend is paid such that shares of the same class shall rank equally irrespective of the premium credited as paid up on such shares; but if any share is issued on terms providing that it shall rank for dividend as from a particular date, such share shall rank for dividend accordingly. For the purposes of this Article, no amount paid on a share in advance of calls shall be treated as paid on a share. |
| (b) | If several persons are registered as joint Holders of any share, any one of them may give effectual receipts for any dividend or other moneys payable on or in respect of the share. |
| (c) | Without limiting any other method of payment which the Company may adopt, the Directors may decide that payment can be made wholly or partly by such arrangements to enable a Central Securities Depository (or its nominee(s) or any such other member or members as the Directors shall from time to time determine to receive the relevant dividends in any currency or currencies other than the currency in which such dividends are declared. For the purposes of the calculation of the amount receivable in respect of any dividend, the rate of exchange to be used to determine the equivalent in any such other currency of any sum payable as a dividend shall be such rate or rates, and the payment thereof shall be on such terms and conditions, as the Directors may in their absolute discretion determine. |
| 117. | Deductions from dividends |
The Directors may deduct from any dividend or other moneys payable to any member in respect of a share any moneys presently payable by him to the Company in respect of that share.
| 118. | Dividends in specie |
A general meeting 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.
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| 119. | Dividend payment mechanism |
| (a) | Any dividend, distribution or other money payable in respect of any share or redemption thereof may be paid by cheque or warrant sent by post, at the risk of the person or persons entitled thereto, to the registered Address of the Holder or, where there are joint Holders, to the registered Address of that one of the joint Holders who is first named on the Register or to such person and to such Address as the Holder or joint Holders may in writing direct. Every such cheque or warrant shall be made payable to the order of the person to whom it is sent and payment of the cheque or warrant shall be a good discharge to the Company. Any joint Holder or other person jointly entitled to a share as aforesaid may give receipts for any dividend or other moneys payable in respect of the share. Any such dividend, distribution or other money may also be paid by any other method (including payment in a currency other than US Dollars, electronic form (including electronic funds transfer, blockchain or other electronic media) direct debit, inter-bank transfer payment or by means of the Securities Settlement System) which the Directors, in their absolute discretion, consider appropriate or by such other means approved by the Directors directly to an account (of a type approved by the Directors) nominated in writing by the holder or the joint holders and any member who elects for such method of payment shall be deemed to have accepted all of the risks inherent therein. Different methods of payment may apply to different Holders or groups of Holders. The debiting of the Company’s account in respect of the relevant amount shall be evidence of good discharge of the Company’s obligations in respect of any payment made by any such methods. |
| (b) | In respect of shares in uncertificated form, where the Company is authorized to do so by or on behalf of the holder or joint holders in such manner as the Company shall from time to time consider sufficient, the Company may also pay any such dividend, interest or other moneys by means of the Securities Settlement System concerned (subject always to the facilities and requirements of the Securities Settlement System). Every such payment made by means of the securities settlement system shall be made in such manner as may be consistent with the facilities and requirements of the Securities Settlement System concerned. Without prejudice to the generality of the foregoing, in respect of shares in uncertificated form, such payment may include the sending by the Company or by any person on its behalf of an instruction to the operator of the Securities Settlement System to credit the cash memorandum account of the holder or joint holders. |
| 120. | Dividends not to bear interest |
No dividend or other moneys payable in respect of a share shall bear interest against the Company unless otherwise provided by the rights attached to the share.
| 121. | Payment to Holders on a particular date |
Any resolution declaring a dividend on shares of any class, whether a resolution of the Company in general meeting or a resolution of the Directors, may specify that the same may be payable to the persons registered as the Holders of such shares at the close of business on a particular date, notwithstanding that it may be a date prior to that on which the resolution is passed, and thereupon the dividend shall be payable to them in accordance with their respective holdings so registered, but without prejudice to the rights inter se of transferors and transferees of any such shares in respect of such dividend. The provisions of this Article shall apply, mutatis mutandis, to capitalisations to be effected in pursuance of these Articles. Any dividend, interest or other sum payable which remains unclaimed for one year after having been declared may be invested or otherwise made use of by the Directors for the benefit of the Company until claimed.
| 122. | Unclaimed dividends |
If the Directors so resolve, any dividend which has remained unclaimed for twelve years from the date of its declaration shall be forfeited and cease to remain owing by the Company. The payment by the Directors of any unclaimed dividend or other moneys payable in respect of a share into a separate account shall not constitute the Company a trustee in respect thereof.
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| 123. | Reserves |
Before recommending any dividend, whether preferential or otherwise, the Directors may carry to reserve out of the profits of the Company such sums as they think proper. All sums standing to reserve may be applied from time to time in the discretion of the Directors for any purpose to which the profits of the Company may be properly applied and at the like discretion may be either employed in the business of the Company or invested in such investments as the Directors may lawfully determine. The Directors may divide the reserve into such special funds as they think fit and may consolidate into one fund any special funds or any parts of any special funds into which the reserve may have been divided as they may lawfully determine. Any sum which the Directors may carry to reserve out of the unrealised profits of the Company shall not be mixed with any reserve to which profits available for distribution have been carried. The Directors may also carry forward, without placing the same to reserve, any profits which they may think it prudent not to divide.
PART XXI – ACCOUNTS
| 124. | Accounts |
| (a) | The Directors shall, in accordance with Chapter 2 of Part 6 of the Act, cause to be kept adequate accounting records, whether in the form of documents, electronic form or otherwise, that: |
| (i) | correctly record and explain the transactions of the Company; |
| (ii) | will at any time enable the assets, liabilities, financial position and profit or loss of the Company to be determined with reasonable accuracy; |
| (iii) | will enable the Directors to ensure that any financial statements of the Company complies with the requirements of the Acts; and |
| (iv) | will enable the financial statements of the Company to be readily and properly audited. |
| (b) | The accounting records shall be kept on a continuous and consistent basis and entries therein shall be made in a timely manner and be consistent from year to year. Adequate accounting records shall be deemed to have been maintained if they comply with the provisions of Chapter 2 of Part 6 of the Act and explain the Company’s transactions and facilitate the preparation of financial statements that give a true and fair view of the assets, liabilities, financial position and profit or loss of the Company and, if relevant, the group and include any information and returns referred to in Section 283(2) of the Act. |
| (c) | The accounting records shall be kept at the Office or, subject to the provisions of the Act, at such other place as the Directors think fit and shall be open at all reasonable times to the inspection of the Directors. |
| (d) | The Directors shall determine from time to time whether and to what extent and at what times and places and under what conditions or regulations the accounting records of the Company shall be open to the inspection of members, not being Directors. No member (not being a Director) shall have any right of inspecting any financial statement or accounting records of the Company except as conferred by the Acts or authorised by the Directors or by the Company in general meeting. |
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| (e) | In accordance with the provisions of the Acts, the Directors shall cause to be prepared and to be laid before the annual general meeting of the Company from time to time such statutory financial statements of the Company and reports as are required by the Acts to be prepared and laid before such meeting. |
| (f) | A copy of the statutory financial statements of the Company (including every document required by law to be annexed thereto) which is to be laid before the annual general meeting of the Company together with a copy of the Directors’ report and Auditors’ report, or, summary financial statements prepared in accordance with Section 1119 of the Act, shall be sent by post, electronic mail or any other means of electronic communication, not less than twenty-one Clear Days before the date of the annual general meeting, to every person entitled under the provisions of the Acts to receive them, provided that where the directors elect to send summary financial statements to the members, any member may request that he be sent a copy of the statutory financial statements of the Company. The Company may, in addition to sending one or more copies of its statutory financial statements, summary financial statements or other communications to its members, send one or more copies to any Approved Nominee. For the purposes of this Article, sending by electronic communications includes the making available or displaying on the Company’s website (or a website designated by the Board) and each member is deemed to have irrevocably consented to receipt of every statutory financial statement of the Company (including every document required by law to be annexed thereto) and every copy of the Directors’ report and the Auditors’ report and every copy of any summary financial statements prepared in accordance with section 1119 of the Act, by any such document being made so available or displayed. |
| (g) | Auditors shall be appointed and their duties regulated in accordance with the Acts. |
PART XXII - CAPITALISATION OF PROFITS OR RESERVES
| 125. | Capitalisation of distributable profits and reserves |
| (a) | Without prejudice to any powers conferred on the Directors by these Articles, the Company in general meeting may resolve, upon the recommendation of the Directors, that any sum for the time being standing to the credit of any of the Company's reserves (including any capital redemption reserve fund, share premium account or any undenominated capital) or to the credit of the profit and loss account be capitalised and applied on behalf of the members who would have been entitled to receive that sum if it had been distributed by way of dividend and in the same proportions either in or towards paying up amounts for the time being unpaid on any shares held by them respectively, or in paying up in full unissued shares or debentures of the Company of a nominal amount equal to the sum capitalised (such shares or debentures to be allotted and distributed credited as fully paid up to and amongst such Holders in the proportions aforesaid) or partly in one way and partly in another, so, however, that the only purposes for which sums standing to the credit of any capital redemption reserve fund, share premium account or any undenominated capital shall be applied shall be those permitted by the Acts. |
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| (b) | The Directors may from time to time at their discretion, subject to the provisions of the Acts and, in particular, to their being duly authorised pursuant to Section 1021 of the Act, to allot the relevant shares, to offer to the Holders of Ordinary Shares the right to elect to receive in lieu of any dividend or proposed dividend or part thereof an allotment of additional Ordinary Shares credited as fully paid. In any such case the following provisions shall apply: |
| (i) | The basis of allotment shall be determined by the Directors so that, as nearly as may be considered convenient in the Directors’ absolute discretion, the value (calculated by reference to the average quotation) of the additional Ordinary Shares (excluding any fractional entitlement) to be allotted in lieu of any amount of dividend shall equal such amount. For such purpose the “average quotation” of an Ordinary Share shall be the average of the five amounts resulting from determining whichever of the following ((A), (B) or (C) specified below) in respect of Ordinary Shares shall be appropriate for each of the first five business days on which Ordinary Shares are quoted “ex” the relevant dividend and as determined from the information published by the Stock Exchange reporting the business done on each of these five business days: |
| (A) | if there shall be more than one dealing reported for the day, the average of the prices at which such dealings took place; or |
| (B) | if there shall be only one dealing reported for the day, the price at which such dealing took place; or |
| (C) | if there shall not be any dealing reported for the day, the average of the closing bid and offer prices for the day; |
and if there shall be only a bid (but not an offer) or an offer (but not a bid) price reported, or if there shall not be any bid or offer price reported, for any particular day then that day shall not count as one of the said five business days for the purposes of determining the average quotation. If the means of providing the foregoing information as to dealings and prices by reference to which the average quotation is to be determined is altered or is replaced by some other means, then the average quotation shall be determined on the basis of the equivalent information published by the relevant authority in relation to dealings on the Stock Exchange or its equivalent.
| (ii) | The Directors shall give notice in writing (whether in electronic form or otherwise) to the Holders of Ordinary Shares of the right of election offered to them and shall send with or following such notice forms of election and specify the procedure to be followed and the place at which, and the latest date and time by which, duly completed forms of election must be lodged in order to be effective. The Directors may also issue forms under which Holders may elect in advance to receive new Ordinary Shares instead of dividends in respect of future dividends not yet declared (and, therefore, in respect of which the basis of allotment shall not yet have been determined). |
| (iii) | The dividend (or that part of the dividend in respect of which a right of election has been offered) shall not be payable on Ordinary Shares in respect of which the right of election as aforesaid has been duly exercised (the “Subject Ordinary Shares”) and in lieu thereof additional Ordinary Shares (but not any fraction of a share) shall be allotted to the Holders of the Subject Ordinary Shares on the basis of allotment determined aforesaid and for such purpose the Directors shall capitalise, out of such of the sums standing to the credit of any of the Company’s reserves (including any capital redemption reserve fund, share premium account or any undenominated capital) or to the credit of the profit and loss account as the Directors may determine, a sum equal to the aggregate nominal amount of additional Ordinary Shares to be allotted on such basis and apply the same in paying up in full the appropriate number of unissued Ordinary Shares for allotment and distribution to and amongst the holders of the Subject Ordinary Shares on such basis. |
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| (c) | The additional Ordinary Shares so allotted shall rank pari passu in all respects with the fully paid Ordinary Shares then in issue save only as regards participation in the relevant dividend or share election in lieu. |
| (d) | The Directors may do all acts and things considered necessary or expedient to give effect to any such capitalisation with full power to the Directors to make such provisions as they think fit where shares would otherwise have been distributable in fractions (including provisions whereby, in whole or in part, fractional entitlements are disregarded and the benefit of fractional entitlements accrues to the Company rather than to the holders concerned). The Directors may authorise any person to enter on behalf of all the Holders interested into an agreement with the Company providing for such capitalisation and matters incidental thereto and any agreement made under such authority shall be effective and binding on all concerned. |
| (e) | The Directors may on any occasion determine that rights of election shall not be offered to any Holders of Ordinary Shares who are citizens or residents of any territory where the making or publication of an offer of rights of election or any exercise of rights of election or any purported acceptance of the same would or might be unlawful, and in such event the provisions aforesaid shall be read and construed subject to such determination. |
| 126. | Capitalisation of non-distributable profits and reserves |
Without prejudice to any powers conferred on the Directors as aforesaid, the Directors may resolve to capitalise any part of the amount for the time being standing to the credit of any of the Company’s reserve accounts or to the credit of the profit and loss account which is not available for distribution by applying such sum in paying up in full unissued shares to be allotted as fully paid bonus shares to those members of the Company who would have been entitled to that sum if it were distributable and had been distributed by way of dividend (and in the same proportions). Any capitalisation provided for in this Article 126 will not require approval or ratification by the members.
| 127. | Implementation of capitalisation issues |
Whenever such a resolution is passed in pursuance of either of the two immediately preceding Articles the Directors shall make all appropriations and applications of the undivided profits resolved to be capitalised thereby and all allotments and issues of fully paid shares or debentures, if any, and generally shall do all acts and things required to give effect thereto, with full power to make such provisions as they shall think fit for the case of shares or debentures becoming distributable in fractions (and, in particular, without prejudice to the generality of the foregoing, either to disregard such fractions or to sell the shares or debentures represented by such fractions and distribute the net proceeds of such sale to and for the benefit of the Company or to and for the benefit of the members otherwise entitled to such fractions in due proportions) and to authorise any person to enter on behalf of all the members concerned into an agreement with the Company providing for the allotment to them respectively, credited as fully paid up, of any further shares or debentures to which they may become entitled on such capitalisation or, as the case may require, for the payment up by the application thereto of their respective proportions of the profits resolved to be capitalised of the amounts remaining unpaid on their existing shares and any agreement made under such authority shall be binding on all such members.
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| 128. | Surplus on revaluation of fixed assets |
Where the Directors have resolved to approve a bona fide revaluation of all the fixed assets of the Company, the net capital surplus in excess of the previous book value of the assets arising from such revaluation may be: (a) credited by the Directors to undenominated capital, other than the share premium account; or (b) used in paying up unissued shares of the Company to be issued to members as fully paid bonus shares.
PART XXIII – NOTICES
| 129. | Notices in writing |
Any notice to be given, served or delivered pursuant to these Articles shall be in writing (whether in electronic form or otherwise).
| 130. | Service of notices |
| (a) | A notice or document (including a share certificate) to be given, served or delivered in pursuance of these Articles may be given to, served on or delivered to any member by the Company: |
| (i) | by handing same to him or his authorised agent; |
| (ii) | by leaving the same at his registered Address; |
| (iii) | by sending the same by the post in a pre-paid cover addressed to him at his registered Address; |
| (iv) | by sending, with the consent of the member, the same by means of electronic mail or other means of electronic communication approved by the Directors, with the consent of the member, to the Address of the member notified to the Company by the member for such purpose (or if not so notified, then to the Address of the member last known to the Company); or |
| (v) | by sending the same via the messaging system of a Securities Settlement System as may be approved by the Directors. |
| (b) | Where a notice or document is given, served or delivered pursuant to sub- paragraph (a)(i) or (ii) of this Article, the giving, service or delivery thereof shall be deemed to have been effected at the time the same was handed to the member or his authorised agent, or left at his registered Address (as the case may be). |
| (c) | Where a notice or document is given, served or delivered pursuant to sub-paragraph (a)(iii) of this Article, the giving, service or delivery thereof shall be deemed to have been effected at the expiration of twenty-four hours after the cover containing it was posted. In proving service or delivery it shall be sufficient to prove that such cover was properly addressed, stamped and posted. |
| (d) | Where a notice or document is given, served or delivered pursuant to sub-paragraph (a)(iv) of this Article, the giving, service or delivery thereof shall be deemed to have been effected at the expiration of 48 hours after despatch. |
| (e) | Every legal personal representative, committee, receiver, curator bonis or other legal curator, assignee in bankruptcy, examiner or liquidator of a member shall be bound by a notice given as aforesaid if sent to the last registered Address of such member, or, in the event of notice given or delivered pursuant to sub-paragraph (a)(iv), if sent to the Address notified by the Company by the member for such purpose notwithstanding that the Company may have notice of the death, lunacy, bankruptcy, liquidation or disability of such member. |
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| (f) | Without prejudice to the provisions of sub-paragraphs (a)(i) and (ii) of this Article, if at any time by reason of the suspension or curtailment of postal services within the State, the Company is unable effectively to convene a general meeting by notices sent through the post, a general meeting may be convened by a notice issued through an RIS and such notice shall be deemed to have been duly served on all members entitled thereto at noon on the day on which the said advertisement or advertisements shall appear. In any such case the Company shall put a full copy of the notice of the general meeting on its website and shall send confirmatory copies of the notice through the post to those members whose registered Addresses are outside the State (if or to the extent that in the opinion of the Directors it is practical so to do) or are in areas of the State unaffected by such suspension or curtailment of postal services and if at least ninety-six hours prior to the time appointed for the holding of the meeting the posting of notices to members in the State, or any part thereof which was previously affected, has become practical in the opinion of the Directors, the Directors shall send forthwith confirmatory copies of the notice by post to such members. The accidental omission to give any such confirmatory copy of a notice of a meeting to, or the non-receipt of any such confirmatory copy by, any person entitled to receive the same shall not invalidate the proceedings at the meeting. |
| (g) | Notwithstanding anything contained in this Article the Company shall not be obliged to take account of or make any investigations as to the existence of any suspension or curtailment of postal services within or in relation to all or any part of any jurisdiction or other area other than the State. |
| (h) | Any requirement in these Articles for the consent of a member in regard to the receipt by such member of electronic mail or other means of electronic communications approved by the Directors, including the receipt of the Company's audited accounts and the directors' and auditor's reports thereon, shall be deemed to have been satisfied where the Company has written to the member informing him/her of its intention to use electronic communications for such purposes and the member has not, within 4 weeks of the issue of such notice, served an objection in writing on the Company to such proposal. Where a member has given, or is deemed to have given, his/her consent to the receipt by such member of electronic mail or other means of electronic communications approved by the Directors, he/she may revoke such consent at any time by requesting the Company to communicate with him/her in documented form, provided, however that such revocation shall not take effect until 5 days after written notice of the revocation is received by the Company. Notwithstanding anything to the contrary in this Article 130, no such consent shall be necessary, and to the extent it is necessary, such consent shall be deemed to have been given, if electronic communications are permitted to be used under the rules and regulations of any Stock Exchange on which the shares in the capital of the Company or other securities of the Company are listed. |
| 131. | Service on joint Holders |
A notice may be given by the Company to the joint Holders of a share by giving the notice to the joint Holder whose name stands first in the Register in respect of the share and notice so given shall be sufficient notice to all the joint Holders.
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| 132. | Service on transfer or transmission of shares |
| (a) | Every person who becomes entitled to a share shall before his name is entered in the Register in respect of the share, be bound by any notice in respect of that share which has been duly given to a person from whom he derives his title provided that the provisions of this paragraph shall not apply to any notice served under Article 74 unless, under the provisions of Article 74(b), it is a notice which continues to have effect notwithstanding the registration of a transfer of the shares to which it relates. |
| (b) | Without prejudice to the provisions of these Articles allowing a meeting to be convened by a notice issued through a RIS, a notice may be given by the Company to the persons entitled to a share in consequence of the death or bankruptcy of a member by sending or delivering it, in any manner authorised by these Articles for the giving of notice to a member, addressed to them at the Address, if any, supplied by them for that purpose. Until such an Address has been supplied, a notice may be given in any manner in which it might have been given if the death or bankruptcy had not occurred. |
| 133. | Signature to notices |
The signature (whether electronic signature, an advanced electronic signature or otherwise) to any notice to be given by the Company may be written (in electronic form or otherwise) or printed.
| 134. | Deemed receipt of notices |
A member present, either in person or by proxy, at any meeting of the Company or the Holders of any class of shares in the Company shall be deemed to have received notice of the meeting and, where requisite, of the purposes for which it was called.
| 135. | Service of Notice on the Company |
In addition to the means of service of documents set out in section 51 of the Act, a notice or other document may be served on the Company by an officer of the Company by email provided, however, that the Directors have designated an email address for that purpose and notified that email address to its officers for the express purpose of serving notices on the Company.
PART XXIV - WINDING UP
| 136. | Distribution on winding up |
| (a) | If the Company shall be wound up and the assets available for distribution among the members as such shall be insufficient to repay the whole of the paid up or credited as paid up share capital, such assets shall be distributed so that, as nearly as may be, the losses shall be borne by the members in proportion to the capital paid up or credited as paid up at the commencement of the winding up on the shares held by them respectively. If in a winding up the assets available for distribution among the members shall be more than sufficient to repay the whole of the share capital paid up or credited as paid up at the commencement of the winding up, the excess shall be distributed among the members in proportion to the capital at the commencement of the winding up paid up or credited as paid up on the said shares held by them respectively. Provided that this Article shall not affect the rights of the Holders of shares issued upon special terms and conditions. |
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| (b) | Unless the conditions of issue of the shares in question provide otherwise, dividends declared by the Company more than six years preceding the commencement date of a winding up of the Company, being dividends which have not been claimed within that period of six years, shall not be a claim admissible to proof against the Company for the purposes of the winding up. |
| 137. | Sale by a liquidator |
| (a) | In case of a sale by the liquidator under Section 601 of the Act, the liquidator may by the contract of sale agree so as to bind all the members for the allotment to the members direct of the proceeds of sale in proportion to their respective interests in the Company and may further by the contract limit a time at the expiration of which obligations or shares not accepted or required to be sold shall be deemed to have been irrevocably refused and be at the disposal of the Company, but so that nothing herein contained shall be taken to diminish, prejudice or affect the rights of dissenting members conferred by the said Section. |
| (b) | The power of sale of the liquidator shall include a power to sell wholly or partially for debentures, debenture stock, or other obligations of another company, either then already constituted or about to be constituted for the purpose of carrying out the sale. |
| 138. | Distribution in specie |
If the Company is wound up, the liquidator, with the sanction of a special resolution of the Company and any other sanction required by the Acts, may divide among the members in specie or kind the whole or any part of the assets of the Company (whether they shall consist of property of the same kind or not), and, for such purpose, may value any assets and determine how the division shall be carried out as between the members or different classes of members. The liquidator, with the like sanction, may vest the whole or any part of such assets in trustees upon such trusts for the benefit of the contributories as, with the like sanction, he determines, but so that no member shall be compelled to accept any assets upon which there is a liability.
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PART XXV – BUSINESS TRANSACTIONS
| 139. | Restrictions on Business Transactions |
| (a) | In addition to any affirmative vote or consent required by law or these Articles and except as otherwise expressly provided in Article 139(b), a Business Transaction (as defined in Article 140(a)(iii)) with, or proposed by or on behalf of, any Interested Person (as defined in Article 140(a)(vi)) or any Affiliate (as defined in Article 140(a)(i)) of any Interested Person or any person who thereafter would be an Affiliate of such Interested Person shall require approval by the affirmative vote of members of the Company holding not less than two-thirds (2/3) of the paid up ordinary share capital of the Company, excluding the voting rights attached to any shares beneficially owned by such Interested Person. Such affirmative vote shall be required notwithstanding the fact that no vote may be required, or that a lesser percentage may be specified, by law or in any agreement with any Stock Exchange or otherwise. |
| (b) | The provisions of Article 139 shall not be applicable to any particular Business Transaction if either: |
| (i) | the Business Transaction shall have been approved by a majority of the Board prior to such Interested Person first becoming an Interested Person; or |
| (ii) | prior to such Interested Person first becoming an Interested Person, a majority of the Board shall have approved such Interested Person becoming an Interested Person and, subsequently, a majority of the Independent Directors (as hereinafter defined) shall have approved the Business Transaction. |
| (c) | Where the provisions of Article 139 are not be applicable to a Business Transaction, such Business Transaction shall require only such affirmative vote, if any, as is required by law or by any other provision of these Articles, or any agreement with any Stock Exchange. |
| 140. | Definitions applicable to Business Transactions |
| (a) | The following definitions shall apply with respect to Articles 139 to 141: |
| (i) | The term “Affiliate” shall mean a person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, a specified person. |
| (ii) | A person shall be a “beneficial owner” of any shares of the Company: |
| (A) | which such person or any of its Affiliates beneficially owns, directly or indirectly; |
| (B) | which such person or any of its Affiliates has, directly or indirectly, |
| (I) | the right to acquire (whether such right is exercisable immediately or subject only to the passage of time or the occurrence of one or more events), pursuant to any agreement, arrangement or understanding or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise, or |
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| (II) | the right to vote pursuant to any agreement, arrangement or understanding; provided, however, that a person shall not be deemed the beneficial owner of any security if the agreement, arrangement or understanding to vote such security arises solely from a revocable proxy or consent solicitation made pursuant to and in accordance with the Act; or |
| (C) | which is beneficially owned, directly or indirectly, by any other person with which such person or any of its Affiliates has any agreement, arrangement or understanding for the purpose of acquiring, holding, voting or disposing of any shares of the Company (except to the extent permitted by the proviso of clause (b)(ii) above). |
| (iii) | The term “Business Transaction” shall mean any of the following transactions when entered into by the Company or a subsidiary of the Company with, or upon a proposal by or on behalf of, any Interested Person or any Affiliate of any Interested Person: |
| (A) | any merger or consolidation of the Company or any subsidiary with (i) any Interested Person, or (ii) any other body corporate which is, or after such merger or consolidation would be, an Affiliate of an Interested Person; |
| (B) | any sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of transactions), except proportionately as a member of the Company, to or with the Interested Person of assets of the Company (other than shares of the Company or of any subsidiary of the Company which assets have an aggregate market value equal to ten percent (10%) or more of the aggregate market value of all the issued share capital of the Company); |
| (C) | any transaction that results in the issuance of shares or the transfer of Treasury Shares by the Company or by any subsidiary of the Company of any shares of the Company or any shares of such subsidiary to the Interested Person, except: |
| (I) | pursuant to the exercise, exchange or conversion of securities exercisable for, exchangeable for or convertible into stock of the Company or any such subsidiary which securities were outstanding prior to the time that the Interested Person became such; |
| (II) | pursuant to a dividend or distribution paid or made, or the exercise, exchange or conversion of securities exercisable for, exchangeable for or convertible into shares of the Company or any such subsidiary which security is distributed, pro rata to all holders of a class or series of shares of the Company subsequent to the time the Interested Person became such; |
| (III) | pursuant to an exchange offer by the Company to purchase shares made on the same terms to all holders of said shares; |
| (IV) | any issuance of shares or transfer of Treasury Shares of the Company by the Company, provided, however, that in the case of each of Article 140(a)(iii)(C)(II) through 140(a)(iii)(C)(IV) above there shall be no increase of more than one percent (1%) in the Interested Person’s proportionate share in the shares of the Company of any class or series or pursuant to a public offering or private placement by the Company to an Institutional Investor; |
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| (D) | any reclassification of securities, recapitalization or other transaction involving the Company or any subsidiary of the Company which has the effect, directly or indirectly, of: |
| (I) | increasing the proportionate amount of the shares of any class or series, or securities convertible into the shares of any class or series, of the Company or of any such subsidiary which is owned by the Interested Person, except as a result of immaterial changes due to fractional share adjustments or as a result of any purchase or redemption of any shares not caused, directly or indirectly, by the Interested Person or; |
| (II) | increasing the voting power, whether or not then exercisable, of an Interested Person in any class or series of shares of the Company or any subsidiary of the Company; |
| (E) | the adoption of any plan or proposal by or on behalf of an Interested Person for the liquidation, dissolution or winding-up of the Company; or |
| (F) | any receipt by the Interested Person of the benefit, directly or indirectly (except proportionately as a member of the Company), of any loans, advances, guarantees, pledges, tax benefits or other financial benefits (other than those expressly permitted in subparagraphs (A) through (E) above) provided by or through the Company or any subsidiary thereof. |
| (iv) | The term “Independent Directors” shall mean the members of the Board who are not Affiliates or representatives of, or associated with, an Interested Person and who were either Directors prior to any person becoming an Interested Person or were recommended for election or elected to succeed such directors by a vote which includes the affirmative vote of a majority of the Independent Directors. |
| (v) | The term “Institutional Investor” shall mean a person that: |
| (A) | has acquired, or will acquire, all of its shares in the Company in the ordinary course of its business and not with the purpose nor with the effect of changing or influencing the control of the Company, nor in connection with or as a participant in any transaction having such purpose or effect, including any transaction subject to rule 13d-3(b) under the Exchange Act, and |
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| (B) | is a registered broker dealer; a bank as defined in section 3(a)(6) of the Exchange Act; an insurance company as defined in, or an investment company registered under, the Investment Company Act of 1940 of the United States; an investment advisor registered under the Investment Advisors Act of 1940 of the United States; an employee benefit plan or pension fund subject to the Employee Retirement Income Security Act of 1974 of the United States or an endowment fund; a parent holding company, provided that the aggregate amount held directly by the parent and directly and indirectly by its subsidiaries which are not persons specified in the foregoing subparagraphs of this Article 140(a)(v)(B) does not exceed one percent (1%) of the securities of the subject class; or a group, provided that all the members are persons specified in the foregoing subparagraphs of this Article 140(a)(v)(B). |
| (vi) | The term “Interested Person” shall mean any person (other than the Company, any subsidiary, any profit-sharing, employee share ownership or other employee benefit plan of the Company or any subsidiary or any trustee of or fiduciary with respect to any such plan when acting in such capacity) who; |
| (A) | is the beneficial owner of shares of the Company representing ten percent (10%) or more of the votes entitled to be cast by the holders of all the paid up share capital of the Company; |
| (B) | has stated in a filing with any governmental agency or press release or otherwise publicly disclosed a plan or intention to become or consider becoming the beneficial owner of shares of the Company representing ten percent (10%) or more of the votes entitled to be cast by the holders of all paid up share capital of the Company and has not expressly abandoned such plan, intention or consideration more than two years prior to the date in question; or |
| (C) | is an Affiliate of the Company and at any time within the two-year period immediately prior to the date in question was the beneficial owner of shares representing ten percent (10%) or more of the votes entitled to be cast by holders of all the paid up share capital of the Company. |
| (vii) | For the purposes of determining whether a person is an Interested Person pursuant to this Article, the number of shares of the Company deemed to be outstanding shall include shares deemed beneficially owned by such person through application of Article 140(a)(ii), but shall not include any other shares of the Company that may be issuable pursuant to any agreement, arrangement or understanding, or upon exercise of conversion rights, warrants or options, or otherwise. |
| (viii) | The term “person” shall mean any individual, body corporate, partnership, unincorporated association, trust or other entity. |
| (ix) | The term “subsidiary” is as defined in section 7 of the Act. |
| 141. | Miscellaneous provisions in respect of Business Transactions |
| (a) | A majority of the Independent Directors shall have the power and duty to determine, on the basis of information known to them after reasonable inquiry, for the purposes of (i) Articles 139, all questions arising under Articles 139 including, without limitation (a) whether a person is an Interested Person, (b) the number of shares of the Company or other securities beneficially owned by any person; and (c) whether a person is an Affiliate of another; and (ii) these Articles, the question of whether a person is an Interested Person. Any such determination made in good faith shall be binding and conclusive on all parties. |
| (b) | Nothing contained in Articles 139 to 141 shall be construed to relieve any Interested Person from any fiduciary obligation imposed by law. |
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PART XXVI – MISCELLANEOUS
| 142. | Shareholder Rights Plan |
| (a) | The Board is hereby expressly authorised to adopt any shareholder rights plan upon such terms and conditions as the Board deems expedient and in the best interests of the Company, subject to applicable law. |
| (b) | If in accordance with Rule 3.1 of the Takeover Rules, the Board considers it impossible to express a view on the merits of an offer to acquire control of the Company which is subject to pre-conditions (as contemplated by the Notes on Rule 13 of the Takeover Rules) or to give a firm recommendation for acceptance to shareholders, the Board shall: |
| (i) | convene a meeting of the shareholders for the purpose of proposing a resolution to disapply all of the restrictions in Rule 21.1 of the Takeover Rules during the offer period of such offer (the “Rule 21.1 EGM”); |
| (ii) | in advance of the voting record date for the Rule 21.1 EGM, allot and issue one Preferred Share of €0.01 in nominal value on the basis that such share shall: |
| (A) | be treated as paid up from the reserves of the Company to its nominal value; |
| (B) | be issued in the name of the Chair; |
| (C) | be voted (as a duty of the Chair) in favour of the resolution at the Rule 21.1 EGM; and |
| (D) | carrying such number of votes at the Rule 21.1 EGM as shall constitute a majority of the number of votes cast at such meeting. |
| (c) | The provisions of Article 142(b) shall expire unless renewed at the Company’s annual general meeting to be held in 2022. |
| 143. | Minutes of meetings |
The Directors shall cause minutes to be made of the following matters, namely:
| (a) | of all appointments of officers and committees made by the Directors and of their salary or remuneration; |
| (b) | of the names of Directors present at every meeting of the Directors and of the names of any Directors and of all other members thereof present at every meeting of any committee appointed by the Directors; and |
| (c) | of all resolutions and proceedings of all meetings of the Company and of the Holders of any class of shares in the Company and of the Directors and of committees appointed by the Directors. |
Any such minute as aforesaid, if purporting to be signed by the chair of the meeting at which the proceedings were had, or by the chair of the next succeeding meeting, shall be receivable as prima facie evidence of the matter stated in such minute without any further proof.
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| 144. | Inspection and secrecy |
The Directors shall determine from time to time whether and to what extent and at what times and places and under what conditions or regulations the accounts and books of the Company or any of them shall be open to the inspection of members, not being Directors, and no member (not being a Director) shall have any right of inspecting any account or book or document of the Company except as conferred by the Acts or authorised by the Directors or by the Company in general meeting. No member shall be entitled to require discovery of or any information respecting any detail of the Company’s trading, or any matter which is or may be in the nature of a trade secret, mystery of trade, or secret process which may relate to the conduct of the business of the Company and which in the opinion of the Directors it would be inexpedient in the interests of the members of the Company to communicate to the public.
| 145. | Destruction of records |
The Company shall be entitled to destroy all instruments of transfer which have been registered at any time after the expiration of six years from the date of registration thereof, all notifications of change of Address howsoever received at any time after the expiration of two years from the date of recording thereof and all share certificates and dividend mandates which have been cancelled or ceased to have effect at any time after the expiration of one year from the date of such cancellation or cessation. It shall be presumed conclusively in favour of the Company that every entry in the Register purporting to have been made on the basis of an instrument of transfer or other document so destroyed was duly and properly made and every instrument duly and properly registered and every share certificate so destroyed was a valid and effective document duly and properly cancelled and every other document hereinbefore mentioned so destroyed was a valid and effective document in accordance with the recorded particulars thereof in the books or records of the Company. Provided always that:
| (a) | the provision aforesaid shall apply only to the destruction of a document in good faith and without notice of any claim (regardless of the parties thereto) to which the document might be relevant; |
| (b) | nothing herein contained shall be construed as imposing upon the Company any liability in respect of the destruction of any document earlier than as aforesaid or in any other circumstances which would not attach to the Company in the absence of this Article; and |
| (c) | references herein to the destruction of any document include references to the disposal thereof in any manner. |
| 146. | Untraced shareholders |
| (a) | The Company shall be entitled to sell at the best price reasonably obtainable any share of a Holder or any share to which a person is entitled by transmission if and provided that: |
| (i) | for a period of twelve years no cheque or warrant sent by the Company through the post in a pre-paid letter addressed to the Holder or to the person entitled by transmission to the share at his Address on the Register or the other last known Address given by the Holder or the person entitled by transmission to which cheques and warrants are to be sent has been cashed and no communication has been received by the Company from the Holder or the person entitled by transmission (provided that during such twelve year period at least three dividends shall have become payable in respect of such share); |
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| (ii) | at the expiration of the said period of twelve years by advertisement in a national daily newspaper published in the State and in a newspaper circulating in the area in which the Address referred to in sub-paragraph (a)(i) of this Article is located the Company has given notice of its intention to sell such share; |
| (iii) | during the further period of three months after the date of the advertisement and prior to the exercise of the power of sale the Company has not received any communication from the Holder or person entitled by transmission; and |
| (iv) | if so required by the roles of any Stock Exchange upon which the shares in question are listed for the time being, notice has been given to that exchange of the Company’s intention to make such sale. |
| (b) | To give effect to any such sale the Company may appoint any person to execute as transferor an instrument of transfer of such share and such instrument of transfer shall be as effective as if it had been executed by the Holder or the person entitled by the transmission to such share. The transferee shall be entered in the Register as the Holder of the shares comprised in any such transfer and he shall not be bound to see to the application of the purchase moneys nor shall his title to the shares be affected by any irregularity in or invalidity of the proceedings in reference to the sale. |
| (c) | The Company shall account to the Holder or other person entitled to such share for the net proceeds of such sale by carrying all moneys in respect thereof to a separate account which shall be a permanent debt of the Company and the Company shall be deemed to be a debtor and not a trustee in respect thereof for such Holder or other person. Moneys carried to such separate account may be either employed in the business of the Company or invested in such investments as the Directors may think fit, from time to time. |
| (d) | Where a share, which is to be sold as provided in this Part XXVI, is held in uncertificated form, the Directors may authorise some person to do all that is necessary under the Regulations Governing Uncertificated Shares to change such share into certificated form prior to its sale under this Article 146. |
| 147. | Amendment to Memorandum or Articles |
Subject to the provisions of these Articles, the Company may by special resolution, and subject to the provisions of the Act (or as otherwise required or permitted by applicable law) alter or add to the Memorandum with respect to any objects, powers or other matters specified therein or alter or add to these Articles.
| 148. | Indemnity |
| (a) | Subject to the provisions of and so far as may be admitted by the Acts, every Director, Managing Director, Auditor, Company Secretary or other officer or employee of the Company and each person who is or was serving at the request of the Company as a director, officer or employee of another company, or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans maintained or sponsored by the Company (including the heirs, executors, administrators and estate of such person) shall be entitled to be indemnified by the Company against all costs, charges, losses, expenses and liabilities incurred by him in the execution and discharge of his duties or in relation thereto including any liability incurred by him in defending any proceedings, civil or criminal, which relate to anything done or omitted or alleged to have been done or omitted by him as a director, officer or employee of the Company or such other company, partnership, joint venture, trust or other enterprise and in which judgment is given in his favour (or the proceedings are otherwise disposed of without any finding or admission of any material breach of duty on his part) or in which he is acquitted or in connection with any application under any statute for relief from liability in respect of any such act or omission in which relief is granted to him by the Court. |
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| (b) | In the case of any threatened, pending or completed action, suit or proceeding by or in the right of the Company, the Company shall indemnify, to the fullest extent permitted by the Act, each person indicated in Article 148(a) against expenses, including attorneys’ fees actually and reasonably incurred in connection with the defence or the settlement thereof, except no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for fraud or dishonesty in the performance of his or her duty to the Company unless and only to the extent that the courts of Ireland or the court in which such action or suit was brought shall determine upon application that despite the adjudication of liability, but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses as the Court shall deem proper. |
| (c) | As far as permissible under the Act, expenses, including attorneys’ fees, incurred in defending any action, suit or proceeding referred to in this Article shall be paid by the Company in advance of the final disposition of such action, suit or proceeding upon receipt of a written affirmation by or on behalf of the Director, officer, employee or other indemnitee of a good faith belief that the criteria for indemnification have been satisfied and a written undertaking to repay such amount if it shall ultimately be determined that such Director, officer or employee or other indemnitee is not entitled to be indemnified by the Company as authorised by these Articles. |
| (d) | It being the policy of the Company that indemnification of the persons specified in this Article shall be made to the fullest extent permitted by law, the indemnification provided by this Article shall not be deemed exclusive of: |
| (i) | any other rights to which those seeking indemnification or advancement of expenses may be entitled under the Memorandum, these Articles, any agreement, any insurance purchased by the Company, any vote of members or disinterested Directors, or pursuant to the direction (however embodied) of any court of competent jurisdiction, or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding such office, or |
| (ii) | any amendments or replacements of the Act which permit for greater indemnification of the persons specified in this Article and any such amendment or replacement of the Act shall hereby be incorporated into these Articles. As used in this Article (d), references to the “Company” include all constituent companies in a consolidation or merger in which the Company or any predecessor to the Company by consolidation or merger was involved. The indemnification provided by this Article shall continue as to a person who has ceased to be a Director, officer or employee and shall inure to the benefit of the heirs, executors, and administrators of such Directors, officers, employees or other indemnitees. |
| (e) | The Directors shall have power to purchase and maintain for any Director, the Company Secretary or other officers or employees of the Company insurance against any such liability as referred to in section 235 of the Act. |
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| (f) | The Company may additionally indemnify any agent of the Company or any director, officer, employee or agent of any of its subsidiaries to the fullest extent provided by law, and purchase and maintain insurance for any such person as appropriate. |
| (g) | No person shall be personally liable to the Company or its members for monetary damages for breach of fiduciary duty as a Director, provided, however, that the foregoing shall not eliminate or limit the liability of a Director: |
| (i) | for any breach of the Director’s duty of loyalty or duty of care to the Company or its members; |
| (ii) | for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; or |
| (iii) | for any transaction from which the Director derived an improper personal benefit. |
| (iv) | If any applicable law or the relevant code, rules and regulations applicable to the listing of the Company’s shares on any Stock Exchange is amended hereafter to authorise corporate action further eliminating or limiting the personal liability of Directors, then the liability of a Director shall be eliminated or limited to the fullest extent permitted by the relevant law, as so amended. Any amendment, repeal or modification of this Article 148(g) shall not adversely affect any right or protection of a Director existing hereunder with respect to any act or omission occurring prior to such amendment, repeal or modification. |
| 149. | Governing law and Jurisdiction |
| (a) | This constitution and any dispute or claim arising out of or in connection with it or its subject matter, formation, existence, negotiation, validity, termination or enforceability (including non-contractual obligations, disputes or claims) will be governed by and construed in accordance with the laws of Ireland. |
| (b) | Subject to Article 149(c), the courts of Ireland are to have exclusive jurisdiction to settle any dispute arising out of or in connection with this constitution and, for such purposes, irrevocably submits to the exclusive jurisdiction of such courts. Any proceeding, suit or action arising out of or in connection with this Constitution (the “Proceedings”) will therefore be brought in the courts of Ireland. Each shareholder irrevocably waives any objection to Proceedings in the courts referred to in this Article on the grounds of venue or on the grounds of forum non conveniens. |
| (c) | Unless the Company consents in writing to the selection of an alternative forum, the federal district courts of the United States of America shall, to the fullest extent permitted by law, be the exclusive forum for the resolution of any complaint asserting a cause of action arising under the Exchange Act or the Securities Act of 1933 of the United States. Any person or entity purchasing or otherwise acquiring any interest in any security of the Company shall be deemed to have notice of and consented to this provision. |
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Exhibit 23.2
Consent of Independent Registered Public Accounting Firm
We consent to the use of our reports dated March 11, 2025, with respect to the consolidated financial statements of Dole plc, and the effectiveness of internal control over financial reporting, incorporated herein by reference and to the reference to our firm under the heading “Experts” in this Registration Statement.
/s/ KPMG
Dublin, Ireland
September 3, 2025