Ireland
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2834
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Not applicable
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(State or Other Jurisdiction of
Incorporation or Organization)
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(Primary Standard Industrial
Classification Code Number)
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(I.R.S. Employer
Identification Number)
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Deanna L. Kirkpatrick
Yasin Keshvargar
Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, New York 10017
Tel: (212) 450-4000
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Eavan Saunders
Shane O’Donnell
Dentons Ireland LLP
Joshua Dawson House
Dawson St
Dublin 2
D02 RY95
Ireland
Tel: +353 1 582 8100
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| |
Cian McCourt
Ailish Finnerty
Arthur Cox LLP
Ten Earlsfort Terrace
Dublin 2
D02 T380
Ireland
Tel: +353 1 920 1000
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Richard C. Segal
Eric Blanchard
Divakar Gupta
Cooley LLP
55 Hudson Yards
New York, NY 10001
Tel: (212) 479-6000
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Title Of Each Class
Of Securities To Be Registered
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| |
Amount to be
Registered(1)
|
| |
Proposed Maximum
Offering Price Per Share (2)
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| |
Proposed Maximum Aggregate Offering Price(1)(2)
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| |
Amount Of Registration Fee(3)
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Ordinary shares, nominal value $0.025 per share
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| |
9,583,333
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$16.00
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| |
$153,333,328
|
| |
$16,728.67
|
(1)
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Includes ordinary shares that the underwriters may purchase pursuant to the option to purchase additional shares, if any. See “Underwriting.”.
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(2)
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Estimated solely for the purpose of computing the amount of the registration fee pursuant to Rule 457(a) under the Securities Act of 1933, as amended.
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(3)
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$10,910 of such fee was previously paid.
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PRELIMINARY PROSPECTUS
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SUBJECT TO COMPLETION, DATED JUNE 21, 2021
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Per Share
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Total
|
Public offering price
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$
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$
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Underwriting discounts and commissions(1)
|
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$
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| |
$
|
Proceeds, before expenses to GH Research PLC
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| |
$
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| |
$
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(1)
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See the section titled “Underwriting” for additional information regarding compensation payable to the underwriters. We have agreed to reimburse the underwriters for certain expenses in connection with the offering.
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Cowen
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Stifel
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Canaccord Genuity
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JMP Securities
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Page
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acute decreased functional connectivity within the relevant RSNs;
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subsequent reintegration and resumption of normal functional connectivity, or a “re-set”, of the relevant RSNs; and
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resolution of depressive thought patterns and improvement in other symptoms of mental disorders.
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the data from our completed clinical trial in healthy volunteers and ongoing clinical trial in patients with TRD;
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the design of our planned Phase 2b trial of GH001 in TRD;
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the current status and plans for our nonclinical studies;
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the current status and plans for the pharmaceutical manufacturing of our active pharmaceutical ingredient, or API, and GH001 drug product;
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the current status and plans for the device required to administer GH001; and
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any additional topics as requested by the regulatory agencies.
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A multi-center, randomized, controlled Phase 2b trial evaluating safety and efficacy in TRD patients, including a long-term, open-label follow-up study;
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Phase 2a trials evaluating safety and efficacy in two or more additional psychiatric or neurological disorders; and
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A clinical pharmacology trial in healthy volunteers, designed to further elucidate the pharmacokinetic profile of GH001.
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advancing GH001, our inhalable 5-MeO-DMT product candidate, for the treatment of TRD through clinical development, regulatory approval and commercialization, if approved;
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advancing GH001 into clinical development in additional psychiatric and neurological disorders beyond TRD;
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advancing GH002, our injectable 5-MeO-DMT product candidate, into clinical development;
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investigating additional delivery systems and additional routes of administration for 5-MeO-DMT;
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expanding our intellectual property portfolio around 5-MeO-DMT; and
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maximizing the value of our product portfolio by building internal commercialization infrastructure and entering selective partnerships.
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We are a clinical-stage biopharmaceutical company and we have incurred significant losses since our inception. We expect that we will continue to incur significant losses for the foreseeable future;
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We will need substantial additional funding, which may not be available on acceptable terms, or at all. If we are unable to raise capital when needed, we could be forced to delay, reduce or eliminate our product discovery and development programs or commercialization efforts;
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Drug and drug-device combination product development is a highly uncertain undertaking and involves a substantial degree of risk;
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GH001 and GH002 are investigational 5-MeO-DMT therapies based on a novel technology, which makes it difficult to predict the time and cost of development and of subsequently obtaining regulatory approval. To our knowledge, no such therapies have been approved in the United States nor the European Union for commercialization;
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Clinical development involves a lengthy, complex and expensive process, with an uncertain outcome. The outcome of nonclinical testing and early clinical trials may not be predictive of the success of later clinical trials, and the results of our clinical trials, which to date have only been conducted in the Netherlands, may not satisfy the requirements of the FDA, EMA or other comparable foreign regulatory authorities;
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Our product candidates may cause undesirable side effects or have other properties that could delay or prevent their regulatory approval, limit their commercial potential or result in significant negative consequences following regulatory approval, if obtained;
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GH001 and GH002, and any future product candidates we may develop, are subject to controlled substance laws and regulations in the territories where the product will be marketed, such as the United States, the European Union, the United Kingdom and the rest of Europe, as well as the UN international drug control treaties, and failure to comply with these laws and regulations, or the cost of compliance with these laws and regulations, may adversely affect the results of our business operations, both during clinical development and post-approval, and our financial condition. In addition, during the review process of GH001 and GH002, and prior to approval, the FDA, EMA and/or other comparable foreign regulatory authorities may require additional data, including with respect to whether GH001 or GH002 has abuse potential. This may delay approval and any potential rescheduling process;
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5-MeO-DMT is currently classified as a Schedule I drug in the United States and any product containing this substance, such as GH001 and GH002, must be rescheduled to be marketed. There can be no assurance that the Drug Enforcement Administration, or DEA will make a favorable scheduling decision. Even assuming categorization as a Schedule II or lower controlled substance (i.e., Schedule III, IV or V) at the federal level, such substances would also require scheduling determinations under state laws and regulations;
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The potential reclassification of 5-MeO-DMT in the United States could create additional regulatory burdens on our operations and negatively affect our results of operations;
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Our commercial success depends upon attaining significant market acceptance of our product candidates, if approved, among physicians, patients, third-party payors and other members of the medical community;
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We currently have no marketing and sales organization and have no experience as a company in commercializing products, and we may have to invest significant resources to develop these capabilities. If we are unable to establish marketing and sales capabilities or enter into agreements with third parties to market and sell our product candidates, if approved, we may not be able to generate product revenue;
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Our business and commercialization strategy depends on our ability to identify, qualify, prepare, certify, and support third-party clinics or treatment centers offering any of our product candidates, if approved. If we are unable to do so, our commercialization prospects would be limited and our business, financial condition, and results of operations would be harmed.
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We rely on applications for patents and other intellectual property rights to protect our GH001 and GH002 product candidates, the prosecution, enforcement, defense and maintenance of which may be challenging and costly. Failure to adequately prosecute, maintain, enforce or protect these rights could harm our ability to compete and impair our business;
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We rely on third parties to assist in conducting our nonclinical studies and clinical trials. If they do not perform satisfactorily, we may not be able to initiate new clinical trials, successfully complete clinical trials, obtain regulatory approval or commercialize our product candidates, or such approval or commercialization may be delayed, and our business could be substantially harmed;
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The development and manufacture of our active pharmaceutical ingredients, product candidates and medical devices required to deliver such product candidates is complex, and we may encounter difficulties during further development or in production. We currently rely completely on third parties to develop, formulate and manufacture our nonclinical study and clinical trial supplies. The development and commercialization of any of our active pharmaceutical ingredients, product candidates and medical devices required to deliver such product candidates could be stopped, delayed or made less profitable if those third parties fail to provide us with sufficient quantities of such drug supplies or fail to do so at acceptable quality levels, including in accordance with rigorously enforced regulatory requirements or contractual obligations, and our operations could be harmed as a result;
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A pandemic, epidemic or outbreak of an infectious disease in Ireland or worldwide may adversely affect our business;
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We depend heavily on our executive officers, principal consultants and others, and the loss of their services would materially harm our business; and
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We have identified material weaknesses in our internal control over financial reporting in connection with the audit of our financial statements for the years ended December 31, 2019 and 2020, and we may identify additional material weaknesses. If our remediation of these material weaknesses is not effective, or if we experience additional material weaknesses or otherwise fail to maintain an effective system of internal controls in the future, our ability to accurately or timely report our financial condition or results of operations may be adversely affected.
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an option to present only two years of audited financial statements in addition to any required interim financial statements and correspondingly specified reduced Management’s Discussion and Analysis of Financial Condition and Results of Operations disclosure in this prospectus; and
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an exemption from the auditor attestation requirement in the assessment of our internal control over financial reporting pursuant to the Sarbanes-Oxley Act of 2002, or the Sarbanes-Oxley Act. See “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Emerging Growth Company Status.”
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the sections of the Exchange Act regulating the solicitation of proxies, consents or authorizations with respect to a security registered under the Exchange Act;
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the requirement to comply with Regulation FD, which requires selective disclosure of material information;
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the sections of the Exchange Act requiring insiders to file public reports of their share ownership and trading activities and liability for insiders who profit from trades made in a short period of time; and
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the rules under the Exchange Act requiring the filing with the SEC of quarterly reports on Form 10-Q containing unaudited financial and other specified information, or current reports on Form 8-K upon the occurrence of specified significant events.
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•
|
to fund clinical trials, and other activities to support the development of our product candidate GH001 through completion of all ongoing trials, the planned Phase 2a trials in at least two new indications and the planned multi-center, randomized, controlled Phase 2b trial in TRD;
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•
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to fund clinical trials with our product candidate GH002 and one additional potential product candidate through completion of Phase 2a trials;
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•
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to fund the technical development of our active pharmaceutical ingredients, product candidates, and the medical devices used for the administration of our product candidates, as well as the expansion of our external manufacturing capabilities, and to fund the nonclinical development activities related to our product candidates; and
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•
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the remainder to fund general and administrative expenses, working capital and other general corporate purposes, including business development activities.
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■
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1,202,734 ordinary shares that will be made available for future issuance under our Share Option Plan, which will become effective in connection with this offering; and
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■
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50,487 ordinary shares issuable upon the exercise of options to purchase our ordinary shares granted on June 4, 2021, with an exercise price of $12.32 per share.
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■
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the valid adoption of our amended and restated constitution, or the Constitution, prior to the completion of this offering;
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■
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the Share Consolidation to be effected immediately and conditional upon the SEC declaring this registration statement effective;
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■
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an initial public offering price of $15.00 per share, which is the midpoint of the price range set forth on the cover page of this prospectus;
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■
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no exercise by the underwriters of their option to purchase up to 1,250,000 additional ordinary shares in this offering; and
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■
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no exercise of outstanding options.
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Three Months Ended
March 31,
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| |
Year Ended
December 31
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||||||
|
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2021
|
| |
2020
|
| |
2020
|
| |
2019
|
|
| |
(in USD thousands, except share
and per share data)
|
|||||||||
Income Statement Data:
|
| |
|
| |
|
| |
|
| |
|
Operating Expenses:
|
| |
|
| |
|
| |
|
| |
|
Research and development
|
| |
$(692)
|
| |
$(11)
|
| |
$(338)
|
| |
$(296)
|
General and administrative
|
| |
(448)
|
| |
(8)
|
| |
(108)
|
| |
(14)
|
Loss from operations
|
| |
(1,140)
|
| |
(19)
|
| |
(446)
|
| |
(310)
|
Foreign currency translation
differences
|
| |
(9)
|
| |
—
|
| |
—
|
| |
—
|
Loss for the period
|
| |
$(1,149)
|
| |
$(19)
|
| |
$(446)
|
| |
$(310)
|
Basic and diluted loss per share
|
| |
(0.015)
|
| |
(0.000)
|
| |
(0.006)
|
| |
(0.004)
|
Weighted average number of shares outstanding - basic and diluted
|
| |
75,923,079
|
| |
70,000,000
|
| |
70,898,420
|
| |
70,000,000
|
Pro forma basic and diluted loss per share(1)
|
| |
(0.038)
|
| |
(0.001)
|
| |
(0.016)
|
| |
(0.011)
|
Pro forma weighted average ordinary shares outstanding - basic and diluted(1)
|
| |
30,369,232
|
| |
28,000,000
|
| |
28,359,368
|
| |
28,000,000
|
(1)
|
Pro forma basic and diluted loss per share and pro forma weighted average ordinary shares outstanding - basic and diluted gives effect to (i) our Corporate Reorganization and (ii) the Share Consolidation as if such transactions had occurred on January 1, 2019.
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|
| |
As of March 31, 2021
|
||||||
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| |
Actual
|
| |
Pro Forma(1)
|
| |
Pro Forma as
Adjusted(2)
|
|
| |
(in USD thousands)
|
||||||
Balance Sheet Data:
|
| |
|
| |
|
| |
|
Cash
|
| |
$4,576
|
| |
$123,404
|
| |
$236,154
|
Total assets
|
| |
5,556
|
| |
124,384
|
| |
237,134
|
Share capital
|
| |
871
|
| |
1,013
|
| |
1,221
|
Total equity
|
| |
$4,315
|
| |
$123,143
|
| |
$235,893
|
(1)
|
The pro forma information gives effect to (i) the consummation of the Series B Financing and our receipt of net proceeds therefrom, (ii) our Corporate Reorganization and (iii) our Share Consolidation.
|
(2)
|
The pro forma as adjusted information gives further effect to the issuance and sale of 8,333,333 ordinary shares in this offering by us at an assumed initial public offering price of $15.00 per share, which is the midpoint of the price range set forth on the cover page of this prospectus, after deducting estimated underwriting discounts and commissions and estimated offering expenses payable by us, as set forth under “Use of Proceeds.” Each $1.00 increase or decrease in the assumed initial public offering price of $15.00 per share, which is the midpoint of the price range set forth on the cover page of this prospectus, would increase or decrease the pro forma as adjusted amount of each of cash, total assets and total equity by $7.8 million, assuming that the number of ordinary shares offered by us, as set forth on the cover page of this prospectus, remains the same, and after deducting estimated underwriting discounts and commissions and estimated offering expenses payable by us. An increase or decrease of 1,000,000 in the number of ordinary shares offered by us, as set forth on the cover page of this prospectus, would increase or decrease the pro forma as adjusted amount of each of cash, total assets and total equity by $14.0 million, assuming the assumed initial public offering price per share remains the same, and after deducting estimated underwriting discounts and commissions.
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■
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continue to develop and conduct clinical trials, including in expanded geographies such as the United States, for our GH001 and GH002 product candidates for our initial and potential additional indications;
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■
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continue both the technical development and expansion of our external manufacturing capabilities for our current product candidates GH001 and GH002 and of the medical devices required to deliver these product candidates;
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initiate and continue research and development, including nonclinical, clinical, and discovery efforts for any future product candidates;
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seek to identify additional product candidates;
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seek regulatory approvals for our product candidates GH001 and GH002, including the medical devices required to deliver these product candidates, or any other product candidates that successfully complete clinical development;
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■
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add operational, financial and management information systems and personnel, including personnel to support our product candidate and device development and help us comply with our obligations as a public company;
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■
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hire and retain additional personnel, such as clinical, quality control, scientific, commercial and administrative personnel;
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continue to prepare, file, prosecute, maintain, protect and enforce our intellectual property rights and claims;
|
■
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establish sales, marketing, distribution, manufacturing, supply chain and other commercial infrastructure in the future to commercialize various products for which we may obtain regulatory approval;
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■
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comply with ongoing regulatory requirements for products approved for commercial sale, if ever;
|
■
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acquire or in-license other product candidates, medical devices to deliver our product candidates, and other technologies; and
|
■
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incur increased costs as a result of operating as a public company.
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■
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the scope, progress, results and costs of researching and developing our GH001 and GH002 product candidates, additional 5-MeO-DMT delivery approaches and the medical devices required to deliver these therapies for our initial and potential additional indications, as well as other product candidates we may develop;
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■
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the timing and uncertainty of, and the costs involved in, obtaining marketing approvals for our GH001 and GH002 product candidates including the medical devices required to deliver these therapies for our initial and potential additional indications, and other product candidates we may develop and pursue;
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■
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the number of future product candidates that we may pursue and their development requirements;
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■
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the number of jurisdictions in which we plan to seek regulatory approvals;
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■
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if approved, the costs of commercialization activities for GH001 and GH002 for any approved indications, or any other product candidate that receives regulatory approval to the extent such costs are not the responsibility of any future collaborators, including the costs and timing of establishing product sales, marketing, distribution, and manufacturing capabilities;
|
■
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subject to receipt of regulatory approval, revenue, if any, received from commercial sales of GH001 and GH002 and the respective medical devices for any approved indications or any other product candidates;
|
■
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the extent to which we may in-license or acquire rights to other products, product candidates, medical devices or technologies;
|
■
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our headcount growth and associated costs as we expand our research and development, increase our office space, and establish a commercial infrastructure;
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■
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the costs of preparing, filing and prosecuting patent applications and maintaining and protecting our intellectual property rights, including enforcing and defending intellectual property-related claims;
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■
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the effect of competing product and market developments; and
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■
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the ongoing costs of operating as a public company.
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■
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completing research and technical, nonclinical and clinical development of our product candidates and the medical devices required to deliver these product candidates;
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■
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obtaining regulatory approvals and marketing authorizations for product candidates, including the medical devices required to deliver these product candidates for which we successfully complete clinical development and clinical trials;
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■
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developing a sustainable and scalable manufacturing process for our product candidates and the medical devices required to deliver these product candidates, as well as establishing and maintaining commercially viable supply relationships with third parties that can provide adequate products and services to support clinical activities and commercial demand of our product candidates and medical devices;
|
■
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identifying, assessing, acquiring and/or developing new product candidates;
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■
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negotiating favorable terms in any collaboration, licensing or other arrangements into which we may enter;
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■
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successfully getting our product candidates rescheduled under the federal Comprehensive Drug Abuse Prevention and Control Act of 1970, also known as the Controlled Substances Act, or CSA, and comparable state laws by the U.S. Drug Enforcement Administration, or DEA, and other applicable regulatory agencies inside and outside the United States;
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■
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launching and successfully commercializing product candidates and the medical devices required to deliver these product candidates for which we obtain regulatory approval, either by collaborating with a partner or, if launched independently, by establishing a sales, marketing and distribution infrastructure;
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■
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obtaining and maintaining an adequate price for our product candidates and devices in the countries where our products are commercialized;
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obtaining adequate reimbursement for our product candidates and medical devices from payors;
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■
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obtaining market acceptance of our product candidates as viable treatment options;
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■
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addressing any competing technological and market developments;
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receiving milestone and other payments under any future collaboration arrangements;
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maintaining, protecting, expanding and enforcing our portfolio of intellectual property rights, including patents, trade secrets and know-how;
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■
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attracting, hiring and retaining qualified personnel; and
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■
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complying with laws and regulations, including laws applicable to controlled substances.
|
■
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delay or failure in establishing acceptable performance characteristics, quality manufacturing standards and manufacturing capabilities for our product candidates or for the medical devices required to deliver our product candidates;
|
■
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negative or inconclusive results from our nonclinical studies or clinical trials or the clinical trials of others for product candidates similar to ours, leading to a decision or requirement to conduct additional nonclinical testing or clinical trials or abandon a program;
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■
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product or device-related side effects experienced by subjects in our clinical trials or by individuals using drugs or therapeutics similar to our product candidates;
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■
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delays in submitting INDs (or IDEs, if applicable) in the United States or comparable foreign applications or delays or failure in obtaining the necessary approvals from regulators or institutional review boards to commence a clinical trial, including Schedule I research protocols required by the DEA, or a suspension or termination of a clinical trial once commenced;
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■
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if the FDA, EMA or other comparable foreign regulatory authorities do not find the earlier technical, nonclinical and clinical trial work sufficient, then we may need to conduct additional technical development work or nonclinical or clinical trials beyond what we currently have planned, before we can initiate further clinical studies. Any significant technical development or nonclinical or clinical trial delays also could shorten any periods during which we may have the exclusive right to commercialize our drug candidates and medical devices or allow our competitors to bring products to market before we do and impair our ability to successfully commercialize our drug candidates and medical devices and may harm our business and results of operations;
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■
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conditions imposed by the FDA, EMA or other comparable foreign regulatory authorities regarding the scope or design of our clinical trials;
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■
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the FDA, EMA or other comparable foreign regulatory authorities may disagree with our clinical trial design, including with respect to dosing levels administered in our planned clinical trials, or the medical devices used to deliver our product candidates in the clinical trials, which may delay or prevent us from initiating our clinical trials with our originally intended trial design and the originally planned medical devices;
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■
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delays in contracting with clinical sites or enrolling subjects in clinical trials, including, due to the COVID-19 pandemic, the inability to identify clinical sites willing to host our clinical trials and the required scheduled drug DEA researcher registration and Schedule I research protocol in the United States and similar licenses in other jurisdictions to be obtained and maintained by our clinical investigators;
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■
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delays or interruptions in the supply of materials necessary for the conduct of our clinical trials;
|
■
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regulators or institutional review boards, or IRBs, or ethics committees may not authorize us or our investigators to commence a clinical trial or conduct a clinical trial at a prospective trial site;
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■
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the FDA, the EMA or other comparable foreign regulatory authorities may require us to submit additional data such as long-term toxicology studies or additional data for the medical devices required to deliver our product candidates;
|
■
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delays in reaching, or failure to reach, agreement on acceptable terms with prospective trial sites and prospective contract research organizations, or CROs, which can be subject to extensive negotiation and may vary significantly among different CROs and trial sites;
|
■
|
the number of subjects required for clinical trials of any product candidates may be larger than we anticipate, or subjects may drop out of these clinical trials or fail to return for post-treatment follow-up at a higher rate than we anticipate;
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■
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our third-party contractors for nonclinical studies or clinical trials may fail to comply with regulatory requirements or meet their contractual obligations to us in a timely manner, or at all, or may deviate from the clinical trial protocol or take actions that could cause clinical sites or clinical investigators to drop out of the trial, which may require that we add new clinical trial sites or investigators;
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■
|
due to the impact of the COVID-19 pandemic, we may experience some delays and interruptions to our technical development efforts, nonclinical studies and clinical trials, we may experience delays or interruptions to our manufacturing supply chain, or we could suffer delays in reaching, or we may fail to reach, agreement on acceptable terms with third-party service providers on whom we rely;
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■
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greater-than-anticipated clinical trial costs, including as a result of delays or interruptions that could increase the overall costs to finish our clinical trials as our fixed costs are not substantially reduced during delays;
|
■
|
we may elect to, or regulators, IRBs, Data Safety Monitoring Boards, or DSMBs, or ethics committees may require that we or our investigators, suspend or terminate clinical research or trials for various reasons, including non-compliance with regulatory requirements or a finding that the participants are being exposed to unacceptable health risks;
|
■
|
we may not have the financial resources available to begin and complete the planned trials, or the cost of clinical trials of any product candidates may be greater than we anticipate;
|
■
|
the supply or quality of our product candidates, medical devices required to deliver our product candidates, or other materials necessary to conduct clinical trials of our product candidates may be insufficient or inadequate to initiate or complete a given clinical trial;
|
■
|
inability to compete with other therapies;
|
■
|
poor efficacy of our product candidates during clinical trials;
|
■
|
failure to demonstrate an acceptable benefit/risk profile for our product candidates;
|
■
|
inability to provide sufficient design, testing, manufacturing and quality information for the medical devices required to deliver our product candidates, including information to support their use and compatibility with the drug constituent of our product candidates;
|
■
|
unfavorable FDA, EMA or other comparable foreign regulatory authority inspection and review of clinical trial sites or manufacturing facilities;
|
■
|
if the DEA, or any state or other jurisdiction, delays rescheduling or fails to reschedule 5-MeO-DMT to Schedule II, III, IV or V, or delays classifying or fails to classify our product candidates to Schedule II, III, IV or V;
|
■
|
unfavorable product labeling associated with any product approvals and any requirements for a Risk Evaluation and Mitigation Strategy, or REMS, that may be required by the FDA or comparable requirements in other jurisdictions to ensure the benefits of an individual product outweigh its risks;
|
■
|
unfavorable acceptance of our product candidates or clinical trial data by the patient or medical communities or third-party payors;
|
■
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failure of our third-party contractors or investigators to comply with regulatory requirements or otherwise meet their contractual obligations in a timely manner, or at all;
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delays related to the impact or the spread of COVID-19 or other pandemics, including the impact of COVID-19 on the FDA’s, EMA’s or other comparable foreign regulatory authority’s ability to continue its normal operations;
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delays and changes in regulatory requirements, policy and guidelines, including the imposition of additional regulatory oversight around clinical testing generally or with respect to our technology in particular; or
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varying interpretations of data by the FDA, EMA or other comparable foreign regulatory authorities.
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nonclinical studies or clinical trials may show the product candidates to be ineffective or less effective than expected (e.g., a clinical trial could fail to meet its primary endpoint(s)) or to have unacceptable side effects or toxicities;
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failure to reflect similarly efficacious activity in subsequent clinical trials with larger patient populations;
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failure to use clinical endpoints that applicable regulatory authorities would consider clinically meaningful;
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manufacturing issues or formulation issues with the product candidate or device that cannot be resolved;
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failure to receive the necessary regulatory approvals;
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manufacturing issues, formulation issues, pricing or reimbursement issues or other factors that make a product candidate or device uneconomical; and
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intellectual property and proprietary rights of others and their competing products and technologies that may prevent one of our product candidates from being commercialized.
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regulatory authorities may withdraw or limit their approval of such product candidates or medical devices;
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regulatory authorities may require the addition of labeling statements, such as a Boxed Warning or contraindications;
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we may be required to change the way such product candidates are distributed or administered, or change the labeling of the product candidates or medical devices;
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the FDA may require a REMS to mitigate risks, which could include medication guides, physician communication plans or elements to assure safe use, such as restricted distribution methods, patient registries and other risk minimization tools, and regulatory authorities in other jurisdictions may require comparable risk mitigation plans;
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we may be subject to regulatory investigations and government enforcement actions;
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the FDA, EMA or a comparable foreign regulatory authority may require us to conduct additional technical development work or clinical trials or costly post-marketing testing and surveillance to establish and monitor the safety and efficacy of the product;
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we could be sued and held liable for injury caused to individuals exposed to or taking our product candidates or operating our medical devices; and
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our reputation may suffer.
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the patient eligibility criteria defined in the protocol;
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the size of the patient population required for analysis of the trial’s primary endpoints;
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in the case of clinical trials focused on rare disease, the small size of the patient population and the potential of a patient being undiagnosed or misdiagnosed;
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the proximity of patients to trial sites;
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the design of the trial;
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our ability to recruit clinical trial investigators with the appropriate competencies and experience;
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competing clinical trials and clinicians’ and patients’ perceptions as to the potential advantages and risks of the product candidate being studied in relation to other available therapies, including any new drugs that may be approved for the indications that we are investigating;
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reluctance of physicians to encourage patient participation in clinical trials;
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the impacts of the COVID-19 pandemic on clinical trial sites, personnel and patient travel;
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our ability to obtain and maintain patient consents; and
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the risk that patients enrolled in clinical trials will drop out of the trials before completion.
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our inability to design such product candidates with the pharmacological or pharmacokinetic properties that we desire; or
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potential product candidates may, on further study, be shown to have harmful side effects or other characteristics that indicate that they are unlikely to be medicines that will receive marketing approval and achieve market acceptance.
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decreased demand for any of our future approved products;
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injury to our reputation;
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initiation of investigations by regulators;
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withdrawal of clinical trial participants;
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termination of clinical trial sites or entire trial programs;
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significant litigation costs;
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substantial monetary awards to, or costly settlements with, patients or other claimants;
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product recalls or a change in the indications for which any approved drug products may be used;
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loss of revenue;
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diversion of management and scientific resources from our business operations; and
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the inability to commercialize our product candidates.
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greater financial, technical and human resources than we have at every stage of the discovery, development, manufacture and commercialization of products;
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more extensive experience in nonclinical studies, conducting clinical trials, obtaining regulatory approvals, and in manufacturing, marketing and selling drug products;
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more developed intellectual property portfolios;
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products that have been approved or are in late stages of development; and
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collaborative arrangements in our target markets with leading companies and research institutions.
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DEA registration and inspection of facilities. Facilities conducting research, manufacturing, distributing, importing or exporting, or dispensing controlled substances must be registered (licensed) to perform these activities and have the security, control, record keeping, reporting and inventory mechanisms required by the DEA to prevent drug loss and diversion. All these facilities must renew their registrations annually, except dispensing facilities, which must renew every three years. The DEA conducts periodic inspections of certain registered establishments that handle controlled substances. Obtaining and maintaining the necessary registrations may result in delay of the importation, manufacturing or distribution of GH001 or GH002. Furthermore, importation of controlled substances is subject to additional permits or approvals, which must be obtained prior to each importation. Failure to maintain compliance with the CSA, particularly non-compliance resulting in loss or diversion, can result in regulatory action that would have a material adverse effect on our business, financial condition and results of operations. The DEA may seek civil penalties, refuse to renew necessary registrations, or initiate proceedings to restrict, suspend or revoke those registrations. In certain circumstances, violations could lead to criminal proceedings.
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State-controlled substances laws. Individual U.S. states have also established controlled substance laws and regulations. Though state-controlled substances laws often mirror federal law, because the states are separate jurisdictions, they will need to separately reschedule GH001 or GH002. While some states automatically schedule or reschedule a drug based on federal action, other states schedule drugs through rule making or a legislative action. State scheduling may delay commercial sale of any product for which we obtain federal regulatory approval and adverse scheduling would have a material adverse effect on the commercial attractiveness of such product. We or our partners must also obtain separate state registrations, permits or licenses in order to be able to obtain, handle, and distribute controlled substances for clinical trials or commercial sale, and failure to meet applicable regulatory requirements could lead to enforcement and sanctions by the states in addition to those from the DEA or otherwise arising under federal law.
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Clinical trials. Because our GH001 and GH002 product candidates contain 5-MeO-DMT, to conduct clinical trials with GH001 and GH002 in the United States prior to approval, each of our research sites must submit a research protocol to the DEA and obtain and maintain a DEA Schedule I researcher registration that will allow those sites to handle and dispense GH001 and GH002 and to obtain the product from our importer. If the DEA delays or denies the grant of a researcher registration to one or more research sites, the clinical trial could be significantly delayed, and we could lose clinical trial sites. The importer for the clinical trials must also obtain
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Post-Approval Importation. If GH001 or GH002 is approved and classified as a Schedule II, III or IV substance, an importer can import it for commercial purposes if it obtains an importer registration and files an application for an import permit (Schedule II) or files an import declaration (Schedule III or IV) for each import shipment. The DEA provides annual assessments/estimates to the UN International Narcotics Control Board, which guides the DEA in the amounts of controlled substances that the DEA authorizes to be imported. The failure to identify an importer or obtain the necessary import authority, including specific quantities, could affect the availability of GH001 or GH002 and have a material adverse effect on our business, results of operations and financial condition. In addition, an application for a Schedule II importer registration must be published in the Federal Register, and there is a notice and comment period to receive public comments. It is always possible that adverse comments may delay the grant of an importer registration. If GH001 or GH002 is approved and classified as a Schedule II controlled substance, federal law may prohibit the import of the substance for commercial purposes. If GH001 or GH002 is listed as a Schedule II substance, we will not be allowed to import the drug for commercial purposes unless the DEA determines that domestic supplies are inadequate or there is inadequate domestic competition among domestic manufacturers for the substance as defined by the DEA. Moreover, Schedule I controlled substances, including 5-MeO-DMT, have never been registered with the DEA for importation for commercial purposes, only for scientific and research needs. Therefore, if neither GH001, GH002 nor its drug substance could be imported, GH001 and GH002 would have to be wholly manufactured in the United States, and we would need to secure a manufacturer that would be required to obtain and maintain a separate DEA registration for that activity.
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Manufacture in the United States. If, because of a Schedule II classification or voluntarily, we were to conduct manufacturing or repackaging/relabeling in the United States for commercial purposes, our contract manufacturers would be subject to the DEA’s annual manufacturing and procurement quota requirements. Additionally, regardless of the scheduling of GH001 or GH002, the active ingredient in the final dosage form is currently a Schedule I controlled substance and would be subject to such quotas as this substance could remain listed on Schedule I during the clinical trials. The annual quota allocated to us or our contract manufacturers for the active ingredient in GH001 or GH002 may not be sufficient to complete clinical trials or meet commercial demand. Consequently, any delay or refusal by the DEA in establishing our, or our contract manufacturers’, procurement and/or production quota for controlled substances could delay or stop our clinical trials or product launches, which would have a material adverse effect on our business, financial position and results of operations.
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Distribution in the United States and the United Kingdom. If GH001 or GH002 is scheduled as Schedule II, III or IV, we would also need to identify wholesale distributors with the appropriate DEA registrations and authority to distribute GH001, GH002 and any future product candidates. These distributors would need to maintain Schedule II, III or IV distribution registrations. This limitation in the ability to distribute GH001 or GH002 more broadly may limit commercial uptake and could negatively impact our prospects. The failure to obtain, or delay in obtaining, or the loss of any of those registrations could result in increased costs to us. If GH001 or GH002 is a Schedule II drug, participants in our supply chain may have to maintain enhanced security including specially constructed vaults at manufacturing and distribution facilities. This additional security may also discourage some pharmacies from carrying the product. In addition, GH001 and GH002 will likely be required to be administered at our trial sites or other certified healthcare settings, which could limit commercial uptake. Furthermore, state and federal enforcement actions, regulatory requirements, and legislation intended to reduce prescription drug abuse, such as the tracking of prescribing and dispensing of controlled substances through a state prescription drug monitoring program, may make physicians less willing to prescribe, and pharmacies to dispense, certain controlled substances, especially Schedule II products. Similarly, the MHRA considers that all Schedule 1 drugs under the United Kingdom’s Misuse of
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restrictions on the manufacturing of our products, the approved manufacturers or the manufacturing process;
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withdrawal of the product from the market or voluntary product recalls;
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requirements to conduct post-marketing studies or clinical trials;
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fines, restitution or disgorgement of profits or revenues;
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warning or untitled letters from the FDA or comparable notice of violations from comparable foreign regulatory authorities;
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suspensions of any of our ongoing clinical trials;
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refusal by the FDA or other comparable foreign regulatory authorities to approve pending applications or supplements to approved applications filed by us or suspension or withdrawal of marketing approvals;
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product seizure or detention or refusal to permit the import or export of products; and
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consent decrees, injunctions or the imposition of civil or criminal penalties.
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efficacy and potential advantages compared to alternative treatments;
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the ability to offer our products, if approved, for sale at competitive prices;
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relative convenience and ease of administration compared to alternative treatments;
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perceptions by the medical community, physicians, and patients, regarding the safety and effectiveness of our products and the willingness of the target patient population to try new therapies and of physicians to prescribe these therapies;
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the size of the market for such product candidate, based on the size of the patient subsets that we are targeting, in the territories for which we gain regulatory approval;
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the recommendations with respect to our product candidates in guidelines published by various scientific organizations applicable to us and our product candidates;
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the strength of sales, marketing and distribution support;
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the timing of any such marketing approval in relation to other product approvals;
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any restrictions on concomitant use of other medications;
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support from patient advocacy groups;
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media coverage regarding psychedelic substances;
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the ability to obtain sufficient third-party coverage and adequate reimbursement; and
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the prevalence and severity of any side effects.
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a covered benefit under its health plan;
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safe, effective and medically necessary;
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appropriate for the specific patient;
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cost-effective; and
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neither experimental nor investigational.
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the federal Anti-Kickback Statute, which prohibits, among other things, persons and entities from knowingly and willfully soliciting, receiving, offering or paying any remuneration (including any kickback, bribe, or rebate), directly or indirectly, overtly or covertly, in cash or in kind, to induce or reward, or in return for, either the referral of an individual, or the purchase, lease, order, arrangement or recommendation of any good, facility, item or service for which payment may be made, in whole or in part, under a federal healthcare program, such as the Medicare and Medicaid programs. A person or entity can be found guilty of violating the statute without actual knowledge of the statute or specific intent to violate it. The term remuneration has been interpreted broadly to include anything of value. Further, courts have found that if “one purpose”
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the federal civil and criminal false claims laws, including the FCA, and civil monetary penalty laws which prohibit, among other things, individuals or entities from knowingly presenting, or causing to be presented, false, fictitious or fraudulent claims for payment to, or approval by Medicare, Medicaid, or other federal healthcare programs; knowingly making, using or causing to be made or used, a false record or statement material to a false, fictitious or fraudulent claim or an obligation to pay or transmit money or property to the federal government; or knowingly concealing or knowingly and improperly avoiding, decreasing or concealing an obligation to pay money to the federal government. A claim that includes items or services resulting from a violation of the federal Anti-Kickback Statute constitutes a false or fraudulent claim under the FCA. Manufacturers can be held liable under the FCA even when they do not submit claims directly to government payors if they are deemed to “cause” the submission of false or fraudulent claims. The FCA also permits a private individual acting as a “whistleblower” to bring qui tam actions on behalf of the federal government alleging violations of the FCA and to share in any monetary recovery or settlement. When an entity is determined to have violated the FCA, the government may impose civil fines and penalties for each false claim, plus treble damages, and exclude the entity from participation in Medicare, Medicaid and other federal healthcare programs;
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the federal Health Insurance Portability and Accountability Act of 1996, or HIPAA, which created additional federal criminal statutes that prohibit knowingly and willfully executing, or attempting to execute, a scheme to defraud any healthcare benefit program, including private third-party payors, or obtain, by means of false or fraudulent pretenses, representations, or promises, any of the money or property owned by, or under the custody or control of, any healthcare benefit program, regardless of the payor (e.g., public or private), and knowingly and willfully falsifying, concealing or covering up by any trick or device a material fact or making any materially false, fictitious or fraudulent statement or representation, or making or using any false writing or document knowing the same to contain any materially false fictitious or fraudulent statement or entry in connection with the delivery of, or payment for, healthcare benefits, items or services relating to healthcare matters. Similar to the federal Anti-Kickback Statute, a person or entity can be found guilty of violating HIPAA fraud provisions without actual knowledge of the statute or specific intent to violate it;
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HIPAA, as amended by the Health Information Technology for Economic and Clinical Health Act of 2009, or HITECH, and their respective implementing regulations, which impose, among other things, certain requirements relating to the privacy, security and transmission of individually identifiable health information on certain covered healthcare providers, health plans and healthcare clearinghouses, known as covered entities, as well as their respective “business associates,” those independent contractors or agents of covered entities that create, receive, maintain, transmit or obtain protected health information in connection with providing a service on behalf of a covered entity as well as their covered subcontractors. HITECH also created new tiers of civil monetary penalties, amended HIPAA to make civil and criminal penalties directly applicable to business associates, and gave state attorneys general new authority to file civil actions for damages or injunctions in federal courts to enforce the federal HIPAA laws and seek attorneys’ fees and costs associated with pursuing federal civil actions. In addition, there may be
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the federal Physician Payments Sunshine Act, created under the Patient Protection and Affordable Care Act, as amended by the Health Care and Education Reconciliation Act of 2010, or, collectively, the ACA, and its implementing regulations, which require manufacturers of drugs, devices, biologics and medical supplies for which payment is available under Medicare, Medicaid or the Children’s Health Insurance Program (with certain exceptions) to report annually to CMS information related to direct or indirect payments and other transfers of value made to physicians (defined to include doctors, dentists, optometrists, podiatrists and chiropractors) and teaching hospitals, as well as ownership and investment interests held by the physicians and their immediate family members. Effective January 1, 2022, these reporting obligations will extend to include transfers of value made in the previous year to certain non-physician providers including physician assistants and nurse practitioners, clinical nurse specialists, anesthesiologist assistants, certified registered nurse anesthetists and certified nurse midwives;
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federal consumer protection and unfair competition laws, which broadly regulate marketplace activities and activities that potentially harm consumers; and
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analogous U.S. state, local and foreign laws and regulations, such as state anti-kickback and false claims laws, which may apply to sales or marketing arrangements and claims involving healthcare items or services reimbursed by any third-party payor, including private insurers, and may be broader in scope than their federal equivalents; state and foreign laws that require biopharmaceutical companies to comply with the biopharmaceutical industry’s voluntary compliance guidelines and other relevant compliance guidance promulgated by the federal government or otherwise restrict payments that may be made to healthcare providers and other potential referral sources; state and foreign laws that require drug manufacturers to report information related to payments and other transfers of value to physicians and other healthcare providers, marketing expenditures or drug pricing; state and local laws that require the registration of biopharmaceutical sales representatives; and state and foreign laws governing the privacy and security of health and other personal information, some of which may be more stringent than those in the United States (such as the European Union’s General Data Protection Regulation, or GDPR, which became effective in May 2018) in certain circumstances, and may differ from each other in significant ways and often are not preempted by HIPAA, thus complicating compliance efforts.
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strengthen the rules on placing medical devices on the market and reinforce surveillance once they are available;
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establish explicit provisions on manufacturers’ responsibilities for the follow-up of the quality, performance and safety of medical devices placed on the market;
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improve the traceability of medical devices throughout the supply chain to the end-user or patient through a unique identification number;
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set up a central database to provide patients, healthcare professionals and the public with comprehensive information on products available in the European Union;
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strengthened rules for the assessment of certain high-risk medical devices, such as implants, which may have to undergo an additional check by experts before they are placed on the market.
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others may be able to make compositions that are the same as or similar to GH001, GH002, and any future product candidate compositions, or may be able to make medical devices to deliver such compositions, that are not covered by the claims of the patents that we own or license;
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the patents of third parties may have an adverse effect on our business;
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we or our licensors or collaboration partners might not have been the first to conceive or reduce to practice the inventions covered by the issued patent or pending patent application that we own or license;
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we or our licensors or collaboration partners might not have been the first to file patent applications covering certain of our or their inventions;
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others may independently develop similar or alternative technologies or duplicate any of our technologies without infringing, misappropriating or otherwise violating our intellectual property rights;
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it is possible that current and future pending patent applications we own or in-license will not lead to issued patents;
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issued patents that we own or in-license may not provide us with any competitive advantage, or may be held invalid or unenforceable as a result of legal challenges by third parties;
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issued patents that we own or in-license may not have sufficient term or geographic scope to provide meaningful protection;
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our competitors might conduct research and development activities in countries that provide a safe harbor from patent infringement claims for certain research and development activities or in countries where we do not have patent rights and then use the information learned from such activities to develop competitive therapies for sale in our major commercial markets;
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third parties performing manufacturing or testing for us using our therapies or technologies could use the intellectual property of others without obtaining a proper license;
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we may not develop additional technologies that are patentable; and
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we may choose not to file a patent in order to maintain certain trade secrets or know-how, and a third party may subsequently file a patent covering such intellectual property, or otherwise develop similar know-how.
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the scope of rights granted under the agreement and other interpretation-related issues;
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whether and the extent to which our technology and processes infringe, misappropriate or otherwise violate intellectual property of the licensor or collaboration partner that is not subject to the agreement;
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the sublicensing of patents and other rights under any current or future collaboration relationships;
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our diligence obligations under the agreement and what activities satisfy those diligence obligations;
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our rights to transfer or assign the agreement;
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the inventorship and ownership of inventions and know-how resulting from the joint creation or use of intellectual property by our licensors and us and our collaboration partners; and
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the priority of invention of patented technology.
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collaborators generally have significant discretion in determining the amount and timing of efforts and resources that they will apply to these collaborations;
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collaborators may not properly obtain, maintain, enforce or defend intellectual property or proprietary rights relating to our product candidates or research programs, or may use our proprietary information in such a way as to expose us to potential litigation or other intellectual property-related proceedings, including proceedings challenging the scope, ownership, validity and enforceability of our intellectual property;
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collaborators may own or co-own intellectual property covering our product candidates or research programs that results from our collaboration with them, and in such cases, we may not have the exclusive right to commercialize such intellectual property or such product candidates or research programs;
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we may need the cooperation of our collaborators to enforce or defend any intellectual property we contribute to or that arises out of our collaborations, which may not be provided to us;
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collaborators may control certain interactions with regulatory authorities, which may impact our ability to obtain and maintain regulatory approval of our product candidates;
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disputes may arise between the collaborators and us that result in the delay or termination of the research, development or commercialization of our product candidates or research programs or that result in costly litigation or arbitration that diverts management attention and resources;
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collaborators may decide to not pursue development and commercialization of any product candidates we develop or may elect not to continue or renew development or commercialization programs based on clinical trial results, changes in the collaborator’s strategic focus or available funding or external factors such as an acquisition that diverts resources or creates competing priorities;
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collaborators may delay clinical trials, provide insufficient funding for a clinical trial program, stop a clinical trial or abandon a product candidate, repeat or conduct new clinical trials or require a new formulation of a product candidate for clinical testing;
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collaborators could independently develop, or develop with third parties, products that compete directly or indirectly with our product candidates or research programs if the collaborators believe that competitive products are more likely to be successfully developed or can be commercialized under terms that are more economically attractive than ours;
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collaborators may restrict us from researching, developing or commercializing certain products or technologies without their involvement;
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collaborators with marketing and distribution rights to one or more product candidates may not commit sufficient resources to the marketing and distribution of such product candidates;
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we may lose certain valuable rights under circumstances identified in our collaborations, including if we undergo a change of control;
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collaborators may grant sublicenses to our technology or product candidates or undergo a change of control and the sublicensees or new owners may decide to take the collaboration in a direction which is not in our best interest;
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collaborators may become bankrupt, which may significantly delay our research or development programs, or may cause us to lose access to valuable technology, know-how or intellectual property of the collaborator relating to our products, product candidates or research programs;
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key personnel at our collaborators may leave, which could negatively impact our ability to productively work with our collaborators;
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collaborations may require us to incur short and long-term expenditures, issue securities that dilute our shareholders or disrupt our management and business;
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if our collaborators do not satisfy their obligations under our agreements with them, or if they terminate our collaborations with them, we may not be able to develop or commercialize product candidates as planned;
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collaborations may require us to share in development and commercialization costs pursuant to budgets that we do not fully control and our failure to share in such costs could have a detrimental impact on the collaboration or our ability to share in revenue generated under the collaboration;
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collaborations may be terminated in their entirety or with respect to certain product candidates or technologies and, if so terminated, may result in a need for additional capital to pursue further development or commercialization of the applicable product candidates or technologies; and
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collaboration agreements may not lead to development or commercialization of product candidates in the most efficient manner or at all. If a present or future collaborator of ours were to be involved in a business combination, the continued pursuit and emphasis on our development or commercialization program under such collaboration could be delayed, diminished or terminated.
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regulatory authorities, including those laws requiring the reporting of true, complete and accurate information to such authorities;
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manufacturing standards;
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federal and state healthcare fraud and abuse laws and regulations and similar laws and regulations established and enforced by comparable foreign regulatory authorities; and
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laws that require the accurate reporting of financial information or data.
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economic weakness, including inflation, or political instability in particular in foreign economies and markets;
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differing and changing regulatory requirements, price controls and reimbursement regimes;
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potentially reduced protection for our intellectual property rights;
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difficulties in compliance with different, complex and changing laws, regulations and court systems of multiple jurisdictions and compliance with a wide variety of foreign laws, treaties and regulations;
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changes in regulations and customs, tariffs and trade barriers;
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changes in currency exchange rates and currency controls;
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changes in a specific country’s or region’s political or economic environment;
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trade protection measures, import or export licensing requirements or other restrictive actions by governments;
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negative consequences from changes in, including the interpretation of, tax laws;
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compliance with tax, employment, immigration and labor laws for employees living or traveling abroad;
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workforce uncertainty in countries where labor unrest is more common than in the United States and European Economic Area;
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difficulties associated with staffing and managing international operations, including differing labor relations;
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business interruptions resulting from geo-political actions, including war and terrorism, natural disasters including earthquakes, typhoons, floods and fires, or health epidemics such as COVID-19; and
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cyber-attacks, which are growing in frequency, sophistication and intensity, and are becoming increasingly difficult to detect.
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our financial information;
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the history of, and the future prospects for, our company and the industry in which we compete;
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an assessment of our management, its past and present operations, and the prospects for, and timing of, our future revenue;
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the present state of our development; and
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the above factors in relation to market values and various valuation measures of other companies engaged in activities similar to ours.
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positive or negative results of testing and clinical trials by us, strategic partners or competitors;
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delays in entering into strategic relationships with respect to development or commercialization of our GH001 and GH002 product candidates or any future product candidates;
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entry into strategic relationships on terms that are not deemed to be favorable to us;
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technological innovations or commercial therapeutic introductions by competitors;
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changes in government regulations and healthcare payment systems;
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developments concerning proprietary rights, including patent and litigation matters;
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public concern relating to the commercial value or safety of any of our GH001 and GH002 product candidates or any future product candidates;
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negative publicity or public perception of the use of 5-MeO-DMT as a medical treatment;
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financing or other corporate transactions, or the failure to obtain financing or enter into other corporate transactions;
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publication of research reports or comments by securities or industry analysts;
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the trading volume of our ordinary shares on Nasdaq;
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sales of our ordinary shares by us, members of our senior management and directors or our shareholders or the anticipation that such sales may occur in the future;
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general market conditions in the pharmaceutical industry or in the economy as a whole;
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general economic, political, and market conditions and overall market volatility in the United States, the United Kingdom or the European Union as a result of the COVID-19 pandemic or other pandemics or similar events; and
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other events and factors, many of which are beyond our control.
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|
the majority independent director requirement under Nasdaq listing rules;
|
■
|
the requirement under Nasdaq listing rules that a compensation committee composed solely of independent directors governed by a compensation committee charter oversee executive compensation;
|
■
|
the requirement under Nasdaq listing rules that director nominees be selected or recommended for selection by either a majority of the independent directors or a nominations committee composed solely of independent directors;
|
■
|
the requirement under Nasdaq listing rules that a quorum must consist of at least 331∕3 percent of the outstanding shares of a listed company’s common voting stock; and
|
■
|
the requirement under Nasdaq listing rules that the independent directors have regularly scheduled meetings with only the independent directors present.
|
■
|
that it did not have jurisdiction;
|
■
|
that it was not the appropriate forum for such proceedings;
|
■
|
that, applying Irish conflict of law rules, U.S. law (including U.S. securities laws) did not apply to the relationship between you and us or our directors and officers; or
|
■
|
that the U.S. securities laws were of a penal nature and violated Irish public policy and should not be enforced by the Irish court.
|
■
|
U.S. courts must have had jurisdiction in relation to the particular defendant according to Irish conflict of law rules (the submission to jurisdiction by the defendant would satisfy this rule); and
|
■
|
the judgment must be final and conclusive and the decree must be final and unalterable in the court which pronounces it.
|
■
|
the judgment is not for a definite sum of money;
|
■
|
the judgment was obtained by fraud;
|
■
|
the enforcement of the judgment in Ireland would be contrary to natural or constitutional justice;
|
■
|
the judgment is contrary to Irish public policy or involves certain U.S. laws which will not be enforced in Ireland; or
|
■
|
jurisdiction cannot be obtained by the Irish courts over the judgment debtors in the enforcement proceedings by personal service in Ireland or outside Ireland under Order 11 of the Irish Superior Courts Rules.
|
■
|
impose advance notice requirements for shareholder proposals and director nominations to be considered at annual shareholder meetings; and
|
■
|
require the approval of 75% of the voting power of our shares entitled to vote at a general meeting of shareholders to amend or repeal any provisions of our Constitution.
|
■
|
the timing, progress and results of developing and conducting clinical trials for our GH001 and GH002 product candidates and the medical devices required to deliver these product candidates for our initial and potential additional indications;
|
■
|
our efforts to expand into other jurisdictions such as the United States and in the European Union;
|
■
|
our expectations related to the technical development and expansion of our external manufacturing capabilities for our GH001 and GH002 product candidates as well as the medical devices required to deliver these product candidates;
|
■
|
our reliance on the success of our GH001 and GH002 product candidates;
|
■
|
the timing, scope or likelihood of regulatory filings and approvals by the FDA, EMA or other comparable foreign regulatory authorities, for our GH001 and GH002 product candidates and our initial and potential additional indications;
|
■
|
our expectations regarding the size of the eligible patient populations for our GH001 and GH002 product candidates, if approved for commercial use;
|
■
|
our ability to identify third-party clinical sites to conduct trials and our ability to identify and train appropriately qualified therapists to administer our investigational therapy;
|
■
|
the effect of the COVID-19 pandemic on aspects of our business or operations, including delays in the regulatory approval process, contracting with clinical sites and engaging in clinical trials;
|
■
|
our ability to implement our business model and our strategic plans for our business and GH001 and GH002 product candidates;
|
■
|
our ability to identify, develop or acquire and obtain approval by the FDA, EMA or other comparable foreign regulatory authorities of medical devices required to deliver our GH001 and GH002 product candidates;
|
■
|
our commercialization and marketing capabilities and strategy;
|
■
|
the effects of undesirable clinical trial outcomes and potential adverse public perception regarding the use of 5-MeO-DMT and psychedelics generally on the regulatory approval process and future development of our product;
|
■
|
the pricing, coverage and reimbursement of our GH001 and GH002 product candidates, if approved;
|
■
|
the scalability and commercial viability of our manufacturing methods and processes;
|
■
|
the rate and degree of market acceptance and clinical utility of our GH001 and GH002 product candidates;
|
■
|
our reliance on third-party suppliers for our nonclinical study and clinical trial drug substance and product candidate supplies, as well as key raw materials used in our manufacturing processes;
|
■
|
our ability to establish or maintain collaborations or strategic relationships or obtain additional funding;
|
■
|
our expectations regarding potential benefits of our GH001 and GH002 product candidates and our approach generally;
|
■
|
our expectations around regulatory development paths and with respect to Controlled Substances Act designation;
|
■
|
the scope of protection we and any current or future licensors or collaboration partners are able to establish and maintain for intellectual property rights covering our GH001 and GH002 product candidates;
|
■
|
our ability to operate our business without infringing, misappropriating, or otherwise violating the intellectual property rights and proprietary technology of third parties;
|
■
|
our ability to protect our intellectual property rights, including enforcing and defending intellectual property-related claims;
|
■
|
regulatory developments in the United States, under the laws and regulations of the European Union and other jurisdictions;
|
■
|
developments and projections relating to our competitors and our industry;
|
■
|
our ability to remediate our material weaknesses in our internal control over financial reporting;
|
■
|
our expectations related to the use of proceeds from this offering and the amount of time that our existing cash, together with the net proceeds from this offering, will be sufficient to fund our operations and capital expenditures;
|
■
|
our estimates regarding expenses, capital requirements and needs for additional financing;
|
■
|
our ability to effectively manage our anticipated growth;
|
■
|
our ability to attract and retain qualified employees and key personnel;
|
■
|
whether we are classified as a Passive Foreign Investment Company for current and future periods;
|
■
|
our expectations regarding the time during which we will be an emerging growth company under the JOBS Act and as a foreign private issuer;
|
■
|
the future trading price of the ordinary shares and impact of securities analysts’ reports on these prices; and
|
■
|
other risks and uncertainties, including those listed under the caption “Risk Factors.”
|
■
|
approximately $110 million to fund clinical trials, and other activities to support the development of our product candidate GH001 through completion of all ongoing trials, the planned Phase 2a trials in at least two new indications and the planned multi-center, randomized, controlled Phase 2b trial in TRD;
|
■
|
approximately $10 million to fund clinical trials with our product candidate GH002 and one additional potential product candidate through completion of Phase 2a trials;
|
■
|
approximately $65 million to fund the technical development of our active pharmaceutical ingredients, product candidates, and the medical devices used for the administration of our product candidates, as well as the expansion of our external manufacturing capabilities, and to fund the nonclinical development activities related to our product candidates; and
|
■
|
the remainder to fund general and administrative expenses, working capital and other general corporate purposes, including business development activities.
|
■
|
25,000 A ordinary shares, nominal value €1.00 each;
|
■
|
5,923,079 Series A preferred shares, nominal value $0.01 each;
|
■
|
25,379,047 Series B preferred shares, nominal value $0.01 each; and
|
■
|
99,968,697,874 ordinary shares, nominal value $0.01 each.
|
■
|
on an actual basis, not reflecting the Corporate Reorganization and the Share Consolidation to be effected immediately and conditional upon the SEC declaring this registration statement effective;
|
■
|
on a pro forma basis to give effect to (i) the consummation of the Series B Financing and our receipt of net proceeds therefrom, (ii) our Corporate Reorganization and (iii) the Share Consolidation into an aggregate of 40,520,850 ordinary shares, to be effected immediately and conditional upon the SEC declaring this registration statement effective, and
|
■
|
on a pro forma as adjusted basis giving effect to the pro forma adjustments set forth above and to give further effect to our issuance and sale of 8,333,333 ordinary shares in this offering at an assumed initial public offering price of $15.00 per share, which is the midpoint of the price range set forth on the cover page of this prospectus, after deducting the underwriting discounts and commissions and estimated offering expenses payable by us, assuming the underwriters do not exercise their over-allotment option to purchase additional ordinary shares.
|
|
| |
As of March 31, 2021
|
||||||
|
| |
Actual
|
| |
Pro Forma
|
| |
Pro Forma As
Adjusted(1)
|
|
| |
(in USD thousands except for share data)
|
||||||
Cash
|
| |
$4,576
|
| |
$123,404
|
| |
$236,154
|
Shareholders’ equity:
|
| |
|
| |
|
| |
|
Ordinary shares, par value €0.01, 70,000,000 shares issued and outstanding, actual; par value $0.025, 40,520,850 shares issued and outstanding, pro forma; par value $0.025, 48,854,183 shares issued and outstanding, pro forma as adjusted
|
| |
801
|
| |
1,013
|
| |
1,221
|
Series A preferred shares, par value €0.01, 5,923,079 shares issued and outstanding, actual; no shares issued and outstanding, pro forma; no shares issued and outstanding, pro forma as adjusted
|
| |
70
|
| |
—
|
| |
—
|
Share premium
|
| |
5,430
|
| |
124,116
|
| |
236,658
|
Foreign currency translation reserve
|
| |
(2)
|
| |
(2)
|
| |
(2)
|
Accumulated deficit
|
| |
(1,984)
|
| |
(1,984)
|
| |
(1,984)
|
Total equity
|
| |
4,315
|
| |
123,143
|
| |
235,893
|
Total capitalization
|
| |
$4,315
|
| |
$123,143
|
| |
$235,893
|
(1)
|
The pro forma as adjusted information set forth above is illustrative only and will change based on the actual initial public offering price and other terms of this offering determined at pricing. Each $1.00 increase or decrease in the assumed initial public offering price of $15.00 per share, which is the midpoint of the price range set forth on the cover page of this prospectus, would increase or decrease the pro forma as adjusted amount of each of cash, total equity and total capitalization by $7.8 million, assuming that the number of ordinary shares offered by us, as set forth on the cover page of this prospectus, remains the same and after deducting the underwriting discounts and commissions and estimated offering expenses payable by us. Each 1,000,000 increase or decrease in the number of ordinary shares offered by us, as set forth on the cover page of this prospectus, would increase or decrease the pro forma as adjusted amount of each of cash total equity and total capitalization by $14.0 million, assuming the
|
■
|
1,202,734 ordinary shares that will be made available for future issuance under our Share Option Plan, which will become effective in connection with this offering; and
|
■
|
50,487 ordinary shares issuable upon the exercise of options to purchase our ordinary shares granted on June 4, 2021, with an exercise price of $12.32 per share.
|
Assumed initial public offering price per share
|
| |
|
| |
$15.00
|
Historical net tangible book value per share as of March 31, 2021 following the Share Consolidation
|
| |
$0.14
|
| |
|
Increase per share attributable to the pro forma adjustments described above
|
| |
$2.90
|
| |
|
Pro forma net tangible book value per share as of March 31, 2021
|
| |
$3.04
|
| |
|
Increase attributable to new investors purchasing shares in this offering
|
| |
$1.79
|
| |
|
Pro forma as adjusted net tangible book value per share after giving effect to this offering
|
| |
|
| |
$4.83
|
Dilution per share to investors participating in this offering
|
| |
|
| |
$10.17
|
|
| |
Total Shares
|
| |
Total Consideration
|
| |
Average
Price Per
Share
|
||||||
|
| |
Number
|
| |
Percent
|
| |
Amount
|
| |
Percent
|
| ||
|
| |
(in USD thousands except for share and per share data)
|
||||||||||||
Existing shareholders before this offering
|
| |
40,520,850
|
| |
83%
|
| |
$131,501
|
| |
51%
|
| |
$3.25
|
Investors participating in this offering
|
| |
8,333,333
|
| |
17%
|
| |
$125,000
|
| |
49%
|
| |
$15.00
|
Total
|
| |
48,854,183
|
| |
100%
|
| |
$256,501
|
| |
100%
|
| |
$5.25
|
|
| |
Three Months Ended
March 31
|
| |
Year Ended
December 31
|
||||||
|
| |
2021
|
| |
2020
|
| |
2020
|
| |
2019
|
|
| |
(in USD thousands, except share and per share data)
|
|||||||||
Income Statement Data:
|
| |
|
| |
|
| |
|
| |
|
Operating Expenses:
|
| |
|
| |
|
| |
|
| |
|
Research and development
|
| |
$(692)
|
| |
$(11)
|
| |
$(338)
|
| |
$(296)
|
General and administrative
|
| |
(448)
|
| |
(8)
|
| |
(108)
|
| |
(14)
|
Loss from operations
|
| |
(1,140)
|
| |
(19)
|
| |
(446)
|
| |
(310)
|
Foreign currency translation differences
|
| |
(9)
|
| |
—
|
| |
—
|
| |
—
|
Loss for the period
|
| |
$(1,149)
|
| |
$(19)
|
| |
$(446)
|
| |
$(310)
|
Basic and diluted loss per share
|
| |
(0.015)
|
| |
(0.000)
|
| |
(0.006)
|
| |
(0.004)
|
Weighted average number of shares outstanding - basic and diluted loss
|
| |
75,923,079
|
| |
70,000,000
|
| |
70,898,420
|
| |
70,000,000
|
Pro forma basic and diluted loss per share(1)
|
| |
(0.038)
|
| |
(0.001)
|
| |
(0.016)
|
| |
(0.011)
|
Pro forma weighted average ordinary shares outstanding - basic and diluted(1)
|
| |
30,369,232
|
| |
28,000,000
|
| |
28,359,368
|
| |
28,000,000
|
(1)
|
Pro forma basic and diluted loss per share and pro forma weighted average ordinary shares outstanding - basic and diluted gives effect to (i) our Corporate Reorganization and (ii) the Share Consolidation as if such transactions had occurred on January 1, 2019.
|
|
| |
As of March 31
|
| |
As of December 31
|
|||
|
| |
2021
|
| |
2020
|
| |
2019
|
|
| |
|
| |
(in USD thousands)
|
|||
Balance Sheet Data:
|
| |
|
| |
|
| |
|
Cash
|
| |
$4,576
|
| |
$5,895
|
| |
$498
|
Total assets
|
| |
5,556
|
| |
5,912
|
| |
504
|
Share capital
|
| |
871
|
| |
871
|
| |
801
|
Total equity
|
| |
$4,315
|
| |
$5,666
|
| |
$400
|
■
|
continue to develop and conduct clinical trials, including in expanded geographies such as the United States, for GH001, our inhalable 5-MeO-DMT product candidate, and GH002, our injectable 5-MeO-DMT product candidate, for our initial indications and additional potential indications;
|
■
|
continue both the technical development and expansion of our external manufacturing capabilities for our current product candidates GH001 and GH002 and of the medical devices required to deliver these product candidates;
|
■
|
initiate and continue research and development, including nonclinical, clinical, and discovery efforts for any future product candidates;
|
■
|
seek to identify additional product candidates;
|
■
|
seek regulatory approvals for our product candidates GH001 and GH002, including the medical devices required to deliver these product candidates, or any other product candidates that successfully complete clinical development;
|
■
|
add operational, financial and management information systems and personnel, including personnel to support our product candidate and device development and help us comply with our obligations as a public company;
|
■
|
hire and retain additional personnel, such as clinical, quality control, scientific, commercial, sales, marketing and administrative personnel;
|
■
|
continue to prepare, file, prosecute, maintain, protect and enforce our intellectual property rights and claims;
|
■
|
establish sales, marketing, distribution, manufacturing, supply chain and other commercial infrastructure in the future to commercialize various products for which we may obtain regulatory approval;
|
■
|
comply with ongoing regulatory requirements for products approved for commercial sale, if ever;
|
■
|
acquire or in-license other product candidates, medical devices to deliver our product candidates, and other technologies; and
|
■
|
incur increased costs as a result of operating as a public company.
|
■
|
development costs, including expenses incurred under agreements with third parties, such as consultants, investigational sites and CROs, that conduct our nonclinical studies and clinical trials and other scientific development services;
|
■
|
costs to develop our manufacturing technology and infrastructure, including costs incurred with third-party CMOs to acquire, develop and manufacture drug substance, drug product, and delivery device materials for nonclinical studies and clinical trials;
|
■
|
costs incurred to maintain compliance with regulatory requirements; and
|
■
|
other expenses, including costs of outside consultants, insurance and other operating costs.
|
■
|
successful enrollment in and completion of clinical trials;
|
■
|
successful completion of nonclinical studies;
|
■
|
sufficiency of our financial and other resources to complete the necessary technical development work, nonclinical studies and clinical trials;
|
■
|
receiving regulatory approvals or clearance for conducting our planned clinical trials or future clinical trials;
|
■
|
receiving positive data from our clinical trials that support an acceptable risk-benefit profile of GH001, GH002 and any future product candidates in the intended populations;
|
■
|
receipt and maintenance of regulatory and marketing approvals from applicable regulatory authorities;
|
■
|
establishing and scaling up, through third-party manufacturers, manufacturing capabilities of clinical supply for our clinical trials and commercial manufacturing, if any product candidates are approved;
|
■
|
entry into collaborations to further the development of GH001, GH002 and any future product candidates, including any required medical devices;
|
■
|
obtaining and maintaining patent and trade secret protection or regulatory exclusivity for GH001, GH002 and any future product candidates;
|
■
|
successfully launching commercial sales of GH001, GH002 and any future product candidates, if approved;
|
■
|
acceptance of our current and future product candidates’ benefits and uses, if approved, by patients, the medical community and third-party payors; and
|
■
|
maintaining a continued acceptable safety profile of GH001, GH002 and our future product candidates following approval.
|
■
|
professional fees, including consulting, accounting, legal, tax and audit services;
|
■
|
personnel expenses, including salaries and related expenses; and
|
■
|
other expenses, including expenses for rent and maintenance of facilities, insurance and other operating costs.
|
|
| |
Three Months Ended
March 31
|
| |
Change
|
|||
|
| |
2021
|
| |
2020
|
| |
|
Operating Expenses:
|
| |
|
| |
|
| |
|
Research and development
|
| |
$(692)
|
| |
$(11)
|
| |
$(681)
|
General and administrative
|
| |
(448)
|
| |
(8)
|
| |
(440)
|
Loss from operations
|
| |
(1,140)
|
| |
(19)
|
| |
(1,121)
|
Foreign currency translation differences
|
| |
(9)
|
| |
—
|
| |
(9)
|
Loss for the period
|
| |
$(1,149)
|
| |
$(19)
|
| |
$(1,130)
|
|
| |
Three Months Ended
March 31
|
| |
Change
|
|||
|
| |
2021
|
| |
2020
|
| |
|
External costs
|
| |
$(587)
|
| |
$(11)
|
| |
$(576)
|
Employee expenses
|
| |
(104)
|
| |
—
|
| |
(104)
|
Depreciation property, plant and equipment
|
| |
(1)
|
| |
—
|
| |
(1)
|
Research and development
|
| |
$(692)
|
| |
$(11)
|
| |
$(681)
|
|
| |
Three Months Ended
March 31
|
| |
Change
|
|||
|
| |
2021
|
| |
2020
|
| |
|
General and administrative
|
| |
$(448)
|
| |
$(8)
|
| |
$(440)
|
|
| |
Year Ended
December 31
|
| |
Change
|
|||
|
| |
2020
|
| |
2019
|
| |
|
Operating Expenses:
|
| |
|
| |
|
| |
|
Research and development
|
| |
$(338)
|
| |
$(296)
|
| |
$(42)
|
General and administrative
|
| |
(108)
|
| |
(14)
|
| |
(94)
|
Loss from operations
|
| |
(446)
|
| |
(310)
|
| |
(136)
|
Loss for the year
|
| |
$(446)
|
| |
$(310)
|
| |
$(136)
|
|
| |
Year Ended
December 31
|
| |
Change
|
|||
|
| |
2020
|
| |
2019
|
| |
|
External costs
|
| |
$(338)
|
| |
$(296)
|
| |
$(42)
|
Research and development
|
| |
$(338)
|
| |
$(296)
|
| |
$(42)
|
|
| |
Year Ended
December 31
|
| |
Change
|
|||
|
| |
2020
|
| |
2019
|
| |
|
General and administrative
|
| |
$(108)
|
| |
$(14)
|
| |
$(94)
|
■
|
In 2019, we received net cash proceeds of $797 thousand from the issuance of ordinary shares.
|
■
|
In 2020, we received net cash proceeds of $5.5 million from the issuance of Series A preferred shares.
|
■
|
In 2021, we received net cash proceeds of $118.8 million from the issuance of Series B preferred shares.
|
■
|
As of December 31, 2019 and 2020 and March 31, 2021, we had cash of $498 thousand, $5.9 million and $4.6 million, respectively.
|
|
| |
Three Months Ended
March 31
|
| |
Change
|
| |
Year Ended
December 31
|
| |
Change
|
||||||
|
| |
2021
|
| |
2020
|
| |
|
| |
2020
|
| |
2019
|
| |
|
Cash flows used in operating activities
|
| |
$(1,087)
|
| |
$(102)
|
| |
$(985)
|
| |
$(330)
|
| |
$(289)
|
| |
$(41)
|
Cash flows used in investing activities
|
| |
(21)
|
| |
—
|
| |
(21)
|
| |
—
|
| |
—
|
| |
—
|
Cash flows from financing activities
|
| |
—
|
| |
—
|
| |
—
|
| |
5,500
|
| |
797
|
| |
4,703
|
Net (decrease)/increase in cash
|
| |
$(1,108)
|
| |
$(102)
|
| |
$(1,006)
|
| |
$5,170
|
| |
$508
|
| |
$4,662
|
■
|
continue to develop and conduct clinical trials, including in expanded geographies such as the United States, for our product candidates GH001 and GH002 for our initial indication and additional potential indications;
|
■
|
continue both the technical development and expansion of external manufacturing capabilities for our current product candidates GH001 and GH002 and of the medical devices required to deliver these product candidates;
|
■
|
initiate and continue research and development, including nonclinical, clinical, and discovery efforts for any future product candidates;
|
■
|
seek to identify additional product candidates;
|
■
|
seek regulatory approvals for our product candidates GH001 and GH002, including the medical devices required to deliver these product candidates, or any other product candidates that successfully complete clinical development;
|
■
|
add operational, financial and management information systems and personnel, including personnel to support our product candidate and device development and help us comply with our obligations as a public company;
|
■
|
hire and retain additional personnel, such as clinical, quality control, scientific, commercial, sales, marketing and administrative personnel;
|
■
|
continue to prepare, file, prosecute, maintain, protect and enforce our intellectual property rights and claims;
|
■
|
establish sales, marketing, distribution, manufacturing, supply chain and other commercial infrastructure in the future to commercialize various products for which we may obtain regulatory approval;
|
■
|
comply with ongoing regulatory requirements for products approved for commercial sale, if ever;
|
■
|
acquire or in-license other product candidates, medical devices to deliver our product candidates, and other technologies; and
|
■
|
incur increased costs as a result of operating as a public company.
|
■
|
the scope, progress, results and costs of researching and developing our GH001 and GH002 product candidates, additional 5-MeO-DMT delivery approaches and the medical devices required to deliver these therapies for our initial and potential additional indications, as well as other product candidates we may develop;
|
■
|
the timing and uncertainty of, and the costs involved in, obtaining marketing approvals for our GH001 and GH002 product candidates including the medical devices required to deliver these therapies for our initial and potential additional indications, and other product candidates we may develop and pursue;
|
■
|
the number of future product candidates that we may pursue and their development requirements;
|
■
|
the number of jurisdictions in which we plan to seek regulatory approvals;
|
■
|
if approved, the costs of commercialization activities for GH001 and GH002 for any approved indications, or any other product candidate that receives regulatory approval to the extent such costs are not the responsibility of any future collaborators, including the costs and timing of establishing product sales, marketing, distribution, and manufacturing capabilities;
|
■
|
subject to receipt of regulatory approval, revenue, if any, received from commercial sales of GH001 and GH002 and the respective medical devices for any approved indications or any other product candidates;
|
■
|
the extent to which we may in-license or acquire rights to other products, product candidates, medical devices or technologies;
|
■
|
our headcount growth and associated costs as we expand our research and development, increase our office space, and establish a commercial infrastructure;
|
■
|
the costs of preparing, filing and prosecuting patent applications and maintaining and protecting our intellectual property rights, including enforcing and defending intellectual property-related claims;
|
■
|
the effect of competing product and market developments; and
|
■
|
the ongoing costs of operating as a public company.
|
■
|
forecast expenses denominated in a currency other than the entity’s functional currency; and
|
■
|
recognized assets and liabilities denominated in a currency other than the entity’s functional currency.
|
■
|
Advancing GH001, our inhalable 5-MeO-DMT product candidate, for the treatment of TRD through clinical development, regulatory approval and commercialization, if approved
|
■
|
Advancing GH001, into clinical development in additional psychiatric and neurological disorders beyond TRD
|
■
|
Advancing GH002, our injectable 5-MeO-DMT product candidate, into clinical development
|
■
|
Investigating additional delivery systems and additional routes of administration for 5-MeO-DMT
|
■
|
Expanding our intellectual property portfolio around 5-MeO-DMT
|
■
|
Maximizing the value of our product portfolio by building internal commercialization infrastructure and entering selective partnerships
|
|
Therapy
|
| |
Route
|
| |
Frequency and
duration
|
| |
Reimbursement1
|
| |
Approximate
annual cost per
patient2
|
|
|
Pharmacotherapies
|
| ||||||||||||
|
Antidepressants: SSRI/SNRI*
|
| |
Oral
|
| |
1/day, chronic
|
| |
Broad
|
| |
Generic: $150 – 250 Brand: $1,500 – 3,500
|
|
|
Atypical antipsychotics
|
| |
Oral
|
| |
1/day, chronic
|
| |
Broad
|
| |
Generic: $3003
Brand: $5,0003
|
|
|
Esketamine
|
| |
Intranasal
|
| |
Up to 56 sessions/year, under supervision of a healthcare professional
|
| |
Limited
|
| |
$33,000 – 49,000
|
|
|
Ketamine
|
| |
Intravenous
|
| |
Up to 6 injections, then every 4 – 6 weeks
|
| |
No
|
| |
$5,500 – 8,000
|
|
|
Psychotherapy
|
| ||||||||||||
|
CBT (cognitive behavioral therapy)
|
| |
Face-to-face or online
|
| |
10 – 20 sessions,
3 – 4 months
|
| |
Broad
|
| |
Averaging $1,000
|
|
|
Somatic Therapies
|
| ||||||||||||
|
rTMS (repetitive transcranial magnetic stimulation)
|
| |
Magnetic brain stimulation without anaesthesia
|
| |
5 sessions/week,
4 – 5 weeks,
|
| |
Limited
|
| |
$6,000 – 12,000
|
|
|
ECT (electroconvulsive therapy)
|
| |
Electric brain stimulation under anaesthesia
|
| |
3 sessions/week,
4+ weeks
|
| |
Limited
|
| |
$5,000 – 15,000
|
|
|
VNS (vagus nerve stimulation)
|
| |
Electric pulses sent to the brain
|
| |
Duration varies from patient to patient – stimulator must first be implanted and given at a starting low dose every 5 minutes from day to night
|
| |
Limited
|
| |
$40,000 – 45,000
for surgical implementation (excluding costs of post-operative device adjustments)
|
|
|
DBS (deep brain stimulation)
|
| |
Electrical impulses to the brain through implanted electrodes
|
| |
3 – 6 hour operations; follow-up visits
|
| |
Limited
|
| |
$64,000 for surgical implementation (excluding costs for DBS-related follow-up procedures and battery replacements)
|
|
*
|
SSRI = selective serotonin reuptake inhibitor, SNRI = serotonin-norepinephrine reuptake inhibitor
|
1
|
Government reimbursement or private insurance coverage; 2 Assumes one treatment course over the year, direct treatment cost only (not total healthcare costs); 3 Quetiapine extended-release 150mg/day
|
1.
|
selective serotonin reuptake inhibitors, or SSRIs;
|
2.
|
serotonin-norepinephrine reuptake inhibitors, or SNRIs;
|
3.
|
atypical antidepressants;
|
4.
|
monoamine oxidase inhibitors, or MAOIs; and
|
5.
|
tricyclic antidepressants, or TCAs.
|
■
|
acute decreased functional connectivity within the relevant RSNs;
|
■
|
subsequent reintegration and resumption of normal functional connectivity, or a “re-set”, of the relevant RSNs; and
|
■
|
resolution of depressive thought patterns and improvement in other symptoms of mental disorders.
|
■
|
Ultra-Rapid Induction of Remissions
|
■
|
Maximized Rate of Remissions
|
■
|
Convenience
|
■
|
High Propensity to Induce Peak Experiences: We believe that GH001 has a high propensity to induce PEs. This is important because we believe that the occurrence of PEs may be correlated with ultra-rapid induction of durable remissions in patients with TRD, and thereby we believe may potentially act as a marker for therapeutic effects.
|
■
|
Individualized Dosing Regimen: We believe that there is no clinically relevant tolerance development to 5-MeO-DMT when the drug is re-administered within hours, or in other words, no diminished psychoactive effects. Together with the ultra-rapid onset and short duration of psychoactive effects, this aspect allows re-administration of GH001 in an individualized dosing regimen where GH001 can be administered several times within one day. We are currently investigating whether this individualized dosing regimen can increase the rate of occurrence of PEs in patients with TRD compared with administration of a single dose and whether this results in an increased rate of ultra-rapid remissions, while at the same time avoiding unnecessarily high doses. We believe that treatment optimization within the same day is important, not only because of the direct patient benefit, but also because patients with insufficient response can be identified early, without the need for lengthy trial-and-error approaches, during which time the patient is often exposed to potential side effects of ineffective treatments.
|
■
|
Treatment Regimen: We believe that the ultra-rapid onset and short duration of psychoactive effects may confer a significant convenience and feasibility advantage compared to other serotonergic psychoactive agents studied for the treatment of mental disorders, where the initial psychoactive effects have a slower onset and can last for several hours. We further believe that those features and the type of psychoactive effects induced by GH001 allow for dosing without the need for lengthy and complex patient preparation prior to treatment, with only limited required support from a healthcare provider during the experience and without the need for frequent psychological integration work after the experience. This reduces training requirements for healthcare providers and creates a convenient and efficient potential therapeutic paradigm overall.
|
■
|
the data from our completed clinical trial in healthy volunteers and ongoing clinical trial in patients with TRD;
|
■
|
the design of our planned Phase 2b trial of GH001 in TRD;
|
■
|
the current status and plans for our nonclinical studies;
|
■
|
the current status and plans for the pharmaceutical manufacturing of our active pharmaceutical ingredient, or API, and GH001 drug product;
|
■
|
the current status and plans for the device required to administer GH001; and
|
■
|
any additional topics as requested by the regulatory agencies.
|
■
|
A multi-center, randomized, controlled Phase 2b trial evaluating safety and efficacy in TRD patients, including a long-term, open-label follow-up study;
|
■
|
Phase 2a trials evaluating safety and efficacy in two or more additional psychiatric or neurological disorders; and
|
■
|
A clinical pharmacology trial in healthy volunteers, designed to further elucidate the pharmacokinetic profile of GH001.
|
■
|
A Phase 1 trial in healthy volunteers to characterize the appropriate dose range when administered as an injectable;
|
■
|
A Phase 2a trial in a psychiatric or neurological disorder following completion of the Phase 1 healthy volunteer trial.
|
■
|
appoints a rapporteur from the CHMP or from the Committee for Advanced Therapies, or CAT, to provide continuous support and to build up knowledge of the medicine in advance of the filing of a marketing authorization application;
|
■
|
issues guidance on the applicant’s overall development plan and regulatory strategy;
|
■
|
organizes a kick-off meeting with the rapporteur and experts from relevant EMA committees and working groups;
|
■
|
provides a dedicated EMA contact person; and
|
■
|
provides scientific advice at key development milestones, involving additional stakeholders, such as health technology assessment bodies and patients, as needed.
|
■
|
a covered benefit under its health plan;
|
■
|
safe, effective and medically necessary;
|
■
|
appropriate for the specific patient;
|
■
|
cost-effective; and
|
■
|
neither experimental nor investigational.
|
■
|
The federal Anti-Kickback Statute, which prohibits, among other things, persons and entities from knowingly and willfully soliciting, receiving, offering or paying any remuneration (including any kickback, bribe or rebate), directly or indirectly, overtly or covertly, in cash or in kind, to induce, or in return for, either the referral of an individual, or the purchase, lease, order, arrangement or recommendation of any good, facility, item or service for which payment may be made, in whole or in part, under a federal healthcare program, such as Medicare and Medicaid. The term “remuneration” has been interpreted broadly to include anything of value. Further, courts have found that if “one purpose” of remuneration is to induce referrals, the federal Anti-Kickback Statute is violated. The federal Anti-Kickback Statute has been interpreted to apply to arrangements between manufacturers on one hand and prescribers, purchasers and formulary managers on the other. A person or entity does not need to have actual knowledge of the federal Anti-Kickback Statute or specific intent to violate it to have committed a violation. In addition, the government may assert that a claim including items or services resulting from a violation of the federal Anti-Kickback Statute constitutes a false or fraudulent claim for purposes of the federal False Claims Act, or FCA, or federal civil money penalties statute. There are a number of statutory exceptions and regulatory safe harbors protecting some common activities from prosecution, but the exceptions and safe harbors are drawn narrowly and require strict compliance in order to offer protection;
|
■
|
The federal civil and criminal false claims laws, such as the FCA, which prohibit, among other things, individuals or entities from knowingly presenting, or causing to be presented, claims for payment or approval from Medicare, Medicaid or other third-party payors, that are false, fictitious or fraudulent; from knowingly making, using or causing to be made or used, a false statement or record material to a false or fraudulent claim or obligation to pay or transmit property to the federal government; or from knowingly concealing or knowingly and improperly avoiding or decreasing an obligation to pay money to the federal government. Manufacturers can be held liable under the FCA even when they do not submit claims directly to government payors if they
|
■
|
The federal civil monetary penalties laws, which impose civil fines for, among other things, the offering or transferring of remuneration, which includes, without limitation, any transfer of items or services for free or for less than fair market value (with limited exceptions), to a Medicare or Medicaid beneficiary that the person knows or should know is likely to influence the beneficiary’s selection of a particular provider, practitioner or supplier of items or services reimbursable by a federal or state healthcare program;
|
■
|
The federal Health Insurance Portability and Accountability Act of 1996, or HIPAA, which created additional federal criminal liability for knowingly and willfully executing, or attempting to execute, a scheme to defraud any healthcare benefit program or obtain, by means of false or fraudulent pretenses, representations or promises, any of the money or property owned by, or under the custody or control of, any healthcare benefit program, regardless of the payor (i.e., public or private) and knowingly and willfully falsifying, concealing or covering up by any trick or device a material fact or making any materially false, fictitious or fraudulent statements or representations in connection with the delivery of, or payment for, healthcare benefits, items or services relating to healthcare matters. Similar to the federal Anti-Kickback Statute, a person or entity does not need to have actual knowledge of the statute or specific intent to violate it in order to have committed a violation;
|
■
|
HIPAA, as amended by the Health Information Technology for Economic and Clinical Health Act of 2009, or HITECH, and its respective implementing regulations, which imposes, among other things, certain requirements on covered entities, including certain covered healthcare providers, health plans and healthcare clearinghouses and their respective business associates relating to the privacy, security and transmission of individually identifiable health information as well as their covered subcontractors. Among other things, HITECH makes HIPAA’s privacy and security standards directly applicable to business associates, those independent contractors or agents of covered entities that create, receive, maintain, transmit or obtain protected health information in connection with providing a service on behalf of a covered entity. HITECH also increased the civil and criminal penalties that may be imposed against covered entities, business associates and possibly other persons, and gave state attorneys general new authority to file civil actions for damages or injunctions in federal courts to enforce the federal HIPAA laws and seek attorney’s fees and costs associated with pursuing federal civil actions;
|
■
|
The federal Physician Payment Sunshine Act, created under the Patient Protection and Affordable Care Act, as amended by the Health Care and Education Reconciliation Act, collectively, the Affordable Care Act, or the ACA, which requires applicable manufacturers of drugs, devices, biologics and medical supplies for which payment is available under Medicare, Medicaid or the Children’s Health Insurance Program to report annually to the U.S. Department of Health and Human Services, or HHS, information related to payments or other transfers of value made to physicians (defined to include doctors, dentists, optometrists, podiatrists and chiropractors) and teaching hospitals, as well as ownership and investment interests held by the physicians described above and their immediate family members. Effective January 1, 2022, these reporting obligations will extend to include transfers of value made during the previous year to physician assistants, nurse practitioners, clinical nurse specialists, anesthesiologist assistants, certified registered nurse anesthetists and certified nurse midwives;
|
■
|
Federal government price reporting laws, which require us to calculate and report complex pricing metrics in an accurate and timely manner to government programs;
|
■
|
Federal consumer protection and unfair competition laws, which broadly regulate marketplace activities and activities that potentially harm consumers; and
|
■
|
Analogous state and foreign equivalents of each of the healthcare laws and regulations described above, such as anti-kickback and false claims laws, which may apply to items or services reimbursed by any third-party payor, including commercial insurers or patients; state and local marketing and/or transparency laws applicable to manufacturers that may be broader in scope than the federal requirements; state laws that require pharmaceutical companies to comply with the pharmaceutical industry voluntary compliance guidelines and other relevant compliance guidance promulgated by the federal government, such as the April 2003 Office of Inspector General Compliance Program Guidance for Pharmaceutical Manufacturers and/or the Pharmaceutical Research and Manufacturers of America’s Code on Interactions with Healthcare Professionals; state laws that require the reporting of information related to drug pricing; state laws that require drug manufacturers to report information related to payments and other transfers of value to physicians and other healthcare providers or marketing expenditures and pricing information; state and local laws that require the licensure and/or registration of pharmaceutical sales representatives; and state and foreign laws governing the privacy and security of health information that may be more stringent than those in the United States (such as the European Union, which adopted the GDPR), many of which differ from each other in significant ways and often are not preempted by HIPAA, thus complicating compliance efforts.
|
Name
|
| |
Position(s)
|
| |
Age
|
Executive Officers:
|
| |
|
| |
|
Theis Terwey
|
| |
Chief Executive Officer
|
| |
45
|
Magnus Halle
|
| |
Managing Director, Ireland
|
| |
24
|
Julie Ryan
|
| |
Group Finance Director
|
| |
35
|
|
| |
|
| |
|
Non-Executive Directors:
|
| |
|
| |
|
Florian Schönharting
|
| |
Chairman of the Board of Directors
|
| |
52
|
Spike Loy
|
| |
Director
|
| |
41
|
Michael Forer
|
| |
Director
|
| |
56
|
■
|
the majority independent director requirement under Nasdaq listing rules;
|
■
|
the requirement under Nasdaq listing rules that a compensation committee composed solely of independent directors governed by a compensation committee charter oversee executive compensation;
|
■
|
the requirement under Nasdaq listing rules that director nominees be selected or recommended for selection by either a majority of the independent directors or a nominations committee composed solely of independent directors;
|
■
|
the requirement under Nasdaq listing rules that a quorum must consist of at least 331∕3 percent of the outstanding shares of a listed company’s common voting stock; and
|
■
|
the requirement under Nasdaq listing rules that the independent directors have regularly scheduled meetings with only the independent directors present.
|
■
|
recommending the appointment of the independent auditor to shareholders for approval at the general meeting of shareholders;
|
■
|
the appointment, compensation, retention and oversight of any accounting firm engaged for the purpose of preparing or issuing an audit report or performing other audit services;
|
■
|
pre-approving the audit services and non-audit services to be provided by our independent auditor before the auditor is engaged to render such services;
|
■
|
evaluating the independent auditor’s qualifications, performance and independence, and presenting its conclusions to the full board of directors on at least an annual basis;
|
■
|
reviewing and discussing with management and our independent registered public accounting firm our financial statements and our financial reporting process; and
|
■
|
reviewing, approving or ratifying any related party transactions.
|
■
|
drawing up selection criteria and appointment procedures for directors;
|
■
|
assessing the functioning of individual members of our board of directors and executive officers and reporting the results of such assessment to our board of directors;
|
■
|
establishing procedures for identifying and evaluating board of director candidates, including nominees recommended by shareholders;
|
■
|
reviewing the composition of our board of directors to ensure that it is composed of members containing the appropriate skills and expertise to advise us;
|
■
|
recommending to our board of directors the persons to be nominated for election as directors and to each of our board of directors’ committees;
|
■
|
developing and recommending to our board of directors a code of business conduct and ethics and a set of corporate governance guidelines; and
|
■
|
overseeing the evaluation of our board of directors and management.
|
■
|
identifying, reviewing and proposing policies relevant to the compensation and benefits of our directors and executive officers;
|
■
|
evaluating the performance of senior management in light of such policies and reporting to the board; and
|
■
|
overseeing and administering our employee share option scheme or equity incentive plans in operation from time to time.
|
Stockholder
|
| |
Ordinary
Shares
|
| |
Aggregate Purchase
Price Paid
|
Florian Schönharting
|
| |
12,740,000
|
| |
€127,400.00
|
Theis Terwey
|
| |
5,460,000
|
| |
€ 54,600.00
|
Magnus Halle
|
| |
100,000
|
| |
€ 1,000.00
|
Stockholder
|
| |
Ordinary
Shares
|
| |
Aggregate Purchase
Price Paid
|
Entities affiliated with BVF(1)
|
| |
12,250,000
|
| |
€122,500.00
|
Florian Schönharting
|
| |
24,046,750
|
| |
€240,467.50
|
Theis Terwey
|
| |
10,305,750
|
| |
€103,057.50
|
Magnus Halle
|
| |
188,750
|
| |
€ 1,887.50
|
(1)
|
Consists of Biotechnology Value Trading Fund OS, L.P., Biotechnology Value Fund II, L.P. and Biotechnology Value Fund, L.P. Spike Loy, a member of our board of directors, is a managing director at BVF.
|
Stockholder
|
| |
Series A Preferred
Shares
|
| |
Aggregate Purchase
Price Paid
|
Entities affiliated with BVF(1)
|
| |
4,307,695
|
| |
$4,000,002.50
|
Florian Schönharting
|
| |
686,000
|
| |
$637,000.00
|
Theis Terwey
|
| |
294,000
|
| |
$273,000.00
|
Magnus Halle
|
| |
5,384
|
| |
$4,999.43
|
Michael Forer
|
| |
107,692
|
| |
$100,000.08
|
(1)
|
Consists of Biotechnology Value Trading Fund OS, L.P., Biotechnology Value Fund II, L.P. and Biotechnology Value Fund, L.P. Spike Loy, a member of our board of directors, is a managing director at BVF.
|
Stockholder
|
| |
Series B Preferred
Shares
|
| |
Aggregate Purchase
Price Paid
|
Entities affiliated with BVF
|
| |
5,067,701
|
| |
$25,000,002.87
|
Florian Schönharting
|
| |
202,699
|
| |
$999,955.52
|
■
|
each person or group of affiliated persons known by us to be the beneficial owner of 5% or more of our ordinary shares;
|
■
|
each of our named executive officers;
|
■
|
each of our directors; and
|
■
|
all of our executive officers and directors as a group.
|
|
| |
Shares Beneficially Owned
Before This Offering
|
| |
Shares Beneficially Owned
After This Offering
|
||||||
Name of Beneficial Owner
|
| |
Number
|
| |
Percent
|
| |
Number
|
| |
Percent
|
5% or Greater Shareholders
|
| |
|
| |
|
| |
|
| |
|
Entities affiliated with BVF(1)
|
| |
8,650,158
|
| |
21.3%
|
| |
8,650,158
|
| |
17.7%
|
Executive Officers and Directors
|
| |
|
| |
|
| |
|
| |
|
Theis Terwey
|
| |
6,423,900
|
| |
15.9%
|
| |
6,423,900
|
| |
13.1%
|
Magnus Halle
|
| |
*
|
| |
*%
|
| |
*
|
| |
*%
|
Julie Ryan(2)
|
| |
*
|
| |
*%
|
| |
*
|
| |
*%
|
Florian Schönharting
|
| |
15,070,179
|
| |
37.2%
|
| |
15,070,179
|
| |
30.8%
|
Spike Loy(3)
|
| |
*
|
| |
*%
|
| |
*
|
| |
*%
|
Michael Forer(4)
|
| |
*
|
| |
*%
|
| |
*
|
| |
*%
|
All executive officers and directors as a group (6 persons)
|
| |
21,654,810
|
| |
53.4%
|
| |
21,654,810
|
| |
44.3%
|
*
|
Represents beneficial ownership of less than 1%.
|
(1)
|
Consists of 4,507,690 ordinary shares held by Biotechnology Value Fund, L.P., (“BVF”) including 3,531,790 ordinary shares held by Biotechnology Value Fund II, L.P. (“BVF2”), and 610,678 ordinary shares held by Biotechnology Value Trading Fund OS L.P. (“Trading Fund OS”), BVF (“BVF GP”), as the general partner of BVF, may be deemed to beneficially own the 4,507,690 shares beneficially owned by BVF. BVF II GP L.L.C. (“BVF2 GP”), as the general partner of BVF2, may be deemed to beneficially own the 3,531,790 shares beneficially owned by BVF2. BVF Partners OS Ltd. (“Partners OS”), as the general partner of Trading Fund OS, may be deemed to beneficially own the 610,678 shares beneficially owned by Trading Fund OS. BVF GP Holdings L.L.C., (“BVF GPH”), as the sole member of each of BVF GP and BVF2 GP, may be deemed to beneficially own the 8,039,480 shares beneficially owned in the aggregate by BVF and BVF2. BVF Partners L.P. (“Partners”), as the general partner of BVF and BVF2, the sole member of Partners OS, and the investment manager of Trading Fund OS, may be deemed to beneficially own the 8,650,158 shares beneficially owned in the aggregate by BVF, BVF2 and Trading Fund OS. BVF Inc., as the general partner of Partners, may be deemed to beneficially own the 8,650,158 shares beneficially owned by Partners. Mark Lampert, as a director and officer of BVF Inc., may be deemed to beneficially own the 8,650,158 shares beneficially owned by BVF Inc. The address of the above persons and entities is 44 Montgomery Street, 40th Floor, San Francisco, CA 94104.
|
(2)
|
Excludes options to purchase a total of 50,487 ordinary shares that are not exercisable by Ms. Ryan within 60 days of the date of this prospectus.
|
(3)
|
Mr. Loy, a Managing Director of BVF Partners LP, disclaims beneficial ownership with respect to the 8,650,158 ordinary shares held of record by entities affiliated with BVF except to the extent of his pecuniary interest therein. See footnote (1).
|
(4)
|
Does not include 212,850 ordinary shares held by Dune Capital Inc., a company which is wholly owned by a trust whose beneficiaries include Mr. Forer and his family. Mr. Forer does not exercise investment or voting control over the trust, and therefore such shares do not appear in the table above.
|
■
|
The holders of ordinary shares are entitled to one vote for each ordinary share held of record on all matters submitted to a vote of the shareholders;
|
■
|
The holders of our ordinary shares shall be entitled to receive notice of, attend, speak and vote at our general meetings and receive a copy of every report, accounts, circular or other documents sent out by us to our shareholders; and
|
■
|
The holders of our ordinary shares are entitled to receive such dividends as are recommended by our directors and declared by our shareholders or in the case of an interim dividend, declared by our directors.
|
■
|
amending the Constitution;
|
■
|
approving a change of name of GH Research PLC;
|
■
|
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 preemption rights on the issuance of new shares for cash;
|
■
|
our re-registration from a public limited company to a private company;
|
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variation of class rights attaching to classes of shares (where the Constitution does not provide otherwise);
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purchase of our shares off-market;
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reduction of issued share capital;
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sanctioning a compromise/scheme of arrangement;
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resolving that we be wound up by the Irish courts;
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resolving in favor of a shareholders’ voluntary winding up;
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re-designation of shares into different share classes; and
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setting the reissue price of treasury shares.
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to act in good faith and in the best interests of the company;
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to act honestly and responsibly in relation to the company’s affairs;
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to act in accordance with the company’s constitution and to exercise powers only for lawful purposes;
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not to misuse the company’s property, information and/or opportunity;
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not to fetter their independent judgment;
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to avoid conflicts of interest;
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to exercise care, skill and diligence; and
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to have regard for the interests of the company’s shareholders.
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(i)
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borrow money;
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(ii)
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indemnify and guarantee;
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(iii)
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mortgage or charge;
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(iv)
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create and issue debentures and other securities; and
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(v)
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give security either outright or as collateral security for any of our debt, liability or obligation or any of a third party.
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(i)
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in the event of an offer, all holders of securities of the target company must be afforded equivalent treatment and, if a person acquires control of a company, the other holders of securities must be protected;
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(ii)
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the holders of 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 Directors of the target company must give its views on the effects of the implementation of the offer on employment, employment conditions and the locations of the target company’s place of business;
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(iii)
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a target company’s Board of Directors must act in the interests of that company as a whole and must not deny the holders of securities the opportunity to decide on the merits of the offer;
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(iv)
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false markets must not be created in the securities of the target company, the bidder or 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;
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(v)
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a bidder can only announce an offer after ensuring that he or she can fulfill in full the consideration offered, if such is offered, and after taking all reasonable measures to secure the implementation of any other type of consideration;
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(vi)
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a target company may not be hindered in the conduct of its affairs longer than is reasonable by an offer for its securities; and
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(vii)
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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.
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(a)
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the action is approved by our shareholders at a general meeting; or
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(b)
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the Irish Takeover Panel has given its consent, where:
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(i)
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it is satisfied the action would not constitute frustrating action;
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(ii)
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our shareholders holding more than 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;
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(iii)
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the action is taken in accordance with a contract entered into prior to the announcement of the offer, or any earlier time at which our Board of Directors considered the offer to be imminent; or
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(iv)
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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.
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(i)
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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, shall be void;
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(ii)
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no voting rights shall be exercisable in respect of those shares;
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(iii)
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no further shares shall be issued in right of those shares or in pursuance of any offer made to the holder of those shares; and
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(iv)
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no payment shall be made of any sums due from us on those shares, whether in respect of capital or otherwise.
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IRELAND
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DELAWARE
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Number of Directors
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The Irish Companies Act provides for a minimum of two directors. The Constitution provides for a minimum of two directors and a maximum of nine. Our shareholders may from time to time increase or reduce the maximum number, or increase the minimum number, of directors by ordinary resolution. Our Board of Directors determines the number of directors within the range of two to nine.
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A typical certificate of incorporation and bylaws would provide that the number of directors on the board of directors will be fixed from time to time by a vote of the majority of the authorized directors. Under Delaware law, a board of directors can be divided into classes and cumulative voting in the election of directors is only permitted if expressly authorized in a corporation’s certificate of incorporation.
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Removal of Directors
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Under the Irish Companies Act, the shareholders may, by ordinary resolution, remove a director from office before the expiration of his or her term, at a meeting held with no less than 28 days’ notice and at which the director is entitled to be heard. Because of this provision of the Irish Companies Act, a director may be so removed before the expiration of his or her period of office.
The power of removal is without prejudice to any claim for damages for breach of contract (e.g., employment contract) that the director may have against the Company in respect of his or her removal.
The Constitution also provides that the office of a director will also be vacated if the director is restricted or disqualified to act as a director under the Irish Companies Act; resigns his or her office by notice in writing to us or in writing offers to resign and the directors resolve to accept such offer; or is requested to resign in writing by not less than 75% of the other directors.
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A typical certificate of incorporation and bylaws provide that, subject to the rights of holders of any preferred shares, directors may be removed at any time by the affirmative vote of the holders of at least a majority, or in some instances a supermajority, of the voting power of all of the then outstanding shares entitled to vote generally in the election of directors, voting together as a single class. A certificate of incorporation could also provide that such a right is only exercisable when a director is being removed for cause (removal of a director only for cause is the default rule in the case of a classified board).
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Vacancies on the Board of Directors
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Any vacancy on our Board of Directors, including a vacancy resulting from an increase in the number of directors or from the death,
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A typical certificate of incorporation and bylaws provide that, subject to the rights of the holders of any preferred shares, any vacancy, whether
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IRELAND
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DELAWARE
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resignation, retirement, disqualification or removal of a director, shall be deemed a casual vacancy. Any casual vacancy shall only be filled by the decision of a majority of our Board of Directors then in office, provided that a quorum is present and provided that the appointment does not cause the number of directors to exceed any number fixed by or in accordance with the Constitution as the maximum number of directors.
Any director elected to fill a vacancy resulting from an increase in the number of directors of such class shall hold office for 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.
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arising through death, resignation, retirement, disqualification, removal, an increase in the number of directors or any other reason, may be filled by a majority vote of the remaining directors, even if such directors remaining in office constitute less than a quorum, or by the sole remaining director. Any newly elected director usually holds office for the remainder of the full term expiring at the annual meeting of shareholders at which the term of the class of directors to which the newly elected director has been elected expires.
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Annual General Meeting
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We are required to hold annual general meetings at intervals of no more than 15 months after the previous annual general meeting, provided that an annual general meeting is held in each calendar year following our first annual general meeting, no more than nine months after our fiscal year-end.
The only matters which must, as a matter of Irish company law, be transacted at an annual general meeting are the consideration of the Irish statutory financial statements, the report of the directors, the report of the auditors on those statements and that report and a review by the members of our affairs. If no resolution is made in respect of the reappointment of an auditor at an annual general meeting, the previous auditor will be deemed to have continued in office.
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Typical bylaws provide that annual meetings of shareholders are to be held on a date and at a time fixed by the board of directors.
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General Meeting
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Our extraordinary general meetings may be convened by (i) our Board of Directors, (ii) on requisition of shareholders holding not less than 10% of our paid up share capital carrying voting rights or (iii) on requisition of our auditors. Extraordinary general meetings are generally held for the purposes of approving shareholder resolutions as may be required from time to time.
If our directors become aware that our net assets are half or less of the amount of our called up share capital, our directors must
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Under Delaware law, a special meeting of shareholders may be called by the board of directors or by any other person authorized to do so in the certificate of incorporation or the bylaws.
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IRELAND
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DELAWARE
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convene an extraordinary general meeting of our shareholders not later than 28 days from the date that they learn of this fact. This meeting must be convened for the purposes of considering whether any, and if so what, measures should be taken to address the situation.
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Notice of General Meetings
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Notice of a general meeting must be given to all our shareholders and to our auditors. The Constitution provides that the maximum notice period is 60 days. The minimum notice periods are 21 days’ notice in writing for an annual general meeting or an extraordinary general meeting to approve a special resolution and 14 days’ notice in writing for any other extraordinary general meeting. General meetings may be called by shorter notice, but only with the consent of our auditors and all of our shareholders entitled to attend and vote thereat. Because of the 21-day and 14-day requirements described in this paragraph, the Constitution includes provisions reflecting these requirements of Irish law.
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 this 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 our 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 the receipt of the requisition notice.
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Under Delaware law, unless otherwise provided in the certificate of incorporation or bylaws, written notice of any meeting of the stockholders must be given to each stockholder entitled to vote at the meeting not less than 10 nor more than 60 days before the date of the meeting and shall specify the place, date, hour and purpose or purposes of the meeting.
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Quorum
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The presence, in person or by proxy, of one or more persons holding or representing by proxy at least 25% of the votes that may be cast at the relevant time or, at any adjourned meeting of such holders, one holder holding or representing by proxy at least a majority in nominal value of the issued shares of the class constitutes a quorum for the conduct of business. No business may take place at a general meeting if a quorum is not present in person or by proxy. Our Board of Directors has no authority to waive quorum
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Under Delaware law, a corporation’s certificate of incorporation or bylaws can specify the number of shares which constitute the quorum required to conduct business at a meeting, provided that in no event shall a quorum consist of less than one-third of the shares entitled to vote at a meeting.
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IRELAND
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DELAWARE
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requirements stipulated in the Constitution. Abstentions and broker non-votes will be counted as present for purposes of determining whether there is a quorum in respect of the proposals.
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Proxy
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Under Irish law, a shareholder may designate another person to attend, speak and vote at a general meeting of the company on their behalf by 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.
Voting rights may be exercised by shareholders registered in the share register as of the record date for the meeting or by a duly appointed proxy of such a registered shareholder, 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 accordance with the Constitution. The Constitution permits the appointment of proxies by our shareholders to be notified to us electronically, when permitted by our directors.
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Under Delaware law, at any meeting of stockholders, a stockholder may designate another person to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A director of a Delaware corporation may not issue a proxy representing the director’s voting rights as a director.
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Issue of New Shares
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Under the Constitution, we may issue shares subject to the maximum authorized share capital contained in the Constitution. The authorized share capital may be increased or reduced by a resolution approved by a simple majority of the votes cast at a general meeting of our shareholders, referred to under Irish law as an “ordinary resolution.” As a matter of Irish law, the directors of a company may issue new ordinary shares without shareholder approval once authorized to do so by its constitution or by an ordinary resolution adopted by our shareholders at a general meeting. The authorization may be granted for a maximum period of five years, at which point it may be renewed by shareholders by an ordinary resolution. Accordingly, the Constitution authorizes our Board of Directors to issue new ordinary shares without shareholder approval for a period of five years from the date of the adoption of the Constitution.
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Under Delaware law, if the company’s certificate of incorporation so provides, the directors have the power to authorize the issuance of additional stock. The directors may authorize capital stock to be issued for consideration consisting of cash, any tangible or intangible property or any benefit to the company or any combination thereof.
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Preemptive Rights
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Under Irish law, unless otherwise authorized, when an Irish public limited company issues
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Under Delaware law, stockholders have no preemptive rights to subscribe to additional
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IRELAND
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DELAWARE
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shares for cash to new shareholders, it is required first to offer those shares on the same or more favorable terms to existing shareholders of the company on a pro rata basis, commonly referred to as the statutory preemption right. However, we have opted out of these preemption rights in the Constitution as permitted under Irish law. Because Irish law permits this opt-out to last for a maximum of five years, the Constitution provides that this opt-out will lapse five years after the adoption of the Constitution. Such opt-out may be renewed by a special resolution of the shareholders. A special resolution requires not less than 75% of the votes cast at a general meeting of our shareholders. If the opt-out is not renewed, shares issued for cash must be offered to our preexisting shareholders pro rata before the shares can be issued to any new shareholders. The statutory preemption rights do not apply where shares are issued for noncash consideration 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).
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issues of stock or to any security convertible into such stock unless, and except to the extent that, such rights are expressly provided for in the certificate of incorporation.
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Authority to Allot
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Under the Constitution, we may issue shares subject to the maximum authorized share capital contained in the Constitution. The authorized share capital may be increased or reduced by a resolution approved by a simple majority of the votes cast at a general meeting of our shareholders, referred to under Irish law as an “ordinary resolution.” Our authorized share capital may be divided into shares of such nominal value as the resolution shall prescribe. As a matter of Irish law, the directors of a company may issue new ordinary shares without shareholder approval once authorized to do so by its constitution or by an ordinary resolution adopted by our shareholders at a general meeting. The authorization may be granted for a maximum period of five years, at which point it may be renewed by shareholders by an ordinary resolution. Accordingly, the Constitution authorizes our Board of Directors to issue new ordinary shares without shareholder approval for a period of five years from the date of the adoption of the Constitution.
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Under Delaware law, if the corporation’s charter or certificate of incorporation so provides, the board of directors has the power to authorize the issuance of stock. The board may authorize capital stock to be issued for consideration consisting of cash, any tangible or intangible property or any benefit to the corporation or any combination thereof. It may determine the amount of such consideration by approving a formula. In the absence of actual fraud in the transaction, the judgment of the directors as to the value of such consideration is conclusive.
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Acquisition of Own Shares
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Under Irish law, a company may issue redeemable shares and redeem them out of distributable reserves or the proceeds of a new
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Under Delaware law, any corporation may purchase or redeem its own shares, except that generally it may not purchase or redeem these
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IRELAND
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DELAWARE
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issue of shares for that purpose. All redeemable shares must also be fully paid. Redeemable shares may, upon redemption, be cancelled or held in treasury. The Constitution provides that shareholder approval will not be required to deem any shares redeemable. 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.
Repurchased and redeemed shares may be cancelled or held as treasury shares. The nominal value of treasury shares that we hold 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. We may either cancel or, subject to certain conditions, reissue Treasury shares.
Under Irish law, an Irish or non-Irish subsidiary may purchase our shares either on-market or off-market. For a subsidiary of ours to make on-market purchases of our shares, the 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 on-market purchase by a subsidiary of our shares is required. For an off-market purchase by a subsidiary of ours, the proposed purchase contract must be authorized by special resolution of our shareholders before the contract is entered into. This authority must specify the date on which the authority is to expire, which shall not be more than 18 months from the date the special resolution was passed. The person whose shares of ours are to be bought cannot vote in favor of the special resolution and, for at least 21 days prior to the special resolution being passed, the purchase contract must be on display or must be available for inspection by our shareholders at our registered office.
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shares if the capital of the corporation is impaired at the time or would become impaired as a result of the redemption. A corporation may, however, purchase or redeem out of capital shares that are entitled upon any distribution of its assets to a preference over another class or series of its shares if the shares are to be retired and the capital reduced.
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Different Classes of Shares
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Without prejudice to any rights attached to any existing shares, We may issue shares with such rights or restrictions as we determine by an ordinary resolution approved by our shareholders. As a matter of Irish company law,
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A company’s Delaware’s certificate of incorporation may authorize the board of directors:
(1) to provide for the issuance of one or
more series of preferred stock; |
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IRELAND
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DELAWARE
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the directors of a company may issue new ordinary shares without shareholder approval once authorized to do so by the constitution 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 (if we wish to issue shares). The Constitution authorizes our board of directors to issue new ordinary shares without shareholder approval for a period of five years from the date of adoption of such constitution, which is expected to be effective as of the completion of the business combination. We may also issue shares which are, or are liable to be, redeemed at the option of us or the holder.
Whenever our share capital is divided into different classes of shares, the special rights attached to any class may be varied or abrogated either with the written consent of the holders of 75% in nominal value of the issued shares of the class (excluding shares held as treasury shares) or with the sanction of a special resolution passed at a separate meeting of the holders of the shares of the class (but not otherwise), and may be so varied or abrogated either while we are a going concern or during or in contemplation of a winding up.
The rights conferred upon the holders of any class of shares issued with preferred or other rights shall not, unless otherwise expressly provided by the terms of issue of the shares of that class, be deemed to be varied by our purchase or redemption of our own shares or by the creation or issue of further shares ranking pari passu therewith or subordinate thereto.
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(2) to establish from time to time the
number of shares to be included in such series; and
(3) to fix the designations, preferences
and relative, participating, optional or other special rights, and qualifications, limitations or restrictions of each such series. |
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Dividends
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Under Irish law, dividends and distributions may only be made from distributable reserves which are, generally, a company’s accumulated realized profits less its accumulated realized losses. In addition, no distribution or dividend may be made if our net assets are not, or if making such distribution or dividend will cause our net assets to not be, equal to, or in excess of, the aggregate of our called up share capital plus undistributable reserves.
Undistributable reserves include the company’s undenominated capital and the amount by which a company’s accumulated unrealized
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Under Delaware law, subject to any restriction in the corporation’s certificate of incorporation, the Board may declare and pay dividends out of:
(1) surplus of the corporation, which is
defined as net assets less statutory capital; or
(2) if no surplus exists, out of the net
profits of the corporation for the year in which the dividend is declared and/or the preceding year; provided, however, that if the capital of the corporation has been diminished to an amount less than the aggregate amount of capital |
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IRELAND
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DELAWARE
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profits exceeds its accumulated unrealized losses. The determination as to whether or not we have sufficient distributable reserves to fund a dividend must be made by reference to our most recent unconsolidated annual audited financial statements or other financial statements properly prepared in accordance with the Irish Companies Act. The relevant financial statements must be filed in the Companies Registration Office (the official public registry for companies in Ireland).
The Constitution authorizes our board of directors to declare an interim dividend without shareholder approval to the extent they appear justified by profits. Our board of directors may also recommend a dividend to be approved and declared by the shareholders at a general meeting, provided that no dividend issued may exceed the amount recommended by the directors.
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represented by the issued and outstanding stock of all classes having preference upon the distribution of assets, the Board may not declare and pay dividends out of the corporation’s net profits until the deficiency in the capital has been repaired.
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General Provisions Governing a Liquidation; Liquidation Distributions
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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 our 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.
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 the Constitution.
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Upon the dissolution of a Delaware corporation, after satisfaction of the claims of creditors, the assets of that corporation would be distributed to stockholders in accordance with their respective interests, including any rights a holder of shares of preference shares may have to preferred distributions upon dissolution or liquidation of the corporation.
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Amendment of Constitution
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Irish company law requires a special resolution of our shareholders (approval by not less than 75% of the votes cast at a general meeting of our shareholders) to approve any amendments to the Constitution.
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Amendment of Certification of Incorporation and Bylaws
Under Delaware law, amendments to a corporation’s certificate of incorporation require the approval of stockholders holding a majority of the outstanding shares entitled to vote on the amendment.
If a class vote on the amendment is required by the Delaware General Corporation Law, a majority of the outstanding stock of the class is required, unless a greater proportion is specified in the certificate of incorporation or by other provisions of the Delaware General
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IRELAND
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DELAWARE
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Corporation Law. Under the Delaware General Corporation Law, the board of directors may amend bylaws if so authorized in the certificate of incorporation. The stockholders of a Delaware corporation also have the power to amend bylaws.
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Acquisition of Treasury Share and Reduction of Share Capital
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We may reduce our authorized but unissued share capital in any manner permitted by the Irish Companies Act. We also may, by special resolution (approved by not less than 75% of the votes cast at a general meeting of our shareholders) and subject to confirmation by the Irish High Court, reduce our issued share capital in any way permitted by the Irish Companies Act.
For purposes of Irish law, repurchases of our shares may be effected by a redemption if the repurchased shares are redeemable shares or are deemed to be redeemable shares by the Constitution.
The Constitution provides that, unless the board of directors determines otherwise, each of our shares 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 us and any person pursuant to which we acquire or will acquire our shares, or an interest in our shares, from the relevant person. Redeemable shares of ours shall have the same characteristics as any other of our shares save that they shall be redeemable in accordance with the arrangement.
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Under Delaware law, a corporation, by an affirmative vote of a majority of the board of directors, may reduce its capital by reducing or eliminating the capital represented by shares of capital stock which have been retired, by applying to an already authorized purchase redemption, conversion or exchange of outstanding shares of its capital stock some or all of the capital represented by shares being purchased, redeemed, converted or exchanged or any capital that has not been allocated to any particular class of capital stock or by transferring to surplus capital some or all of the capital not represented by any particular class of its capital stock or the capital associated with certain issued shares of its par value capital stock. No reduction of capital may be made unless the assets of the corporation remaining after the reduction are sufficient to pay any debts for which payment has not otherwise been provided.
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Rights of Inspection
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Under Irish law, our shareholders have the right to: (i) receive a copy of the Constitution; (ii) inspect and obtain copies of the minutes of our general meetings and resolutions; (iii) inspect and receive a copy of our register of members, register of directors and secretaries, register of directors’ interests, register of directors’ service contracts and memoranda and other statutory registers that we maintain; (iv) receive copies of balance sheets and directors’ and auditors’ reports that have previously been sent to our shareholders prior to an annual general meeting; and (v) receive balance sheets of any of our subsidiaries that have previously been sent to our shareholders prior to an annual general meeting for the preceding 10 years.
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Delaware law allows any stockholder in person or by attorney or other agent, upon written demand under oath stating the purpose thereof, during the usual hours for business to inspect for any proper purpose, and to make copies and extracts from:
(1) the corporation’s stock ledger, a list of its
stockholders, and its other books and records; and
(2) a subsidiary’s books and records, to the
extent that:
(a) the corporation has actual
possession and control of such records of such subsidiary; or
(b) the corporation could obtain such
records through the exercise of control over such subsidiary,
provided that as of the date of the
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IRELAND
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DELAWARE
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making of the demand:
(i) the stockholder inspection of
such books and records of the subsidiary would not constitute a breach of an agreement between the corporation or the subsidiary and a person or persons not affiliated with the corporation; and
(ii) the subsidiary would not have
the right under the law applicable to it to deny the corporation access to such books and records upon demand by the corporation. |
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Liability of Directors and Officers
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To the fullest extent permitted by Irish law, the Constitution contains indemnification for the benefit of, among others, our directors, company secretary and executive officers. However, as to our directors and company secretary, 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 company secretary where judgment is given in favor of the director or company 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 company 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 company secretary over and above the limitations imposed by the Irish Companies Act will be void, whether contained in its Constitution or any contract between the company and the director or company secretary. This restriction does not apply to our executive officers who are not directors, our company secretary or other persons who would be considered “officers” within the meaning of the Irish Companies Act.
We are permitted under the Constitution 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. In order to attract and retain qualified directors and officers, we expect to purchase and maintain customary directors’ and officers’ liability insurance and other types of comparable insurance.
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Delaware law permits a corporation’s certificate of incorporation to include a provision eliminating or limiting the personal liability of a director to the corporation and its stockholders for damages arising from a breach of fiduciary duty as a director. However, no provision can limit the liability of a director for:
(1) any breach of his or her duty of loyalty
to the corporation or its stockholders;
(2) acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law;
(3) intentional or negligent payment of
unlawful dividends or stock purchases or redemptions; or
(4) any transaction from which he or she
derives an improper personal benefit. |
|
| |
IRELAND
|
| |
DELAWARE
|
Voting Rights
|
| |
Under the Constitution, each holder of our ordinary shares is entitled to one vote for each ordinary share that he or she holds as of the record date for the meeting. We may not exercise any voting rights in respect of any shares held as treasury shares. Any shares held by our subsidiaries will count as treasury shares for this purpose, and such subsidiaries cannot therefore exercise any voting rights in respect of those shares.
|
| |
Each stockholder is entitled to one vote for each share of capital stock held by the stockholder, unless the certificate of incorporation provides otherwise.
If issued, the voting rights of holders of preferred stock will be determined by the certificate of incorporation or the certificate of designation with respect to such preferred stock.
|
|
| |
|
| |
|
Shareholder Vote on Certain Transactions
|
| |
Pursuant to Irish law, shareholder approval in connection with a transaction involving the Company would be required under the following circumstances:
■ in connection with a scheme of arrangement, both a court order from the Irish High Court and the approval of a majority in number representing 75% in value of the shareholders present and voting in person or by proxy at a meeting called to approve such a scheme would be required;
■ in connection with an acquisition of the Company by way of a merger with an EU company under the EU Cross-Border Mergers Directive 2005/56/EC, (as replaced by Directive (EU) 2017/1132 of June 14, 2017), approval by a special resolution of the shareholders would be required; and
■ in connection with a merger with an Irish company under the Irish Companies Act, approval by a special resolution of shareholders would be required.
|
| |
Generally, under Delaware law, unless the certificate of incorporation provides for the vote of a larger portion of the stock, completion of a merger, consolidation, sale, lease or exchange of all or substantially all of a corporation’s assets or dissolution requires:
■ the approval of the board of directors; and
■ the approval by the vote of the holders of a majority of the outstanding stock or, if the certificate of incorporation provides for more or less than one vote per share, a majority of the votes of the outstanding stock of the corporation entitled to vote on the matter.
|
|
| |
|
| |
|
Standard of Conduct for Directors
|
| |
The directors of the Company have certain statutory and fiduciary duties as a matter of Irish law. All of the directors have equal and overall responsibility for the management of the Company (although directors who also serve as employees may have additional responsibilities and duties arising under their employment agreements (if applicable), and it is likely that more will be expected of them in compliance with their duties than non-executive directors). The Irish Companies Act provides specifically for certain fiduciary duties of the directors of Irish companies, including duties:
■ to act in good faith and in the best interests of the company;
■ to act honestly and responsibly in relation
to the company’s affairs;
|
| |
Delaware law does not contain specific provisions setting forth the standard of conduct of a director. The scope of the fiduciary duties of directors is generally determined by the courts of the State of Delaware. In general, directors have a duty to act without self-interest, on a well-informed basis and in a manner they reasonably believe to be in the best interests of the stockholders.
Directors of a Delaware corporation owe fiduciary duties of care and loyalty to the corporation and to its shareholders. The duty of care generally requires that a director act in good faith, with the care that an ordinarily prudent person would exercise under similar circumstances. Under this duty, a director must inform himself of all material information
|
|
| |
IRELAND
|
| |
DELAWARE
|
|
| |
■ to act in accordance with the company’s constitution and to exercise powers only for lawful purposes;
■ not to misuse the company’s property, information and/or opportunity;
■ not to fetter their independent judgment;
■ to avoid conflicts of interest;
■ to exercise care, skill and diligence; and
■ to have regard for the interests of the company’s shareholders.
Other statutory duties of directors include ensuring the maintenance of proper books of account, having annual accounts prepared, having an annual audit performed, maintaining certain registers, making certain filings and disclosing personal interests. Directors of public limited companies such as GH will have a specific duty to ensure that the company secretary is a person with the requisite knowledge and experience to discharge the role. Directors may rely on information, opinions, reports or statements, including financial statements and other financial data, prepared or presented by (1) other directors, officers or employees of the company whom the director reasonably believes to be reliable and competent in the matters prepared or presented, (2) legal counsel, public accountants or other persons as to matters the director reasonably believes to be within their professional or expert competence or (3) a committee of the board of which the director does not serve as to matters within its designated authority, which committee the director reasonably believed to merit confidence.
|
| |
reasonably available regarding a significant transaction. The duty of loyalty requires that a director act in a manner he reasonably believes to be in the best interests of the corporation. He must not use his corporate position for personal gain or advantage. In general, but subject to certain exceptions, actions of a director are presumed to have been made on an informed basis, in good faith and in the honest belief that the action taken was in the best interests of the corporation. However, this presumption may be rebutted by evidence of a breach of one of the fiduciary duties. Delaware courts have also imposed a heightened standard of conduct upon directors of a Delaware corporation who take any action designed to defeat a threatened change in control of the corporation.
In addition, under Delaware law, when the board of directors of a Delaware corporation approves the sale or breakup of a corporation, the board of directors may, in certain circumstances, have a duty to obtain the highest value reasonably available to the stockholders.
|
|
| |
|
| |
|
Shareholder Suits
|
| |
In Ireland, the decision to institute proceedings is generally taken by a company’s board of directors, who will usually be empowered to manage the company’s business. In certain limited circumstances, a shareholder may be entitled to bring a derivative action on behalf of the company.
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 the company would otherwise go unredressed. The principal case law in Ireland indicates that
to bring a derivative action a person must first
|
| |
Under Delaware law, a stockholder may bring a derivative action on behalf of the corporation to enforce the rights of the corporation. An individual also may commence a class action suit on behalf of himself or herself and other similarly situated stockholders where the requirements for maintaining a class action under the Delaware General Corporation Law have been met. A person may institute and maintain such a suit only if such person was a stockholder at the time of the transaction which is the subject of the suit or his or her shares thereafter devolved upon him or her by operation of law. Additionally, under Delaware case law, the plaintiff generally must be a stockholder not only at the time of the
|
|
| |
IRELAND
|
| |
DELAWARE
|
|
| |
establish a prima facie case (i) that the company is entitled to the relief claimed and (ii) that the action falls within one of the five exceptions derived from case law, as follows:
(1) where an ultra vires or illegal act is perpetrated;
(2) where more than a bare majority is required to ratify the “wrong” complained of;
(3) where the shareholders’ personal rights are infringed;
(4) where a fraud has been perpetrated upon a minority by those in control; or
(5) where the justice of the case requires a minority to be permitted to institute proceedings.
Shareholders may also bring proceedings against the company where the affairs of the company are being conducted, or the powers of the directors are being exercised, in a manner oppressive to the shareholders or in disregard of their interests. Oppression connotes conduct that is burdensome, harsh or wrong.
Conduct must relate to the internal management of the company. This is an Irish statutory remedy and the court can grant any order it sees fit, usually providing for the purchase or transfer of the shares of any shareholder. |
| |
transaction which is the subject of the suit, but also through the duration of the derivative suit. The Delaware General Corporation Law also requires that the derivative plaintiff make a demand on the directors of the corporation to assert the corporate claim before the suit may be prosecuted by the derivative plaintiff, unless such demand would be futile.
|
■
|
the restricted securities have been held for at least six months, including the holding period of a prior owner other than one of our affiliates;
|
■
|
we have been subject to the Exchange Act, periodic reporting requirements for at least 90 days before the sale; and
|
■
|
we are current in our Exchange Act reporting at the time of sale.
|
■
|
1% of the number of ordinary shares then outstanding, which will equal approximately 488,541 shares immediately after the completion of this offering based on the number of ordinary shares outstanding as of March 31, 2021; or
|
■
|
the average weekly trading volume of our ordinary shares on Nasdaq during the four calendar weeks preceding the filing of a notice on Form 144 with respect to the sale.
|
■
|
certain banks, insurance companies and other financial institutions;
|
■
|
brokers, dealers or traders in securities who use a mark-to-market method of tax accounting;
|
■
|
persons holding ordinary shares as part of a straddle, wash sale, conversion transaction or other integrated transaction or persons entering into a constructive sale with respect to the ordinary shares;
|
■
|
persons who acquired ordinary shares pursuant to the exercise of any employee stock option or otherwise as compensation;
|
■
|
persons whose functional currency for U.S. federal income tax purposes is not the U.S. dollar;
|
■
|
entities or arrangements classified as partnerships or S corporations for U.S. federal income tax purposes (and investors therein);
|
■
|
tax-exempt entities, including an “individual retirement account” or “Roth IRA” or governmental entities;
|
■
|
real estate investment trusts or regulated investment companies;
|
■
|
former U.S. citizens or long-term residents of the United States;
|
■
|
persons that own or are deemed to own 10% or more of the voting power or value of our shares; or
|
■
|
persons holding ordinary shares in connection with a trade or business conducted outside of the United States or in connection with a permanent establishment or other fixed place of business outside of the United States.
|
■
|
a citizen or individual resident of the United States;
|
■
|
a corporation, or other entity taxable as a corporation, created or organized in or under the laws of the United States, any state therein or the District of Columbia; or
|
■
|
an estate or trust the income of which is subject to U.S. federal income taxation regardless of its source.
|
■
|
a person (not being a company) resident for tax purposes in a Relevant Territory (including the United States) and is neither resident nor ordinarily resident in Ireland (the current list of Relevant Territories for DWT purposes are: Albania, Armenia, Australia, Austria, Bahrain, Belarus, Belgium, Bosnia & Herzegovina, Botswana, Bulgaria, Canada, Chile, China, Croatia, Cyprus, Czech Republic, Denmark, Egypt, Estonia, Ethiopia, Finland, France, Georgia, Germany, Ghana, Greece, Hong Kong, Hungary, Iceland, India, Israel, Italy, Japan, Kazakhstan, Korea, Kuwait, Latvia, Lithuania, Luxembourg, Macedonia, Malaysia, Malta, Mexico, Moldova, Montenegro, Morocco, Netherlands, New Zealand, Norway, Pakistan, Panama, Poland, Portugal, Qatar, Romania, Russia, Saudi Arabia, Serbia, Singapore, Slovak Republic, Slovenia, South Africa, Spain, Sweden, Switzerland, Thailand, The Republic Of Turkey, Ukraine, United Arab Emirates, United Kingdom, United States, Uzbekistan, Vietnam and Zambia);
|
■
|
a company which is not resident for tax purposes in Ireland but is resident for tax purposes in a Relevant Territory, provided such company is not under the control, whether directly or indirectly, of a person or persons who is or are resident in Ireland;
|
■
|
a company, which is not resident for tax purposes in Ireland, that is controlled, directly or indirectly, by persons resident in a Relevant Territory and who is or are (as the case may be) not controlled by, directly or indirectly, persons who are not resident in a Relevant Territory;
|
■
|
a company, which is not resident for tax purposes in Ireland, whose principal class of shares (or those of its 75% direct or indirect parent) is substantially and regularly traded on a stock exchange in Ireland, on a recognized stock exchange in a Relevant Territory or on such other stock exchange approved by the Irish Minister for Finance; or
|
■
|
a company, which is not resident for tax purposes in Ireland, that is wholly owned, directly or indirectly, by two or more companies where the principal class of shares of each of such companies is substantially and regularly traded on a stock exchange in Ireland, on a recognized stock exchange in a Relevant Territory or on such other stock exchange approved by the Irish Minister for Finance,
|
Underwriters
|
| |
Number of
Shares
|
Cowen and Company, LLC
|
| |
|
Stifel, Nicolaus & Company, Incorporated
|
| |
|
Canaccord Genuity LLC
|
| |
|
JMP Securities LLC
|
| |
|
Total
|
| |
8,333,333
|
|
| |
Total
|
||||||
|
| |
Per
Share
|
| |
Without
Option
|
| |
With
Option
|
Public offering price
|
| |
|
| |
|
| |
|
Underwriting discount
|
| |
|
| |
|
| |
|
Proceeds, before expenses, to us
|
| |
|
| |
|
| |
|
■
|
the history of, and prospects for, our company and the industry in which we compete;
|
■
|
our past and present financial information;
|
■
|
an assessment of our management; its past and present operations, and the prospects for, and timing of, our future revenue;
|
■
|
the present state of our development; and
|
■
|
the above factors in relation to market values and various valuation measures of other companies engaged in activities similar to ours.
|
■
|
Stabilizing transactions permit bids to purchase ordinary shares so long as the stabilizing bids do not exceed a specified maximum, and are engaged in for the purpose of preventing or retarding a decline in the market price of the ordinary shares while the offering is in progress.
|
■
|
Over-allotment transactions involve sales by the underwriters of ordinary shares in excess of the number of ordinary shares the underwriters are obligated to purchase. This creates a syndicate short position which may be either a covered short position or a naked short position. In a covered short position, the number of ordinary shares over-allotted by the underwriters is not greater than the number of ordinary shares that they may purchase pursuant to the option to purchase additional ordinary shares. In a naked short position, the number of ordinary shares involved is greater than the number of ordinary shares that the underwriters have the option to purchase. The underwriters may close out any short position by exercising their option to purchase additional ordinary shares and/or purchasing ordinary shares in the open market.
|
■
|
Syndicate covering transactions involve purchases of ordinary shares in the open market after the distribution has been completed in order to cover syndicate short positions. In determining the source of ordinary shares to close out the short position, the underwriters will consider, among other things, the price of ordinary shares available for purchase in the open market as compared with the price at which they may purchase ordinary shares through exercise of the option to purchase additional ordinary shares. If the underwriters sell more ordinary shares than could be covered by exercise of the option to purchase additional ordinary shares and, therefore, have a naked short position, the position can be closed out only by buying ordinary shares in the
|
■
|
Penalty bids permit the representatives to reclaim a selling concession from a syndicate member when the ordinary shares originally sold by that syndicate member are purchased in stabilizing or syndicate covering transactions to cover syndicate short positions.
|
(i)
|
transactions relating to ordinary shares or any security convertible into ordinary shares acquired in the offering (other than any issuer-directed ordinary shares purchased in the offering by our officers or directors) or in open market transactions after the completion of the offering;
|
(ii)
|
transfers or distributions as a bona fide gift or for bona fide estate planning purposes or to a charitable organization or educational institution;
|
(iii)
|
transfers or distributions to any immediate family member of such person, affiliate or any trust or trustee or beneficiary thereof for the direct or indirect benefit of such person or the immediate family of such person (for this purpose, “immediate family” means any relationship by blood, marriage, domestic partnership or adoption, not more remote than first cousin);
|
(iv)
|
transfers or distributions to any corporation, partnership, limited liability company or other entity or affiliate of such person or the immediate family of such person;
|
(v)
|
transfers or distributions (a) by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the immediate family of such person upon the death of such person; (b) by operation of law pursuant to a domestic order or negotiated divorce settlement;
|
(vi)
|
transfers or distributions to another corporation, member, partnership, limited liability company, trust or other entity that is a direct or indirect affiliate (as defined under Rule 12b-2 of the Exchange Act), or to an investment fund or other entity that controls or manages, or is under common control with, such person, or distributions to partners, members, shareholders, beneficiaries or other equity holders of such person;
|
(vii)
|
transfers or distributions to us (a) in connection with the repurchase of such securities with respect to the termination of such person’s employment with us or (b) pursuant to contractual arrangements described in this prospectus;
|
(viii)
|
transfers or distributions (including through a “cashless” exercise or on a “net exercise basis”) to us in connection with the conversion of any convertible security into, or the exercise of any option or warrant for, ordinary shares (including to satisfy withholding obligations or the payment of taxes in connection therewith); provided that (a) any such ordinary shares received by such person shall be subject to the lock-up agreement and (b) no filing under Section 16(a) of the Exchange Act (or its foreign equivalent) reporting a reduction in beneficial ownership of ordinary shares shall be required or shall be voluntarily made during the restricted period;
|
(ix)
|
transfers or distributions prior to the date of the public filing of the registration statement of which this prospectus forms a part and pursuant to our shareholders’ agreement;
|
(x)
|
transfers or distributions to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (x) above, provided that any ordinary shares shall be subject to the terms of the lock-up agreement;
|
(xi)
|
the establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act (or its foreign equivalent) for the transfer of ordinary shares, provided that (a) such plan does not provide for the transfer of ordinary shares during the restricted period and (b) to the extent a public announcement or filing under the Exchange Act (or its foreign equivalent), if any, is required of or voluntarily made by or on behalf of such person or us regarding the establishment of such plan, such announcement or filing shall include a statement to the effect that no transfer of ordinary shares may be made under such plan during the restricted period;
|
(xii)
|
transfers or dispositions pursuant to a bona fide tender offer for our capital shares, merger, consolidation or other similar transaction made to all holders of our securities involving a change of control of us (including without limitation, the entering into of any lock-up, voting or similar agreement pursuant to which such person may agree to transfer, sell, tender or otherwise dispose of ordinary shares or any security convertible into ordinary shares in connection with such transaction) that has been approved by our board of directors; provided that, in the event that such change of control transaction is not consummated, this paragraph shall not be applicable and such person’s shares and other securities shall remain subject to the lock-up agreement (for this purpose, “change of control” means the transfer whether by
|
(xiii)
|
the conversion, exercise or exchange of our preferred shares, options to purchase ordinary shares, warrants or any security convertible into ordinary shares pursuant to any reorganization, conversion or share split, as such terms are described in this prospectus; provided that any such securities shall remain subject to the lockup agreement,
|
(A)
|
to any legal entity which is a qualified investor as defined under Article 2 of the Prospectus Regulation;
|
(B)
|
to fewer than 150 natural or legal persons (other than qualified investors as defined under Article 2 of the Prospectus Regulation), subject to obtaining the prior consent of the underwriters; or
|
(C)
|
in any other circumstances falling within Article 1(4) of the Prospectus Regulation,
|
(A)
|
to any legal entity which is a qualified investor as defined under Article 2 of the UK Prospectus Regulation;
|
(B)
|
to fewer than 150 natural or legal persons (other than qualified investors as defined under Article 2 of the UK Prospectus Regulation), subject to obtaining the prior consent of the representatives for any such offer; or
|
(C)
|
in any other circumstances falling within Section 86 of the FSMA,
|
(A)
|
to an institutional investor (as defined in Section 4A of the Securities and Futures Act (Chapter 289) of Singapore, as modified or amended from time to time, or the SFA) pursuant to Section 274 of the SFA;
|
(B)
|
to a relevant person (as defined in Section 275(2) of the SFA) pursuant to Section 275(1) of the SFA, or any person pursuant to Section 275(1A) of the SFA, and in accordance with the conditions specified in Section 275 of the SFA; or
|
(C)
|
otherwise pursuant to, and in accordance with the conditions of, any other applicable provision of the SFA.
|
(A)
|
a corporation (which is not an accredited investor (as defined in Section 4A of the SFA)) the sole business of which is to hold investments and the entire share capital of which is owned by one or more individuals, each of whom is an accredited investor; or
|
(B)
|
a trust (where the trustee is not an accredited investor) whose sole purpose is to hold investments and each beneficiary of the trust is an individual who is an accredited investor,
|
(i)
|
to an institutional investor or to a relevant person, or to any person arising from an offer referred to in Section 275(1A) or Section 276(4)(i)(B) of the SFA;
|
(ii)
|
where no consideration is or will be given for the transfer;
|
(iii)
|
where the transfer is by operation of law;
|
(iv)
|
as specified in Section 276(7) of the SFA; or
|
(v)
|
as specified in Regulation 37A of the Securities and Futures (Offers of Investments) (Securities and Securities-based Derivatives Contracts) Regulations 2018.
|
Expense
|
| |
Amount
|
SEC registration fee
|
| |
$16,729
|
Nasdaq listing fee
|
| |
210,000
|
FINRA filing fee
|
| |
23,500
|
Printing expenses
|
| |
100,000
|
Legal fees and expenses
|
| |
2,400,000
|
Accounting fees and expenses
|
| |
300,000
|
Transfer agent and registrar fees and expenses
|
| |
155,000
|
Miscellaneous fees and expenses
|
| |
294,771
|
Total
|
| |
$3,500,000
|
Audited Financial Statements as of and for the years ended December 31, 2020 and 2019
|
| |
|
| | ||
| | ||
| | ||
| | ||
| | ||
| | ||
Unaudited Condensed Interim Financial Statements for the three months ended March 31, 2021
|
| |
|
| | ||
| | ||
| | ||
| | ||
| |
|
| |
Year ended December 31,
|
||||||
|
| |
Note
|
| |
2020
$’000
|
| |
2019
$’000
|
Operating expenses
|
| |
|
| |
|
| |
|
Research and development
|
| |
|
| |
(338)
|
| |
(296)
|
General and administration
|
| |
|
| |
(108)
|
| |
(14)
|
Loss from operations
|
| |
|
| |
(446)
|
| |
(310)
|
|
| |
|
| |
|
| |
|
Loss for the year
|
| |
|
| |
(446)
|
| |
(310)
|
|
| |
|
| |
|
| |
|
Other comprehensive income/(expense)
|
| |
|
| |
|
| |
|
Items that may be reclassified to profit or loss
|
| |
|
| |
|
| |
|
Currency translation adjustment
|
| |
|
| |
212
|
| |
(12)
|
Total comprehensive loss for the year
|
| |
|
| |
(234)
|
| |
(322)
|
|
| |
|
| |
|
| |
|
Attributable to owners:
|
| |
|
| |
|
| |
|
Loss for the year
|
| |
|
| |
(446)
|
| |
(310)
|
Comprehensive loss for the year
|
| |
|
| |
(234)
|
| |
(322)
|
|
| |
|
| |
|
| |
|
|
| |
|
| |
|
| |
|
Loss per share
|
| |
|
| |
|
| |
|
Basic and diluted loss per share (in USD)
|
| |
12
|
| |
(0.006)
|
| |
(0.004)
|
|
| |
At December 31,
|
||||||
|
| |
Note
|
| |
2020
$’000
|
| |
2019
$’000
|
ASSETS
|
| |
|
| |
|
| |
|
Current assets
|
| |
|
| |
|
| |
|
Cash
|
| |
|
| |
5,895
|
| |
498
|
Other current assets
|
| |
|
| |
17
|
| |
6
|
Total current assets
|
| |
|
| |
5,912
|
| |
504
|
Total assets
|
| |
|
| |
5,912
|
| |
504
|
|
| |
|
| |
|
| |
|
LIABILITIES AND EQUITY
|
| |
|
| |
|
| |
|
Current liabilities
|
| |
|
| |
|
| |
|
Trade payables
|
| |
|
| |
1
|
| |
93
|
Other current liabilities
|
| |
8
|
| |
245
|
| |
11
|
Total current liabilities
|
| |
|
| |
246
|
| |
104
|
Total liabilities
|
| |
|
| |
246
|
| |
104
|
|
| |
|
| |
|
| |
|
Equity attributable to owners
|
| |
|
| |
|
| |
|
Share capital
|
| |
9
|
| |
871
|
| |
801
|
Share premium
|
| |
|
| |
5,430
|
| |
—
|
Foreign currency translation reserve
|
| |
|
| |
200
|
| |
(12)
|
Accumulated deficit
|
| |
|
| |
(835)
|
| |
(389)
|
Total equity
|
| |
|
| |
5,666
|
| |
400
|
Total liabilities and equity
|
| |
|
| |
5,912
|
| |
504
|
|
| |
Attributable to owners
|
||||||||||||
|
| |
Share
capital
$’000
|
| |
Share
premium
$’000
|
| |
Foreign
currency
translation
reserve
$’000
|
| |
Accumulated
deficit
$’000
|
| |
Total
$’000
|
|
| |
Note 9
|
| |
|
| |
|
| |
|
| |
|
At January 1, 2019
|
| |
801
|
| |
—
|
| |
—
|
| |
(79)
|
| |
722
|
Loss for the year
|
| |
—
|
| |
—
|
| |
—
|
| |
(310)
|
| |
(310)
|
Translation adjustment
|
| |
—
|
| |
—
|
| |
(12)
|
| |
—
|
| |
(12)
|
Total comprehensive loss for the year
|
| |
—
|
| |
—
|
| |
(12)
|
| |
(310)
|
| |
(322)
|
At December 31, 2019
|
| |
801
|
| |
—
|
| |
(12)
|
| |
(389)
|
| |
400
|
At January 1, 2020
|
| |
801
|
| |
—
|
| |
(12)
|
| |
(389)
|
| |
400
|
Loss for the year
|
| |
—
|
| |
—
|
| |
—
|
| |
(446)
|
| |
(446)
|
Translation adjustment
|
| |
—
|
| |
—
|
| |
212
|
| |
—
|
| |
212
|
Total comprehensive loss for the year
|
| |
—
|
| |
—
|
| |
212
|
| |
(446)
|
| |
(234)
|
Issue of share capital
|
| |
70
|
| |
5,430
|
| |
—
|
| |
—
|
| |
5,500
|
Total transactions with owners
|
| |
70
|
| |
5,430
|
| |
—
|
| |
—
|
| |
5,500
|
At December 31, 2020
|
| |
871
|
| |
5,430
|
| |
200
|
| |
(835)
|
| |
5,666
|
|
| |
Year ended December 31,
|
||||||
|
| |
Note
|
| |
2020
$’000
|
| |
2019
$’000
|
Cash flows from operating activities
|
| |
|
| |
|
| |
|
Loss for the year
|
| |
|
| |
(446)
|
| |
(310)
|
Movement in working capital
|
| |
|
| |
116
|
| |
21
|
Cash flows used in operating activities
|
| |
|
| |
(330)
|
| |
(289)
|
|
| |
|
| |
|
| |
|
Cash flows from financing activities
|
| |
|
| |
|
| |
|
Proceeds from capital contributions
|
| |
9
|
| |
5,500
|
| |
797
|
|
| |
|
| |
|
| |
|
Net increase in cash
|
| |
|
| |
5,170
|
| |
508
|
Cash at the beginning of the year
|
| |
|
| |
498
|
| |
—
|
Impact of foreign exchange on cash
|
| |
|
| |
227
|
| |
(10)
|
Cash at the end of the year
|
| |
|
| |
5,895
|
| |
498
|
Corporate information
|
2.
|
Basis of preparation, significant judgments, and accounting policies
|
■
|
Cash
|
■
|
Other current assets
|
■
|
Trade payables and other current liabilities
|
3.
|
Financial risk management
|
■
|
forecast expenses denominated in a currency other than the entity’s functional currency; and
|
■
|
recognized assets and liabilities denominated in a currency other than the entity’s functional currency.
|
4.
|
Employee expenses
|
|
| |
Year ended December 31,
|
|||
|
| |
2020
|
| |
2019
|
|
| |
$’000
|
| |
$’000
|
Salary and related expenses
|
| |
5
|
| |
0
|
5.
|
Leases
|
|
| |
Year ended December 31,
|
|||
|
| |
2020
|
| |
2019
|
|
| |
$’000
|
| |
$’000
|
Lease expenses for short-term leases
|
| |
5
|
| |
0
|
6.
|
Income tax
|
|
| |
Year ended December 31,
|
|||
|
| |
2020
|
| |
2019
|
|
| |
$’000
|
| |
$’000
|
Loss before tax
|
| |
446
|
| |
310
|
Tax credit calculated at the domestic tax rate 12.5%
|
| |
(56)
|
| |
(39)
|
Tax effects of:
|
| |
|
| |
|
Tax losses for which no deferred tax asset was recognized
|
| |
56
|
| |
39
|
Tax charge/(credit)
|
| |
0
|
| |
0
|
7.
|
Deferred income taxes
|
8.
|
Other current liabilities
|
9.
|
Share capital
|
Issued shares:
|
| |
Ordinary
shares (par
value €0.01)
|
| |
Series A
Preferred
shares (par
value €0.01)
|
| |
Total shares
|
| |
Total
($’000)
|
At January 1, 2019
|
| |
70,000,000
|
| |
—
|
| |
70,000,000
|
| |
801
|
Issuance of share capital
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
At December 31, 2019
|
| |
70,000,000
|
| |
—
|
| |
70,000,000
|
| |
801
|
Issuance of share capital
|
| |
—
|
| |
5,923,079
|
| |
5,923,079
|
| |
70
|
At December 31, 2020
|
| |
70,000,000
|
| |
5,923,079
|
| |
75,923,079
|
| |
871
|
10.
|
Contingent liabilities and commitments
|
11.
|
Related party disclosures
|
|
| |
Florian Schönharting
|
|
| |
Theis Terwey
|
|
| |
BVF Partners and affiliated companies
|
|
| |
|
In addition, the following parties are also considered to be related parties:
|
|||
|
| |
|
|
| |
All other members of the board of directors
|
|
| |
GH Research OÜ (now liquidated)
|
|
| |
Year ended December 31,
|
|||
|
| |
2020
|
| |
2019
|
|
| |
$’000
|
| |
$’000
|
Salary and related expenses
|
| |
5
|
| |
0
|
12.
|
Loss per share
|
|
| |
Ordinary
shares
|
| |
Series A
Preferred
shares
|
Year ended December 31, 2020
|
| |
|
| |
|
Net loss attributable to shareholders (in $‘000)
|
| |
(440)
|
| |
(6)
|
Weighted average number of shares in issue
|
| |
70,000,000
|
| |
898,420
|
Basic and diluted loss per share (in USD)
|
| |
(0.006)
|
| |
(0.006)
|
|
| |
|
| |
|
Year ended December 31, 2019
|
| |
|
| |
|
Net loss attributable to shareholders (in $‘000)
|
| |
(310)
|
| |
—
|
Weighted average number of shares in issue
|
| |
70,000,000
|
| |
—
|
Basic and diluted loss per share (in USD)
|
| |
(0.004)
|
| |
—
|
Events after the reporting date
|
|
| |
|
| |
Three months ended
March 31,
|
|||
|
| |
Note
|
| |
2021
$’000
|
| |
2020
$’000
|
|
| |
|
| |
|
| |
|
Operating expenses
|
| |
|
| |
|
| |
|
Research and development
|
| |
|
| |
(692)
|
| |
(11)
|
General and administration
|
| |
|
| |
(448)
|
| |
(8)
|
Loss from operations
|
| |
|
| |
(1,140)
|
| |
(19)
|
|
| |
|
| |
|
| |
|
Foreign currency translation differences
|
| |
|
| |
(9)
|
| |
—
|
|
| |
|
| |
|
| |
|
Loss for the period
|
| |
|
| |
(1,149)
|
| |
(19)
|
|
| |
|
| |
|
| |
|
Other comprehensive income/(expense)
|
| |
|
| |
|
| |
|
Items that may be reclassified to profit or loss
Currency translation adjustment
|
| |
|
| |
(202)
|
| |
(6)
|
Total comprehensive loss for the period
|
| |
|
| |
(1,351)
|
| |
(25)
|
|
| |
|
| |
|
| |
|
Attributable to owners:
|
| |
|
| |
|
| |
|
Loss for the period
|
| |
|
| |
(1,149)
|
| |
(19)
|
Comprehensive loss for the period
|
| |
|
| |
(202)
|
| |
(6)
|
|
| |
|
| |
|
| |
|
Loss per share
|
| |
|
| |
|
| |
|
Basic and diluted loss per share (in USD)
|
| |
7
|
| |
(0.015)
|
| |
(0.000)
|
|
| |
|
| |
At March 31,
|
| |
At December 31,
|
|
| |
Note
|
| |
2021
$’000
|
| |
2020
$’000
|
|
| |
|
| |
|
| |
|
ASSETS
|
| |
|
| |
|
| |
|
Current assets
|
| |
|
| |
|
| |
|
Cash
|
| |
|
| |
4,576
|
| |
5,895
|
Other current assets
|
| |
3
|
| |
961
|
| |
17
|
Total current assets
|
| |
|
| |
5,537
|
| |
5,912
|
Non-current assets
|
| |
|
| |
|
| |
|
Property, plant and equipment
|
| |
|
| |
19
|
| |
—
|
Total non-current assets
|
| |
|
| |
19
|
| |
—
|
Total assets
|
| |
|
| |
5,556
|
| |
5,912
|
|
| |
|
| |
|
| |
|
LIABILITIES AND EQUITY
|
| |
|
| |
|
| |
|
Current liabilities
|
| |
|
| |
|
| |
|
Trade payables
|
| |
|
| |
75
|
| |
1
|
Other current liabilities
|
| |
|
| |
1,166
|
| |
245
|
Total current liabilities
|
| |
|
| |
1,241
|
| |
246
|
Total liabilities
|
| |
|
| |
1,241
|
| |
246
|
|
| |
|
| |
|
| |
|
Equity attributable to owners
|
| |
|
| |
|
| |
|
Share capital
|
| |
4
|
| |
871
|
| |
871
|
Share premium
|
| |
|
| |
5,430
|
| |
5,430
|
Foreign currency translation reserve
|
| |
|
| |
(2)
|
| |
200
|
Accumulated deficit
|
| |
|
| |
(1,984)
|
| |
(835)
|
Total equity
|
| |
|
| |
4,315
|
| |
5,666
|
Total liabilities and equity
|
| |
|
| |
5,556
|
| |
5,912
|
|
| |
Attributable to owners
|
||||||||||||
|
| |
Share
capital
$’000
|
| |
Share
premium
$’000
|
| |
Foreign
currency
translation
reserve
$’000
|
| |
Accumulated
deficit
$’000
|
| |
Total
$’000
|
|
| |
Note 4
|
| |
|
| |
|
| |
|
| |
|
At January 1, 2021
|
| |
871
|
| |
5,430
|
| |
200
|
| |
(835)
|
| |
5,666
|
Loss for the period
|
| |
—
|
| |
—
|
| |
—
|
| |
(1,149)
|
| |
(1,149)
|
Translation adjustment
|
| |
—
|
| |
—
|
| |
(202)
|
| |
—
|
| |
(202)
|
Total comprehensive loss for the period
|
| |
—
|
| |
—
|
| |
(202)
|
| |
(1,149)
|
| |
(1,351)
|
At March 31, 2021
|
| |
871
|
| |
5,430
|
| |
(2)
|
| |
(1,984)
|
| |
4,315
|
|
| |
|
| |
|
| |
|
| |
|
| |
|
At January 1, 2020
|
| |
801
|
| |
—
|
| |
(12)
|
| |
(389)
|
| |
400
|
Loss for the period
|
| |
—
|
| |
—
|
| |
—
|
| |
(19)
|
| |
(19)
|
Translation adjustment
|
| |
—
|
| |
—
|
| |
(6)
|
| |
—
|
| |
(6)
|
Total comprehensive loss for the period
|
| |
—
|
| |
—
|
| |
(6)
|
| |
(19)
|
| |
(25)
|
At March 31, 2020
|
| |
801
|
| |
—
|
| |
(18)
|
| |
(408)
|
| |
375
|
|
| |
Three months ended
March 31,
|
|||
|
| |
2021
$’000
|
| |
2020
$’000
|
Cash flows from operating activities
|
| |
|
| |
|
Loss for the period
|
| |
(1,149)
|
| |
(19)
|
Depreciation
|
| |
1
|
| |
—
|
Movement in working capital
|
| |
61
|
| |
(83)
|
Cash flows used in operating activities
|
| |
(1,087)
|
| |
(102)
|
|
| |
|
| |
|
Cash flows used in investing activities
|
| |
|
| |
|
Purchase of property, plant and equipment
|
| |
(21)
|
| |
—
|
|
| |
|
| |
|
Net decrease in cash
|
| |
(1,108)
|
| |
(102)
|
Cash at the beginning of the period
|
| |
5,895
|
| |
498
|
Impact of foreign exchange on cash
|
| |
(211)
|
| |
(8)
|
Cash at the end of the period
|
| |
4,576
|
| |
388
|
Corporate information
|
|
| |
Estimated Useful Life
|
|
| |
|
IT equipment
|
| |
3 years
|
Medical equipment
|
| |
2 years
|
3.
|
Other current assets
|
4.
|
Share capital
|
Issued and fully paid shares:
|
| |
Ordinary
shares (par
value €0.01)
|
| |
Series A
Preferred
shares (par
value €0.01)
|
| |
Total shares
|
| |
Total
($’000)
|
At December 31, 2020
|
| |
70,000,000
|
| |
5,923,079
|
| |
75,923,079
|
| |
871
|
Issuance of share capital
|
| |
—
|
| |
—
|
| |
—
|
| |
—
|
At March 31, 2021
|
| |
70,000,000
|
| |
5,923,079
|
| |
75,923,079
|
| |
871
|
5.
|
Contingent liabilities and commitments
|
6.
|
Related party disclosures
|
|
| |
Florian Schönharting
|
|
| |
Theis Terwey
|
|
| |
BVF Partners and affiliated companies
|
|
| |
|
In addition, the following parties are also considered to be related parties:
|
|||
|
| |
|
|
| |
All other members of the Board of Directors
|
|
| |
GH Research PLC
|
7.
|
Loss per share
|
|
| |
Ordinary
shares
|
| |
Series A
Preferred
shares
|
Three months ended March 31, 2021
|
| |
|
| |
|
Net loss attributable to shareholders (in $‘000)
|
| |
(1,059)
|
| |
(90)
|
Weighted average number of shares in issue
|
| |
70,000,000
|
| |
5,923,079
|
Basic and diluted loss per share (in USD)
|
| |
(0.015)
|
| |
(0.015)
|
|
| |
|
| |
|
Three months ended March 31, 2020
|
| |
|
| |
|
Net loss attributable to shareholders (in $‘000)
|
| |
(19)
|
| |
—
|
Weighted average number of shares in issue
|
| |
70,000,000
|
| |
—
|
Basic and diluted loss per share (in USD)
|
| |
(0.000)
|
| |
—
|
8.
|
Events after the reporting date
|
Cowen
|
| |
Stifel
|
|
| ||
Canaccord Genuity
|
| |
JMP Securities
|
Item 6.
|
Indemnification of Directors and Officers.
|
Item 7.
|
Recent Sales of Unregistered Securities.
|
Name or Class of Purchasers
|
| |
Date of Sale or
Issuance
|
| |
Title of
Securities
|
| |
Number of
Securities
|
| |
Consideration (in
millions of $)
|
Various private equity investment funds, institutional investors, directors and officers
|
| |
April 8, 2021
|
| |
Series B preferred shares
|
| |
25,379,047
|
| |
125.2
|
Entities affiliated with BVF, directors, officers and private investors
|
| |
November 2, 2020 December 22, 2020
|
| |
Series A preferred shares
|
| |
5,923,079
|
| |
5.5
|
Entities affiliated with BVF, directors, officers and private investors
|
| |
October 16, 2018 December 20, 2018
|
| |
Ordinary Shares
|
| |
70,000,000
|
| |
0.8
|
|
| |
|
| |
|
| |
|
| |
|
Item 8.
|
Exhibits and Financial Statement Schedules
|
Item 9.
|
Undertakings
|
(a)
|
The undersigned registrant hereby undertakes to provide to the underwriter at the closing specified in the underwriting agreements, certificates in such denominations and registered in such names as required by the underwriter to permit prompt delivery to each purchaser.
|
(b)
|
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 U.S. Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question of whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
|
(c)
|
The undersigned registrant hereby undertakes that:
|
(1)
|
For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.
|
(2)
|
For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
|
EXHIBIT
NUMBER
|
| |
DESCRIPTION OF EXHIBIT
|
| |
Form of Underwriting Agreement.
|
|
| |
Constitution of GH Research PLC, as currently in effect.
|
|
| |
Form of Constitution of GH Research PLC (to be adopted immediately prior to the completion of this offering).
|
|
| |
Opinion of Dentons Ireland LLP.
|
|
| |
Form of Registration Rights Agreement between the registrant and the shareholders listed therein.
|
|
| |
GH Research PLC Share Option Plan.
|
|
| |
Subsidiaries of GH Research PLC.
|
|
| |
Consent of independent registered public accounting firm.
|
|
| |
Consent of Dentons Ireland LLP (included in Exhibit 5.1).
|
|
| |
Power of Attorney (included on signature page to this registration statement).
|
*
|
Previously filed.
|
|
| |
GH RESEARCH PLC
|
|||||||||
|
| |
|
| |
|
| |
|
| ||
|
| |
By:
|
| |
/s/ Theis Terwey
|
| |||||
|
| |
|
| |
Name:
|
| |
Theis Terwey
|
| ||
|
| |
|
| |
Title:
|
| |
Chief Executive Officer
|
|
Signature
|
| |
Title
|
| |
Date
|
|
| |
|
| |
|
/s/ Theis Terwey
|
| |
Chief Executive Officer (Principal
Executive Officer)
|
| |
June 21, 2021
|
Theis Terwey
|
| |||||
|
| |
|
| |
|
/s/ Julie Ryan
|
| |
Group Finance Director (Principal Financial
Officer and Principal Accounting Officer)
|
| |
June 21, 2021
|
Julie Ryan
|
| |||||
|
| |
|
| |
|
*
|
| |
Managing Director, Ireland
|
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June 21, 2021
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Magnus Halle
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Director
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June 21, 2021
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Florian Schönharting
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Director
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June 21, 2021
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Spike Loy
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Director
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June 21, 2021
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Michael Forer
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Authorized representative in the United
States
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June 21, 2021
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Colleen A. De Vries
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*By:
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/s/ Julie Ryan
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Julie Ryan
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Attorney-in-Fact
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Very truly yours,
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GH RESEARCH PLC
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By:
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Name:
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Title: |
By:
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Cowen and Company, LLC
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By:
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Name:
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Title:
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By:
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Stifel, Nicolaus & Company, Incorporated
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By:
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Name:
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Title: |
Number of Firm Shares
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Number of Optional Shares
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Name
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Cowen and Company, LLC
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Stifel, Nicolaus & Company, Incorporated
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Total
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Firm Shares:
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[•] Ordinary Shares
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Offering Price:
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$[•] per Ordinary Share
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Underwriting Discounts and Commissions:
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[•]%
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Estimated Net Proceeds to the Company (after underwriting discounts and commissions, but before transaction expenses):
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$[•]
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(a) |
transactions relating to Ordinary Shares or any security convertible into Ordinary Shares acquired in the Offering (other than any issuer-directed Ordinary Shares purchased in the
Offering by an officer or director of the Company) or in open market transactions after the completion of the Offering;
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(b) |
transfers or dispositions of Ordinary Shares or any security convertible into Ordinary Shares as a bona fide gift or for bona fide estate planning purposes or to a charitable organization
or educational institutional;
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(c) |
transfers or dispositions of Ordinary Shares or any security convertible into Ordinary Shares to any member of the immediate family of the undersigned, affiliate thereof, or any trust or
trustee or beneficiary thereof for the direct or indirect benefit of the undersigned or the immediate family of the undersigned;
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(d) |
transfers or dispositions of Ordinary Shares or any security convertible into Ordinary Shares to any corporation, partnership, limited liability company or other entity or affiliate of
the undersigned or the immediate family of the undersigned;
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(e) |
transfers or dispositions of Ordinary Shares or any security convertible into Ordinary Shares (x) by will, other testamentary document or intestate succession to the legal representative,
heir, beneficiary or a member of the immediate family of the undersigned upon the death of the undersigned, or (y) by operation of law pursuant to a domestic order or negotiated divorce settlement;
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(f) |
transfers or dispositions of Ordinary Shares or any security convertible into Ordinary Shares to another corporation, member, partnership, limited liability company, trust or other entity
that is a direct or indirect affiliate (as defined under Rule 12b-2 of the Exchange Act) of the undersigned, or to an investment fund or other entity that controls or manages, or is under common control with, the undersigned, or distributions
of Ordinary Shares or other securities to partners, members, stockholders, beneficiaries or other equity holders of the undersigned;
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(g) |
transfers or dispositions of Ordinary Shares or any security convertible into Ordinary Shares to the Company (i) in connection with the repurchase of such securities with respect to the
termination of the undersigned’s employment with the Company or (ii) pursuant to contractual arrangements described in the Prospectus;
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(h) |
transfers or dispositions (including through a “cashless” exercise or on a “net exercise” basis) of Ordinary Shares or any security convertible into Ordinary Shares to the Company in
connection with the conversion of any convertible security into, or the exercise of any option or warrant for Ordinary Shares (including to satisfy withholding obligations or the payment of taxes in connection therewith); provided that (i) any such Ordinary Shares received by the undersigned shall be subject to the terms of this agreement and (ii) no filing under Section 16(a) of the Exchange Act (or its foreign equivalent)
reporting a reduction in beneficial ownership of Ordinary Shares shall be required or shall be voluntarily made during the Restricted Period;
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(i) |
transfers or dispositions of Ordinary Shares or any security convertible into Ordinary Shares prior to the date of the public filing of the Company’s Registration Statement on Form F-1 in
connection with the Offering (the “Registration Statement”) and pursuant to the Shareholders’ Agreement dated April 12, 2021 by and between GH Research Ireland Limited and the shareholders party thereto, as such agreement may be amended or
superseded;
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(j) |
transfers or dispositions of Ordinary Shares or other securities to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (a)
through (j) above, provided that any Ordinary Shares shall be subject to the terms of this agreement;
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(k) |
the establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act (or its foreign equivalent) for the transfer of Ordinary Shares, provided
that (i) such plan does not provide for the transfer of Ordinary Shares during the Restricted Period and (ii) to the extent a public announcement or filing under the Exchange Act (or its foreign equivalent), if any, is required of or
voluntarily made by or on behalf of the undersigned or the Company regarding the establishment of such plan, such announcement or filing shall include a statement to the effect that no transfer of Ordinary Shares may be made under such plan
during the Restricted Period;
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(l) |
transfers or dispositions of Ordinary Shares or any security convertible into Ordinary Shares pursuant to a bona fide tender offer for the Company’s capital shares, merger, consolidation
or other similar transaction made to all holders of the Company’s securities involving a Change of Control (as defined below) of the Company (including without limitation, the entering into of any lock-up, voting or similar agreement pursuant
to which the undersigned may agree to transfer, sell, tender or otherwise dispose of Ordinary Shares or any security convertible into Ordinary Shares in connection with such transaction) that has been approved by the board of directors of the
Company; provided that, in the event that such Change of Control transaction is not consummated, this clause (n) shall not be applicable and the undersigned’s shares and other securities shall remain
subject to the restrictions contained in this agreement; or
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(m) |
the conversion, exercise or exchange of Preferred Shares, options to purchase Ordinary Shares, warrants or any security convertible into Ordinary Shares pursuant to any reorganization,
conversion or share split, as such terms are described in the Prospectus; provided that any such securities shall remain subject to the terms of this agreement.
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Very truly yours,
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(Name of Securityholder - Please Print)
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(Signature)
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(Name of Signatory if Securityholder is an entity - Please Print)
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(Title of Signatory if Securityholder is an entity - Please Print) | ||
Address:
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1 |
The name of the Company is GH RESEARCH PUBLIC LIMITED COMPANY.
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2 |
The Company is a public limited company registered under Part 17 of the Companies Act 2014.
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3 |
The objects for which the Company is established are:
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(a) |
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 whatsoever that are necessary or convenient
in carrying on the business of such a holding company and in particular to carry on business in all its branches, companies or locations related to biopharmaceutical research and the development of novel therapies for the management of mental
diseases.
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(b) |
To carry on the businesses of a researcher, developer, manufacturer, distributor, wholesaler, retailer, service provider, investor, trader and any other business 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.
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(c) |
To carry on all or any of the businesses as aforesaid either as a separate business or as the principal business of the Company.
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(d) |
To invest and deal with the property of the Company in such manner as may from time to time be determined by the Company's board of directors and to dispose of or vary such investments and dealings.
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(e) |
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 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.
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(f) |
To lend and advance money or other property or give credit or financial accommodation to any company or person in any manner either with or without security and whether with or without the payment of interest and upon such terms and
conditions as the Company's board of directors shall think fit or expedient.
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(g) |
To guarantee, indemnify, grant indemnities in respect of, enter into any suretyship or joint obligation, or otherwise support or secure, whether by personal covenant, indemnity or undertaking or by mortgaging, charging, pledging or
granting a lien or other security over all or any part of the Company's property (both present and future) or by any one or more of such methods or any other method and whether in support of such guarantee or indemnity or suretyship or joint
obligation or otherwise, on such terms and conditions as the Company's board of directors shall think fit, the payment of any debts or the performance or discharge of any contract, obligation or liability of any person or company (including,
without prejudice to the generality of the foregoing, the payment of any capital, principal, dividends or interest on any stocks, shares, debentures, debenture stock, notes, bonds or other securities of any person, authority or company)
including, without prejudice to the generality of the foregoing, any company which is for the time being the Company's holding company or another subsidiary (as defined by the Act) of the Company's holding company or a subsidiary of the
Company or otherwise associated with the Company.
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(h) |
To grant, convey, assign, transfer, exchange or otherwise alienate or dispose of any property of the Company of whatever nature or tenure for such price, consideration, sum or other return whether equal to or less than the market value
thereof or for shares, debentures or securities and whether by way of gift or otherwise as the Company's board of directors shall deem fit or expedient.
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(i) |
To purchase, take on, lease, exchange, rent, hire or otherwise acquire any property and to acquire and undertake the whole or any part of the business and property of any company or person.
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(j) |
To engage in currency exchange, interest rate and commodity transactions including, but not limited to, dealings in foreign currency, spot and forward rate exchange contracts, futures, options, forward rate agreements, swaps, caps, floors,
collars and any other foreign exchange, interest rate or commodity hedging arrangements and such other instruments as are similar to, or derived from, any of the foregoing whether for the purpose of making a profit or avoiding a loss or
managing a currency, interest rate or commodity exposure or any other exposure or for any other purpose.
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(k) |
To apply for, establish, create, purchase or otherwise acquire, sell or otherwise dispose of and hold any patents, trade marks, copyrights, brevets d' invention, registered designs, licences, concessions and the like conferring any
exclusive or non-exclusive or limited rights to use or any secret or other information and any invention and to use, exercise, develop or grant licences in respect of or otherwise turn to account or exploit the property, rights or information
so held.
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(l) |
To enter into any arrangements with any governments or authorities, national, local or otherwise and to obtain from any such government or authority any rights, privileges and concessions and to carry out, exercise and comply with any such
arrangements, rights, privileges and concessions.
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(m) |
To establish, form, register, incorporate or promote any company or companies or person, whether inside or outside of Ireland.
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(n) |
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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(o) |
To adopt such means of making known the products of the Company as may seem expedient and in particular by advertising in the press, by circulars, by purchase and exhibition of works of art or interest, by publication of books and
periodicals and by granting prizes, rewards and donations.
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(p) |
To pay all costs, charges, fees and expenses incurred or sustained in or about the promotion, establishment, formation and registration of the Company.
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(q) |
To do all or any of the above things in any part of the world, and as principals, agents, contractors, trustees or otherwise and by or through trustees, agents or otherwise and either alone or in conjunction with any person or company.
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(r) |
To do all such other things as the Company's board of directors may think incidental or conducive to the attainment of the above objects or any of them
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4 |
The liability of the members is limited.
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5 |
The share capital of the Company is €25,000.00 and US$1,000,000,000.00 divided into 25,000 A Ordinary Shares of €1.00 each, 99,968,697,874 Ordinary Shares of US$0.01 each, 5,923,079 Series A Preferred Shares of US$0.01 each and 25,379,047
Series B Preferred Shares of US$0.01 each.
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6 |
The shares forming the capital, increased or reduced, 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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1. |
Interpretation and general
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1.1 |
The "optional provisions" as defined by section 1007(2) of the Act shall apply to the Company save in so far as they are excluded or modified herein.
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1.2 |
In these Articles, unless the context requires otherwise:
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(a) |
all Preferred Shares in issue (to the extent not otherwise converted) have been converted in accordance with Regulation 14.1 (Voluntary Conversion);
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(b) |
all other outstanding securities of whatever type convertible into Shares have been so converted in accordance with their respective terms; and
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(c) |
all options, warrants or similar rights to subscribe or call for the issue of Shares (whether or not granted or in being at Completion) have been exercised in accordance with their respective terms;
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(d) |
the issuing of Shares and/or granting of options to subscribe for Shares pursuant to the Share Option Plan and the allotment and issue of Shares upon exercise of any such options;
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(e) |
the conversion, pursuant to the provisions of Regulation 14 (Conversion Rights: Preferred Shares) of Preferred Shares into Ordinary Shares by: (i) re-designation and variation of the rights
attaching thereto; and (ii) the issue of any additional Ordinary Shares as may be necessary to effect such conversion (and, in the event that Preferred Shares are automatically converted, in accordance with the provisions of these Articles,
into Ordinary Shares immediately prior to an anticipated Qualified IPO and such Qualified IPO does not occur, the re-conversion of the resulting Ordinary Shares into Preferred Shares in accordance with the provisions of these Articles);
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(f) |
the allotment and issue of shares in connection with a pre-IPO reorganisation of the entire issued share capital of the Company made in accordance with these Articles;
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(g) |
the allotment and issue of Shares, with the prior written consent of the Majority Investors, by way of share dividend, as bonus shares in accordance with section 126(4) of the Companies Act;
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(h) |
the allotment and issue of shares pursuant to an effective registration statement in connection with a Qualified IPO; and
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(i) |
the allotment and issue of Shares upon a share split or subdivision;
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(a) |
the average price per Share issued in the most recent investment round undertaken by the Company provided that such investment round completed in the immediately preceding twelve (12) months; or if none,
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(b) |
the average price per Share paid by a transferee on the most recent arm's-length market-value transfer of any such Shares completed in the immediately preceding twenty-four (24) months; or if none,
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(c) |
the fair value of the relevant Shares based on the open market price between a willing buyer and a willing seller as at the relevant date on which the relevant Shares are offered for sale, as determined by an independent expert appointed
by agreement between the affected parties (or, in the absence of such agreement, appointed by the President for the time being of Chartered Accountants Ireland on the application of any affected party) who shall act as an expert and not as an
arbitrator and whose decision shall, absent fraud or manifest error, be final and binding on all persons interested;
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(j) |
the Series A Preferred Shares, US$0.928571 per Series A Preferred Share; and
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(k) |
the Series B Preferred Shares, US$4.933204 per Series B Preferred Share.
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1.3 |
It is hereby declared that in these Articles:
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(a) |
the word "company", except where used in reference to this Company, shall be deemed to include a body corporate, whether a company (wherever formed, registered or incorporated), a corporation aggregate, a corporation sole and a national or
local government or other legal entity;
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(b) |
the word "person", shall be deemed to include any individual, firm, body corporate, association or partnership, government or state or agency of a state, local authority or government body or any joint venture association or partnership
(whether or not having a separate legal personality) and that person's personal representatives, successors or permitted assigns;
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(c) |
the word "property", shall be deemed to include, where the context permits, real property, personal property including choses or things in action and all other intangible property and money and all estates, rights, titles and interests
therein and includes the Company's uncalled capital and future calls and all and every other undertaking and asset;
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(d) |
a word or expression used in these Articles which is not otherwise defined and which is also used in the Companies Act shall have the same meaning here, as it has in the Companies Act;
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(e) |
any phrase introduced by the terms "including", "include" and "in particular" or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms, whether or not followed by the
phrases "but not limited to", "without prejudice to the generality of the foregoing" or any similar expression; and
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(f) |
words denoting the singular number only shall include the plural number and vice versa and references to one gender includes all genders.
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2. |
The common seal
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2.1 |
The Company's seal shall be used only by the authority of its directors, or by a committee authorised by its directors or by any one or more persons severally or jointly so authorised by the directors or such a committee. Any instrument to
which the Company's seal shall be affixed shall be signed by:
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(a) |
a director and be countersigned by the secretary or by a second (if any) director or by some other person appointed for the purpose by its directors or by a committee; or
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(b) |
a person (including a director) appointed for the purpose by its directors or a committee of its directors authorised by its directors in that behalf.
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2.2 |
Section 43(2) and 43(3) of the Companies Act do not apply.
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3. |
Official seal for use abroad
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4. |
Directors
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5. |
Methods of appointing Directors
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5.1 |
The Company may by ordinary resolution appoint a person to be a Director either to a fill a vacancy or as an additional Director who are appointed without a term.
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5.2 |
Each Co-Lead Investor shall be entitled to appoint one representative to attend as an observer at each and any meeting of the Board who will be entitled to speak at any such meetings but will not be entitled to vote (the Investor Observers and each an Investor Observer) and to remove any observer so appointed and upon his removal whether by the relevant Co-Lead Investor or
otherwise, to appoint another observer in his place provided, however, that such Investor Observer shall agree to hold in confidence all information so provided in accordance with Clause 12 of the Shareholders' Agreement; and provided
further, that the Company reserves the right to withhold any information and to exclude such Investor Observer from any meeting or portion thereof if access to such information or attendance at such meeting could adversely affect the
attorney-client privilege between the Company and its counsel or result in disclosure of trade secrets or a conflict of interest, or if such Investor or its such Investor Observer is a competitor of the Company.
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5.3 |
Appointment and removal of a Director or an Investor Observer in accordance shall be by written notice from the relevant appointer to the Company or notified at any meeting of the Board or committee thereof and such appointment and/or
removal shall take effect on the delivery of such notice or such later time as may be set out in the notice.
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5.4 |
The Company will reimburse the Directors and the Investor Observers with the reasonable and vouched costs and out of pocket expenses incurred by them in respect of attending meetings of the Board or its committees.
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6. |
Meetings of the Board
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(a) |
reasonable advance notice of each meeting of the Board and each meeting of any committee of the Board specifying the date and time and place of the meeting, the notice to be accompanied by a written agenda specifying the business to be
transacted at the meeting together with all papers to be circulated or presented to the meeting (except where the consent in writing of the Majority Investors is obtained); and
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(b) |
as soon as practicable after each meeting of the Board and each meeting of any committee of the Board, a copy of the minutes.
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7. |
Directors' general authority
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8. |
Directors' power to delegate
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8.1 |
Subject to these Articles, the directors may delegate any of their powers:
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(a) |
to such person or committee;
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(b) |
by such means (including by power of attorney);
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(c) |
to such an extent;
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(d) |
in relation to such matters or territories; and
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(e) |
on such terms and conditions;
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8.2 |
If the directors so specify, any such delegation may authorise further delegation of the directors' powers by any person to whom they are delegated.
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8.3 |
The directors may revoke any delegation in whole or part, or alter its terms and conditions.
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9. |
Committees
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9.1 |
Committees to which the directors delegate any of their powers must follow procedures which are based as far as they are applicable on those provisions of these Articles which govern the taking of decisions by directors.
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9.2 |
The directors may make rules of procedure for all or any committees, which prevail over rules derived from these Articles if they are not consistent with them.
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10. |
Quorum for directors' meetings
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11. |
Methods of appointing directors
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11.1 |
The Company may by ordinary resolution appoint a person to be a director either to a fill a vacancy or as an additional director who are appointed without a term.
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11.2 |
When forming a committee of the directors, 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
as the case may be such committee) shall think fit, but any person so authorised shall not be entitled to vote at any such meetings.
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11.3 |
Save as set out hereunder, the A Ordinary Shares, the Ordinary Shares, the Series A Preferred Shares and the Series B Preferred Shares shall rank pari passu with one another in all respects.
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11.4 |
Voting Rights
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(a) |
each Ordinary Shareholder shall have one vote for each Ordinary Share held by him/her;
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(b) |
each A Preferred Shareholder shall have such number of votes for each Series A Preferred Share of which he/she/it is the holder equal to the number of Ordinary Shares into which a holder of Series A Preferred Shares is entitled, at the
relevant time, to convert an Series A Preferred Share in accordance with these Articles; and
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(c) |
each B Preferred Shareholder shall have such number of votes for each Series B Preferred Share of which he/she/it is the holder equal to the number of Ordinary Shares into which a holder of Series B Preferred Shares is entitled, at the
relevant time, to convert a Series B Preferred Share in accordance with these Articles.
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11.5 |
Dividends
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11.6 |
Return of Capital - Order of Priority
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(a) |
first, the A Preferred Shareholders and the B Preferred Shareholders shall be entitled to receive an amount per Series A Preferred Share and Series B Preferred Share (as applicable) equal to the Original Issue Price of such Share plus any
declared but unpaid dividends;
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(b) |
thereafter, the balance of any assets of the Company shall to be distributed to the Ordinary Shareholders pro rata to the number of Ordinary Shares held by each of them.
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11.7 |
Valuation of Non-Cash Consideration
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(a) |
If any assets of the Company to be distributed to Shareholders, including in connection with a Deemed Liquidation Event, are other than cash then the value of such assets shall be their fair market value as determined by the Auditors (or,
in circumstances where the Auditors are unwilling to act, the Expert) except that any publicly-traded securities to be distributed to Shareholders in a liquidation, dissolution or winding-up of the Company shall be valued as follows:
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(i) |
if the securities are then traded on a securities exchange or quotation system, then the value of the securities shall be deemed to be the average of the closing prices of the securities on such exchange or system over the fifteen (15)
trading day period ending on the day prior to the distribution date; or
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(ii) |
if the securities are actively traded over-the-counter, then the value of the securities shall be deemed to be the average of the closing bid prices of the securities over the fifteen (15) trading day period ending on the day prior to the
distribution date.
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(b) |
In the event of a sale, merger or other acquisition of the Company by another person or entity, the distribution date shall be deemed to be the date such transaction closes.
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(c) |
In the event of a pre-IPO reorganisation of the entire issued share capital of the Company into a single class of shares, the IPO valuation of the Group shall be the value determined by the Expert.
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12. |
Offer round
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12.1 |
Save in the case of a Permitted Transfer, if any Shareholder proposes at any time to transfer any Shares (the Transferor) or any rights or interests therein or thereon, it shall notify the Board in
writing that it proposes to do so. Such notification (the Transfer Notice) shall constitute the Board the agent of the Transferor for the sale of each of the Shares specified in the Transfer Notice
(the Relevant Shares) at the price specified in the Transfer Notice (the Specified Price). The Specified Price shall consist of cash consideration only. The
Transfer Notice shall also specify the name of the proposed transferee and may contain a provision that unless all the Relevant Shares are sold by the Company pursuant to this Regulation 12.1 none shall be so sold and any such provision shall
be binding on the Company. A Transfer Notice shall be irrevocable save with the consent of the Board. The Transferor shall at the same time deposit with the Company the share certificate(s) in respect of the Relevant Shares.
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12.2 |
Upon the receipt of a Transfer Notice (whether deemed or otherwise), the Directors shall decide whether it is in the best interests of the Company that the Company should purchase the Relevant Shares at the Specified Price, and shall
communicate their decision within fifteen (15) Business Days of such receipt to the Transferor. If their decision is negative, the provisions of Regulation 12.3 shall apply with effect from the communication thereof to the Transferor. If such
decision is positive, the communication thereof to the Transferor shall constitute a contract for the purchase of the Relevant Shares by the Company at the Specified Price, conditional upon the compliance by the Company with the statutory
requirements for such purchase within thirty (30) Business Days, including in particular, the approval of the members by written resolution or at an Extraordinary General Meeting. Subject to the fulfilment of the said condition, the
succeeding provisions of this Regulation 12.3, shall apply mutatis mutandis to the purchase of the Relevant Shares by the Company. If the said condition shall not be fulfilled, the contract for the purchase of the Relevant Shares by the
Company shall lapse, and the provisions of Regulation 12.3 shall apply with effect from such lapse.
|
12.3 |
Within two (2) Business Days of this Regulation 12.3 having effect, the Board shall inform the Ordinary Shareholders (other than the Transferor), the A Preferred Shareholders and the B Preferred Shareholders (the Other Shareholder(s)) by notice in writing of the number of Relevant Shares and of the Specified Price and invite the Other Shareholder(s) to apply in writing irrevocably to the Board within twenty (20) Business Days from the
date of dispatch of such notice to purchase some or all of the Relevant Shares at the Specified Price. If a member or members shall within the said period of twenty (20) Business Days apply for all or (except where the Transfer Notice
provides otherwise) any of the Relevant Shares the Directors shall allocate the Relevant Shares (or so many of them as shall be applied for as aforesaid) to or amongst the applicants and in case of competition pro rata (as nearly as possible)
according to the number of Shares of which they are registered as holders or unconditionally entitled to be registered as holders on an As-Converted Fully-Diluted Basis, provided that no applicant shall be obliged to take more than the
maximum number of Relevant Shares specified by him as aforesaid.
|
12.4 |
If, pursuant to any offer under the provisions of the preceding sub-paragraphs of this Regulation, all of the Relevant Shares are not applied for, the Directors may allocate the Relevant Shares or the balance thereof (as the case may be)
to any other person or persons who is or are willing to purchase same at the Specified Price.
|
12.5 |
Forthwith upon any allocation pursuant to Regulation 12.3 and/or Regulation 12.4 the Company shall give written notice of such allocation(s) to the Transferor and the persons to whom the Relevant Shares (or so many of them as aforesaid)
shall have been allocated (the Allocation Notice) and shall specify in the Allocation Notice the place in the State and time (being not earlier than seven (7) and not later than fourteen (14) Business
Days after the date of the Allocation Notice but in any event not being earlier than twenty (20) Business Days after the notice in writing referred to in Regulation 12.3 is given) at which the sale of the Relevant Shares so allocated shall be
completed.
|
12.6 |
The Transferor shall be bound to transfer the Shares comprised in an Allocation Notice to the purchaser named therein at the time and place therein specified and if he shall fail to do so any Director or some other person appointed by the
Directors for the purpose shall be deemed to have been appointed attorney of the Transferor with full power to execute, complete and deliver, in the name and on behalf of the Transferor, transfers of such of the Relevant Shares as aforesaid
to each purchaser against payment to the Company of the Specified Price in respect of each such Share. Each purchaser, on payment of such price to the Company in respect of each of the Relevant Shares so transferred to him, shall be deemed to
have obtained a good discharge for such payment and, on execution and delivery of the said transfers duly stamped, each purchaser shall be entitled to insist upon his name being entered in the register of members of the Company as the holder
by transfer of such of the Relevant Shares as shall have been transferred to him. The Company shall forthwith pay any such amount received by it hereunder into a separate bank account in the name of the Company and shall hold any such amount
in trust for the Transferor.
|
12.7 |
If the purchaser shall fail to complete a transfer of Relevant Shares, the Relevant Shares in question shall, without prejudice to any claim the Transferor may have against such purchaser, be re-allocated by the Directors as soon as may be
among other holders of Shares or other applicants willing to acquire same. The procedures set out aforesaid in Regulation 12.3, Regulation 12.4 and Regulation 12.5 shall apply to any such re-allocation save that the defaulting purchaser shall
not be permitted to participate in any further offer.
|
12.8 |
If the Directors do not dispose of all of the Relevant Shares comprised in any Transfer Notice in accordance with the foregoing provisions of this Regulation 12 they shall so notify the Transferor forthwith and during the period of forty
(40) Business Days next following the despatch of such notice the Transferor shall be at liberty to transfer all or any of the Relevant Shares which are not required to be allocated by the Directors in accordance with this Regulation 12 to
any person on a bona fide sale at any price not being less than the Specified Price (after deducting, where appropriate, any dividend or other distribution declared or made after the date of the Transfer Notice and to be retained by the
Transferor) provided that:-
|
|
(a) |
if the Transfer Notice shall state that unless all the Relevant Shares are sold none of them shall be sold, the Transferor shall not be entitled hereunder to transfer any of the Relevant Shares unless in aggregate the whole of such Shares
are allocated in accordance with the preceding provisions of this Regulation 12 or transferred under this sub-paragraph;
|
|
(b) |
the Directors may require to be satisfied that such Shares are being transferred in pursuance of a bona fide sale for the consideration stated in the transfer without any deduction, rebate or allowance whatsoever to the purchaser and
(without prejudice to the Directors' general rights to refuse to register any transfer) if not so satisfied may refuse to register the instrument of transfer; and
|
|
(c) |
any such transferee shall enter into and lodge with the Company a binding and legal commitment to the effect that such person or persons thereby accepts and shall jointly and severally be bound by such of the terms of any shareholders
agreement then in place as shall apply to the transferor.
|
12.9 |
For the purpose of ensuring that a transfer of Shares is a Permitted Transfer or that no circumstances have arisen whereby a Transfer Notice is required to be given hereunder the Directors may from time to time (and shall if required to do
so by any member on reasonable grounds) require any member, the legal personal representatives of any deceased member, the liquidator or receiver of any corporate member or any person named as transferee in any transfer lodged for
registration to furnish to the Company such information and evidence as the Directors may think fit regarding any matter which they may deem relevant to such purpose. Failing such information or evidence being furnished to the satisfaction of
the Directors within a reasonable time after request the Directors shall (without prejudice to the Directors' general rights to refuse to register any transfer) be entitled to refuse to register the transfer in question or (in case no
transfer is in question) to require by notice in writing that a Transfer Notice be given in respect of the Shares concerned. If such information or evidence discloses that a Transfer Notice ought to have been given in respect of any Shares
the Directors may require that a Transfer Notice be given in respect of the Shares concerned.
|
12.10 |
In any case where the Directors have duly required a Transfer Notice to be given in respect of any Shares and such Transfer Notice is not duly given within a period of one month, or such longer period as the Directors may, if they think
fit, reasonably allow for the purpose, such Transfer Notice shall (except and to the extent that a Permitted Transfer of any of such Shares shall have been lodged) be deemed to have been given or received on such date after the expiration of
the said period as the Directors may by resolution determine and the provisions of this Regulation 12 relating to Transfer Notices shall take effect accordingly.
|
12.11 |
If any member attempts to deal with or dispose of any Shares or interest in Shares otherwise than in accordance with the provisions of these Articles, the Directors may require a Transfer Notice to be given in respect of such Shares to
which the provisions of this Regulation 12 shall apply save that the Specified Price of such Shares shall be deemed to be the lower of the Fair Value of those Shares and the price at which the relevant Shareholder has subscribed for those
Shares.
|
12.12 |
The Auditors in assessing the amount of Fair Value shall value the Shares on the basis of an open market price on a going concern basis as between a willing seller and a willing buyer. The Auditors decision as to Fair Value shall be final
and binding.
|
12.13 |
Where any person has become unconditionally entitled to be registered as the holder of a Share, he and not the registered holder of the Share, shall be deemed to be a member of the Company in respect of that Share for the purposes of the
operation of this Regulation 12.
|
12.14 |
The provisions of this Regulation 12 shall not apply in circumstances where the provisions of Regulation 17 (Drag Along Rights) are validly invoked.
|
12.15 |
The Company undertakes to the Investors that no person shall be registered as the holder of any Shares whether upon transfer or transmission except where such transfer or transmission is made in accordance with these Articles.
|
13. |
Permitted Transfers
|
13.1 |
A Shareholder (who is not a Permitted Transferee) (the Original Shareholder) may transfer all or any of his or its Shares to a Permitted Transferee without restriction as to price or otherwise,
provided such Permitted Transferee has executed and delivered to the Company a Deed of Adherence.
|
13.2 |
Shares previously transferred as permitted by Regulation 13.1 may be transferred by the transferee to any other Permitted Transferee of the Original Shareholder without restriction as to price or otherwise, provided such Permitted
Transferee has executed and delivered a to the Company a Deed of Adherence.
|
13.3 |
If a Permitted Transferee who was an Affiliate of the Original Shareholder ceases to be an Affiliate of the Original Shareholder, the Permitted Transferee must not later than five (5) Business Days after the date on which the Permitted
Transferee so ceases, transfer the Shares held by it to the Original Shareholder or an Affiliate of the Original Shareholder (which in either case is not in liquidation) without restriction as to price or otherwise failing which it will be
deemed to have given a Transfer Notice in respect of those Shares.
|
13.4 |
Sale of Shares in GH Research Ireland Limited
|
|
(a) |
Subject to Regulation 13.4(b) below, no Shares held by the Company in GH Research Ireland Limited may be sold unless the consent in writing of 90% of the Shareholders of the Company is obtained, such consent to be obtained in a general
meeting of the Company.
|
|
(b) |
The restriction contained in Regulation 13.4(a) shall only apply to:
|
|
(i) |
the sale of Shares in GH Research Ireland Limited and shall not apply in respect of any divestments;
|
|
(ii) |
the sale of Shares in GH Research Ireland Limited which takes place at any time before 1 June 2028; and
|
|
(iii) |
the sale of Shares in GH Research Ireland Limited and shall not apply in respect of the sale of Shares in other Subsidiary of the Company.
|
14. |
Conversion Rights: Preferred Shares
|
14.1 |
Voluntary Conversion
|
14.2 |
Automatic Conversion
|
|
(a) |
All Preferred Shares in issue (to the extent not otherwise converted) shall automatically be converted into fully paid Ordinary Shares, at the then applicable Conversion Rate, upon the earliest to occur of the following:
|
|
(i) |
immediately prior to a Qualified IPO; or
|
|
(ii) |
upon the receipt by the Company of a written request for such conversion from the holders of a majority of the issued Series A Preferred Shares, voting together as a separate class and the Majority
Investors;
|
|
(b) |
The number of Ordinary Shares to which a holder of Series A Preferred Shares shall be entitled upon conversion shall be the product (rounded to the nearest whole number) obtained by multiplying the A Conversion Rate then in effect by the
number of Series A Preferred Shares being converted. The A Conversion Rate in effect shall be the quotient obtained by dividing the Original Issue Price of the Series A Preferred Shares by the A Conversion Price in effect at the relevant time
of determination. The A Conversion Price (which at the Date of Adoption is equal to the Original Issue Price of the Series A Preferred Shares) is subject to adjustment in accordance with the provisions of the below Regulation 15 (Conversion Price Adjustment).
|
|
(c) |
The number of Ordinary Shares to which a holder of Series B Preferred Shares shall be entitled upon conversion shall be the product (rounded to the nearest whole number) obtained by multiplying the B Conversion Rate then in effect by the
number of Series B Preferred Shares being converted. The B Conversion Rate in effect shall be the quotient obtained by dividing the Original Issue Price of the Series B Preferred Shares by the B Conversion Price in effect at the relevant time
of determination. The B Conversion Price (which at the Date of Adoption is equal to the Original Issue Price of the Series B Preferred Shares) is subject to adjustment in accordance with the provisions of Regulation 15 (Conversion Price Adjustment).
|
|
(d) |
Upon conversion, each Preferred Share shall convert:
|
|
(i) |
by an automatic process of re-designation into Ordinary Shares; and
|
|
(ii) |
if required (by virtue of the A Conversion Rate or the B Conversion Rate being adjusted (as applicable)), by the issue of additional Ordinary Shares.
|
|
(e) |
In the event that additional Ordinary Shares are required to be issued to effect the conversion:
|
|
(i) |
all appropriate adjustments shall be made to the Company's undenominated capital, profits available for distribution, unrealised revaluation reserves and/or other applicable reserves to ensure the issue to the A Preferred Shareholder(s)
and B Preferred Shareholder(s), as fully paid-up bonus shares, of the relevant number of additional Ordinary Shares without the requirement of any approval by the Shareholders, and the Company shall be bound to allot and issue such bonus
shares; and
|
|
(ii) |
in the event that sufficient capital reserves are unavailable for capitalisation or in order to meet any company law requirement, the A Preferred Shareholder(s) and B Preferred Shareholder(s) shall be entitled to subscribe at par for
Ordinary Shares in the capital of the Company to ensure the issue to the A Preferred Shareholder(s) and B Preferred Shareholder(s) of the relevant number of additional Ordinary Shares, and the Company shall be bound to allot and issue such
additional Ordinary Shares.
|
|
(f) |
In the event that any Preferred Shares are converted into Ordinary Shares pursuant to this Regulation 14 (Conversion Rights: Preferred Shares) immediately prior to an anticipated Qualified IPO and
such Qualified IPO does not close within seven days of conversion, the Ordinary Shares into which such Preferred Shares are converted shall be re-converted into the number of Preferred Shares as they were originally converted from (by a
process of: (i) re-designating the required number of such Ordinary Shares as Preferred Shares; and (ii) in the event that additional Ordinary Shares were issued in order to give effect to a conversion, by the surrender of the balance of such
Ordinary Shares to the Company for no valuable consideration) upon notice to that effect being received by the Company from the holder of the Preferred Shares originally converted, provided that such notice is received by the Company within
thirty (30) days of the date the Qualified IPO was scheduled to have occurred.
|
|
(g) |
Before any holder of Preferred Shares shall be entitled to convert any Preferred Shares into Ordinary Shares and to receive certificates in respect of the Ordinary Shares to be so converted, he/it shall deliver the relevant share
certificate or certificates in respect of the Preferred Shares to be converted or an indemnity in lieu thereof in a form reasonably satisfactory to the Company at its registered office, provided that, in the case of an Automatic Conversion
Event, the relevant Preferred Shares shall be converted automatically without any further action by the holders of the Preferred Shares and whether or not the share certificates representing such Preferred Shares are delivered to the Company.
However, no new share certificates in respect of the Ordinary Shares arising from an Automatic Conversion Event shall be issued by the Company to any person until delivery by that person of the relevant share certificates in respect of
his/its Preferred Shares automatically converted to the Company (or an indemnity in lieu thereof).
|
|
(h) |
A conversion of Preferred Shares pursuant to this Regulation 14 (Conversion Rights: Preferred Shares) shall be deemed to have been made immediately prior to the close of business on the date of
surrender of the share certificate or certificates (or an indemnity in lieu thereof) in respect of the Preferred Shares to be converted, or, if appropriate, the date of the Automatic Conversion Event and the person or persons entitled to
receive the Ordinary Shares arising upon such conversion shall be treated for all purposes as the registered holder of such Ordinary Shares from such time, provided that, if the conversion is made in connection with a Sale, the conversion may
(at the option of any holder of the Preferred Shares to be converted) be made conditional upon the closing of the Sale, in which event the conversion of any such holder's Preferred Shares shall instead be deemed to have been made immediately
prior to the closing of the Sale.
|
|
(i) |
Subject to the above paragraph, the Company shall, as soon as practicable following conversion of any Preferred Shares pursuant to this Regulation 14 (Conversion Rights: Preferred Shares), forward
to each relevant holder, share certificates in respect of the resultant Ordinary Shares to which he/it is entitled.
|
|
(j) |
The Company shall at all times keep available out of its authorised but unissued share capital solely for the purpose of effecting the conversion of Preferred Shares, such number of Ordinary Shares as shall from time to time be sufficient
to effect the conversion of all Preferred Shares, and if at any time the number of authorised but unissued Ordinary Shares shall not be sufficient to effect the conversion of all Preferred Shares, the Company and the Shareholders will take
such corporate action as may be necessary to increase its authorised but unissued Ordinary Shares to such number of shares as shall be sufficient for such purpose.
|
14.3 |
Non-Voting Ordinary Shares
|
15. |
Conversion Price Adjustment
|
15.1 |
In the event the Company shall issue, or shall be deemed to issue, Additional Shares without consideration or for a consideration per Share less than the A Conversion Price and/or the B Conversion Price in effect on the date of, and
immediately prior to, such issue, then the relevant Conversion Price(s) shall be adjusted downwards to a price determined by multiplying (as applicable):
|
|
(a) |
the A Conversion Price by a fraction, the numerator of which shall be the sum of: (a) the aggregate number of Shares (determined on an As-Converted Fully-Diluted Basis) in issue immediately prior to the issue of the Additional Shares; and
(b) the number of Ordinary Shares that the aggregate consideration received, receivable, or deemed to be received or receivable, by the Company for the issue of the Additional Shares would purchase at the A Conversion Price in effect on the
date of, and immediately prior to, such issue, and the denominator of which shall be the sum of: (a) the aggregate number of Shares (determined on an As-Converted Fully-Diluted Basis) in issue immediately prior to the issue of Additional
Shares; and (b) the number of the Additional Shares (as assumes, if applicable, that such shares have converted into Ordinary Shares in accordance with their terms); and
|
|
(b) |
the B Conversion Price by a fraction, the numerator of which shall be the sum of: (a) the aggregate number of Shares (determined on an As-Converted Fully-Diluted Basis) in issue immediately prior to the issue of the Additional Shares; and
(b) the number of Ordinary Shares that the aggregate consideration received, receivable, or deemed to be received or receivable, by the Company for the issue of the Additional Shares would purchase at the B Conversion Price in effect on the
date of, and immediately prior to, such issue, and the denominator of which shall be the sum of: (a) the aggregate number of Shares (determined on an As-Converted Fully-Diluted Basis) in issue immediately prior to the issue of Additional
Shares; and (b) the number of the Additional Shares (as assumes, if applicable, that such shares have converted into Ordinary Shares in accordance with their terms).
|
X
|
=
|
A x
|
(B+C)
|
(B+D)
|
X
|
means the adjusted Conversion Price
|
A
|
means the relevant Conversion Price in effect on the date of, and immediately prior to, the issue of the Additional Shares
|
B
|
means the aggregate number of Shares (determined on an As-Converted Fully-Diluted Basis) in issue immediately prior to the issue of the Additional Shares
|
C
|
means the number of Ordinary Shares that the aggregate consideration received, receivable, or deemed to be received or receivable, by the Company for the issue of the Additional Shares would purchase at the
relevant Conversion Price in effect on the date of, and immediately prior to, the issue of the Additional Shares
|
D
|
means the number of the Additional Shares (as assumes, if applicable, that such shares have converted into Ordinary Shares in accordance with their terms).
|
15.2 |
Downward Adjustment Only
|
15.3 |
Deemed Issue of Additional Shares
|
15.4 |
Determination of Consideration
|
|
(a) |
If any Additional Shares are issued, or deemed to have been issued, for cash, the consideration received, or receivable, by the Company therefor, shall be deemed to be the amount received, or receivable, by the Company therefor (net of
discounts, commissions and related expenses).
|
|
(b) |
If any Additional Shares are issued, or deemed to have been issued, for consideration other than cash, the value of the consideration other than cash received, or receivable, by the Company therefor, shall be determined on a basis
consistent with Regulation 11.7 (Valuation of Non-Cash Consideration).
|
|
(c) |
The consideration per share received, receivable, or deemed to be received or receivable, by the Company for Additional Shares deemed to have been issued pursuant to Regulation 15.3 (Deemed Issue of
Additional Shares) in relation to the grant or issue of options, convertible securities or options for convertible securities shall be the quotient obtained by dividing:
|
|
(i) |
the total amount (if any) received, or receivable, by the Company as consideration for the issue of such options, convertible securities or options for convertible securities plus the minimum aggregate amount of additional consideration
(as set forth in the instruments relating thereto without regard to any provision contained therein for a subsequent adjustment of such consideration) payable to the Company upon the exercise of such options or the conversion or exchange of
such convertible securities or, in the case of options for convertible securities, the exercise of such options for convertible securities and the subsequent conversion or exchange of such convertible securities; by
|
|
(ii) |
the maximum number of Additional Shares (as set out in the instruments relating thereto, without regard to any provision contained therein for a subsequent adjustment of such number) issuable upon the exercise of such options or the conversion or exchange of such convertible securities or, in the case of options for convertible securities, the exercise
of such options for convertible securities and the subsequent conversion or exchange of convertible securities.
|
|
(d) |
In the event the consideration for Additional Shares received, receivable or valued (as the case may be) is in a currency other than US Dollars, for the purpose of determining whether the Company has issued (or is deemed to have issued)
such Additional Shares for a consideration per share less than the A Conversion Price and/or the B Conversion Price, the consideration shall be notionally converted to US Dollars at the average of the applicable foreign exchange rates for the
five (5) Business Days ending on the date of issue (or deemed issue) of the Additional Shares (calculated by reference to the daily 10:00 am foreign exchange spot rates published by the Federal Reserve Bank of New York).
|
15.5 |
Share Capital Reorganisation
|
15.6 |
Protection Against Impairment
|
15.7 |
Notice of Adjustment
|
15.8 |
Independent Certification
|
|
(a) |
In the event that any of the A Preferred Shareholders are not satisfied with any certificate of the A Conversion Price issued by the Board pursuant to this Regulation 15 (Conversion Price Adjustment), or
if the Board does not issue such a certificate, any A Preferred Shareholder may request the Auditors (or in circumstances where the Auditors are unwilling to act, the Expert) to independently certify the A Conversion Price. If the price
certified by the Auditor or Expert as the case may be differs from the A Conversion Price issued by the Board the Auditors' or Expert's (as the case may be) costs shall be borne by the Company. If the price certified by the Auditor or Expert
as the case may be is the same as the A Conversion Price issued by the Board the Auditors' or Expert's (as the case may be) costs shall be borne by the requesting A Preferred Shareholder(s). The Auditors' or Expert's (as the case may be)
certificate shall, except in the case of manifest error, be binding on the Company and each of the Shareholders.
|
|
(b) |
In the event that any of the B Preferred Shareholders are not satisfied with any certificate of the B Conversion Price issued by the Board pursuant to this Regulation 15 (Conversion Price Adjustment), or
if the Board does not issue such a certificate, any B Preferred Shareholder may request the Auditors (or in circumstances where the Auditors are unwilling to act, the Expert) to independently certify the B Conversion Price. If the price
certified by the Auditor or Expert as the case may be differs from the B Conversion Price issued by the Board the Auditors' or Expert's (as the case may be) costs shall be borne by the Company. If the price certified by the Auditor or Expert
as the case may be is the same as the B Conversion Price issued by the Board the Auditors' or Expert's (as the case may be) costs shall be borne by the requesting B Preferred Shareholder(s). The Auditors' or Expert's (as the case may be)
certificate shall, except in the case of manifest error, be binding on the Company and each of the Shareholders.
|
15.9 |
Waiver of Rights
|
|
(a) |
The rights of all A Preferred Shareholders to have the A Conversion Price adjusted in accordance with the provisions of this Regulation 15 may be waived with the written consent of the holders of a majority of the issued Series A Preferred
Shares. Such waiver may be given in advance of, or following, an issue (or deemed issue) of Additional Shares, and shall be binding on all Shareholders of that class.
|
|
(b) |
The rights of all B Preferred Shareholders to have the B Conversion Price adjusted in accordance with the provisions of this Regulation 15 may be waived with the written consent of the holders of a majority of the issued Series B Preferred
Shares. Such waiver may be given in advance of, or following, an issue (or deemed issue) of Additional Shares, and shall be binding on all Shareholders of that class.
|
16. |
Allotment of Shares
|
16.1 |
Until the earlier of: (i) a Qualified IPO; or (ii) a Deemed Liquidation Event, all Equity Securities which the Directors propose to allot and issue (other than any Equity Securities the subject of an Excluded Issuance) (the Offer Round Shares) shall first be offered to each of the Ordinary Shareholders and the holders of Preferred Shares, in the respective proportions, as nearly as may be, that the number of Ordinary Shares
and Preferred Shares (determined on an As-Converted Fully-Diluted Basis) held by each of them individually bears to the total number of Ordinary Shares and Preferred Shares (determined on an As-Converted Fully-Diluted Basis) held by all of
them (their Proportionate Offer Round Entitlements and each a Proportionate Offer Round Entitlement), at the same price and on the same terms.
|
16.2 |
The offer shall be made by notice in writing (the Offer Notice) specifying the number of Offer Round Shares offered and the price, and limiting a period (not being less than ten (10) Business Days)
within which the offer, if not accepted in writing, will be deemed to be declined (the Offer Period). The terms of the offer, to be set out in the Offer Notice, shall also provide that it shall be open
to each offeree Shareholder to specify if he, or it, is willing to subscribe for Offer Round Shares in excess of his, or its, Proportionate Offer Round Entitlement (the Excess Offer Round Shares) and,
if an offeree Shareholder does so specify, he, or it, shall state the number of Excess Offer Round Shares that he, or it is willing to subscribe for.
|
16.3 |
Procedure for Acceptance
|
16.4 |
Allocation of Offer Round Shares
|
|
(c) |
if the total number of Offer Round Shares applied for is equal to or less than the available number of Offer Round Shares, in accordance with the applications of the accepting Shareholders; or
|
|
(d) |
if the total number of Offer Round Shares applied for is greater than the total number of Offer Round Shares offered:
|
|
(i) |
first, each accepting Shareholder shall be allocated his, or its, Proportionate Offer Round Entitlement (or such lesser number of Offer Round Shares for which he, or it, has applied); and
|
|
(ii) |
secondly, each accepting Shareholder shall be allocated such number of Excess Offer Round Shares, if any, in accordance with his, or its, application or, in the event of competition, as nearly as may be to the proportion that the number of
Ordinary Shares and Preferred Shares (determined on an As-Converted Fully-Diluted Basis) held by him, or it, individually bears to the total number of Ordinary Shares and Preferred Shares (determined on an As-Converted Fully-Diluted Basis)
held by all accepting Shareholders applying for Excess Offer Round Shares, provided that no accepting Shareholder shall be allocated more Excess Offer Round Shares than he, or it, shall have stated himself, or itself, willing to take,
|
16.5 |
Directors' Discretion
|
|
(e) |
such Equity Securities are allotted at no less than the price per Equity Securities and otherwise on no better terms than were offered to the Ordinary Shareholders and/or the holders of Preferred Shares; and
|
|
(f) |
if required by the Board, any allottee which is not party to the Shareholders' Agreement shall first have agreed to adhere to the provisions of the Shareholders' Agreement by executing a Deed of Adherence.
|
16.6 |
Non-Assignability
|
17. |
Drag-along Rights
|
17.1 |
If Shareholders (to always include the Majority Investors) (for the purposes of this Regulation 17.1, collectively, the Sellers) intend to sell as part an Approved Sale all of their Shares (the Selling Shares) the Sellers shall have the right to give to the Company not less than twenty (20) Business Days' advance notice before the completion of the Approved Sale requiring all (but not some only)
of the other Shareholders (the Other Shareholders) to sell all (but not some only) of their Shares in accordance with this Regulation 17.1. The notice given to the Company (the Drag Notice) shall include:
|
|
(a) |
the identity of the proposed purchaser (the Proposed Purchaser);
|
|
(b) |
details of the Selling Shares and the price per share for each class of Selling Share and all other Shares which the Proposed Purchaser is proposing to pay;
|
|
(c) |
the manner in which the consideration is to be paid;
|
|
(d) |
specifying that the Other Shareholders are required to transfer their Shares pursuant to this Regulation 17.1;
|
|
(e) |
the place, date and time of completion, being a date not less than twenty (20) Business Days from the date of the Drag Notice;
|
|
(f) |
the form of the documentation referred to in Regulation 17.3 which the Other Shareholders are required to sign in connection with the sale of their Shares to the Proposed Purchaser and the date by which the Other Shareholders shall have
delivered such duly executed documentation; and
|
|
(g) |
such other particulars of the proposed Approved Sale as the Sellers consider to be materially relevant to the other Shareholders.
|
17.2 |
The Board shall, within five (5) Business Days of receipt of a Drag Notice, send a copy of the Drag Notice to each of the Other Shareholders.
|
17.3 |
Every Other Shareholder who has been sent a copy Drag Notice pursuant to Regulation 17.2 shall be required to sell all of its Shares to the Proposed Purchaser within ten (10) Business Days of the date of dispatch of the copy Drag Notice by
the Board pursuant to Regulation 17.2, or such longer period as shall be stipulated by the Board at the direction of the Sellers, (the final day of either such period being the Drag Deadline Date) and
shall execute the necessary documentation to transfer the relevant Shares (including any agreements required to be entered into by all Shareholders in relation to the Approved Sale) in favour of the Proposed Purchaser provided that:
|
|
(a) |
the terms, including price, of such sale shall, subject as hereafter provided in this Regulation 17.3, be the same (to the extent applicable) in all respects as those applicable to the Sellers pursuant to the Approved Sale;
|
|
(b) |
the price payable to the Other Shareholders shall be payable entirely in cash;
|
|
(c) |
the net proceeds of the Approved Sale shall be distributed to the Shareholders in accordance with Regulation 11.6 (Return of Capital);
|
|
(d) |
the liability of the Other Shareholders pursuant to the terms of the Approved Sale shall be several and not joint and shall not exceed such Other Shareholder's pro rata portion of the consideration received by the Other Shareholder;
|
|
(e) |
the Other Shareholders shall not be required to enter into any indemnities or warranties in favour of the Proposed Purchaser save warranties as to their title to their Shares and their capacity to enter into any documents in respect of the
sale of their Shares and shall not be required to participate in any scheme for the avoidance of tax by the Proposed Purchaser;
|
|
(f) |
such Other Shareholder is not required to agree (unless such Other Shareholder is a Company officer or employee) to any restrictive covenant in connection with the Approved Sale (including, without limitation, any covenant not to compete
or covenant not to solicit customers, employees or suppliers of any party to the Approved Sale) or any release of claims other than a release in customary form of claims arising solely in such Other Shareholder’s capacity as a shareholder of
the Company;
|
|
(g) |
the Proposed Purchaser completes the purchase of all of the Selling Shares simultaneously.
|
17.4 |
If any of the parties hereto, other than the Company (the Defaulting Shareholder(s)) fail to comply with any of the terms of this Regulation 17 by the Drag Deadline Date, such Defaulting Shareholder
shall be deemed to have irrevocably appointed the Chairman (if appointed) (or failing him the company secretary of the Company) to be his agent and attorney for the sale of his Shares in accordance with the Drag Notice (together with all
rights then attached thereto) and to execute and deliver all necessary documentation to transfer the Relevant Shares on his behalf and the Company may receive the purchase money in trust for each of the Defaulting Shareholders. With effect
from the day after the Drag Deadline Date, the voting and other rights attaching to those Shares may not be exercised by such Defaulting Shareholder and payment of any dividends declared on such Shares shall be withheld and held in trust for
such Defaulting Shareholder until such time as the requisite transfer is effected. The Company shall, subject to the relevant share transfer forms of the Shares being duly stamped, register the name of the transferee of such Shares in the
register of shareholders of the Company. The receipt by the Company of the purchase money, pursuant to such transfers, shall constitute a good and valid discharge to the Proposed Purchaser (who shall not be bound to see to the application
thereof) and after the Proposed Purchaser has been registered in purported exercise of the aforesaid powers the validity of the proceedings shall not be questioned by any person. The Company shall not pay the purchase money to a Defaulting
Shareholder until he shall, in respect of the Shares being the subject of the Drag Notice, have delivered his share certificates or a suitable indemnity and any other necessary documentation to the Company.
|
17.6 |
Notwithstanding the foregoing, if the Proposed Purchaser fails to complete the Approved Sale, the Drag Notice shall no longer be binding and cease to have effect. The Selling Shareholders shall be entitled to serve further Drag Notices
following the lapse of any particular Drag Notice.
|
18. |
Share capital
|
19. |
Shares - General
|
19.1 |
Shares in the capital of the Company shall have nominal values.
|
19.2 |
The Company may allot shares:
|
|
(a) |
of different nominal values;
|
|
(b) |
of different currencies;
|
|
(c) |
with different amounts payable on them; or
|
|
(d) |
with a combination of two or more of the foregoing characteristics.
|
19.3 |
Any share in the Company may be issued with such preferred, deferred or other special rights or such restrictions, whether in regard to dividend, voting, return of capital or otherwise, as the Company may from time to time by ordinary
resolution determine.
|
19.4 |
Unless the Board determines otherwise, any share in the capital of the Company shall be deemed to be a Redeemable Share on, and from the time of, the existence or creation of an agreement, transaction or trade between the Company and any
person (who may or may not be a member) pursuant to which the Company acquires or will acquire a share in the capital of the Company, or an interest in shares in the capital of the Company, from the relevant person, save for an acquisition
for nil consideration pursuant to section 102(1)(a) of the Act. In these circumstances, the acquisition of such shares by the Company, save where acquired for nil consideration in accordance with the Act, shall constitute the redemption of a
Redeemable Share in accordance with Chapter 6 of Part 3 of the Act. No resolution, whether special or otherwise, shall be required to be passed to deem any share in the capital of the Company a Redeemable Share.
|
19.5 |
The Shares shall entitle the holders thereof to the same rights and privileges and subject them to the same restrictions and provisions.
|
20. |
Authority to allot Shares
|
20.1 |
Subject to Regulation 16, 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 date on which the resolution adopting these Articles takes effect.
|
20.2 |
The Directors are hereby empowered pursuant to sections 1022 and 1023(1) of the Companies Act to allot equity securities within the meaning of the said section 1022 pursuant to the authority conferred by Regulation 20.1 as if section
1022(1) of the Companies Act did not apply to any such allotment.
|
21. |
Lien on Shares
|
22. |
Variation of Rights attached to Special Classes of Shares
|
23. |
Variation of company capital
|
23.1 |
The Company may, by ordinary resolution and in accordance with section 83 of the Act, do any one or more of the following, from time to time:
|
|
(a) |
consolidate and divide all or any of its shares into shares of a larger nominal value than its existing shares;
|
|
(b) |
subdivide its shares, or any of them, into shares of a smaller nominal value, so however, that in the subdivision the proportion between the amount paid and the amount, if any, unpaid on each reduced share shall be the same as it was in
the case of the share from which the reduced share is derived;
|
|
(c) |
increase the nominal value of any of its shares by the addition to them of any undenominated capital;
|
|
(d) |
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;
|
|
(e) |
convert any undenominated capital into shares for allotment as bonus shares to holders of existing shares;
|
|
(f) |
increase its share capital by new shares of such amount as it thinks expedient; or cancel shares of its share capital which, at the date of the passing of the resolution, have not been taken or agreed to be taken by any person, and
diminish the amount of its share capital by the amount of the shares so cancelled.
|
23.2 |
The rights conferred upon the holders of the shares of any class issued by the Company with preferred or other rights shall not, unless otherwise expressly provided by the terms of issue of the shares of that class, be deemed to be varied
by the creation or issue of further shares ranking pari passu therewith.
|
24. |
Reduction of company capital
|
24.1 |
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:
|
|
(a) |
extinguish or reduce the liability on any of its shares in respect of share capital not paid up;
|
|
(b) |
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
|
|
(c) |
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.
|
25. |
Acquisition of own shares
|
26. |
Subject to Regulation 27, the Company shall in each year hold a general meeting as its annual general meeting in addition to any other meeting in that year, and shall specify the meeting as such in the notices calling it; and not more than
15 months shall elapse between the date of one annual general meeting of the Company and that of the next.
|
27. |
So long as the Company holds its first annual general meeting within 18 months of its incorporation, it need not hold it in the year of its incorporation or in the year following.
|
28. |
The annual general meeting shall be held at such time and place as the Directors shall determine.
|
29. |
All general meetings of the Company other than annual general meetings shall be called extraordinary general meetings.
|
30. |
The Directors may, whenever they think fit, convene an extraordinary general meeting and extraordinary general meetings shall also be convened by the Directors, on such requisition, or in default, may be convened by such requisitionists,
as provided by section 178(3) to (7) of the Act.
|
31. |
An annual general meeting or extraordinary general meeting of the Company may be held outside 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.
|
32. |
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.
|
33. |
Notice of general meetings
|
33.1 |
The only persons entitled to notice of general meetings of the Company are:
|
|
(a) |
the members;
|
|
(b) |
the personal representatives of a deceased member, which member would but for his death be entitled to vote;
|
|
(c) |
the assignee in bankruptcy of a bankrupt member of the Company (being a bankrupt member who is entitled to vote at the meeting);
|
|
(d) |
the Directors and secretary of the Company; and
|
|
(e) |
unless the Company is entitled to and has availed itself of the audit exemption under the Act, the statutory auditors (who shall also be entitled to receive other communications relating to any general meeting which a member is entitled to
receive).
|
33.2 |
A meeting of the Company, other than an adjourned meeting, shall be called:
|
|
(a) |
in the case of the annual general meeting or an extraordinary general meeting for the passing of a special resolution, by not less than 21 days' notice;
|
|
(b) |
in the case of any other extraordinary general meeting, by not less than fourteen days' notice; or
|
|
(c) |
in either case, on such shorter notice as all of the members and, unless the Company has availed of the audit exemption under the Companies Act (and, where relevant, section 399 of the Companies Act
has been complied with in that regard), the statutory auditors of the Company agree.
|
33.3 |
In determining the correct period of notice for a general meeting, neither the day on which the notice is served nor the day of the meeting for which it is given shall be counted.
|
34. |
Unanimous written resolutions
|
34.1 |
In accordance with section 193(1) of the Companies Act (as modified in its application to a PLC by section 1093 of the Act), notwithstanding any provision to the contrary in the Act:
|
|
(a) |
a resolution in writing signed by all the members of the Company for the time being entitled to attend and vote on such resolution at a general meeting (or being bodies corporate by their duly
appointed representatives) shall be as valid and effective for all purposes as if the resolution had been passed at a general meeting of the Company duly convened and held (a "unanimous written resolution");
|
|
(b) |
if described as a special resolution a unanimous written resolution shall be deemed to be a special resolution within the meaning of the Act, and
|
|
(c) |
a unanimous written resolution may consist of several documents in like form each signed by one or more members.
|
34.2 |
A unanimous written resolution shall be deemed to have been passed at a meeting held on the date on which it was signed by the last member to sign, and, where the resolution states a date as being the date of his or her signature thereof
by any member, it shall be taken that it was signed by him or her on that date.
|
34.3 |
Where a unanimous written resolution is not contemporaneously signed, the Company shall notify the members, within 21 days after the date of delivery to it of the document or documents constituting the unanimous written resolution of the
fact that the resolution has been passed.
|
34.4 |
The signatories of unanimous written resolution shall, within 14 days after the date of its passing, procure delivery to the Company of the documents constituting the unanimous written resolution and without prejudice to the use of the
other means of delivery generally permitted by the Act, such delivery may be effected by electronic mail or the use of a facsimile machine and the Company shall retain those documents as if they constituted the minutes of a-general meeting of
the Company.
|
35. |
Written decision of sole member
|
35.1 |
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.
|
36. |
Quorum for general meetings
|
36.1 |
Two members of the Company present in person or by proxy and having the right to attend and vote at the meeting and holding shares representing more than 50 per cent of the votes that may be cast by all members at the relevant time shall
be a quorum at a general meeting; provided that at any time when the Company is a single-member company, one member of the Company present in person or by proxy at a general meeting of it shall be a quorum.
|
36.2 |
If within 15 minutes after the time appointed for a general meeting a quorum is not present, then:
|
|
(a) |
the meeting shall stand adjourned to the same day in the next week, at the same time and place or to such other day and at such other time and place as the Directors may unanimously determine; and
|
|
(b) |
if at the adjourned meeting a quorum is not present within half an hour after the time appointed for the meeting, the members present shall be a quorum.
|
37. |
Indemnity for officers
|
37.1 |
Subject to the provisions of the Act, the Company may indemnify any officer of the Company against any liability incurred by him or her in defending proceedings, whether civil or criminal, in which judgment is given in his or her favour or
in which he or she is acquitted, or in connection with any proceedings or application referred to in, or under, section 233 or 234 of the Companies Act in which relief is granted to him or her by the court.
|
37.2 |
Every officer of the Company shall be entitled to be indemnified out of the assets of the Company against all losses or liabilities which he or she may sustain or incur in or about the execution of the duties of his or her office or
otherwise in relation thereto and no officer shall be liable for any loss, damage or misfortune which may happen to or be incurred by the Company in the execution of the duties of his or her office or in relation thereto. This regulation
shall only have effect in so far as its provisions are not void under section 235 of the Companies Act.
|
1 |
The name of the Company is GH RESEARCH PUBLIC LIMITED COMPANY.
|
2 |
The Company is a public limited company registered under Part 17 of the Companies Act 2014 (the Act).
|
3 |
The objects for which the Company is established are:
|
|
(a) |
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 whatsoever that are necessary or convenient
in carrying on the business of such a holding company and in particular to carry on business in all its branches, companies or locations related to biopharmaceutical research and the development of novel therapies for the management of mental
diseases.
|
|
(b) |
To carry on the businesses of a researcher, developer, manufacturer, distributor, wholesaler, retailer, service provider, investor, trader and any other business 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.
|
|
(c) |
To carry on all or any of the businesses as aforesaid either as a separate business or as the principal business of the Company.
|
|
(d) |
To invest and deal with the property of the Company in such manner as may from time to time be determined by the Company's board of directors and to dispose of or vary such investments and dealings.
|
|
(e) |
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 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.
|
|
(f) |
To lend and advance money or other property or give credit or financial accommodation to any company or person in any manner either with or without security and whether with or without the payment of interest and upon such terms and
conditions as the Company's board of directors shall think fit or expedient.
|
|
(g) |
To guarantee, indemnify, grant indemnities in respect of, enter into any suretyship or joint obligation, or otherwise support or secure, whether by personal covenant, indemnity or undertaking or by mortgaging, charging, pledging or
granting a lien or other security over all or any part of the Company's property (both present and future) or by any one or more of such methods or any other method and whether in support of such guarantee or indemnity or suretyship or joint
obligation or otherwise, on such terms and conditions as the Company's board of directors shall think fit, the payment of any debts or the performance or discharge of any contract, obligation or liability of any person or company (including,
without prejudice to the generality of the foregoing, the payment of any capital, principal, dividends or interest on any stocks, shares, debentures, debenture stock, notes, bonds or other securities of any person, authority or company)
including, without prejudice to the generality of the foregoing, any company which is for the time being the Company's holding company or another subsidiary (as defined by the Act) of the Company's holding company or a subsidiary of the
Company or otherwise associated with the Company.
|
|
(h) |
To grant, convey, assign, transfer, exchange or otherwise alienate or dispose of any property of the Company of whatever nature or tenure for such price, consideration, sum or other return whether equal to or less than the market value
thereof or for shares, debentures or securities and whether by way of gift or otherwise as the Company's board of directors shall deem fit or expedient.
|
|
(i) |
To purchase, take on, lease, exchange, rent, hire or otherwise acquire any property and to acquire and undertake the whole or any part of the business and property of any company or person.
|
|
(j) |
To engage in currency exchange, interest rate and commodity transactions including, but not limited to, dealings in foreign currency, spot and forward rate exchange contracts, futures, options, forward rate agreements, swaps, caps, floors,
collars and any other foreign exchange, interest rate or commodity hedging arrangements and such other instruments as are similar to, or derived from, any of the foregoing whether for the purpose of making a profit or avoiding a loss or
managing a currency, interest rate or commodity exposure or any other exposure or for any other purpose.
|
|
(k) |
To apply for, establish, create, purchase or otherwise acquire, sell or otherwise dispose of and hold any patents, trade marks, copyrights, brevets d' invention, registered designs, licences, concessions and the like conferring any
exclusive or non-exclusive or limited rights to use or any secret or other information and any invention and to use, exercise, develop or grant licences in respect of or otherwise turn to account or exploit the property, rights or information
so held.
|
|
(l) |
To enter into any arrangements with any governments or authorities, national, local or otherwise and to obtain from any such government or authority any rights, privileges and concessions and to carry out, exercise and comply with any such
arrangements, rights, privileges and concessions.
|
|
(m) |
To establish, form, register, incorporate or promote any company or companies or person, whether inside or outside of Ireland.
|
|
(n) |
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.
|
|
(o) |
To adopt such means of making known the products of the Company as may seem expedient and in particular by advertising in the press, by circulars, by purchase and exhibition of works of art or interest, by publication of books and
periodicals and by granting prizes, rewards and donations.
|
|
(p) |
To pay all costs, charges, fees and expenses incurred or sustained in or about the promotion, establishment, formation and registration of the Company.
|
|
(q) |
To do all or any of the above things in any part of the world, and as principals, agents, contractors, trustees or otherwise and by or through trustees, agents or otherwise and either alone or in conjunction with any person or company.
|
|
(r) |
To do all such other things as the Company's board of directors may think incidental or conducive to the attainment of the above objects or any of them.
|
|
(a) |
the word "company", except where used in reference to this Company, shall be deemed to include a body corporate, whether a company (wherever formed, registered or incorporated), a corporation aggregate, a corporation sole and a national or
local government or other legal entity; and
|
|
(b) |
the word "person", shall be deemed to include any individual, firm, body corporate, association or partnership, government or state or agency of a state, local authority or government body or any joint venture association or partnership
(whether or not having a separate legal personality) and that person's personal representatives, successors or permitted assigns; and
|
|
(c) |
the word "property", shall be deemed to include, where the context permits, real property, personal property including choses or things in action and all other intangible property and money and all estates, rights, titles and interests
therein and includes the Company's uncalled capital and future calls and all and every other undertaking and asset; and
|
|
(d) |
a word or expression used in this memorandum of association which is not otherwise defined and which is also used in the Companies Act 2014 shall have the same meaning here, as it has in the Companies Act 2014; and
|
|
(e) |
any phrase introduced by the terms "including", "include" and "in particular" or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms, whether or not followed by the
phrases "but not limited to", "without prejudice to the generality of the foregoing" or any similar expression; and
|
|
(f) |
words denoting the singular number only shall include the plural number and vice versa and references to one gender includes all genders; and
|
|
(g) |
it is intended that the objects specified in each paragraph in this clause shall, except where otherwise expressed in such paragraph, be separate and distinct objects of the Company and shall not be in any way limited or restricted by
reference to or inference from the terms of any other paragraph or the order in which the paragraphs of this clause occur or the name of the Company.
|
4 |
The liability of the members is limited.
|
5 |
The share capital of the Company is US$1,000,000,000 divided into 40,000,000,000 Ordinary Shares of US$0.025 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.
|
1. |
Interpretation and general
|
1.1 |
The "optional provisions" as defined by section 1007(2) of the Companies Act (as defined below) shall apply to the Company save in so far as they are excluded or modified herein.
|
1.2 |
In these Articles, unless the context requires otherwise:
|
1.3 |
It is hereby declared that in these Articles:
|
|
(a) |
the word "company", except where used in reference to this Company, shall be deemed to include a body corporate, whether a company (wherever formed, registered or incorporated), a corporation aggregate, a corporation sole and a national or
local government or other legal entity;
|
|
(b) |
the word "person", shall be deemed to include any individual, firm, body corporate, association or partnership, government or state or agency of a state, local authority or government body or any joint venture association or partnership
(whether or not having a separate legal personality) and that person's personal representatives, successors or permitted assigns;
|
|
(c) |
the word "property", shall be deemed to include, where the context permits, real property, personal property including choses or things in action and all other intangible property and money and all estates, rights, titles and interests
therein and includes the Company's uncalled capital and future calls and all and every other undertaking and asset;
|
|
(d) |
a word or expression used in these Articles which is not otherwise defined and which is also used in the Companies Act shall have the same meaning here, as it has in the Companies Act;
|
|
(e) |
any phrase introduced by the terms "including", "include" and "in particular" or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms, whether or not followed by the
phrases "but not limited to", "without prejudice to the generality of the foregoing" or any similar expression; and
|
|
(f) |
words denoting the singular number only shall include the plural number and vice versa and references to one gender includes all genders.
|
2. |
Authorised share capital
|
3. |
Rights attaching to Ordinary Shares
|
3.1 |
The Ordinary Shares shall entitle the holders thereof to the following rights:
|
|
(a) |
subject to the right of the Company to set record dates for the purposes of determining the identity of members entitled to notice of and/or to vote at a general meeting and the authority of the Board and chairperson of the meeting to
maintain order and security, 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;
|
|
(b) |
the right to participate pro rata in all dividends declared by the Company; and
|
|
(c) |
the right, in the event of the Company's winding up, to participate pro rata in the total assets of the Company.
|
4. |
Redeemable Shares
|
4.1 |
Unless the Board determines otherwise, any Share 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 (including any agent or broker acting
on behalf of the Company) and any person (who may or may not be a member) pursuant to which the Company acquires or will acquire a Share, or an interest in Shares, from the relevant person, save for an acquisition for nil consideration
pursuant to section 102(1)(a) of the Companies Act. In these circumstances, the acquisition of such Shares by the Company, save where acquired for nil consideration in accordance with the Companies Act, shall constitute the redemption of a
Redeemable Share in accordance with Chapter 6 of Part 3 of the Companies Act. No resolution, whether special or otherwise, shall be required to be passed to deem any Share a Redeemable Share.
|
4.2 |
The Company may by special resolution, and subject to the provisions of the Companies 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.
|
5. |
Variation of rights
|
5.1 |
Whenever the share capital is divided into different classes of Shares, the rights attaching to a class of Shares may only be varied or abrogated if (a) the holders of 75% in nominal value of the issued Shares of that class consent in
writing to the variation, or (b) a special resolution, passed at a separate general meeting of the holders of that class, sanctions the variation. The quorum at any such separate general meeting, other than an adjourned meeting, shall be one
person holding or representing by proxy at least a majority in nominal value of the issued Shares of the class in question and the quorum at an adjourned meeting shall be one person holding or
representing by proxy Shares of the class in question or that person’s proxy.
|
5.2 |
The rights conferred upon the holders of any class of Shares issued with preferred or other rights shall not, unless otherwise expressly provided by the terms of issue of the Shares of that class, be deemed to be varied by a purchase or
redemption by the Company of its own Shares or by the creation or issue of further Shares ranking pari passu therewith or subordinate thereto.
|
6. |
Trust not recognised
|
7. |
Allotment and acquisition of Shares
|
7.1 |
The following provisions shall apply:
|
|
(a) |
Subject to the provisions of these Articles relating to new Shares, the Shares shall be at the disposal of the Directors, and they may (subject to the provisions of the Companies Act) allot, grant options over or otherwise dispose (with or without conferring a right of renunciation) of them to such persons, on such terms and conditions and at such times as they may consider to be in the best interests of the Company and its
members, but so that no Share shall be issued at a discount to the nominal value thereof (except in accordance with the provisions of the Companies Act) and so that, unless otherwise permitted under the Companies Act, 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 other paragraphs of these Articles, and subject to any requirement to obtain the approval of the members under any laws, regulations or the rules of any Stock
Exchange, the Directors may grant from time to time options to subscribe for the unallotted Shares to Directors and other persons in the service or employment of the Company or any Subsidiary or Associated Company on such terms and subject to
such conditions as may be approved from time to time by the Directors or by any committee thereof appointed by the Directors for the purpose of such approval and on the terms and conditions required to obtain the approval of any statutory
authority in any jurisdiction.
|
|
(c) |
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 Companies 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 Date of Adoption. The authority hereby conferred shall expire on the date which is five (5)
years after the Date of Adoption 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.
|
|
(d) |
The Company may issue permissible letters of allotment (as defined by section 1019 of the Companies Act) to the extent permitted by the Companies Act.
|
|
(e) |
The Directors are hereby empowered pursuant to sections 1022 and 1023(1) of the Companies Act to allot Equity Securities within the meaning of the said section 1022 for cash pursuant to the authority conferred by Regulation 7.1(c) as if
section 1022(1) of the Companies Act did not apply to any such allotment. 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 Regulation 7.1(e) had not expired.
|
|
(f) |
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 Companies 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).
|
|
(g) |
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 shall be consecutively numbered or otherwise identified and shall specify the Shares 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 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.
|
7.2 |
The Directors (and any committee established under Regulation 58.1 and so authorised by the Directors and any person so authorised by the Directors or such committee) may without prejudice to Regulation 56.1:
|
|
(a) |
allot, issue, grant options over and otherwise dispose of Shares in the Company; and
|
|
(b) |
exercise the Company's powers under Regulation 7.1,
|
8. |
Payment of commission
|
9. |
Disclosure of interests
|
9.1 |
For the purposes of this Regulation:-
|
|
(a) |
Deemed Voting Concert Party Interest means an agreement or arrangement between two or more persons with respect to, or to the exercise of, voting rights attaching to Shares and which is likely to result in those rights being exercised so
as to influence or to control the policy of the Company or the management of its affairs which the Directors have deemed to be a Deemed Voting Concert Party Interest for the purposes of this Regulation 9 and, where the Directors so resolve,
each of the persons who is party to such agreement or arrangement shall be deemed (for the purposes of this Regulation 9) to be interested in all the Shares to which the voting rights in question are attached and, in this definition,
references to an arrangement include references to an understanding or mutual expectation, whether formal or informal and whether or not legally binding.
|
|
(b) |
Disclosure Notice means a notice served pursuant to Regulation 9.2 below.
|
|
(c) |
Interest means an interest (of any size) in the Relevant Share Capital
which would be taken into account in deciding whether a notification to the Company would be required under Chapter 4 of Part 17 of the Companies Act) but shall for all purposes include (the Included
Interests) (i) rights to subscribe for or convert into, or entitlements to acquire rights to subscribe for or convert into, shares which would on issue or conversion (as the case may be) be comprised in the Relevant Share Capital;
(ii) the interests referred to in Section 260 (a), (c) and (h) of the Companies Act) except (in any case) those of a bare or custodian trustee and of a simple trustee and (iii) any Deemed Voting Concert Party Interest; and interested shall be construed accordingly.
|
|
(d) |
Relevant Share Capital means the relevant share capital of the Company
(as that expression is defined in Section 1047(1) of the Companies Act).
|
|
(e) |
Share means any share comprised in Relevant Share Capital.
|
9.2 |
The Directors may by notice in writing require any member, or other person appearing to be interested or to have been interested in Shares, to disclose to the Company in writing such information as the Directors shall require relating to
the ownership of or any Interest in Shares as lies within the knowledge of such member or other person (supported if the Directors so require by a statutory declaration and/or by independent evidence) including (without prejudice to the
generality of the foregoing):-
|
|
(a) |
any information which the Company is entitled to seek pursuant to Section 1062 of the Companies Act.
|
9.3 |
The Directors may give any number of Disclosure Notices pursuant to Regulation 9.2 above to the same member or other person in respect of the same Shares.
|
9.4 |
The Directors may serve notice pursuant to the terms of this Regulation irrespective of whether or not the person on whom it shall be served may be dead, bankrupt, insolvent or otherwise incapacitated and no such incapacity or any
unavailability of information or inconvenience or hardship in obtaining the same shall be a satisfactory reason for failure to comply with any such notice, provided that if the Directors in their absolute discretion think fit, they may waive
compliance in whole or in part with any notice given under this Regulation in respect of a Share in any case of bona fide unavailability of information or genuine hardship or where they otherwise think fit but no such waiver shall prejudice
or affect in any way any non-compliance not so waived whether by the person concerned or any other person appearing to the Directors to be interested in the Shares or by any person to whom a notice may be given at any time.
|
9.5 |
The provisions of Regulations 82 to 89 inclusive shall apply to the service of notices required by this Regulation to be served.
|
9.6 |
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, has been duly served with a Disclosure Notice and is in default for the prescribed period (as defined
in Regulation 9.11(b)) in supplying to the Company the information thereby required, or, in purported compliance with such a notice, has made a statement which is false or inadequate in a material particular, then the Directors may, in their
absolute discretion at any time thereafter by notice (a Direction Notice) to such member direct that:
|
|
(a) |
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;
|
|
(b) |
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:
|
|
(i) |
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 (but the provisions of this Regulation 9.6(b)(i) shall apply only to the extent permitted from time to time by Stock Exchange rules);
|
|
(ii) |
no other distribution shall be made on the Default Shares;
|
|
(iii) |
no transfer of any of the Default Shares held by such member shall be registered unless:
|
|
(A) |
the member is not himself or herself 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
|
|
(B) |
the transfer is an approved transfer (as defined in Regulation 9.11(c)).
|
9.7 |
Where any person appearing to be interested in the Default Shares has been duly served with a Direction Notice and the Default Shares which are the subject of such Direction Notice are held by an Approved Nominee, the provisions of this
Regulation 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.
|
9.8 |
Where the member on which a Disclosure 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.
|
9.9 |
Any Direction Notice shall cease to have effect:
|
|
(a) |
in relation to any Shares which are transferred by such member by means of an approved transfer; or
|
|
(b) |
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 Disclosure Notice.
|
9.10 |
The Directors may at any time give notice cancelling a Direction Notice.
|
9.11 |
For the purposes of this Regulation:
|
|
(a) |
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 (i) names such person as being so interested or (ii)
fails to establish the identities of all those interested in the Shares and (after taking into account the said notification and any other relevant disclosure notification) the Company knows or has reasonable cause to believe that the person
in question is or may be interested in the Shares;
|
|
(b) |
the prescribed period is 28 days from the date of service of the said Disclosure Notice unless 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;
|
|
(c) |
a transfer of Shares is an approved transfer if but only if:
|
|
(i) |
it is a transfer of Shares to an offeror by way or in pursuance of acceptance of an offer made to all the members (or all the members other than the person making the offer and his nominees) of the Shares to acquire those Shares or a
specified proportion of them; or
|
|
(ii) |
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
|
|
(iii) |
the transfer results from a sale made through a Stock Exchange on which the Shares are normally traded.
|
9.12 |
Any resolution or determination of, or decision or exercise of any discretion or power by the Directors under or pursuant to the provisions of this Regulation shall be final and conclusive and things done by or on behalf of, or on the
authority of, the Directors pursuant to the foregoing provisions of this Regulation shall be conclusive and binding on all persons concerned and shall not be open to challenge, whether as to validity or otherwise on any ground whatsoever. The
Directors shall not be required to give any reasons for any decision, determination or declaration taken or made in accordance with this Regulation.
|
9.13 |
The provisions of this Regulation are in addition to, and do not limit, any other right or power of the Company or the Directors, including any right vested in the Company or the Directors by the Companies Act including under section 1066
of the Companies Act or otherwise under Irish law.
|
10. |
Calls on Shares
|
10.1 |
The Directors may from time to time make calls upon the members in respect of any consideration unpaid on their Shares (whether on account of the nominal value of the Shares or by way of premium), provided that in the case where the
conditions of allotment or issuance of Shares provide for the payment of consideration in respect of such Shares at fixed times, the Directors shall only make calls in accordance with such conditions.
|
10.2 |
Each member shall (subject to receiving at least thirty days' notice specifying the time or times and place of payment, or such lesser or greater period of notice provided in the conditions of allotment or issuance of the Shares) pay to
the Company, at the time or times and place so specified, the amount called on the Shares.
|
10.3 |
A call may be revoked or postponed, as the Directors may determine.
|
10.4 |
A person upon whom a call is made shall remain liable for such call notwithstanding the subsequent transfer of the Shares in respect of which the call was made.
|
10.5 |
Subject to the conditions of allotment or issuance of the Shares, a call shall be deemed to have been made at the time when the resolution of the Directors authorising the call was passed and may be required to be paid by instalments if
specified in the call.
|
10.6 |
The joint holders of a Share shall be jointly and severally liable to pay all calls in respect of it.
|
10.7 |
If the consideration called in respect of a Share or in respect of a particular instalment is not paid in full before or on the day appointed for payment of it, the person from whom the sum is due shall pay interest in cash on the unpaid
value from the day appointed for payment of it to the time of actual payment of such rate, not exceeding five per cent per annum or such other rate as may be specified by an order under section 2(7) of the Companies Act, as the Directors may
determine, but the Directors may waive payment of such interest wholly or in part.
|
10.8 |
Any consideration which, by the terms of issue of a Share, becomes payable on allotment or issuance or at any fixed date (whether on account of the nominal value of the Share or by way of premium) shall, for the purposes of these Articles,
be deemed to be a call duly made and payable on the date on which, by the terms of issue, that consideration becomes payable, and in the case of non-payment of such a consideration, all the relevant provisions of these Articles as to payment
of interest and expenses, forfeiture or otherwise, shall apply as if such consideration had become payable by virtue of a call duly made and notified.
|
10.9 |
The Directors may, on the issue of Shares, differentiate between the holders of different classes as to the amount of calls to be paid and the times of payment.
|
10.10 |
The Directors may, if they think fit:
|
|
(a) |
receive from any member willing to advance such consideration, all or any part of the consideration uncalled and unpaid upon any Shares held by him or her; and/or
|
|
(b) |
pay, upon all or any of the consideration so advanced (until the amount concerned would, but for such advance, become payable) interest at such rate (not exceeding, unless the Company in a general meeting otherwise directs, five per cent
per annum or such other rate as may be specified by an order under section 2(7) of the Companies Act) as may be agreed upon between the Directors and the member paying such consideration in advance.
|
10.11 |
The Company may:
|
|
(a) |
acting by its Directors, make arrangements on the issue of Shares for a difference between the members in the amounts and times of payment of calls on their Shares;
|
|
(b) |
acting by its Directors, accept from any member the whole or a part of the amount remaining unpaid on any Shares held by him or her, although no part of that amount has been called up;
|
|
(c) |
acting by its Directors and subject to the Companies Act, pay a dividend in proportion to the amount paid up on each Share where a larger amount is paid up on some Shares than on others; and
|
|
(d) |
by special resolution determine that any portion of its share capital which has not been already called up shall not be capable of being called up except in the event and for the purposes of the Company being wound up; upon the Company
doing so, that portion of its share capital shall not be capable of being called up except in that event and for those purposes.
|
11. |
Lien
|
11.1 |
The Company shall have a first and paramount lien on every Share (not being a fully paid Share) for all consideration (whether immediately payable or not) called, or payable at a fixed time, in respect of that Share.
|
11.2 |
The Directors may at any time declare any Share to be wholly or in part exempt from Regulation 11.1.
|
11.3 |
The Company's lien on a Share shall extend to all dividends payable on it.
|
11.4 |
The Company may sell, in such manner as the Directors think fit, any Shares on which the Company has a lien, but no sale shall be made unless (i) a sum in respect of which the lien exists is immediately payable; and (ii) the following
conditions are satisfied:
|
|
(a) |
a notice in writing, stating and demanding payment of such part of the amount in respect of which the lien exists as is immediately payable, has been given to the registered holder of the Share for the time being, or the person entitled
thereto by reason of his or her death or bankruptcy; and
|
|
(b) |
a period of 14 days after the date of giving of that notice has expired.
|
11.5 |
The following provisions apply in relation to a sale referred to in Regulation 11.4:
|
|
(a) |
to give effect to any such sale, the Directors may authorise some person to transfer the Shares sold to the purchaser of them;
|
|
(b) |
the purchaser shall be registered as the holder of the Shares comprised in any such transfer;
|
|
(c) |
the purchaser shall not be bound to see to the application of the purchase consideration, nor shall his or her title to the Shares be affected by any irregularity or invalidity in the proceedings in reference to the sale;
|
|
(d) |
after the name of the purchaser 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; and
|
|
(e) |
the proceeds of the sale shall be received by the Company and applied in payment of such part of the amount in respect of which the lien exists as is immediately payable, and the residue, if any, shall (subject to a like lien for sums not
immediately payable as existed upon the Shares before the sale) be paid to the person entitled to the Shares at the date of the sale.
|
12. |
Liability of the Company to make payment
|
12.1 |
Whenever any law for the time being of any country, state or place imposes or purports to impose any immediate or future or possible liability upon the Company (or any Subsidiary) to make any payment or empowers any government or taxing
authority or government official to require the Company to make any payment in respect of any Shares registered in the Register as held either jointly or solely by any members or in respect of any dividends,
bonuses or other monies due or payable or accruing due or which may become due or payable to such member by the Company on or in respect of any Shares registered as mentioned above or for or on account or in respect of any member and
whether in consequence of:
|
|
(a) |
the death of such member;
|
|
(b) |
the non-payment of any income tax or other tax by such member;
|
|
(c) |
the non-payment of any estate, probate, succession, death, stamp or other duty by the executor or administrator of such member or by or out of her estate; or
|
|
(d) |
any other act or thing;
|
|
(a) |
the Company shall be fully indemnified by such member or her executor or administrator from all liability;
|
|
(b) |
the Company shall have a lien upon all dividends and other monies payable in respect of the Shares registered in the Register as held either jointly or solely by such member for all monies paid or payable by the Company as referred to
above in respect of such Shares or in respect of any dividends or other monies thereon or for or on account or in respect of such member under or in consequence of any such law, together with interest at the rate of fifteen per cent annum (or
such other rate as the Board may determine) thereon from the date of payment to date of repayment, and the Company may deduct or set off against such dividends or other monies so payable any monies paid or payable by the Company as referred
to above together with interest at the same rate;
|
|
(c) |
the Company may recover as a debt due from such member or her executor or administrator (wherever constituted) any monies paid by the Company under or in consequence of any such law and interest thereon at the rate and for the period
referred to above in excess of any dividends or other monies then due or payable by the Company; and
|
|
(d) |
the Company may if any such money is paid or payable by it under any such law as referred to above refuse to register a transfer of any Shares by any such member or her executor or administrator until such money and interest is set off or
deducted as referred to above or in the case that it exceeds the amount of any such dividends or other monies then due or payable by the Company, until such excess is paid to the Company.
|
13. |
Forfeiture
|
13.1 |
If a member of the Company fails to pay any call or instalment of a call on the day appointed for payment of it, the Directors may, at any time thereafter during such time as any part of the call or instalment remains unpaid, serve a
notice on the member requiring payment of so much of the call or instalment as is unpaid, together with any interest which may have accrued.
|
13.2 |
The notice referred to in Regulation 13.1 shall:
|
|
(a) |
specify a further day (not earlier than the expiration of 14 days after the date of service of the notice) on or before which the payment required by the notice is to be made; and
|
|
(b) |
state that, if the amount concerned is not paid by the day so specified, the shares in respect of which the call was made will be liable to be forfeited.
|
13.3 |
If the requirements of the notice referred to in Regulation 13.2 are not complied with, any Share in respect of which the notice has been served may at any time after the day so specified (but before, should it occur, the
payment required by the notice has been made) be forfeited by a resolution of the Directors to that effect. The forfeiture shall include all dividends or other moneys payable in respect of the forfeited Shares and not paid before
forfeiture.
|
13.4 |
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.
|
13.5 |
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 take such steps as the Directors consider are necessary or desirable in order to effect such sale and, for this purpose, 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 disposal 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 moneys, 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 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.
|
13.6 |
A person whose Shares have been forfeited shall cease to be a member of the Company in respect of the forfeited Shares, but shall, notwithstanding, remain liable to pay to the Company all consideration which, at the date of forfeiture,
were payable by him or her to the Company in respect of the Shares, without any deduction or allowance for the value of the Shares at the time of the forfeiture but his or her liability shall cease
if and when the Company shall have received payment in full of all such consideration in respect of the Shares.
|
13.7 |
A statement in writing that the maker of the statement is a Director or the Company Secretary, and that a Share has been duly forfeited on a date stated in the statement, shall be conclusive evidence of the facts stated in it as against
all persons claiming to be entitled to the Share.
|
13.8 |
The following provisions apply in relation to a sale or other disposition of a Share referred to in Regulation 13.5:
|
|
(a) |
the Company may receive the consideration, if any, given for the Share on the sale or other disposition of it and may execute a transfer of the Share in favour of the person to whom the Share is sold or otherwise disposed of (the disponee);
|
|
(b) |
upon such execution, the disponee shall be registered as the holder of the Share; and
|
|
(c) |
the disponee shall not be bound to see to the application of the purchase consideration, if any, nor shall his or her title to the Share be affected by any irregularity or invalidity in the proceedings in reference to the forfeiture, sale
or disposal of the Share.
|
13.9 |
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.
|
13.10 |
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.
|
14. |
Payment by instalments
|
15. |
Conversion of Shares into Stock
|
15.1 |
The Company by ordinary resolution may convert any paid up Shares into stock and reconvert any stock into paid up Shares of any denomination.
|
15.2 |
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; and 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.
|
15.3 |
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.
|
15.4 |
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".
|
16. |
Increase of capital
|
16.1 |
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.
|
16.2 |
Subject to the provisions of the Companies Act, 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.
|
16.3 |
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.
|
17. |
Variation of capital
|
17.1 |
The Company, by ordinary
resolution, may:-
|
|
(a) |
consolidate and divide all or any of its share capital into Shares of larger amount;
|
|
(b) |
subject to Section 83(1)(b) of the Companies Act, subdivide its Shares, or any of them, into Shares of smaller amount, 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); or
|
|
(c) |
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.
|
18. |
Fractions on consolidation
|
19. |
Reduction of capital
|
20. |
Purchase of own Shares
|
20.1 |
Subject to the provisions of Chapter 6 of Part 3 or Chapter 5 of Part 17 of the Companies Act and the other provisions of this Regulation 20, the Company may:
|
|
(a) |
pursuant to Section 66(4) of the Companies Act, issue any Shares which are to be redeemed or are liable to be redeemed at the option of the Company or the member on such terms and in such manner
as may be determined by the Company in general meeting (by special resolution) on the recommendation of the Directors;
|
|
(b) |
redeem Shares on such terms as may be contained in, or be determined pursuant to the provisions of, these Articles. 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;
|
|
(c) |
subject to or in accordance with the provisions of the Companies Act and without prejudice to any relevant special rights attached to any class of Shares, pursuant to Section 105 and Chapter 5 of
Part 17 of the Companies Act, purchase any of its own Shares (including any Redeemable Shares and without any obligation to purchase on any pro rata basis as between members or members of the same
class) whether in the market, by tender or by private arrangement at such prices and otherwise on such terms and conditions as the Board may from time to time determine and may cancel any shares so purchased or hold them as treasury shares
(as defined by Section 109 of the Companies Act) and may reissue any such shares as shares of any class or classes or cancel them; or
|
|
(d) |
pursuant to Section 83(3) of the Companies Act convert any of its Shares into Redeemable Shares provided that the total number of Shares which shall be redeemable pursuant to this authority shall
not exceed the limit in Section 1071(1)(b) of the Companies Act.
|
20.2 |
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 Companies Act.
|
20.3 |
The Company may make a payment in respect of the redemption or purchase of its own Shares in any manner permitted by the Companies Act.
|
20.4 |
The holder of the Shares being purchased shall be bound to deliver up to the Company at its registered office or such other place as the Board shall specify, the certificate(s) (if any) thereof for cancellation
and thereupon the Company shall pay to her the purchase or redemption monies or consideration in respect thereof.
|
21. |
Transfer of
Shares
|
21.1 |
Subject to the Companies Act and to such of the restrictions contained in these Articles as may be applicable, any member may transfer all or any of his Shares (of any class) by an instrument of transfer in the
usual common form or in any other form which the Board may from time to time approve. The instrument of transfer may be endorsed on the certificate.
|
21.2 |
The instrument of transfer of a Share shall be signed by or on behalf of the transferor and, if the Share is not fully paid, by or on behalf of the transferee.
|
21.3 |
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 Companies 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. All instruments of transfer may be retained
by the Company.
|
21.4 |
The Company, at its absolute discretion, may, or may procure that a Subsidiary 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 which would otherwise be payable by the transferee is paid by the Company or any Subsidiary on behalf of the transferee, then in those circumstances, the Company shall, on its behalf or on behalf of
its Subsidiary (as the case may be), be entitled to (i) reimbursement of the stamp duty from the transferee, (ii) set-off the stamp duty against any dividends payable to the transferee of those Shares and (iii) to the extent permitted by
section 1042 of the Companies Act, claim a first and paramount lien on the Shares on which stamp duty has been paid by the Company or its Subsidiary for the amount of stamp duty paid. The Company's lien shall extend to all dividends paid on
those Shares.
|
21.5 |
Notwithstanding the provisions of these Articles and subject to the 1990 Regulations, or any regulations made under section 1086 of the Companies Act, title to any Shares may also be evidenced and transferred
without a written instrument in accordance with section 239 of the Companies Act 1990 or section 1086 of the Companies Act or any regulations made thereunder. The Directors shall have power to permit any class of Shares to be held in
uncertificated form and to implement any arrangements they think fit for such evidencing and transfer which accord with such regulations and in particular shall, where appropriate, be entitled to disapply or modify all or part of the
provisions in these Articles with respect to the requirement for written instruments of transfer and share certificates (if any), in order to give effect to such regulations.
|
21.6 |
The Board may, in its absolute discretion and without assigning any reason for its decision, decline to register any transfer of any Share which is not a fully-paid Share save and however, that in the case of
such a Share which is admitted to listing on any of the Stock Exchanges such restriction shall not operate so as to prevent dealings in such a Share from taking place on an open and proper basis.
|
21.7 |
The Directors shall not register any person as a holder of any Share (other than an allottee under an issue of Shares by way of capitalisation of profits or reserves made pursuant to these Articles) unless such
person has furnished to the Directors a declaration (in such form as the Directors may from time to time prescribe) signed by him or on his behalf (or, in the case of a corporation, sealed by the corporation or signed on its behalf by an
attorney or duly authorised officer of the corporation), together with such evidence as the Directors may require of the authority of any signatory on behalf of such person, stating (i) the name and nationality of any person who has an
interest in any such Share and (if such declaration or the Directors so require) the nature and extent of the interest of each such person or (ii) such other information as the Directors may from time to time determine. The Directors shall in
any case where they may consider it appropriate require such person to provide such evidence or give such information as to the matters referred to in the declaration as they think fit. The Directors shall decline to register any person as a
holder of a Share if such further evidence or information is not provided or given. The Directors shall, so long as they act reasonably and in good faith, be under no liability to the Company or to any other person if they register any person
as the holder of a Share on the basis of a declaration or other evidence or information provided pursuant to this Regulation which declaration, evidence or information appears on its face to be correct.
|
21.8 |
The Board may also decline to register any transfer if:
|
|
(a) |
the instrument of transfer is not duly stamped, if required, and lodged at the Office or any other place as the Board may from time to time specify for the purpose, accompanied by the certificate (if any) for the Shares to which it relates
and such other evidence as the Board may reasonably require to show the right of the transferor to make the transfer;
|
|
(b) |
the instrument of transfer is in respect of more than one class of Share;
|
|
(c) |
the instrument of transfer is in favour of more than four persons jointly;
|
|
(d) |
a registration statement under the Securities Act is not in effect with respect to such transfer or such transfer is not exempt from registration;
|
|
(e) |
it is not satisfied that all applicable consents, authorisations, permissions or approvals of any governmental body or agency in Ireland or any other applicable jurisdiction required to be obtained under relevant law prior to such transfer
have been obtained; or
|
|
(f) |
it is not satisfied that the transfer would not violate the terms of any agreement to which the Company (or any of its Subsidiaries) and the transferor are party or subject.
|
21.9 |
The Company shall not be obligated to make any transfer to an infant or to a person in respect of whom an order has been made by a competent court or official on the grounds that she is or may be suffering from
mental disorder or is otherwise incapable of managing her affairs or under other legal disability.
|
21.10 |
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
Regulation 21.8, Regulation 27, Regulation 32 and Regulation 34.2.
|
21.11 |
If the Board declines to register a transfer it shall, within two months after the date on which the instrument of transfer was lodged with the Company, send to the transferee notice of such refusal.
|
21.12 |
No fee shall be charged by the Company for registering any transfer or for making any entry in the Register concerning any other document relating to or affecting the title to any Share (except that the Company
may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed on it in connection with such transfer or entry).
|
21.13 |
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.
|
21.14 |
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.
|
22. |
Transmission of Shares
|
22.1 |
In the case of the death of a member, the survivor or survivors, where the deceased was a joint holder, and the personal representatives of the deceased where he or she was a sole holder, shall be
the only persons recognised by the Company as having any title to his or her interest in the Shares; but nothing herein contained shall release the estate of a deceased member from any liability in respect of any Share which had been held by
him (whether jointly or otherwise).
|
22.2 |
A person becoming entitled to a Share in consequence of the death, bankruptcy, liquidation or insolvency of a member, or otherwise becoming entitled to a Share by operation of any law, directive or regulation (whether of the State, the
European Union, or any other jurisdiction) may elect, upon such evidence of title being produced as the Directors may reasonably require at any time and from time to time, and subject as further provided in this Regulation, 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 and, where the Directors are satisfied with the evidence of
title produced to them, they may register such person as the holder of the Share, subject to the other provisions of these Articles and of the Companies Act. If he elects to have another person registered, he shall execute an instrument of
transfer of the Share to that person. All of the provisions of these Articles relating to the transfer of Shares shall apply to any notice or instrument of transfer given under this Regulation as if it were an instrument of transfer executed
by the member and the event giving rise to the entitlement of the relevant person to the Shares had not occurred.
|
22.3 |
The Directors shall, in either of those cases, have the same right to decline or suspend registration as they would have had in the case of a transfer of the Share by that member before the event giving rise to the entitlement of the
relevant person to the Shares.
|
22.4 |
A person becoming entitled to a Share by any of the circumstances set out in Regulation 22.2 shall, upon supplying to the Company such evidence as the Directors may reasonably require to show his title to the
Share (notwithstanding that he is not entered on the Register as the holder of the Share), 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 receive notices of, or to attend or vote at any meeting of the Company or at any separate meeting of the holders of any class of Shares, 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.
|
22.5 |
The Company may charge a fee not exceeding €10.00 on the registration of every probate, letters of administration, certificate of death, power of attorney, notice as to stock or other instrument or order.
|
22.6 |
The Directors may determine such procedures as they shall think fit regarding the transmission of shares in the Company held by a body corporate that are transmitted by operation of law in consequence of a
merger or division.
|
23. |
Closing Register or Fixing Record Date
|
23.1 |
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 Companies 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.
|
23.2 |
In lieu of, or apart from, closing the Register, the Board may fix in advance a date as the record date (a) for any such determination of members entitled to notice of or to vote at a meeting of the members, which record date shall not,
subject to applicable law and Stock Exchange rules, be more than sixty days before the date of such meeting, and (b) for the purpose of determining the members entitled to receive payment of any dividend or other distribution, or in order to
make a determination of members for any other proper purpose, which record date shall not, subject to applicable law and 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.
|
23.3 |
If the Register is not so closed and no record date is fixed for the determination of members entitled to notice of or to vote at a meeting of members, the date immediately preceding the date on which notice of the meeting is deemed given
under these Articles shall be the record date for such determination of members. Where a determination of members entitled to vote at any meeting of members has been made as provided in these Articles, such determination shall apply to any
adjournment thereof; provided, however, that the Directors may fix a new record date of the adjourned meeting, if they think fit.
|
24. |
Declaration of Dividends
|
24.1 |
Subject to the provisions of the Companies Act, 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.
Dividends may be declared or paid in any currency.
|
24.2 |
The Directors may at their discretion make provision to enable any holder of Ordinary Shares as they shall from time to time determine to receive dividends duly declared in a currency or currencies other than Euro. For the purposes of the
circulation of the amount receivable in respect of any dividend, the rate of exchange to be used to determine the foreign currency equivalent of any sum payable as a dividend shall be such market rate selected by the Directors as they shall
consider appropriate ruling at the close of business in Dublin on the date which is the business day last preceding (i) in the case of a dividend to be declared by the Company in general meeting, the date on which the Directors publicly
announce their intention to recommend that specific dividend; and (ii) in the case of any other dividend, the date on which the Directors publicly announce their intention to pay that specific dividend.
|
24.3 |
Where a holder of Ordinary Shares has elected or agreed pursuant to provision made under these Articles to receive dividends in a currency other than Euro the Directors may at their discretion make such arrangements as they deem necessary
to enable payment of the dividend to be made to such holders in such currency for value on the date on which the relevant dividend is paid, or such later date as the Directors may determine.
|
24.4 |
Subject to the rights of persons, if any, entitled to Shares with special rights as to dividend (and to the rights of the Company under Regulation 12 and Regulation 27) all dividends shall be declared and paid such that Shares of the same
class shall rank equally irrespective of the premium credited as paid up on such Shares.
|
24.5 |
If any Share is issued on terms providing that it shall rank for a dividend as from a particular date, such Share shall rank for dividend accordingly.
|
25. |
Interim and fixed dividends
|
25.1 |
Subject to the provisions of the Companies Act, 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. 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. Subject as aforesaid, the Directors may also pay at intervals settled by them
any dividend payable at a fixed rate if it appears to them that the profits available for distribution justify the payment. 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.
|
25.2 |
The Directors may from time to time:
|
|
(a) |
before declaring any dividend, set aside out of the profits of the Company such sums as they think proper as a reserve or reserves which shall, at the discretion of the Directors, be applicable for any purpose to which the profits of the
Company may be properly applied, and pending such application may, at the like discretion either be employed in the business of the Company or be held as cash or cash equivalents or invested in such investments as the Directors may lawfully
determine; and
|
|
(b) |
without placing the profits of the Company to reserve, carry forward any profits which they may think prudent not to distribute.
|
25.3 |
Unless otherwise specified by the Directors at the time of declaring a dividend, the dividend shall be a final dividend.
|
25.4 |
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.
|
26. |
Payment of dividends
|
26.1 |
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; 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 Regulation, no amount paid on a Share in advance of calls shall be treated as paid on a Share.
|
26.2 |
Any one of two or more joint holders may give valid receipts for any dividends, bonuses or other moneys payable in respect of the Shares held by them as joint holders, whether paid by cheque or negotiable instrument or direct transfer.
|
27. |
Deductions from dividends
|
28. |
Dividends in specie
|
28.1 |
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.
|
28.2 |
Where any difficulty arises in regard to a distribution, the Directors may settle the matter as they think expedient and, in particular, may:
|
|
(a) |
issue fractional certificates (subject always to the restriction on the issue of fractional shares) and fix the value for distribution of such specific assets or any part of them;
|
|
(b) |
determine that cash payments shall be made to any members upon the footing of the value so fixed, in order to adjust the rights of all the parties; and
|
|
(c) |
vest any such specific assets in trustees as may seem expedient to the Directors.
|
29. |
Payment of dividends by post
|
30. |
Dividends not to bear interest
|
31. |
Payment to holders on a particular date
|
32. |
Unclaimed dividends
|
33. |
Reserves
|
34. |
Capitalisation of profits and reserves
|
34.1 |
Any capitalisation provided for in Regulations 34.2 to 34.5 inclusive will not require approval or ratification by the members.
|
34.2 |
The Directors may resolve to capitalise any part of a relevant sum (within the meaning of Regulation 34.3) by applying such sum in paying up in full unissued shares of a nominal value or nominal value and premium, equal to the sum
capitalised, to be allotted and issued as fully paid bonus shares, to those members of the Company who would have been entitled to that sum if it were distributed by way of dividend (and in the same proportions).
|
34.3 |
For the purposes of Regulation 34.2, "relevant sum" means: (a) any sum for the time being standing to the credit of the Company's undenominated capital; (b) any of the Company's profits available for distribution; (c) any sum representing
unrealised revaluation reserves; or (d) a merger reserve or any other capital reserve of the Company.
|
34.4 |
The Directors may in giving effect to any resolution under Regulation 34.2 make: (a) all appropriations and applications of the undivided profits resolved to be capitalised by the resolution; and (b) all allotments and issues of fully paid
Shares or debentures, if any, and generally shall do all acts and things required to give effect to the resolution with full power to the Directors 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.
|
34.5 |
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.
|
35. |
General Meetings — General
|
35.1 |
Subject to Regulation 35.2, the Company shall in each year hold a general meeting as its annual general meeting in addition to any other meeting in that year, and shall specify the meeting as such in the
notices calling it; and not more than 15 months shall elapse between the date of one annual general meeting of the Company and that of the next.
|
35.2 |
So long as the Company holds its first annual general meeting within 18 months of its incorporation, it need not hold it in the year of its incorporation or in the year following.
|
35.3 |
The annual general meeting shall be held at such time and place as the Directors shall determine.
|
35.4 |
All general meetings of the Company other than annual general meetings shall be called extraordinary general meetings.
|
35.5 |
The Directors may, whenever they think fit, convene an extraordinary general meeting. An extraordinary general meeting shall also be convened by the Directors on the requisition of members, or if the Directors
fail to so convene an extraordinary general meeting, such extraordinary general meeting may be convened by the requisitioning members, in each case in accordance with section 178(3) to (7) of the Companies Act.
|
35.6 |
If at any time the number of Directors is less than four, any Director or, subject to section 1104 of the Companies Act, any member that satisfies the criteria thereunder, may convene an extraordinary general
meeting in the same manner as nearly as possible as that in which meetings may be convened by the Directors.
|
35.7 |
An annual general meeting or extraordinary general meeting of the Company may be held outside 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.
|
35.8 |
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.
|
36. |
Notice of general meetings
|
36.1 |
The only persons entitled to notice of general meetings of the Company are:
|
|
(a) |
the members;
|
|
(b) |
the personal representatives of a deceased member, which member would but for his death be entitled to vote;
|
|
(c) |
the assignee in bankruptcy of a bankrupt member of the Company (being a bankrupt member who is entitled to vote at the meeting);
|
|
(d) |
the Directors and Company Secretary; and
|
|
(e) |
the Auditors (who shall also be entitled to receive other communications relating to any general meeting which a member is entitled to receive).
|
36.2 |
Subject to the provisions of the Companies Act allowing a general meeting to be called by shorter notice, an annual general meeting and an extraordinary general meeting called for the passing of a special
resolution shall be called by at least twenty-one days' notice. Any other extraordinary general meeting shall also be called by at least twenty-one days' notice, except that it may be called by fourteen days' notice where:
|
|
(a) |
all members, who hold Shares that carry rights to vote at the meeting, are permitted to vote by electronic means at the meeting; and
|
|
(b) |
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.
|
36.3 |
Any notice convening a general meeting shall specify the time and place of the meeting and, in the case of special
business, the general nature of that business and, in reasonable prominence, that a member entitled to attend, speak, ask questions and vote is entitled to appoint a proxy to attend, speak, ask questions and vote in his place and that a
proxy need not be a member of the Company. 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. Every notice shall specify such other details as
are required by applicable law or the relevant code, rules and regulations applicable to the listing of the shares on any Stock Exchange. Subject to
any restrictions imposed on any shares, the notice shall be given to all the members and to the Directors and Auditors.
|
36.4 |
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.
|
36.5 |
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 will be deemed, subject to
Regulation 36.8, to have received notice of that meeting and, where required, of the purpose for which it was called.
|
36.6 |
Where, by any provision contained in the Companies Act, extended notice is required of a resolution, the resolution shall not be effective (except where the Directors have resolved to submit it) unless notice
of the intention to move it has been given to the Company not less than twenty-eight days (or such shorter period as the Companies Act permits) before the meeting at which it is moved, and the Company shall give to the members notice of any
such resolution as required by and in accordance with the provisions of the Companies Act.
|
36.7 |
In determining the correct period of notice for a general meeting, neither the day on which the notice is served nor the day of the meeting for which it is given shall be counted.
|
36.8 |
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.
|
36.9 |
The Directors may, for the purpose of controlling the level of attendance at any place specified for the holding of a general meeting, from time to time make such arrangements whether involving the issue of tickets (on a basis intended to
afford to all members otherwise entitled to attend such meeting an equal opportunity of being admitted to the meeting) or the imposition of some random means of selection or otherwise as they shall in their absolute discretion consider to be
appropriate, and may from time to time vary any such arrangements or make new arrangements in place therefor and the entitlement of any member or proxy to attend a general meeting at such place shall be
subject to any such arrangements as may be for the time being in force and by the notice of meeting stated to apply to that meeting. In the case of any general meeting to which such arrangements apply the Directors shall, and in the case of
any other general meeting the Directors may, when specifying the place of the general meeting, direct that the meeting shall be held at a place specified in the notice at which the chairman of the meeting shall preside (the Principal Place) and make arrangements for simultaneous attendance and participation at other places by members otherwise entitled to attend the
general meeting but excluded therefrom under the provisions of this Regulation or who wish to attend at any of such other places provided that persons attending at the Principal Place and at any of such other places shall be able to see and
hear and be seen and heard by persons attending at the Principal Place and at such other places. Such arrangements for simultaneous attendance may include arrangements for controlling the level of attendance in any manner aforesaid at such
other places provided that they shall operate so that any such excluded members as aforesaid are able to attend at one of such other places. For the purposes of all other provisions of these Articles any such meeting shall be treated as
being held and taking place at the Principal Place.
|
37. |
Written decision of sole member
|
38. |
Quorum for general meetings
|
38.1 |
One member present in person or by proxy and having the right to attend and vote at the meeting and together holding Shares representing more than 25% of the votes that may be cast by all members at the relevant time shall be a quorum at a
general meeting; 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.
|
38.2 |
If within 15 minutes (or such greater time determined by the chairperson) after the time appointed for a general meeting a quorum is not present, then the meeting shall stand adjourned to the same day in the next week, at the same time and
place or to such other day and at such other time and place as the Directors may determine.
|
39. |
Proxies
|
39.1 |
Every member entitled to attend, speak, ask questions and vote at a general meeting may appoint a proxy or proxies to attend, speak, ask questions relating to items on the agenda subject to section 1107 of the Companies Act and vote on his
behalf and may appoint more than one proxy to attend, speak, ask questions and vote at the same general meeting provided that, where a member appoints more than one proxy in relation to a general meeting, each proxy must be appointed to
exercise the rights attached to different shares held by that member.
|
39.2 |
The appointment of a proxy shall be in writing in any usual form as set out in Section 184 of the Companies Act or in any other form which the Directors may approve and shall be signed by or on
behalf of the appointor. The signature on such appointment need not be witnessed. A body corporate may sign a form of proxy under its common seal or under the hand of a duly authorised officer thereof or in such other manner as the Directors
may approve. A proxy need not be a member of the Company. A member shall be entitled to appoint a proxy by electronic means, to an address specified by the Company. The proxy form must make provision for three-way voting (i.e., to allow votes
to be cast for or against a resolution or to be withheld) on all resolutions intended to be proposed, other than resolutions which are merely procedural. An instrument or other form of communication appointing or evidencing the appointment of
a proxy or a corporate representative (other than a standing proxy or representative) together with such evidence as to its due execution as the Board may from time to time require, may be returned to the address or addresses stated in the
notice of meeting or adjourned meeting or any other information or communication by such time or times as may be specified in the notice of meeting or adjourned meeting or in any other such information or communication (which times may differ
when more than one place is so specified) or, if no such time is specified, at any time prior to the holding of the relevant meeting or adjourned meeting at which the appointee proposes to vote, and, subject to the Companies Act, if not so
delivered the appointment shall not be treated as valid. No appointment of a proxy shall be valid after twelve months have elapsed from the date named in it as the date of its execution.
|
39.3 |
Without limiting the foregoing, in relation to any Shares which are held in uncertificated form, the Directors may from time to time permit appointments of a proxy to be made by means of an 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 relevant 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 relevant
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 member of a Share as sufficient evidence of the authority of the person sending that instruction to send it on behalf of that member.
|
40. |
Bodies corporate acting by representatives at meetings
|
41. |
Receipt of proxy appointments
|
41.1 |
Where the appointment of a proxy and any authority under which it is signed or a copy certified notarially or in some other way approved by the Directors is to be received by the Company:
|
|
(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) as may be specified for that purpose in or by way of note to the notice convening the meeting;
|
|
(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;
|
41.2 |
For the avoidance of doubt, such appointments of proxy made by electronic or intend communications (as permitted by the
Directors) would be deemed to be deposited at the place specified for such purpose once received by the Company.
|
41.3 |
When two or more valid but differing appointments of a proxy are received in respect of the same Shares for use at the same meeting, the one bearing the later date shall be treated as replacing and revoking the
other; if the appointments are undated the last one received shall be treated as valid; and if the Company is unable to determine which was the last received, none shall be treated as valid, and a certificate endorsed by the Company Secretary
stating that the appointment is valid or invalid, as the case may be, shall be conclusive for all purposes.
|
42. |
Effect of proxy appointments
|
42.1 |
Effect of proxy appointments:
|
|
(a) |
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.
|
|
(b) |
A proxy shall have the right unless the contrary is stated in his appointment 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 been appointed 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. 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.
|
|
(c) |
Subject always to the provisions of the Companies Act, the appointment, and notification of any revocation of appointment of, a proxy, and the giving of voting instructions to a proxy shall be subject to such
formal requirements as the Directors from time to time in their absolute discretion may consider necessary in order to ensure the correct identification of a member's appointment, to ensure the correct identification of a proxy acting on foot
of such appointment, and to ensure the correct determination of a member's voting instructions.
|
43. |
Effect of revocation of proxy or of authorisation
|
43.1 |
A vote given or poll demanded in accordance with the terms of an appointment of a proxy or a resolution authorising a representative to act on behalf of a body corporate shall be valid notwithstanding the previous death, insanity or
winding up of the principal, or the revocation of the appointment of a proxy or of the authority under which the proxy was appointed or of the resolution authorising the representative to act or the transfer of the Share in respect of which
the proxy was appointed or the authorisation of the representative to act was given, provided that no notice in writing (whether in electronic form or otherwise) of such death, insanity, winding up, revocation or transfer is received by the
Company at the Office before the commencement of the meeting or adjourned meeting at which the appointment of a proxy is used or at which the representative acts provided however that where such intimation
is given in electronic form, it shall have been received by the Company before the commencement of the meeting or adjourned meeting at which the appointment of a proxy is used or at which the representative acts.
|
43.2 |
The Directors may send to the members, at the expense of the Company, by post, electronic mail or otherwise, forms for the appointment of a proxy (subject to the applicable requirements of the Companies
Act and with or without reply paid envelopes for their return) for use at any general meeting or at any class meeting, either in blank or nominating any one or more of the Directors or any other
persons in the alternative. If, for the purpose of any meeting, invitations to appoint as proxy a person or one of a number of persons specified in the invitations are issued at the expense of the Company, such invitations shall be issued
to all (and not to some only) of the members entitled to be sent a notice of the meeting and to vote thereat by proxy, but the accidental omission to issue such invitations to, or the non-receipt of such invitations by, any member shall not
invalidate the proceedings at any such meeting.
|
44. |
The business of general meetings
|
44.1 |
All business shall be deemed to be special business that is transacted at an extraordinary general meeting or that is transacted at an annual general meeting other than, in the case of an annual general meeting, the business specified in
Regulation 44.5 which shall be ordinary business.
|
44.2 |
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:
|
|
(a) |
specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board;
|
|
(b) |
otherwise properly brought before the meeting by or at the direction of the Board; or
|
|
(c) |
otherwise properly brought before the meeting by a member.
|
44.3 |
Without prejudice to any procedure which may be permitted under the Companies Act, for business to be properly brought before an annual general meeting by a member, the member must have given timely notice thereof in writing to the Company
Secretary. To be timely, a member's notice must be received not less than sixty days nor more than ninety 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 thirty days or delayed by more than sixty days from such anniversary, notice by the member to be timely must be so received not earlier than the ninetieth day prior to such annual general
meeting and not later than the close of business on the later of (i) the sixtieth day prior to such annual general meeting or (ii) the tenth day following the date on which notice of the date of the annual general meeting was mailed or public
disclosure thereof was made by the Company, whichever event in this clause (ii) first occurs. For the avoidance of doubt, in no event shall the adjournment or postponement of any general meeting, or the public announcement of such an
adjournment or postponement, commence a new time period (or extend any time period) for the giving of a member's notice to the Company Secretary pursuant to this Regulation 44.3. Each such notice shall set forth as to each matter the member
proposes to bring before the annual general meeting (other than a nomination for election as a director):
|
|
(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 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.
|
44.4 |
The chairperson of the meeting shall, if the facts warrant, determine and declare to the meeting that business was not properly brought before the meeting and in accordance with the provisions of these Articles, and if he or she should so
determine, any such business not properly brought before the meeting shall not be transacted.
|
44.5 |
Without prejudice to the powers of the Directors to include on the agenda of any annual general meeting of the Company such other matters as they may, in their absolute discretion, think fit, the business of the annual general meeting
shall include:
|
|
(a) |
the consideration of the Company's statutory financial statements and the report of the Directors and the report of the Auditors on those statements and that report;
|
|
(b) |
the review by the members of the Company's affairs;
|
|
(c) |
the declaration of a dividend (if any) of an amount not exceeding an amount recommended by the Directors from time to time;
|
|
(d) |
the election and re-election of Directors in the place of those retiring (whether by rotation or otherwise);
|
|
(e) |
the authorisation of the Directors to approve the remuneration of the Auditors; and
|
|
(f) |
the appointment or re-appointment of Auditors.
|
45. |
Proceedings at general meetings
|
45.1 |
The Chairman, if any, shall preside as chairperson at every general meeting of the Company, or if there is no such Chairman, or if he or she is not present at the time appointed for the holding of the meeting or is unwilling to act, the
Directors present shall elect one of their number to be chairperson of the meeting.
|
45.2 |
If at any meeting no Director is willing to act as chairperson or if no Director is present at the time appointed for holding the meeting, the members present shall choose one of their number to be chairperson of the meeting.
|
45.3 |
At each meeting of members, the chairperson of the meeting shall fix and announce the date and time of the opening and the closing of the polls for each matter upon which the members will vote at the meeting and shall determine the order
of business and all other matters of procedure.
|
45.4 |
The Directors may adopt such rules, regulations and procedures for the conduct of any meeting of the members as they deem appropriate. Except to the extent inconsistent with any applicable rules, regulations and procedures adopted by the
Board, the chairperson of any meeting may adopt such rules, regulations and procedures for the meeting, which need not be in writing, and take such actions with respect to the conduct of the meeting, as the chairperson of the meeting deems
appropriate, to maintain order and safety and for the conduct of the meeting. Without limiting the foregoing, he or she may:
|
|
(a) |
limit attendance at or participation in the meeting to members of record of the Company, their duly authorised proxies or such other persons as the chairperson of the meeting shall determine;
|
|
(b) |
restrict dissemination of materials and use of audio or visual recording devices at the meeting;
|
|
(c) |
take steps to maintain order and safety at the meeting;
|
|
(d) |
establish seating arrangements;
|
|
(e) |
restrict entry to the meeting after the time fixed for its commencement;
|
|
(f) |
establish an agenda or order of business;
|
|
(g) |
adjourn the meeting without a vote of the members, whether or not there is a quorum present;
|
|
(h) |
limit the time allotted to member questions or comments; and
|
|
(i) |
make rules governing speeches and debate including time limits and access to microphones.
|
45.5 |
The chairperson of the meeting may, with the consent of any meeting at which a quorum is present, and shall if so directed by the meeting, adjourn the meeting from time to time and from place to place.
|
45.6 |
No business shall be transacted at any adjourned meeting other than the business left unfinished at the meeting from which the adjournment took place.
|
45.7 |
Where a meeting is adjourned, 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 of the adjourned meeting shall be given as in the case of an original meeting but, subject to that, it shall not be necessary to give any
notice of an adjournment or of the business to be transacted at an adjourned meeting.
|
45.8 |
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.
|
|
(a) |
No amendment may be made to a resolution, at or before the time when it is put to a vote, unless the chairperson of the meeting decides that the amendment or the amended resolution may properly be put to
a vote at that meeting.
|
|
(b) |
If the chairperson of the meeting rules a resolution or an amendment to a resolution admissible or out of order (as the case may be), the proceedings of the meeting or on the resolution in question shall not be invalidated by any error in
his or her ruling. Any ruling by the chairperson of the meeting in relation to a resolution or an amendment to a resolution shall be final and conclusive.
|
|
(a) |
For business to be properly requested by a member to be brought before a general meeting, the member must comply with the requirements of the Companies Act or:
|
|
(i) |
be a member at the time of the giving of the notice for such general meeting;
|
|
(ii) |
be entitled to vote at such meeting; and
|
|
(iii) |
have given timely and proper notice in writing to the Company Secretary in accordance with Regulation 44.3.
|
45.11 |
Except where a greater majority is required by the Companies 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.
|
46. |
Voting
|
46.1 |
At any general meeting, a resolution put to the vote of the meeting shall be decided on a poll.
|
46.2 |
Save as provided in Regulation 46.3 of these Articles, a poll shall be taken in such manner (including by the use of a ballot, electronic devices, voting papers or tickets) as the chairperson of
the meeting directs and he or she may appoint scrutineers (who need not be members) and fix a time and place for declaring the result of the poll. The result of the poll shall be deemed to be the resolution of the meeting at which the poll
was demanded.
|
46.3 |
A poll demanded on the election of a chairperson of the meeting or on a question of adjournment shall be taken forthwith. A poll demanded on any other question shall be taken either forthwith or at such time (not being more than thirty days after the poll is demanded) and place as the chairperson of the meeting may direct. The demand for a poll shall not prevent the continuance of a meeting for the transaction of any business other
than the question on which the poll was demanded.
|
46.4 |
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.
|
46.5 |
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.
|
47. |
Votes of Members
|
47.1 |
Subject to the provisions of these Articles and any rights or restrictions for the time being attached to any class or classes of Shares in the capital of the Company, every member of record present in person or by proxy shall have one
vote for each share registered in his or her name in the Register.
|
47.2 |
Where there are joint holders of a Share, the vote of the senior who tenders a vote, whether in person or by proxy, shall be accepted to the exclusion of the votes of the other joint holder or holders; and for this purpose, seniority shall
be determined by the order in which the names of the joint holders stand in the Register.
|
47.3 |
A member of unsound mind, a member who has made an enduring power of attorney, or in respect of whom an order has been made by any court having jurisdiction (whether in the State or elsewhere) in matters
concerning mental disorder, may vote by his or her committee, donee of an enduring power of attorney, receiver, guardian or other person appointed by that court and any such committee, donee of an enduring power of attorney, receiver,
guardian or other person may vote by proxy. Evidence to the satisfaction of the Directors of the authority of the person claiming to exercise the right to vote pursuant to this Regulation shall be deposited at the Office or at such other
place as is specified in accordance with these Articles for the deposit of instruments of proxy, before the time appointed for holding the meeting or adjourned meeting at which the right to vote is to be exercised and in default the right to
vote shall not be exercisable.
|
47.4 |
No objection shall be raised to the qualification of any voter except at the general meeting or adjourned general meeting at which the vote objected to is given or tendered and every vote not disallowed at such
general meeting shall be valid for all purposes. Any such objection made in due time shall be referred to the chairperson of the general meeting whose decision shall be final and conclusive.
|
47.5 |
In relation to any general meeting of the Company or of any class of Shareholders or to any adjourned meeting of which
notice is given, the Board may specify in the notice of meeting or adjourned meeting or in any document sent to Shareholders by or on behalf of the Board in relation to the meeting, a time and date (a Record Date) which is not more than 60 days before the date fixed for the meeting.
|
47.6 |
A person shall be entered on the Register by the Record Date specified in respect of a general meeting in order to exercise the right of a member to participate and vote at the general meeting
and any change to an entry on the Register after the record date shall be disregarded in determining the right of any person to attend and vote at the meeting.
|
47.7 |
Votes may be given either personally (including by a duly authorised representative of a corporate member) or by proxy. On a poll taken at a meeting of the members of the Company or a meeting of any class of
members of the Company, a member, whether present in person or by proxy, entitled to more than one vote need not, if he votes, use all his votes or cast all the votes he uses in the same way.
|
47.8 |
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.
|
47.9 |
Subject to such requirements and restrictions as the Directors may specify, the Company may permit members who are not physically present at a meeting to vote by electronic means at the general meeting in
respect of one or more of the resolutions proposed at a meeting.
|
47.10 |
Where a member requests a full account of a vote before or on the declaration of the result of a vote at a general meeting, then with respect to each resolution proposed at a general meeting the Company shall
establish:
|
|
(a) |
the number of Shares for which votes have been validly cast;
|
|
(b) |
the proportion of the Company's issued share capital at close of business on the record date before the meeting represented by those votes;
|
|
(c) |
the total number of votes validly cast; and
|
|
(d) |
the number of votes cast in favour of and against each resolution and, if counted, the number of abstentions.
|
47.11 |
Where no member requests a full account of the voting before or on the declaration of the result of a vote at a general meeting, it shall be sufficient for the Company to establish the voting results only to
the extent necessary to ensure that the required majority is reached for each resolution. The Company shall ensure that a voting result established in accordance with this Regulation is published on its internet site or the site of the SEC
not later than the end of the fifteenth day after the date of the meeting at which the voting result was obtained.
|
47.12 |
Where there is an equality of votes, the chairperson of the meeting shall not have a second or casting vote.
|
47.13 |
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, 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.
|
48. |
Class meetings
|
49. |
Number of Directors
|
49.1 |
The number of Directors shall be fixed from time to time by the Board, provided that in no case shall the number fixed by the Board be less than two nor more than nine unless this is approved by an ordinary resolution passed in accordance with Regulation 49.5.
|
49.2 |
The continuing Directors may act notwithstanding any vacancy in their body, 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. If there be no Director or Directors able or willing to act then
any two members may summon a general meeting for the purpose of appointing Directors. Any additional Director so appointed shall hold office (subject to the provisions of the Companies Act and these Articles) only until the conclusion of the
annual general meeting of the Company next following such appointment unless he is re-elected during such meeting.
|
49.3 |
The Directors may from time to time appoint any person to be a Director, either to fill a casual vacancy or as an addition to the existing Directors, provided that the total number of Directors shall not at any time exceed the number as
may be provided for in these Articles. A Director who is appointed pursuant to this Regulation shall be required to retire at the next following annual general meeting. If not re-appointed at such annual general meeting, such Director shall
vacate office at the conclusion thereof.
|
49.4 |
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.
|
49.5 |
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.
|
49.6 |
The Company may, by ordinary resolution, appoint another person in place of a Director removed from office under section 146 of the Companies Act and, without prejudice to the powers of the Directors under Regulation 49.3, the Company in a
general meeting may appoint any person to be a Director either to fill a casual vacancy or as an additional Director.
|
50. |
Share qualification
|
51. |
Ordinary remuneration of Directors
|
51.1 |
The remuneration to be paid to the Directors shall be such remuneration as the Board shall determine from time to time. Such remuneration shall be deemed to accrue from day to day. The Board may from time to
time determine that, subject to the requirements of the Companies Act, all or part of any fees or other remuneration payable to any Director shall be provided in the form of Shares or other securities of the Company or any Subsidiary, or
options or rights to acquire such Shares or other securities, on such terms as the Board may decide.
|
51.2 |
A Director is expressly permitted (for the purposes of section 228(1)(d) of the Companies Act) to use the Company's property pursuant to or in conjunction with the exercise or performance of his duties,
functions and powers as Director or employee; the terms of any conditions of service or employment or letter of appointment; and, or in the alternative, any other usage authorised by the Directors (or a person authorised by the Directors)
from time to time; and including in each case for a Director's own benefit or for the benefit of another person.
|
52. |
Special remuneration of Directors
|
53. |
Expenses of Directors
|
54. |
Alternate Directors
|
54.1 |
Any Director may appoint by writing 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.
|
54.2 |
An alternate Director shall be entitled 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).
|
54.3 |
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.
|
54.4 |
A Director may revoke at any time the appointment of any alternate appointed 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 but if a Director retires by rotation or otherwise but is reappointed 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.
|
54.5 |
Any appointment or revocation pursuant to this Regulation may be sent to the Company by delivery, post, cable, telegram, telex, telefax, electronic mail or any other means of communication approved by the
Directors and may bear a printed or facsimile signature of the Director making such appointment or revocation or in any other manner approved by the Directors.
|
55. |
Vacation of office by Directors
|
55.1 |
In addition to the circumstances described in sections 146, 148(1) and 196(2) of the Companies Act, the office of Director shall be vacated:
|
|
(a) |
ipso facto, if that Director:
|
|
(i) |
resigns his or her office by notice in writing to the Company;
|
|
(ii) |
he ceases to be a Director by virtue of any provision of the Companies Act or he becomes prohibited by law from being a Director;
|
|
(iii) |
becomes subject to a declaration of restriction under section 819 of the Companies Act and the Directors, at any time during the currency of the declaration, resolve that his or her office be vacated;
|
|
(iv) |
resigns his office by spoken declaration at any Board meeting and such resignation is accepted by resolution of that meeting, in which case such resignation shall take effect at the conclusion of such
meeting unless otherwise resolved;
|
|
(v) |
is adjudicated insolvent or bankrupt or makes any arrangement or compromise with his creditors generally (in any jurisdiction);
|
|
(vi) |
is removed from office by notice in writing served upon him signed by not less than 75% of his co-Directors;
|
|
(vii) |
is removed from office by notice in writing to the Company: where there is a sole member, by the sole member or where there is more than one member, by any member or members having the right to attend and vote
at a general meeting of the Company on a resolution to remove a Director and holding for the time being not less than 90% in nominal value of the shares giving that right; and
|
|
(b) |
by resolution of the Board:
|
|
(i) |
where that Director can no longer be reasonably regarded as possessing an adequate decision making capacity by reason of his or her health;
|
|
(ii) |
where that Director is sentenced to a term of imprisonment (whether or not the term is suspended) following conviction of a criminal offence in any jurisdiction;
|
|
(iii) |
where that Director is for more than six months absent, without the 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
|
|
(iv) |
where that Director is in employment of the Company, the Company's holding company or a subsidiary of the Company's holding company, upon the termination of such employment;
|
55.2 |
The Company may, in accordance with Section 146 of the Companies Act, 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 Regulation 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.
|
56. |
Directors' powers
|
56.1 |
Subject to the provisions of the Companies Act, the Memorandum and these Articles and to any directions by the members given in a general meeting, not being inconsistent with these Articles or with the
Companies Act, 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 Companies Act or by these Articles required to be done or exercised
by the Company in general meeting. No alteration of the Memorandum or of these Articles and no such direction by the members given in a general meeting 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 Regulation 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.
|
56.2 |
Any reference to a power of the Company required to be exercised by the Company in a general meeting includes a reference to a power of the Company that, but for the power of the members to pass a written
resolution to effect the first-mentioned power's exercise, would be required to be exercised by the Company in a general meeting.
|
57. |
Power to delegate
|
57.1 |
Without prejudice to the generality of the last preceding Regulation, the Directors may delegate (with power to sub-delegate) any of their powers to any managing director of the Company or any other Director
holding any other executive office or to any committee consisting of one or more Directors together with such other persons (if any) as may be appointed to such committee by the Directors provided that a majority of the members of each
committee appointed by the Directors shall at all times consist of Directors and that no resolution of any such committee shall be effective unless a majority of the members of the committee present at the meeting at which it was passed are
Directors.
|
57.2 |
Insofar as any such power or discretion is delegated to a committee any reference in these Articles to the exercise by the Directors of the power or discretion so delegated shall be read and construed as if it
were a reference to the exercise thereof by such a committee. 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. Subject
to any such conditions, the proceedings of a committee with two or more members shall be governed by the provisions of these Articles regulating the proceedings of Directors so far as they are capable of applying.
|
57.3 |
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.
|
58. |
Committees
|
58.1 |
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.
|
58.2 |
A committee established under Regulation 58.1 (a committee) may elect a chairperson of its meetings; if no such chairperson is elected, or if at any meeting the
chairperson is not present after the time appointed for holding it, the members of the committee present may choose one of their number to be chairperson of the meeting.
|
58.3 |
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 Regulation 58.1) by a majority of votes of the members of the committee present, and where there is an equality of votes, the chairperson of the committee shall not have a second or casting vote.
|
58.4 |
Where any committee is established by the Directors :
|
|
(a) |
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
|
|
(b) |
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.
|
59. |
Appointment of attorneys
|
60. |
Local management
|
61. |
Borrowing powers
|
62. |
Execution of negotiable instruments
|
63. |
Provision for employees
|
64. |
Retirement by Rotation
|
64.1 |
At each annual general meeting of the Company each Director shall retire from office.
|
64.2 |
A Director who retires at an annual general meeting may be reappointed, if willing to act. If he is not reappointed (or deemed to be reappointed pursuant to these Articles) he shall retain office until the
meeting appoints someone in his place or, if it does not do so, until the end of the meeting.
|
65. |
Deemed reappointment
|
66. |
Eligibility for appointment as a Director
|
66.1 |
No person other than a Director retiring by rotation shall be appointed a Director at any annual general meeting unless he is recommended by the Directors or unless a draft resolution for the appointment of
such person (accompanied by the particulars which would be required, if he were to be so appointed, to be included in the Company's register of Directors together with a notice executed by that person of his willingness to be appointed) shall
have been proposed by a member or members holding not less than three per cent of the issued share capital of the Company, representing not less than three per cent of the total voting rights of all the members of the Company who have a right
to vote at the meeting, received by the Company in hardcopy form or in electronic form at least forty-two days before the meeting to which it relates, and passed at that meeting in compliance with the Companies Act and these Articles.
|
66.2 |
In the case of a general meeting other than an annual general meeting, no person other than a Director retiring as aforesaid or a person recommended by the Directors shall be appointed unless not less than
fourteen nor more than thirty Clear Days before the date appointed for the meeting, a draft resolution for the appointment of such person (accompanied by the particulars which would be required, if he were to be so appointed, to be included
in the Company's register of Directors together with a notice executed by that person of his willingness to be appointed) shall have been proposed by a member or members holding not less than three per cent of the issued share capital of the
Company, representing not less than three per cent of the total voting rights of all the members of the Company who have a right to vote at the meeting, received by the Company in hardcopy form or in electronic form, and passed at that
meeting in compliance with the Companies Act and these Articles.
|
66.3 |
No Director shall be required to retire on account of age.
|
67. |
Executive Offices
|
67.1 |
The Directors may appoint one or more of their body to the office of Chief Executive Officer (by whatever name called including managing director) or to any other executive office under the Company (including,
where considered appropriate, the office of the Chairman) 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.
|
67.2 |
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 in any combination of the foregoing as the Directors may determine.
|
67.3 |
The appointment of any Director to the office of Chairman or Chief Executive Officer shall determine automatically if he ceases to be a Director (other than where he is re-appointed as a Director at an annual
general meeting of the Company having retired by rotation in accordance with these Articles) but without prejudice to any claim for damages for breach of any contract of service between him and the Company.
|
67.4 |
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.
|
67.5 |
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.
|
67.6 |
A Director may hold any other office or place of profit under the Company (except that of Auditor) in conjunction with his office of Director, and may act in a professional capacity to the Company, on such
terms as to remuneration and otherwise as the Directors shall arrange. Nothing in Section 228(1)(e) of the Companies 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 Companies Act.
|
67.7 |
The Board shall determine from time to time, the powers and duties of any such office holder or official appointed under Regulation 67.1 and/or Regulation 67.5, and subject to the provisions of the Companies
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.
|
67.8 |
The Directors may (a) revoke any conferral of powers under Regulation 67.7 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 Companies Act.
|
68. |
Disclosure of interests by Directors
|
69. |
Directors' interests
|
69.1 |
A Director may have regard to the interests of any other companies in the Group to the full extent permitted by the Companies Act.
|
69.2 |
The Directors may exercise the voting powers conferred by the shares of any other company held or owned by the Company in such manner in all respects as they think fit and, in particular, they may exercise the
voting powers in favour of any resolution: (a) appointing the Directors or any of them as directors or officers of such other company; or (b) providing for the payment of remuneration or pensions to the directors or officers of such other
company.
|
69.3 |
Any Director may vote in favour of the exercise of such voting rights notwithstanding that he or she may be or may be about to become a Director or officer of the other company referred to in Regulation 69.2
and as such or in any other way is or may be interested in the exercise of such voting rights in the foregoing manner.
|
69.4 |
A Director notwithstanding his office but subject to his having disclosed any interest which he is required to disclose whether by these Articles or the Companies Act in accordance with these Articles or the
Companies Act as the case may be:-
|
|
(a) |
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;
|
|
(b) |
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
|
|
(c) |
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.
|
69.5 |
No Director or intended 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 solely 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 arrangements 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.
|
69.6 |
A copy of every declaration made and notice given under this Regulation 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.
|
69.7 |
For the purposes of this Regulation:-
|
|
(a) |
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 or company
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 with the relevant party; and
|
|
(b) |
an interest of which a Director has no knowledge and of which it is unreasonable to expect him to have knowledge shall not be treated as an interest of his.
|
70. |
Restriction on Directors' voting
|
70.1 |
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 or
together with any person or persons connected with him 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.
|
70.2 |
A Director shall be entitled (unless he has some material interest or duty which conflicts or may conflict with the interests of the Company which is not indicated below) to vote (and be counted in the quorum)
in respect of any resolutions concerning any of the following matters, namely:-
|
|
(a) |
the giving of any security, guarantee or indemnity to him in respect of money lent by him or by any other person at the request of or for the benefit of the Company or any of its Subsidiaries or obligations incurred by him or any other
person on behalf of the Company or any of its Subsidiaries at the request of or for the benefit of the Company or any of its Subsidiaries;
|
|
(b) |
the giving of any security, guarantee or indemnity to a third party in respect of a debt or obligation of the Company or any of its Subsidiaries for which he himself has assumed responsibility in whole or in part and whether alone or
jointly with others under a guarantee or indemnity or by the giving of security;
|
|
(c) |
the subscription or purchase of shares, debentures or other securities of the Company or any of its Subsidiaries pursuant to an offer or invitation to members or debenture holders of the Company or any of its Subsidiaries or any class of
them, or to the public or any section of the public in which offer or invitation he is or may be entitled to participate as a holder of securities or in which he is or is to be interested as a participant in the underwriting or
sub-underwriting thereof;
|
|
(d) |
any proposal concerning any other company in which he is interested, directly or indirectly or together with any person or persons connected with him and whether as an officer or shareholder or otherwise howsoever, provided that he is not
the holder of or beneficially interested, directly or indirectly in one per cent. or more of the issued shares of any class of such company or of the voting rights available to members of such company (any such interest being deemed for the
purposes of this Regulation to be a material interest in all circumstances);
|
|
(e) |
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 which does not award the Director any privilege or benefit not generally awarded to the employees to whom such arrangement or scheme relates;
|
|
(f) |
any proposal concerning the adoption, modification or operation of any scheme for enabling employees (including full time executive Directors) of the Company and/or any Subsidiary to acquire Shares or any arrangement for the benefit of
employees of the Company or any of its Subsidiaries which does not award the Director any privilege or benefit not generally awarded to the employees to whom such scheme or arrangement relates; or
|
|
(g) |
any proposal concerning insurance which the Company proposes to maintain or purchase for the benefit of the Directors or for the benefit of persons including the Directors.
|
70.3 |
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 thereon), shall be entitled to vote (and be
counted in the quorum) in respect of each resolution except that concerning his own appointment.
|
70.4 |
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
except in a case where the nature or extent of the interest of such Director has not been fully and fairly disclosed; provided that, if such question arises in relation to the chairman of the meeting, he shall temporarily vacate the chair.
|
70.5 |
For the purposes of this Regulation, 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.
|
71. |
Entitlement to grant pensions
|
72. |
Convening and regulation of Directors' meetings
|
72.1 |
Subject to the provisions of these Articles, the Directors may regulate their proceedings as they think fit. A Director may, and the Company Secretary at the request of a Director shall, call a meeting of the
Directors. Such meetings shall take place at such time and place as the Directors may determine.
|
72.2 |
Any Director may waive notice of any meeting and any such waiver may be retrospective. If the Directors so resolve, it shall not be necessary to give notice of a meeting of Directors to any Director who, being
a resident of the State, is for the time being absent from the State.
|
72.3 |
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.
|
72.4 |
Notice of a meeting of the Directors 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, cable, telegram, telex, telefax,
electronic mail or otherwise in electronic form, (whether as an Electronic Communication or otherwise) or by any other means of communication approved by the Directors to him at his last known address or any other address or number (including
any address or number used for the purpose of communication by way of electronic mail or other Electronic Communication) given by him to the Company for this purpose.
|
73. |
Quorum for Directors' meetings
|
73.1 |
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. For the purposes of this Regulation an alternate Director
shall be counted in a quorum, but so that not less than two individuals shall constitute the quorum.
|
73.2 |
Any Director who ceases to be a Director at a meeting of the Directors may continue to be present and to act as a Director and to be counted in the quorum until the termination of the meeting provided no other
Director objects and provided also that otherwise a quorum of Directors would not be present.
|
73.3 |
The continuing Directors or a sole Director may act notwithstanding any vacancies in their number but if the number of Directors is less than the number fixed as the quorum, they may act only for the purpose of
filling vacancies or of calling a general meeting.
|
74. |
Voting at Directors' meetings
|
74.1 |
Questions arising at any meeting of Directors shall be decided by a majority of votes. Where there is an equality of votes, the chairman of the meeting shall not have a second or casting vote.
|
74.2 |
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, cable, telegram, telex, telefax, or may be provided in electronic form (whether as an Electronic Communication or otherwise) or be sent by any other means of communication approved by the Directors and may
bear a printed or facsimile signature of the Director giving such authority or may be otherwise authenticated in such manner as may be prescribed by the Directors. The authority must be delivered to the Company Secretary 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 Regulation.
|
75. |
Telecommunication meetings
|
75.1 |
Any Director or alternate Director may participate in a meeting of the Directors or any committee of the Directors by means of conference telephone, or by video or other telecommunications equipment by means of
which all persons participating in the meeting can hear each other speak and such participation in a meeting shall constitute presence in person at the meeting. Any such Director or alternate Director participating by means of conference
telephone or other telecommunications equipment shall be counted in assessing whether any quorum is present at such meeting.
|
75.2 |
Such a meeting will be deemed to take place:
|
|
(b) |
where the largest group of those Directors participating in the conference is assembled;
|
|
(c) |
if there is no such group, where the chairperson of the meeting then is; or
|
|
(d) |
if neither subparagraph (a) or (b) applies, in such location as the meeting itself decides.
|
76. |
Chairman of the board of Directors
|
77. |
Validity of acts of Directors
|
78. |
Directors' resolutions or other documents in writing
|
78.1 |
A resolution or other document in writing signed (or otherwise authenticated in a manner determined 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 and may consist of several documents in the like form each signed (or otherwise
authenticated as aforesaid, as the case may be) by one or more Directors and a resolution signed by an alternate Director need not also be signed by his appointer 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. Such resolution or other document or documents when duly signed (or otherwise authenticated as aforesaid, as the case may be) may be delivered or transmitted (unless the Directors
shall otherwise determine either generally or in any specific case) by facsimile transmission or some other similar means of transmitting the contents of documents or may be delivered or transmitted in electronic form, whether as an
Electronic Communication or otherwise provided such manner of delivery or transmission has been approved by the Directors.
|
78.2 |
Subject to Regulation 78.3, where one or more of the Directors (other than a majority of them) would not, by reason of:
|
|
(a) |
the Companies Act or any other enactment;
|
|
(b) |
these Articles; or
|
|
(c) |
an applicable rule of law or a Stock Exchange,
|
78.3 |
In a case falling within Regulation 78.2, 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.
|
78.4 |
For the avoidance of doubt, nothing in Regulations 78.1 to 78.3 dealing with a resolution that is signed by other than all of the Directors shall be read as making available, in the case of an equality of
votes, a second or casting vote to the one of their number who would, or might have been, if a meeting had been held to transact the business concerned, chairperson of that meeting.
|
79. |
Appointment of Company Secretary
|
79.1 |
The Company Secretary shall be appointed by the Directors for such term, at such remuneration and upon such conditions as they may think fit and any Company Secretary so appointed may be removed by them. 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.
|
79.2 |
Anything required or authorised by the Companies Act or these Articles to be done by or to the Company Secretary may be done by or to any assistant or acting Company Secretary or, if there is no assistant or
acting Company Secretary readily available and capable of acting, by or to any officer or employee of the Company authorised generally or specially in that behalf by the Directors provided that any provision of the Companies Act 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.
|
80. |
The common seal
|
80.1 |
The Company's seal shall be used only by the authority of its Directors, or by a committee authorised by its 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.
|
80.2 |
Any instrument to which the Company's seal shall be affixed shall be signed by:
|
|
(a) |
a Director and be countersigned by the Company Secretary or by a second (if any) Director or by some other person appointed for the purpose by its Directors or by a committee; or
|
|
(b) |
a person (including a Director) appointed for the purpose by its Directors or a committee of its Directors authorised by its Directors in that behalf.
|
80.3 |
Section 43(2) and 43(3) of the Companies Act do not apply.
|
80.4 |
The Company may have one or more duplicate common seals or official seals for use in different locations including for use abroad.
|
81. |
Official seal for use abroad
|
82. |
Notices in writing
|
83. |
Service of notices and documents
|
83.1 |
A notice or document (including a share certificate and a proxy appointment) to be given, served or delivered in pursuance of these Articles or otherwise may be given to, served on or delivered to any member by the Company:
|
|
(a) |
by handing same to him or his authorised agent;
|
|
(b) |
by leaving the same at his registered address;
|
|
(c) |
by sending the same by ordinary post in a pre-paid cover addressed to him at his registered address; or
|
|
(d) |
by delivering or making the same available in electronic form, whether as an Electronic Communication or otherwise subject to and in accordance with the provisions of these Articles.
|
83.2 |
Where a notice or document is given, served or delivered pursuant to Regulation 83.1(a) or 83.1(b), 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).
|
83.3 |
Where a notice or document is given, served or delivered pursuant to Regulation 83.1(c), the giving, service or delivery thereof shall be deemed to have been effected at the expiration of twenty-four hours following posting and in the case
of its being posted on a Friday seventy-two hours after despatch or on a Saturday or Sunday forty-eight hours after despatch. In proving service or delivery it shall be sufficient to prove that such cover was properly addressed, stamped and
posted.
|
83.4 |
Where a notice, document or other information is given, served or delivered in electronic form whether as an Electronic Communication or otherwise pursuant to Regulation 83.1(d), it shall be
treated as having been given, served or delivered:
|
|
(a) |
if given, served or delivered by electronic mail, at the time it was sent; or
|
|
(b) |
where any such notice or document is given, served or delivered by being made available or displayed on a website, when the recipient received or is deemed to have received notice of the fact that the notice, document or other information
was available on the website.
|
83.5 |
Every legal personal representative, committee, receiver, curator bonis or other legal curator, assignee in bankruptcy 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 Regulation 83.1(d), if sent to the address notified to the Company by the member for such purpose (or if otherwise delivered or made
available in accordance with this Regulation 83), notwithstanding that the Company may have notice of the death, lunacy, bankruptcy, liquidation or disability of such member.
|
83.6 |
Where a member has elected to receive notices or other documents in electronic form, whether as an Electronic Communication or otherwise, the Company may notwithstanding such election and without
giving advance notice to the member, provide such notices or documents in accordance with any of the methods allowed for in Regulation 83 and such provision shall satisfy the Company's obligations in this regard.
|
83.7 |
Without prejudice to the provisions of Regulation 83.1 and 83.2, if at any time by reason of:
|
|
(a) |
the suspension or curtailment of postal services within the State, the Company is unable effectively to convene a general meeting by notice sent through the post; or
|
|
(b) |
the occurrence of any event or thing as a consequence of which the Company is unable effectively to convene a general meeting by means of an Electronic Communication;
|
83.8 |
Notwithstanding anything contained in this Regulation 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 area other than the State and, in the case of Regulation 83.7(b), the Company shall not be obliged to carry out any tests or investigations into the causes of or circumstances surrounding the event or thing in
question as a consequence of which the Company shall be unable effectively to convene a general meeting by means of an Electronic Communication other than such tests and investigations as may be used
from time to time by the Company or its agents in relation to the use or operation of any systems for Electronic Communication.
|
84. |
Notices to members
|
85. |
Service on joint holders
|
86. |
Service on transfer or transmission of Shares
|
86.1 |
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 Regulation shall not apply to any Disclosure Notice unless, under the provisions these Articles, it is a notice which continues to have effect notwithstanding the registration of a transfer of the Shares
to which it relates.
|
86.2 |
Without prejudice to the provisions of these Articles allowing a meeting to be convened by newspaper advertisement, 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 (inclusive of an electronic 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.
|
87. |
Signature to notices
|
88. |
Deemed receipt of notices
|
89. |
Use of Electronic Communication
|
89.1 |
Notwithstanding any other provision of these Articles, whenever any person (including without limitation the Company, a Director, the Company Secretary, any officer of the Company, a member or any other person) is required or permitted by
these Articles or otherwise to give or receive information in writing such information may be given or received in electronic form, whether as an Electronic Communication or otherwise in such manner
or form and subject to such terms, conditions or restrictions as the Directors may, subject to the Companies Act, determine or approve from time to time in their absolute discretion.
|
89.2 |
Subject to the Companies Act, the Company and its Directors, Company Secretary or officers shall not be compelled to receive or to send Electronic Communications or information in electronic form
under these Articles or otherwise until such time as the Directors shall have advised (pursuant to any terms and conditions of Electronic Communication or otherwise) the recipient or giver (as the
case may be) in writing of the manner, form and restrictions (if any) by which such information may be sent or received.
|
89.3 |
Any requirement in these Articles for the consent of a member in regard to the receipt by such member of electronic mail or other means of Electronic Communications approved by the Directors,
including the receipt of the Company's annual report, statutory financial statements and the Directors' and Auditor's reports thereon, shall be deemed to have been satisfied where the Company has written to the member informing him or her of
its intention to use Electronic Communications for such purposes and the member has not, within four weeks of the issue of such notice, served an objection in writing on the Company. Where a member
has given, or is deemed to have given, his/her consent to the receipt by such member of electronic mail or other means of Electronic Communications approved by the Directors, she/he may revoke such
consent at any time by requesting the Company to communicate with him or her in documented form; provided, however, that such revocation shall not take effect until five days after written notice of the revocation is received by the Company.
Notwithstanding anything to the contrary in this Regulation 89.3, 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 or under the rules of the SEC.
|
90. |
Service of notices on the Company
|
91. |
Sending statutory financial statements to members
|
91.1 |
Subject to Regulation 89.3, each of the members hereby agree and consent that copies of the documents referred to in section 338(2) of the Companies Act, are to be treated, for the purposes of section 338 of the Companies Act, as sent to a
person where:
|
|
(a) |
the Company and that person have agreed to his or her having access to the documents on a website (instead of their being sent to him or her), provided such agreement shall be deemed to have been given, if Electronic Communications are permitted to be used under the rules and regulations of any Stock Exchange or under the rules of the SEC;
|
|
(b) |
the documents are documents to which that agreement applies; and
|
|
(c) |
that person is notified, in a manner for the time being agreed for the purpose between him or her and the Company, of:
|
|
(i) |
the publication of the documents on a website;
|
|
(ii) |
the address of that website; and
|
|
(iii) |
the place on that website where the documents may be accessed, and how they may be accessed. Documents treated in accordance with Regulation 91 as sent to any person are to be treated as sent to him or her not less than 21 days before the
date of a meeting if, and only if:
|
|
(A) |
the documents are published on the website throughout a period beginning at least 21 days before the date of the meeting and ending with the conclusion of the meeting; and
|
|
(B) |
the notification given for the purposes of Regulation 91.1(c) is given not less than 21 days before the date of the meeting.
|
91.2 |
Any obligation by virtue of section 339(1) or (2) of the Companies Act to furnish a person with a document may, unless these Articles provide otherwise, be complied with by using Electronic Communications
for sending that document to such address as may for the time being be notified to the Company by that person for that purpose.
|
92. |
Accounts
|
92.1 |
The Directors shall, cause the Company to keep accounting recording whether in the form of documents electronic form or otherwise, which are sufficient to:
|
|
(a) |
correctly record and explain the transactions of the Company;
|
|
(b) |
enable at any time, the assets, liabilities, the financial position and profit or loss of the Company to be determined with reasonable accuracy;
|
|
(c) |
enable the Directors to ensure that any financial statements and any Director's report of the Company, required to be prepared under the Companies Act, comply with the requirements of the Companies Act; and
|
|
(d) |
enable the financial statements of the Company to be audited.
|
92.2 |
The accounting records of the Company shall be kept on a continuous and consistent basis that is to say, the entries therein shall be made in a timely manner and be consistent from one year to the next. Adequate accounting records shall be
deemed to have been maintained if they comply with the provisions of Chapter 2 of Part 6 of the Companies 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 Companies Act.
|
92.3 |
The accounting records of the Company shall not be deemed to be kept if there are not kept such accounting records as comply with the Companies Act and as are necessary to give a true and fair view of the state of the Company's affairs and
to explain its transactions.
|
92.4 |
The accounting records shall be kept at the Office or, subject to the provisions of the Companies Act, at such other place as the Directors think fit and shall be open at all reasonable times to the inspection of the Directors.
|
92.5 |
In accordance with the provisions of the Companies Act, the Directors shall cause to be prepared and to be laid before the annual general meeting of the Company from time to time statutory financial statements of the Company and such other
reports and financial statements as are required by the Companies Act to be prepared and laid before such meeting.
|
92.6 |
A copy of every statutory financial statement (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 shall be sent by post, electronic mail or any other means of Electronic Communications, not less than twenty-one Clear Days before the date of the annual general meeting, to every person
entitled under the provisions of the Companies Act to receive them; and the required number of copies of these documents shall be forwarded at the same time to the appropriate sections of the Stock Exchanges. For the purposes of this Regulation, sending by Electronic Communications includes the making available or displaying on the Company's website (or a website designated by the Board) or the website of the SEC, and each member is deemed
to have irrevocably consented to receipt of every statutory financial statement of the Company (including every document required by law to be annexed thereto) and every copy of the Directors' report and the Auditors' report and every copy
of any summary financial statements prepared in accordance with section 1119 of the Companies Act, by any such document being made so available or displayed.
|
92.7 |
Auditors shall be appointed and removed and their duties regulated in accordance with the Companies Act.
|
93. |
Distribution on winding up
|
93.1 |
Subject to the provisions of the Companies Act as to preferential payments, the property of the Company on its winding up shall be distributed among the members according to their rights and interests in the Company.
|
93.2 |
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.
|
93.3 |
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. And 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 Regulation shall not affect the rights of the holders of Shares issued upon special terms and
conditions.
|
|
(a) |
In case of a sale by the liquidator under section 601 of the Companies Act, the liquidator may by the contract of sale agree so as to bind all the members, for the allotment to the members directly, of the proceeds of sale in proportion to
their respective interests in the Company and may further, by the contract, limit a time at the expiration of which obligations or Shares 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.
|
94. |
Distribution in specie
|
95. |
Minutes of meetings
|
|
(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 general meetings of the Company and of the holders of any class of Shares and of the Directors and of committees appointed by the Directors.
|
96. |
Inspection
|
97. |
Secrecy
|
98. |
Destruction of records
|
|
(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 Regulation; and
|
|
(c) |
references herein to the destruction of any document include references to the disposal thereof in any manner.
|
99. |
Untraced Shareholders
|
99.1 |
The Company may sell any Shares on behalf of a holder, or person entitled by transmission to, the Shares, if:-
|
|
(a) |
the Shares have been in issue throughout the qualifying period and at least three cash dividends have become payable on the Shares during the qualifying period;
|
|
(b) |
no cash dividend payable on the Shares has either been claimed by presentation to the paying bank of the relative cheque or warrant or been satisfied by the crediting of any account which the holder has with the Company, whether in the
sole name of such holder or jointly with another person or persons, or by the transfer of funds to a bank account designated by the holder of, or person entitled by transmission to, the Shares at any time during the relevant period;
|
|
(c) |
the Company has not at any time during the relevant period received, so far as the Company at the end of the relevant period is then aware, any communication from the holder of, or person entitled by transmission to, the Shares;
|
|
(d) |
the Company has caused advertisements giving notice of its intention to sell the Shares to be published in a leading daily newspaper with a national circulation in the State and another in a newspaper circulating in the area of the address
shown in the register of the holder of, or person entitled by transmission to, the untraced Shares, and (in either such case) a period of three months has elapsed from the date of publication of the advertisement; and
|
|
(e) |
the Company has given notice to the relevant departments of the Stock Exchanges of its intention to make the sale.
|
99.2 |
For the purposes of this Regulation 99:
|
99.3 |
For the purposes of Regulation 99.1(c), a statutory declaration that the declarant is a Director or the Company Secretary and that the Company was not aware at the end of the relevant period of having at any time during the relevant period
received any communication from the holder of, or person entitled by transmission to, the Shares shall be conclusive evidence of the facts stated in it as against all persons claiming to be entitled to the Shares.
|
99.4 |
If, after the publication of the advertisement referred to in Regulation 99.1(d) but before the Company has become entitled to sell the Shares pursuant to this Regulation, the requirements of Regulation 99.1(b) or 99.1(c) above cease to be
satisfied, the Company may nevertheless sell those Shares after the requirements of Regulation 99.1 above have been satisfied afresh in relation to them.
|
99.5 |
If during any relevant period further Shares have been issued in right of those held at the beginning of that relevant period or of any previously so issued during that relevant period and all the requirements of Regulation 99.1(b) to (e)
above have been satisfied in regard to the further Shares, the Company may also sell the further Shares.
|
99.6 |
The manner, timing and terms of any sale of Shares pursuant to this Regulation (including but not limited to the price or prices at which the same is made) shall be such as the Directors determine, based upon advice from such bankers,
brokers or other persons as the Directors consider appropriate which are consulted by it for the purposes, to be reasonably practicable having regard to all the circumstances including the number of Shares to be disposed of and the
requirement that the disposal be made without delay; and the Directors shall not be liable to any person for any of the consequences of reliance on such advice.
|
99.7 |
To give effect to any sale of Shares pursuant to this Regulation the Directors may take such steps as the Directors consider are necessary or desirable in order to effect such sale and, for this purpose, may authorise some person to
transfer the Shares in question and may enter the name of the transferee in respect of the transferred Shares in the register notwithstanding the absence of any share certificate being lodged in respect thereof and may issue a new certificate
to the transferee and an instrument of transfer executed by that person or such other method of transfer as is employed by this person shall be as effective as if it had been executed or employed by the holder of, or person entitled by
transmission to, the Shares. The purchaser 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 or invalidity in the proceedings relating to the sale.
|
99.8 |
The Company shall account to the holder or other person entitled to such Shares 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.
|
100. |
Register of Shareholders
|
100.1 |
The Register shall be kept in the manner prescribed by the Companies Act at the Office or at such other place as may be authorised by the Board from time to time consistent with the Companies Act.
|
100.2 |
The Register may be closed at such times and for such periods as the Board may from time to time decide, subject to Section 174 of the Companies Act. Except during such time as it is closed, the Register shall be open to inspection in the
manner prescribed by the Companies Act at such times as the Board may from time to time determine.
|
100.3 |
Unless the Board so determines, no Shareholder or intending Shareholder shall be entitled to have entered in the Register, or otherwise recognised by the Company, any indication of any trust or any equitable, beneficial, contingent,
future, fractional or partial interest in any Share, and if any such entry exists or is permitted by the Board it shall not be deemed to abrogate any provision of these Articles provided that no interest will be entered in the Register unless
permitted by the Companies Act.
|
100.4 |
If the Board considers it necessary or appropriate, the Company may establish and maintain a duplicate Register at such location or locations within or outside the State as the Board thinks fit. The original Register shall be treated as
the register of members for the purposes of these Articles and the Companies Act.
|
100.5 |
The Company or any agent(s) appointed by it to maintain the duplicate Register in accordance with these Articles, shall as soon as practicable and on a regular basis record or procure the recording in the original Register in such manner
as to show at all times the members for the time being and the shares respectively held by them, in all respects in accordance with the Companies Act.
|
101. |
Shareholder Rights Plan
|
102. |
Sale of shares in GH Research Ireland Limited
|
102.1 |
Subject to Regulation 102.2 below, no shares held by the Company in GH Research Ireland Limited may be sold unless the consent in writing of 90% of the Shareholders is obtained, such consent to be obtained in a general meeting of the
Company.
|
102.2 |
The restriction contained in Regulation 102.1 shall only apply to:
|
|
(a) |
the sale of shares in GH Research Ireland Limited and shall not apply in respect of any divestments;
|
|
(b) |
the sale of shares in GH Research Ireland Limited which takes place at any time before 1 June 2028; and
|
|
(c) |
the sale of shares in GH Research Ireland Limited and shall not apply in respect of the sale of shares in other Subsidiary.
|
103. |
Exclusive jurisdiction
|
103.1 |
Save in respect of any cause of action arising under the Securities
Act or the Exchange Act, the courts of Ireland shall have exclusive jurisdiction to determine any and all disputes brought by a member in that member's capacity as such, or as a purported derivative claim in respect of a cause of action
vested in the Company or seeking relief on behalf of the Company, against the Company or the Board or any of the Directors or officers individually (or against any combination of the foregoing persons), arising out of or connection with
these Articles or any non-contractual obligations arising out of or in connection with these Articles.
|
103.2 |
Unless the Company by ordinary resolution consents in writing to the selection of an alternative forum in the United States, the federal district courts of the United States shall be the exclusive forum for the resolution of any complaint
asserting a cause of action arising under the Securities Act or the Exchange Act.
|
104. |
Indemnity
|
104.1 |
Subject to the provisions of and so far as may be permitted by the Companies Act, each person who is or was:
|
|
(a) |
a Director;
|
|
(b) |
an officer of the Company;
|
|
(c) |
an employee of the Company;
|
|
(d) |
a trustee, administrator, or policy committee member of a Company that is a corporate trustee of a pension plan established for the benefit of employees of the Company;
|
|
(e) |
an official of a Company, including if organised or operated in a foreign jurisdiction, while serving in a functionally equivalent position to:
|
|
(i) |
a duly elected or appointed director, shadow director or a de facto director of a Company;
|
|
(ii) |
a prospective director as identified in a Company prospectus or similar offering document;
|
|
(iii) |
an officer, senior manager, in-house general counsel, company secretary, risk manager, controller, chancellor or governor of a Company, or any other natural person who:
|
|
(A) |
makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the Company; or
|
|
(B) |
has the capacity to significantly affect the Company’s financial standing;
|
|
(iv) |
a trustee, administrator, or policy committee member of a Company that is a corporate trustee of a pension plan established for the benefit of employees of the Company; and
|
|
(v) |
an approved person under the United Kingdom Senior Managers & Certification Regime;
|
|
(f) |
an individual described in the following sections while serving at the specific direction or request of the Company in a position functionally equivalent to those described in the following sections for an outside entity:
|
|
(i) |
a duly elected or appointed director, shadow director or a de facto director of a Company;
|
|
(ii) |
a prospective director as identified in a Company prospectus or similar offering document;
|
|
(iii) |
an officer, senior manager, in-house general counsel, company secretary, risk manager, controller, chancellor or governor of a Company, or any other natural person who:
|
|
(A) |
makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the Company; or
|
|
(B) |
has the capacity to significantly affect the Company’s financial standing;
|
|
(iv) |
a trustee, administrator, or policy committee member of a Company that is a corporate trustee of a pension plan established for the benefit of employees of the Company; and
|
|
(v) |
an approved person under the United Kingdom Senior Managers & Certification Regime,
|
104.2 |
In the case of any threatened, pending or completed action, suit or proceeding by or in the right of the Company, the Company shall indemnify, to the fullest extent permitted by the Companies Act, each person
indicated in Regulation 104.1 against expenses, including attorneys' fees actually and reasonably incurred in connection with the defence or the settlement thereof, except no indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable for fraud or dishonesty in the performance of his or her duty to the Company unless and only to the extent that the courts of Ireland or the court in which such action or
suit was brought shall determine upon application that despite the adjudication of liability, but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses as the court shall
deem proper.
|
104.3 |
As far as permissible under the Companies Act, expenses, including attorneys' fees, incurred in defending any action, suit or proceeding referred to in this Regulation 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 Indemnified Party 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 Indemnified Party or other indemnitee is not entitled to be indemnified by the Company as authorised by these Articles.
|
104.4 |
It being the policy of the Company that indemnification of the persons specified in this Regulation shall be made to the fullest extent permitted by law, the indemnification provided by this Regulation shall
not be deemed exclusive of: (a) any other rights to which those seeking indemnification or advancement of expenses may be entitled under the Memorandum, these Articles, any agreement, any insurance purchased by the Company, any vote of
members or disinterested Directors, or pursuant to the direction (however embodied) of any court of competent jurisdiction, or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding
such office, or (b) any amendments or replacements of the Companies Act which permit for greater indemnification of the persons specified in this Regulation and any such amendment or replacement of the Companies Act shall hereby be
incorporated into these Articles. As used in this Regulation 104.4, references to the "Company" include all constituent companies in a consolidation or merger in which the Company or any predecessor to the Company by consolidation or merger
was involved. The indemnification provided by this Regulation shall continue as to a person who has ceased to be an Indemnified Party and shall inure to the benefit of the heirs, executors, and administrators of such Indemnified Parties or
other indemnitees.
|
104.5 |
To the extent permitted by law, the Directors may arrange insurance cover at the cost of the Company in respect of any liability, loss or expenditure incurred by any Indemnified Party in relation to anything
done or alleged to have been done or omitted to be done by him in his capacity in carrying out the roles specified in Regulation 104.1(a) to 104.1(f) (as relevant).
|
104.6 |
The Company may additionally indemnify any agent of the Company or any director, officer, employee or agent of any of its Subsidiaries to the fullest extent provided by law, and purchase and maintain insurance
for any such person as appropriate.
|
104.7 |
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:
|
|
(a) |
for any breach of the Director's duty of loyalty to the Company or its members;
|
|
(b) |
for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; or
|
|
(c) |
for any transaction from which the Director derived an improper personal benefit.
|
|
Dentons Ireland LLP
2nd Floor
Joshua Dawson House
Dawson Street
Dublin 2
D02 RY95
Ireland
dentons.com
|
To:
|
Board of Directors
|
GH Research plc
|
|
28 Baggot Street Lower
|
|
Dublin 2
|
|
D02 NX43
|
|
Ireland
|
1 |
INTRODUCTION
|
1.1 |
Purpose
|
1.2 |
Defined terms and headings
|
|
(a) |
capitalised terms used without definition in this letter or the schedules hereto have the meanings assigned to them in the Registration Statement unless a contrary indication appears; and
|
|
(b) |
headings are for ease of reference only and shall not affect interpretation.
|
|
dentons.com
|
|
Page 2
|
1.3 |
Legal Review
|
|
(a) |
the documents listed in schedule 1 (Documents) to this letter (the “Documents”);
|
|
(b) |
legal searches against the Company on 18 June 2021 on the file of the Company maintained by the Registrar of Companies in Dublin, the Judgments Office of the High Court and the Central Office of the High Court (the “Searches”); and
|
|
(c) |
such other corporate records of the Company as we have deemed necessary as a basis for the opinions hereinafter expressed.
|
1.4 |
Applicable Law
|
|
(a) |
we have not investigated the laws of any country other than Ireland (meaning Ireland exclusive of Northern Ireland) and we express no opinion in this letter on the laws of any jurisdiction other than Ireland (meaning Ireland exclusive of
Northern Ireland) and we assume that no foreign law effects any of the opinions given below. It is assumed that no foreign law which may apply to the matters contemplated by the Registration Statement, the Offering, the Company, any document
or any other matter contemplated by any document would or might affect this letter and / or opinions given in it; and
|
|
(b) |
we do not undertake or accept any obligation to update this letter and / or opinions given in it to reflect subsequent changes in Irish law or factual matters.
|
1.5 |
Assumptions
|
|
(a) |
The opinions given in this letter are given on the basis of each of the assumptions set out in schedule 2 (Assumptions) to this letter.
|
|
(b) |
The opinions given in this letter are strictly limited to the matters stated in paragraph 2 (Opinion) below and do not extend, and should not be read as extending, by implication or otherwise, to
any other matters.
|
2 |
OPINION
|
|
dentons.com
|
|
Page 3
|
3 |
EXTENT OF OPINIONS
|
3.1 |
We express no opinion as to any agreement, instrument or other document other than as specified in this letter or as to any liability to tax or duty which may arise or be suffered as a result of or in connection with the Offering or the
transactions contemplated thereby.
|
3.2 |
This letter only applies to those facts and circumstances which exist as at today’s date and we assume no obligation or responsibility to update or supplement this letter to reflect any facts or circumstances which may subsequently come to
our attention, any changes in laws which may occur after today, or to inform the addressee of any change in circumstances happening after the date of this letter which would alter our opinion.
|
4 |
DISCLOSURE AND RELIANCE
|
4.1 |
This letter is addressed to you in connection with the Registration Statement. We consent to the filing of this letter with the SEC as an exhibit to the Registration Statement and any amendments thereto. We also hereby consent to the
reference to our Firm under the caption “Legal Matters” in the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or
the rules and regulations thereunder.
|
4.2 |
Other than for the purpose set out in the prior paragraph, this letter may not be relied upon, or assigned, for any purpose, without our prior written consent, which may be granted or withheld in our discretion.
|
|
dentons.com
|
|
Page 4
|
1. |
A copy of the Registration Statement.
|
2. |
The results of the Searches.
|
3. |
A copy of the certificate of incorporation of the Company dated 29 March 2021.
|
4. |
A copy of the constitution of the Company adopted by the resolution of the shareholders of the Company on 27 May 2021 (the “Constitution”).
|
5. |
A copy of the constitution of the Company exhibited to the Registration Statement and proposed to be effective immediately prior to completion of the Offering (the “Completion Constitution”).
|
6. |
A copy of the resolutions of the shareholders of the Company dated 18 June 2021 approving amongst other things the adoption of the Completion Constitution, the redemption of the 25,000 A ordinary shares of €1.00 each from Florian
Schönharting out of the proceeds of the Offering and subsequent cancellation, the conversion of 5,923,079 Series A preferred shares of $0.01 each into 5,923,079 ordinary shares of $0.01 each, the conversion of 25,379,047 Series B preferred
shares of $0.01 each into 25,379,047 ordinary shares of $0.01 each and the subsequent consolidation of the ordinary shares of $0.01 each into ordinary shares of
$0.025 each.
|
7. |
A copy of the resolution of the board of the Company approving, amongst other things, the Offering and the filing of the Registration Statement dated 4 June 2021.
|
|
dentons.com
|
|
Page 5
|
(i) |
the genuineness of all signatures, stamps and seals on all documents, the authenticity and completeness of all documents submitted to us as originals, and the conformity to original documents of all documents submitted to us as copies;
|
(ii) |
that, where a document has been examined by us in draft or specimen form, it will be or has been duly executed in the form of that draft or specimen, and that each of the signed documents examined by us has been duly executed and, where
applicable, delivered on behalf of the Company;
|
(iii) |
that the Completion Constitution will be so effective immediately prior to the issuance of the Ordinary Shares and will not have been amended or superseded and that there will be no other terms governing the Ordinary Shares other than
those set out in the Completion Constitution;
|
(iv) |
on the date of allotment and issue of the Ordinary Shares (the “Allotment Date”) the Company will comply with all applicable laws to allot and issue the Ordinary Shares;
|
(v) |
that all documents, forms and notices which should have been delivered to the Registrar of Companies in respect of the Company have been so delivered, that information revealed by the Searches was complete and accurate in all respects and
has not, since the time of the Searches, been altered and that the results of the Searches will remain complete and accurate as at the Allotment Date;
|
(vi) |
that the minutes of the meetings of the board of directors of the Company and the written resolutions of the board of directors of the Company provided to us in connection with the giving of the opinions in this letter reflect a true
record of the proceedings described in them in duly convened, constituted and quorate meetings in which all constitutional, statutory and other formalities were duly observed, and the resolutions set out in the minutes were validly passed and
have not been and will not be revoked or varied and remain in full force and effect and will remain so as at the Allotment Date;
|
(vii) |
that none of the resolutions of the shareholders of the Company upon which we have relied have been or will be varied, amended or revoked in any respect and remain in full force an effect;
|
(viii) |
that, in relation to each meeting of the board of directors of the Company, each provision contained in the Companies Act 2014 (as amended (the “Companies Act”) or the Constitution relating to the
declaration of the directors’ interests or the power of the interested directors to vote and to count in the quorum was or will be duly observed;
|
(ix) |
that there is, at Allotment Date, no matter affecting the authority of the directors to issue and allot the Ordinary Shares, not disclosed by the Constitution or the Completion Constitution or the resolutions produced to us, which would
have any adverse implications in relation to the opinions expressed in this letter;
|
(x) |
that the Ordinary Shares offered under the Registration Statement will be in consideration of the receipt by the Company prior to the issue of the Ordinary Shares pursuant thereto of either cash or the release of a liability of the Company
for a liquidated sum, at least equal to the nominal value of such Ordinary shares and any premium required to be paid up on the Ordinary Shares pursuant to their terms is issue;
|
|
dentons.com
|
|
Page 6
|
(xi) |
that neither the Registration Statement nor the Prospectus constitutes (and is not intended/required to constitute) a prospectus within the meaning of Part 23 of the Companies Act and that no offer of securities to the public is made, or
will be made, that requires the publication of a prospectus pursuant to Irish prospectus law in general, or in particular pursuant to the Prospectus (Directive 2017/1129) Regulations (EU) 2017/2019;
|
(xii) |
that each party, to the extent that its activities in relation to the Offering will constitute the provision of an investment service operating in Ireland and require authorisation, is acting under and within the terms of an authorisation
to do so (which authorisation has been given by the supervisory authority under the European Communities (Markets in Financial Instruments) Regulations (Nos. 1 to 3) 2007 or a competent authority for the purposes of Directive 2004/39/EC of 10
May 1993, as amended or extended from time to time, in another Member State) or is exempt from the requirement to have such authorisation;
|
(xiii) |
that (i) the Company is at the date of this letter, and immediately after the issue of the Ordinary Shares will be, able to pay its debts within the meaning of Sections 570 of the Companies Act or any analogous provisions under any
applicable laws (ii) no liquidator, receiver or examiner or other similar or analogous officer has been appointed in relation to the Company any of the assets or undertakings; and (iii) no petition for the making of a winding-up order or the
appointment of an examiner or any similar officer or any similar or analogous procedure in any jurisdiction has been presented in relation to the Company;
|
(xiv) |
the accuracy and completeness of the information disclosed in the Searches and that such information is accurate as of the date of this letter and has not since the time of such search been altered. It should be noted that:
|
|
(A) |
the matters disclosed in the Searches may not present a complete summary of the actual position on the matters we have caused searches to be conducted for;
|
|
(B) |
the position reflected by the Searches may not be fully up-to-date (and this risk may be higher while emergency measures introduced by the Irish Government in light of the COVID-19 pandemic remain in place); and
|
|
(C) |
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 a petition presented or any other action taken for the winding-up of, or the
appointment of a receiver or an examiner to, the Company or its assets;
|
(xv) |
the truth, completeness and accuracy of all representations and statements as to factual matters contained in the Documents; and
|
(xvi) |
that all securities issued and sold under the Registration Statement will be issued and sold in compliance with all applicable laws (other than Irish law), including applicable federal and state securities laws, in the manner stated in the
Registration Statement.
|
Page
|
||
Section 1.
|
Defined Terms; Rules of Construction
|
1
|
1.1 Defined Terms
|
1
|
|
1.2 Rules of Construction
|
8
|
|
Section 2.
|
Demand Registration
|
8
|
Section 3.
|
Registrations on Form S-3 or F-3
|
10
|
Section 4.
|
Piggyback Registration
|
11
|
Section 5.
|
Rule 144 Reporting
|
12
|
Section 6.
|
Preparation and Filing
|
13
|
Section 7.
|
Expenses
|
15
|
Section 8.
|
Indemnification
|
15
|
Section 9.
|
Underwriting Agreement
|
17
|
Section 10.
|
Suspension
|
18
|
Section 11.
|
Information by Holder
|
18
|
Section 12.
|
Termination
|
19
|
Section 13.
|
Limitation On Other Registration Rights
|
19
|
Section 14.
|
Miscellaneous
|
19
|
14.1 Notices
|
19
|
|
14.2 Assignment
|
19
|
|
14.3 Entire Agreement
|
20
|
|
14.4 Modifications, Amendments and Waivers
|
20
|
|
14.5 Counterparts
|
20
|
|
14.6 Governing Law
|
20
|
|
14.7 Submission to Jurisdiction; Waiver of Jury Trial
|
20
|
|
14.8 Severability
|
21
|
|
14.9 No Third Party Beneficiary
|
21
|
|
14.10 Non-Recourse
|
21
|
|
14.11 Specific Performance
|
22
|
|
14.12 Business Days
|
22
|
|
14.13 Electronic Execution
|
22
|
|
14.14 Captions
|
22
|
GH RESEARCH PLC
|
||||
By:
|
||||
Name:
|
||||
Title:
|
FLORIAN SCHÕNHARTING
|
||||
By:
|
||||
Name:
|
||||
Title:
|
DUNE CAPITAL
|
||||
By:
|
||||
Name:
|
||||
Title:
|
INWOOD SETTLEMENT
|
||||
By:
|
||||
Name:
|
||||
Title:
|
BIOTECHNOLOGY VALUE FUND L.P.
|
||||
By:
|
||||
Name:
|
||||
Title:
|
BIOTECHNOLOGY VALUE FUND II, L.P.
|
||||
By:
|
||||
Name:
|
||||
Title:
|
BIOTECHNOLOGY VALUE TRADING FUND OS, L.P.
|
||||
By:
|
||||
Name:
|
||||
Title:
|
RA CAPITAL HEALTHCARE FUND, L.P
|
||||
By:
|
||||
Name:
|
||||
Title:
|
RA CAPITAL NEXUS FUND II, L.P
|
||||
By:
|
||||
Name:
|
||||
Title:
|
RTW MASTER FUND, LTD.
|
||||
By:
|
||||
Name:
|
||||
Title:
|
RTW INNOVATION MASTER FUND, LTD.
|
||||
By:
|
||||
Name:
|
||||
Title:
|
RTW VENTURE FUND LIMITED
|
||||
By:
|
||||
Name:
|
||||
Title:
|
THE BIOTECH GROWTH TRUST PLC
|
||||
By:
|
||||
Name:
|
||||
Title:
|
CORMORANT PRIVATE HEALTHCARE FUND III, LP
|
||||
By:
|
||||
Name:
|
||||
Title:
|
CORMORANT GLOBAL HEALTHCARE MASTER FUND, LP
|
||||
By:
|
||||
Name:
|
||||
Title:
|
CRMA SPV, L.P.
|
||||
By:
|
||||
Name:
|
||||
Title:
|
VENROCK HEALTHCARE CAPITAL PARTNERS EG, L.P.
|
||||
By:
|
||||
Name:
|
||||
Title:
|
VENROCK HEALTHCARE CAPITAL PARTNERS III, L.P.
|
||||
By:
|
||||
Name:
|
||||
Title:
|
VHCP CO-INVESTMENT HOLDINGS III, LLC
|
||||
By:
|
||||
Name:
|
||||
Title:
|
BOXER CAPITAL, LLC
|
||||
By:
|
||||
Name:
|
||||
Title:
|
MVA INVESTORS, LLC
|
||||
By:
|
||||
Name:
|
||||
Title:
|
CITADEL MULTI- STRATEGY EQUITIES (IRELAND) DESIGNATED ACTIVITY COMPANY
|
||||
By:
|
||||
Name:
|
||||
Title:
|
DEERFIELD PARTNERS, L.P.
|
||||
By:
|
||||
Name:
|
||||
Title:
|
ACUTA CAPITAL FUND, LP
|
||||
By:
|
||||
Name:
|
||||
Title:
|
ACUTA OPPORTUNITY FUND, LP
|
||||
By:
|
||||
Name:
|
||||
Title:
|
VERITION MULTI- STRATEGY MASTER FUND LTD.
|
||||
By:
|
||||
Name:
|
||||
Title:
|
GH CO-INVESTMENT LLC
|
||||
By:
|
||||
Name:
|
||||
Title:
|
THEIS TERWEY
|
||||
By:
|
||||
Name:
|
||||
Title:
|
MARKUS BREUER
|
||||
By:
|
||||
Name:
|
||||
Title:
|
CLAUS BO SVENDSEN
|
||||
By:
|
||||
Name:
|
||||
Title:
|
MAGNUS CLEMENSEN HALLE
|
||||
By:
|
||||
Name:
|
||||
Title:
|
DUNE CAPITAL
|
||||
By:
|
||||
Name:
|
||||
Title:
|
MICHAEL FORER
|
||||
By:
|
||||
Name:
|
||||
Title:
|
|
• |
The Company to confirm that no award recipients are US tax payers.
|
|
• |
Shares issued under the plan will need to be registered by the issuer on a Form S-8 with the SEC (which will need to be filed prior to the exercise of any options under the plan).
|
|
• |
To the extent there are US taxpayers being granted options, the Market Value of a Share needs to be determined in a manner consistent with Section 409A of the U.S. tax Code.
|
1
|
Establishment and Purpose
|
1
|
2
|
Definitions
|
1
|
3
|
Administration
|
2
|
4
|
Eligibility for participation
|
3
|
5
|
Limitation as to Participation
|
3
|
6
|
Grant of Options
|
3
|
7
|
Limitations on Grant of Options
|
4
|
8
|
Specific Terms of Options
|
4
|
9
|
Non-transfer of Option
|
5
|
10
|
Termination of Service
|
5
|
11
|
Clawback
|
6
|
12
|
Procedure on Exercise of Options
|
6
|
13
|
Lapse of Options
|
7
|
14
|
Change in Control of the Company, Reconstruction & Winding Up
|
7
|
15
|
Tax Indemnity
|
9
|
16
|
Adjustments in the Event of Capitalisation and Rights Issues etc.
|
9
|
17
|
Alterations
|
10
|
18
|
Share Capital
|
10
|
19
|
Termination
|
10
|
20
|
Notices
|
10
|
21
|
General
|
11
|
1 |
Establishment and Purpose
|
2 |
Definitions
|
2.1 |
In the Plan, the following expressions bear the following meanings and all references to statutes are to Irish statutes:
|
2.2 |
Where the context permits the singular will include the plural and vice versa and the masculine will include the feminine. Headings are to be ignored in construing the terms of the Plan.
|
2.3 |
References to any statute will include any statutory modification, amendment or re-enactment thereof.
|
3 |
Administration
|
4 |
Eligibility for participation
|
4.1 |
The Plan is available for Eligible Persons who will be nominated for that purpose by the Committee.
|
4.2 |
The Committee will at its absolute discretion determine whether or not a person is an Eligible Person and will nominate such persons for participation in the Plan.
|
4.3 |
No person will be entitled as of right to participate in the Plan and the decision as to who will have the opportunity of participating and the time and extent of his participation will, subject to the terms of the Plan, be made by the
Committee in its absolute discretion.
|
5 |
Limitation as to Participation
|
5.1 |
No Option will be capable of being granted under the Plan more than ten years after the Adoption Date.
|
5.2 |
If at the relevant time:
|
5.2.1 |
the Company’s shares are listed on a Stock Exchange, the Market Value of a Share will be determined by the Committee by reference to the closing price of a Share on the dealing day immediately preceding the Date of Grant or, if the
Committee so determines, by reference to an averaging of closing prices over a period of up to 5 dealing days immediately preceding the Date of Grant.
|
5.2.2 |
If the Company's shares are not listed on a Stock Exchange, the Market Value of a Share will be determined by the Company in accordance with section 548 of the Act.
|
5.2.3 |
For the avoidance of doubt an Option which has lapsed due to failure to meet applicable Performance Conditions set out in the relevant Option Agreement within the Performance Period (or similar criteria under any other share incentive
plan adopted by the Company or its Subsidiaries) or otherwise will not be taken into account for the purpose of this Rule 5.
|
6 |
Grant of Options
|
6.1 |
The Grantor may at any time within ten years from the Adoption Date grant Options to one or more Participants.
|
6.2 |
Any Options granted under the Plan must be approved in advance by the Committee, which will have absolute discretion in respect of the approval of Options.
|
6.3 |
No consideration will be payable by a Participant in respect of the grant of an Option.
|
6.4 |
Each Option granted will be evidenced by an Option Agreement given to the Participant. Option Agreements may be in writing or in such other form as the Grantor determines and the Committee approves.
|
6.5 |
Each Option Agreement will specify:
|
6.5.1 |
the Date of Grant of the Option;
|
6.5.2 |
the number of Shares subject to the Option;
|
6.5.3 |
the Exercise Price;
|
6.5.4 |
the Performance Conditions and Performance Period, if any, to be satisfied as a condition of the vesting of the Option in accordance with the Option Agreement; and
|
6.5.5 |
such additional terms and conditions of the Option as the Committee may from time to time prescribe, including, but not limited to, conditions relating to transferability or forfeiture, exercisability and waiver or accelerations
thereof, and waivers of performance conditions relating to an Option, based in each case on such considerations as the Committee will determine.
|
6.6 |
When issuing Option Agreements the Grantor will:
|
6.6.1 |
refer the Participant to all the provisions of the Plan; and
|
6.6.2 |
notify the Participant of his right to renounce the Option under Rule 6.8.
|
6.7 |
A Participant to whom an Option has been granted may by notice in writing given to the Grantor within 30 days from the Date of Grant renounce his rights thereunder and in such case the Option will be deemed never to have been granted.
|
6.8 |
An Option which has been granted to a Participant will be treated as having been accepted unless a renunciation in writing in respect thereof has been received by the Grantor from such person under Rule 6.8.
|
6.9 |
In the event that a Participant loses or misplaces his Option Agreement the Grantor may issue a replacement in writing or in such other form as the Grantor determines, upon application in writing by the Participant.
|
7 |
Limitations on Grant of Options
|
7.1 |
Until otherwise resolved by the Company in general meeting the number of Shares for which Options may be granted under the Plan on any day will not, when added to the number of Shares which immediately prior to that day will have been
or remain to be issued or purchased on the market pursuant to Options granted during the period of ten years immediately preceding that day under the Plan or any other share incentive plan adopted by the Company or its Subsidiaries,
exceed options over 1,202,734 of the number of Shares for the time being in issue.
|
7.2 |
Calculating limits
|
7.2.1 |
Shares which will have been the subject of Options or rights which have lapsed will not be taken into account for the purposes of this Rule 7.
|
7.2.2 |
Shares acquired by a trustee of any employee’s trust established by the Company in conjunction with this Plan, or acquired by any third party in conjunction with this Plan, which have been counted as issued or purchased on the market
for the purposes of this Rule 7 will not also be counted when they are delivered to Participants to satisfy any Option.
|
8 |
Specific Terms of Options
|
8.1 |
Options may be granted on the terms and conditions set forth in this Rule 8. In addition, the Committee may impose on any Option or the vesting or exercise thereof, at the Date of Grant or thereafter (subject to Rule 6) such
additional terms and conditions, not inconsistent with the provisions of the Plan, as the Committee will determine, including terms regarding forfeiture of Options or continued exercisability of Options in the event of Termination of
Service of the Participant.
|
8.2 |
The Committee is authorised to grant Options to Eligible Persons on the following terms and conditions:
|
8.2.1 |
Exercise Price: Unless the Committee determines otherwise at the Date of Grant, the Exercise Price per Share in relation to an Option will be not less than the Market Value of a Share on the day
preceding the Date of Grant, PROVIDED THAT in all cases it will not be less than the nominal value of a Share.
|
8.2.2 |
Option Term: The term of each Option will be determined by the Committee; provided, however, that such term will not be longer than eight years from the Date of Grant of the Option.
|
8.2.3 |
Time and Method of Exercise: The Committee will determine at the Date of Grant or thereafter the time or times at which an Option may be exercised in whole or in part (including, without
limitation, upon achievement of performance criteria if deemed appropriate by the Committee), the methods by which such Exercise Price may be paid or deemed to be paid (including, without limitation, broker-assisted exercise
arrangements), the form of such payment (cash or Shares), and the methods by which Shares will be delivered or deemed to be delivered to Eligible Persons.
|
9 |
Non-transfer of Option
|
10 |
Termination of Service
|
10.1 |
General Rule
|
10.1.1 |
any part of the Option that has not vested as at the date of cessation will lapse immediately on that date; and
|
10.1.2 |
any part of the Option that has vested as at the date of cessation will lapse in full 30 days after the date of cessation to the extent not exercised by such date.
|
10.2 |
Death of Participant
|
10.3 |
Good Leaver
|
10.4 |
In the event of a Termination of Service on account of:
|
10.4.1 |
Health Reasons;
|
10.4.2 |
with respect to Participants who are employees only, redundancy (within the meaning of the Redundancy Payments Acts 1967 to 2014);
|
10.4.3 |
any form of voluntary severance by agreement with the Company;
|
10.4.4 |
the transfer of the undertaking or part-undertaking in which the Participant is employed to a person other than a member of the Group;
|
10.4.5 |
the company by which the Participant is employed ceasing to be under the Control of the Group; or
|
10.4.6 |
any other reasons in the absolute discretion of the Committee where exceptional circumstances have arisen,
|
11 |
Clawback
|
11.1 |
the Company is required to restate its accounts to a material extent; or
|
11.2 |
the Committee becomes aware of any material wrongdoing on the part of the Participant that would have entitled the Company to terminate the Participant's employment in accordance with the Participant's contract of employment
|
12 |
Procedure on Exercise of Options
|
12.1 |
Unless otherwise provided in the Option Agreement, an Option will be exercised by a Participant as follows:
|
12.1.1 |
The Participant will give notice in writing to the Company (in such form as the Committee may require from time to time) setting out the number of Shares over which the Participant wishes to exercise the Option and delivering such
further details as the Committee may require to the Company. No exercise will be permitted without (i) the prior consent of the Committee and (ii) unless the Committee is satisfied at the relevant time that the Option is exercisable and
(if then applicable) that such exercise would not breach any applicable laws or regulations, including but not limited to any code regarding the regulation of dealings in shares in the Company by employees or directors.
|
12.1.2 |
The Participant will make payment to the Company of the Exercise Price and any taxation in accordance with clause 15 as is applicable, at the same time as notification of exercise, by way of:
|
(a) |
delivery to the Company of cash in lawful currency or a bankers’ draft in favour of the Company for the appropriate amount;
|
(b) |
delivery to the Company (on a form prescribed by the Committee) of an irrevocable direction approved by the Committee to sell the Shares and to deliver all or part of the sales proceeds to the Company in payment of all or such portion
of the Exercise Price and, if directed any Taxation as is applicable; or
|
(c) |
payment by such other means as is consistent with applicable laws and regulations and agreed between the Company and the Participant.
|
12.2 |
Subject to the Company receiving any regulatory or other consent which is necessary to enable it to allot the Shares pursuant to the exercise of the Option and subject to the terms of any such consent, as soon as practicable after the
notice exercising the Option has been received by the Company, the Committee on behalf of the Company will allot to the Participant the Shares in respect of which the notice has taken effect.
|
12.3 |
Shares allotted and issued in satisfaction of the exercise of the Option will rank pari passu in all respects with the other shares of the same class in issue at the date of the allotment, except for any restriction or any rights
determined by reference to a date before the date of allotment and will be subject to all relevant provisions of the constitution of the Company and the provisions of the Companies Act 2014.
|
12.4 |
Shares transferred in satisfaction of the exercise of the Option will be transferred free of any lien, charge or other security interest, and with all rights attaching to them, other than any restriction or rights determined by
reference to a date before the date of transfer.
|
12.5 |
If the Shares are listed or traded on a Stock Exchange, the Company will apply to the appropriate body for any newly issued Shares allotted on exercise of the Option to be listed or admitted to trading on that exchange. For the
avoidance of doubt, all certificates for Shares and/or other securities delivered under the Plan pursuant to the exercise of Options shall be subject to such stop transfer orders and other restrictions as the Committee may deem advisable
under the Plan or the rules, regulations and other requirements of the Securities and Exchange Commission, any Stock Exchange upon which such Shares or other securities are then listed or traded, and any applicable securities laws, and
the Committee may cause a legend or legends to be put on any such certificates to make appropriate reference to such restrictions.
|
13 |
Lapse of Options
|
13.1 |
An Option will lapse and be forfeited on the occurrence of the earliest of the following:
|
13.1.1 |
the eighth anniversary of the Date of Grant; or
|
13.1.2 |
the expiry of the Performance Period without the Performance Conditions having been satisfied or the date on which it becomes apparent that any such condition has become incapable of being satisfied; or
|
13.1.3 |
subject to Rule 10, the date on which a Termination of Service occurs; or
|
13.1.4 |
the date on which a resolution is passed for the winding up of the Company, or an order is made by any court for the compulsory winding-up of the Company; or
|
13.1.5 |
the date on which the Participant becomes bankrupt or does or attempts or omits to do anything as a result of which he is deprived of the beneficial ownership of the Shares.
|
13.2 |
Where a Participant is temporarily absent from his normal occupation with a member of the Group due to illness, vacation or other unpaid leave of absence, provided he returns to his normal occupation with a member of the Group within
the agreed period an Option held by such Participant may be adjusted on a pro-rata basis in such proportion as the Committee may determine.
|
14 |
Change in Control of the Company, Reconstruction & Winding Up
|
14.1 |
Change in Control
|
14.1.1 |
to accelerate vesting of Options in relation to the whole or a specified portion of the Shares to which such Options relate and within such time or times and subject to any other conditions or limitations as the Committee may at its
discretion determine;
|
14.1.2 |
to agree that outstanding Options will be assumed or substituted by the surviving company or its parent (or the Acquiring Company or its parent where a takeover occurs) for Options which are equivalent to the Options originally granted
under the Plan but which relate to shares in the surviving company or its parent (or the Acquiring Company or its parent where a takeover occurs);
|
14.1.3 |
to arrange for the continuation by the Company of outstanding Options (if the Company is a surviving company or an acquiring company in a takeover);
|
14.1.4 |
to make payment of a cash settlement to Participants equal, per Share, to the amount to be paid for one Share under the agreement of merger or takeover terms; or
|
14.1.5 |
to otherwise vary the outstanding Options on such conditions as the Committee may decide,
|
14.2 |
Re-organisation
|
14.2.1 |
the new award will vest in the same manner as the Option;
|
14.2.2 |
the total market value of the new shares subject to the new award will, immediately after such reorganisation, be equal to the total market value of the Shares comprised in the Option immediately prior to such reorganisation;
|
14.2.3 |
the new award will be subject to performance conditions that will be at least equivalent (as determined by the Committee) to the Performance Conditions, if any, attaching to the Option;
|
14.2.4 |
the new shares will, at the date of any resolution by the Committee under this Rule 14.2, have the same rights attaching thereto as the Shares in the Company; and
|
14.2.5 |
the new award will be deemed to have been granted as at the Date of Grant of the Option.
|
14.3 |
Reconstruction and Winding-Up
|
14.3.1 |
any proposal for the reorganisation of the capital of the Company or for the reconstruction or amalgamation of the Company involving a material change in the nature of the Shares comprised in any Option (and for the purposes of this
sub-rule the determination by the Committee of a material change in the nature of Shares in any particular case will be final and conclusive and will be communicated to each Participant in writing); or
|
14.3.2 |
the Company passing a resolution for its winding-up or an order being made for the compulsory winding-up of the Company (the passing of which resolution or the making of which order will be communicated by the Committee to each
Participant in writing);
|
15 |
Tax Indemnity
|
15.1 |
The Participant will indemnify the Company (and, where relevant, any member of the Group) against any tax and social security contributions (or their equivalent in any jurisdiction) arising in respect of the Option which is a liability
of the Participant but for which the Company or relevant member of the Group is required to account to a tax authority under the laws of any relevant territory. The Company may, to the extent permitted by law, recover the tax and social
security from the Participant in such manner as the Committee think fit including (but without prejudice to the generality of the foregoing):
|
15.1.1 |
withholding Shares when the Option is exercised and selling same;
|
15.1.2 |
deducting the necessary amount from the Participant’s remuneration; or
|
15.1.3 |
requiring the Participant to account directly to the Company or relevant tax authority for such tax and social security.
|
15.2 |
The Company will not be required to transfer any Shares to the Participant under the Plan until such obligations are satisfied.
|
16 |
Adjustments in the Event of Capitalisation and Rights Issues etc.
|
16.1 |
In the event of any alteration or re-organisation whatsoever taking place in the capital structure of the Company whether by way of capitalisation of profits or reserves, capital distribution, rights issue, consolidation or
sub-division of Shares, the conversion of one class of share to another or reduction of capital or otherwise, the Committee may adjust any one or more of the following in such manner as is in the opinion of the Committee fair and
reasonable:
|
16.1.1 |
the number of Shares subject to the Plan;
|
16.1.2 |
the definition of Share;
|
16.1.3 |
where the Option has been granted but no Shares have been delivered pursuant thereto, the number of Shares which may be delivered;
|
16.1.4 |
the Exercise Price per Share PROVIDED THAT this amount will not be reduced to less than the par value of a Share.
|
16.2 |
In the event of any alteration to the subject matter of an Option pursuant to the provisions of this Rule 16 the original Option Agreement will remain valid except to the extent modified by the alteration. The Grantor may issue revised
Option Agreements or take whichever action it deems appropriate.
|
17 |
Alterations
|
17.1 |
Except to the extent prohibited by applicable law and unless otherwise expressly provided in a Option Agreement, the Committee may at any time and from time to time by resolution and without further formality alter, amend or revoke any
provisions of the Plan in such manner as the Committee may consider necessary or desirable (including any retrospective, prospective or coincident alteration, amendment or revocation) PROVIDED THAT that no alteration, amendment or
revocation shall be made without (i) shareholder approval, if such approval is required by applicable law or the rules of the Stock Exchange, if any, on which the Shares are principally listed or traded or (ii) the consent of the affected
Participant, if such action would materially adversely affect the rights of such Participant under any outstanding Option, except to the extent any such alteration, amendment or revocation is made to cause the Plan to comply with
applicable law, Stock Exchange rules and regulations or accounting or tax rules and regulations, or to impose any clawback provisions on any Options in accordance with Rule 11.
|
17.2 |
The Committee may establish sub-plans in order to comply with, take advantage of or otherwise in connection with any taxation, legal, regulatory or other rule, law, guidelines, regulations or other provision of or prevailing in any
jurisdiction in which the Plan is or is intended to be operated.
|
18 |
Share Capital
|
19 |
Termination
|
19.1.1 |
The Plan may be terminated at any time by ordinary resolution of the Company or by resolution of the Board and will in any event terminate on the tenth anniversary of the Adoption Date.
|
19.1.2 |
As from the date of any termination of the Plan under Rule 19.1 the Company will not grant any further Options but no such termination will affect or modify any subsisting rights or obligations of the Participants in respect of any
Options already granted and notwithstanding such termination the Company will continue to act, administer and manage the Plan in accordance with its terms.
|
20 |
Notices
|
20.1 |
Notices to a Participant
|
20.2 |
Notices from a Participant
|
21 |
General
|
21.1 |
In the event of any dispute or disagreement as to the interpretation of the Plan, or as to any question or right arising from or related to the Plan, the decision of the Committee will be final and binding upon all persons.
|
21.2 |
Subject thereto the Committee’s decision on any matter relating to the interpretation of the Plan and any other matter concerning the Plan will be final and binding.
|
21.3 |
The Company will bear the costs of setting up and administering the Plan.
|
21.4 |
Neither the Plan nor any action taken thereunder will be construed as giving any Eligible Person a right to be retained in the employment or service of the Group. No Eligible Person or Participant will be entitled to any compensation
or damages whatsoever or howsoever described, by reason of any termination, withdrawal or alteration of rights or expectations under the Plan whether such compensation is claimed by way of damages for wrongful dismissal or other breach of
contract or by way of compensation for loss of office or otherwise howsoever.
|
21.5 |
Any stamp duty chargeable on any instrument of the transfer entered into pursuant to each Option will be borne by the Company, or where relevant, any member of the Group in respect of Participants employed by it.
|
21.6 |
The Company will maintain all necessary books of account and records relating to the Plan.
|
21.7 |
The Committee will be entitled to authorise any person to execute on behalf of a Participant, at the request of the Participant, any document relating to the Plan, insofar as such document is required to be executed pursuant thereto.
|
21.8 |
The Participant will be responsible for obtaining any governmental or other official consent that may be required by any country or jurisdiction in order to permit the grant, vesting or exercise (as the case may be) of Options to or by
him. The Company will not be responsible for any failure by the Participant to obtain any such consent or for any tax or other liability to which the Participant may become subject as a result of Options made hereunder.
|
21.9 |
The Plan will be governed by and construed and interpreted in accordance with Irish law and the Company and Participants agree to submit to the non-exclusive jurisdiction of the Courts of Ireland in relation to any claim, dispute or
difference which may arise hereunder.
|