Source - RNS
RNS Number : 2252J
KKR European Credit Inv Funds Plc
07 September 2016
 

 

5 September 2016

This document is important and requires your immediate attention.  If you are in any doubt as to the action you should take you should seek advice from your investment consultant, tax adviser and/or legal adviser as appropriate.

If you have sold or transferred all of your shares in KKR European Credit Investment Funds plc (the "Company"), please pass this document at once to the purchaser or transferee or to the stockbroker, bank or other agent through whom the sale or transfer was effected for transmission to the purchaser or transferee as soon as possible.

Unless otherwise defined herein, all capitalised terms used herein shall bear the same meaning as capitalised terms used in the prospectus for the Company dated 21 July 2014, as may be amended or supplemented from time to time (the "Prospectus"). A copy of the Prospectus is available upon request during normal business hours from the Company.

The Directors of the Company accept responsibility for the accuracy of the information contained in this document.  To the best of the knowledge and belief of the Directors (who have taken all reasonable care to ensure that such is the case) the information contained in this document is in accordance with the facts and does not omit anything likely to affect the import of such information.

Please note that the Central Bank has not reviewed this letter.

Dear Shareholder,

RE:      Approval of various amendments to the Company's Memorandum and Articles of Association

 

INTRODUCTION

The Company is authorised by the Central Bank as an open-ended investment company with variable capital incorporated under the laws of Ireland as a public limited company pursuant to the Companies Act 2014 and as a qualifying investor alternative investment fund. The Company is organised as an umbrella fund with segregated liability between sub-funds (each a "Fund").

 

The purpose of this letter is to seek your approval to a number of non-material amendments to the Company's memorandum and articles of association. These proposed changes are to be considered pursuant to a special resolution as an item of special business at the forthcoming annual general meeting ("AGM") to be held on 29 September 2016.

 

AMENDMENTS TO THE MEMORANDUM AND ARTICLES OF ASSOCIATION

The Companies Act 2014 (the "2014 Act") became effective on 1 June 2015. As a result, many provisions of the existing company legislation in Ireland were altered. The principal purpose of the special resolution is to make certain amendments to the memorandum and articles of association of the Company to ensure that these changes to Irish company law will not have an unintended effect on the memorandum and articles of association by altering how the provisions in the memorandum and articles of association are to be applied.

Some additional housekeeping changes are also proposed to the articles of association as the AGM presents an opportunity to consider making additional changes to bring the document up to date with current Irish requirements and to take account of the structure of sub-funds that may be added to the umbrella. The various proposed changes are described below.

 

1.             Companies Act 2014

The 2014 Act adopts a new approach in regard to the articles of association of Irish companies. Instead of making provisions for a model set of articles of association as was done with Table A in the Companies Act 1963, the 2014 Act now contains specific sections which apply to all companies unless the articles of association specifically exclude them. As these provisions deal with matters which are already specified in the Company's existing articles of association, it is necessary to include a new provision in article 1 in order to disapply these optional sections of the 2014 Act. It is proposed to disapply almost all of the optional provisions. A summary of each of the sections that it is proposed to disapply is set out in the Appendix to this letter.

There are also changes to a number of articles to amend the statutory references in order to ensure that they are consistent with the corresponding provisions in the 2014 Act and to ensure that new expressions or terms used in the 2014 Act are reflected in the articles of association so as to avoid any possible confusion that this could otherwise cause. For example, the changes to article 36 are being proposed to ensure that the article is consistent with section 186 of the 2014 Act which uses different terminology and adds to the list of items constituting the ordinary business of the annual general meeting.

Ability to distribute Shareholder communications electronically

·           It is proposed to amend the articles of association to provide the Company with greater flexibility in the way in which it distributes Shareholder communications. The proposed amendment allows the Company to distribute any notice, financial statements or other document required to be sent to Shareholders by email or by the publication of the notice, financial statements or other documents on a website (as well as by post or courier as is currently permitted).

·           This proposed amendment is intended to allow the Company the flexibility to provide the financial statements to Shareholders by email or by posting them on a website. Please note that it is only intended that the website will be used for the publication of the financial statements as the financial statements are typically large documents and it is easier, quicker and also less costly for the Company for these to be provided to Shareholders via the website. The other ways in which notices or other documents are distributed to Shareholders using the post, couriers or email will continue to be used for all notices of general meetings and other Shareholder communications.

·           The consent of a Shareholder will be required in order for any documents to be sent by email or via the website. The proposed amendment to the articles of association provides that this consent shall be deemed to have been satisfied by a Shareholder subscribing for or holding Shares. However, the articles of association also provide that a Shareholder has the ability to revoke this deemed consent at any time by giving 30 days' prior written notice to the Company of the fact that the Shareholder does not want to receive the documents via email or a website. Also, Shareholders will continue to have the right to request a hard copy of the financial statements from the Company at any time and which will be provided free of charge.

Ability to convert to an Irish Collective Asset-management Vehicle

The Irish Collective Asset-management Vehicles Act 2015 came into effect on 12 March 2015 and provides for the establishment of the Irish collective asset-management vehicle ("ICAV"), a new Irish corporate investment fund vehicle. It is proposed to amend the memorandum of association to provide for the ability to convert the structure of the Company from a public limited company to an ICAV, subject to the requirements of the Central Bank and applicable law. The inclusion of this new power is facilitative and is now routinely included in the memorandum of association of Irish funds. It is not currently intended to convert the structure of the Company to an ICAV. In the event that it is proposed to avail of the ability to convert to an ICAV, such conversion would require the prior approval of Shareholders.

Ability to make Capital Calls

It is proposed to amend the articles of association to provide the Company with greater flexibility in how it allows shareholders to invest in the Funds. The proposed amendment will provide that a prospective shareholder can make a capital commitment to purchase a number of Shares (and make related capital contributions), where provided for in the Prospectus or relevant supplement to the Prospectus, and will provide the mechanics surrounding any capital call made by the Company to request payment for the shares acquired in this manner.

The proposed amendments to the Company's memorandum and articles of association will not result in any material changes to the manner in which the Company currently operates. Accordingly, as all of the changes are intended to preserve the status quo, it is not considered necessary to vote separately on each proposed amendment to the memorandum and articles of association.

(C)         NOTICE OF MEETING TO CONSIDER AND VOTE ON THE CHANGES TO THE ARTICLES OF ASSOCIATION

You will find enclosed a notice of the AGM which will be held at 75 St. Stephen's Green, Dublin 2, Ireland on 29 September 2016 at 2.00p.m. (Irish time). At the AGM, Shareholders will be asked to consider the items of ordinary business set out in the notice of AGM.  In addition, Shareholders will be asked to consider, as an item of special business, the special resolution approving the amendments to the Company's memorandum and articles of association described above.

The amendments to the Company's memorandum and articles of association require the approval of the Shareholders by way of a special resolution. This means that at least 75% of votes cast by the Shareholders present and voting in person or by proxy at the AGM must vote in favour of the resolution. A copy of the proposed special resolution can be found in the notice of AGM.

A copy of the Company's revised memorandum and articles of association blacklined to show the proposed amendments is enclosed with this letter and will be available for inspection at the offices of Arthur Cox, Earlsfort Centre, Earlsfort Terrace, Dublin 2, Ireland from the date of dispatch of this letter until the close of business on the Business Day in Ireland before the AGM and will also be available for inspection at the place of the AGM for at least 15 minutes prior to and during the meeting.  The revised memorandum and articles of association of the Company may be subject to change to reflect any additional amendments required by the Central Bank or otherwise and a final version of the memorandum and articles of association of the Company will be presented to the shareholders at the AGM.

 

Subject to Shareholder approval at the AGM, the proposed amendments to the Company's memorandum and articles of association will take effect from the date of the meeting.

 

(D)       PROXY FORMS

The form of proxy accompanying the notice of AGM enclosed with this letter should be completed and returned in accordance with the instructions thereon so as to be received by post by Deutsche International Corporate Services (Ireland) Limited, Pinnacle II Eastpoint Business Park, 3 Dublin, Ireland or by fax to +353 1 680 6051 or by email to [email protected] marked for the attention of Deutsche Bank Transfer Agency Team, as soon as possible and in any event, not later than 2:00 p.m. (Irish time) on 27 September 2016.  Completion and return of a form of proxy will not preclude a Shareholder from attending and voting in person at the AGM.

 

(A)       REDEMPTION OF SHARES

Shareholders who do not wish to remain invested in the Company following the implementation of the changes (if the resolution is passed) have, subject to the terms of the Prospectus and the relevant Supplement, the opportunity to redeem their Shares on a Dealing Day by sending a completed redemption form to the Administrator, Deutsche International Corporate Services (Ireland) Limited, by the relevant Dealing Deadline.

 

(B)       CONCLUSION

The Directors of the Company consider that the proposed changes to the Company's memorandum and articles of association are in the best interests of the Shareholders as a whole and recommend that you vote in favour of the proposals.  Should you have any questions relating to these matters, you should contact the Company or the Administrator, Deutsche International Corporate Services (Ireland) Limited, or alternatively you should contact your investment consultant, tax adviser and/or legal adviser as appropriate.

Yours faithfully,

 

 

_______________________ 

Director

For and on behalf of

KKR European Credit Investment Funds plc

 

 

 

APPENDIX

 

Explanation of Companies Act 2014 Amendments to the Memorandum and Articles of Association

·           Companies Act 2014 Provision

·           Clause / Article in the Memorandum and Articles of Association

·           Subject Matter

·           Explanation of Proposed Amendment / Reason for Disapplication

·           N/A

·           Articles 1, 35-55 and Appendix 1(1)

·           "Preliminary", "Proceedings at General Meetings" "Definitions".

·           References to sections in existing Irish company law to be updated to refer to the corresponding provisions in the 2014 Act. 

·           Section 65

·           N/A

·           Power to convert shares in the Company to stock.

·           This is not applicable for an investment company such as the Company and has been disapplied.

·           Sections 77 to 81

·           N/A

·           The making of calls in respect of unpaid amounts due on shares issued by the Company.

·           This is not applicable for an investment company such as the Company and has been disapplied.

·           Section 83(1)

·           N/A

·           The variation of capital.

·           This is not applicable for an investment company such as the Company and has been disapplied.

·           Section 94(8)

·           N/A

·           The transfer of shares without prejudice to the Stock Transfer Act 1963.

·           This is not applicable for an investment company such as the Company and has been disapplied.

·           Section 95(1)

·           Article 19

·           Directors' discretion to decline to register a transfer of shares.

·           This section has been disapplied because this matter is already dealt with in Article 19.

·           Section 96(2) to (11)

·           Articles 26-28

·           The transmission of shares in the Company.

·           This section has been disapplied because this matter is already dealt with in Articles 26-28.

·           Section 124

·           Articles 87-93

·           The declaration and payment of dividends by the Company.

·           This section has been disapplied because this matter is already dealt with in Articles 87-93.

·           Section 125

·           Articles 87-93

·           The manner of payment of dividends by the Company. 

·           This section has been disapplied because this matter is already dealt with in Articles 87-93.

·           Section 126

·           N/A

·           The issue of bonus shares by the Company. 

·           This is not applicable for an investment company such as the Company and has been disapplied.

·           Sections 144(3) and 144(4)

·           Articles 68-71

·           The appointment of directors. 

·           These sections have been disapplied because this matter is already dealt with in Articles 68-71.

·           Section 148(2)

·           Articles 72-73

·           How the office of a director may be vacated early. 

·           This section has been disapplied because this matter is already dealt with in Articles 72-73.

·           Section 158(3)

·           Article 66

·           Borrowing powers of the Directors.

·           This section has been disapplied as otherwise it would make a material alteration to the borrowing powers of the Directors which are already set out in Article 66.

·           Sections 160 to 165

·           Articles 61, 63 and 76-82

·           The establishment of board committees, matters relating to board procedure and the appointment of alternate directors.

·           These sections have been disapplied because these matters are already dealt with in Articles 61, 63 and 76-82.

·           Section 161(8)

·           Article 75.6

·           The exercise of voting powers in any other company held or owned by the Company.

·           A new Article 75.6 has been included in order to ensure consistency with this section.

·           Section 178(2)

·           Article 33

·           The right to convene an extraordinary general meeting

·           This section has been disapplied as otherwise it would make a material alteration to the right to convene an extraordinary general meeting which is already set out in Article 33.

·           Section 181(6)

·           Article 34.4

·           The accidental omission to give notice of a meeting to any person.

·           This section has been disapplied because this matter is already dealt with in Article 34.4.

·           Section 182(2)

·           Article 35

·           The quorum at general meetings.

·           This section has been disapplied because this matter is already dealt with in Article 35

·           Section 182(5)

·           Article 39

·           The adjournment of general meetings.

·           This section has been disapplied because this matter is already dealt with in Article 39

·           Section 186(c)

·           Article 36

·           The items of business at annual general meetings.

·           This section has been disapplied because this matter is already dealt with in Article 36. Article 36 has been amended to ensure that it is consistent with Section 186 of the 2014 Act.

·           Section 187

·           Articles 35-55

·           The conduct of the meetings of the Company.

·           This section has been disapplied because this matter is already dealt with in Articles 35-55.

·           Section 188

·           Articles 35-55

·           Voting at the meetings of the Company. 

·           This section has been disapplied because this matter is already dealt with in Articles 35-55.

·           Section 218(3), (4) and (5)

·           Articles 95-96

·           The service of notice on members of a company. 

·           These sections have been disapplied because detailed provision in this regard is made in respect of the Company in Articles 95-96.

·           Section 228(1)(d)

·           Article 64

·           The use of company property by directors. 

·           This is an entirely new restriction and Article 64 has therefore been inserted in order to ensure that directors can use company property subject to such conditions as may be approved by the Board.

·           Sections 228(1)(e)

·           Article 75.3

·           Directors' interests.

·           These sections have been disapplied because these matters are already dealt with in Article 75.3.

·           Section 229, 230 and 1113

·           Article 74

·           The interests of directors. 

·           These sections have been disapplied because these matters are already dealt with in Article 74.

·           Sections 281 to 286

·           Article 94

·           Maintenance of accounting records.

·           Article 94 has been amended in order to take account of the new requirements regarding the maintenance of accounting records set out in these sections.

·           Sections 338(5), 338(6) and 339(7)

·           Article 94.5

·           The delivery of the financial statements via the website of the Company. 

·           These sections have been disapplied because this matter is already dealt with in Article 94.5.

·           Section 618(1)(b)

·           Article 97

·           The distribution of property on a winding up of the Company. 

·           This section has been disapplied because this matter is already dealt with in Article 97.

·           Section 620(8)

·           Article 90

·           Unclaimed dividends.

·           This section has been disapplied because this matter is already dealt with in Article 90.

·           Section 1090

·           N/A

·           The rotation of directors. 

·           This is not applicable for an investment company such as the Company and has been disapplied.

·           Section 1092

·           Articles 58 - 59

·           The remuneration of the directors.

·           This section has been disapplied because this matter is already dealt with in Articles 58-59.

·           Section 1392

·           Clause 2 Memorandum of Association

·           Objects clause.

·           Minor amendments to update the statutory references in this clause to be consistent with the requirements of the 2014 Act.

·           Section 1093

·           Article 44

·           Shareholder written resolution.

·           This section has been disapplied because this matter is already dealt with in Article 44.

 



 

COMPANIES ACTS , 1963 TO 20134

 

A PUBLIC COMPANY LIMITED BY SHARES

 

AN INVESTMENT COMPANY WITH VARIABLE CAPITAL

 

AN UMBRELLA FUND WITH SEGREGATED LIABILITY BETWEEN SUB-FUNDS

 

 

 

 

MEMORANDUM AND ARTICLES OF ASSOCIATION

CONSTITUTION

 

OF

 

KKR EUROPEAN CREDIT INVESTMENT FUNDS

PUBLIC LIMITED COMPANY

 

(As adopted by special resolution dated 259 JuneSeptember 20146)

 

 

  

_______________________________________

 

Incorporated

_______________________________________

 

 

Arthur Cox

Earlsfort Centre

Earlsfort Terrace

Dublin 2

 

 



 

COMPANIES ACTS , 1963 TO 20134

 

A PUBLIC COMPANY LIMITED BY SHARES

 

AN INVESTMENT COMPANY WITH VARIABLE CAPITAL

 

AN UMBRELLA FUND WITH SEGREGATED LIABILITY BETWEEN SUB FUNDS

 

 

 

MEMORANDUM OF ASSOCIATION

 

OF

 

KKR EUROPEAN CREDIT INVESTMENT FUNDS

PUBLIC LIMITED COMPANY

 

(As adopted by special resolution dated 259 JuneSeptember 20146)

_________________________________________________________________________________________

 

 

1.         The name of the Company is KKR European Credit Investment Funds Public Limited Company.

 

2.         The Company is a public limited company being registered under Part 24 of the Companies Act  2014 as an investment company with variable capital and having as its sole object the collective investment of its funds in property with the aim of spreading investment risk and giving members of the Company the benefit of the results of the management of its funds.

 

3.         The powers of the Company to attain the said object are:

 

3.1        To carry on business as an investment company and to acquire, originate, dispose of, invest in and hold by way of investment, shares, stocks, securities, bonds, obligations, certificates of deposit, treasury bills, trade bills, bank acceptances, bills of exchange, fixed rate securities, variable or floating rate securities, securities in respect of which the return and/or redemption amount is calculated by reference to any index, price or rate, loans, life settlements, life policies and interests therein, monetary and financial instruments of all kinds, futures contracts, swaps, options contracts, contracts for differences, commodities, forward rate agreements, debentures, debenture stock, warrants, commercial paper, promissory notes, mortgage backed securities, asset backed securities and securities of all kinds created, issued or guaranteed by any government, sovereign, ruler, commissioners, body or authority, supreme, state, municipal, local, supranational or otherwise, in any part of the world, or by any company, bank, association or partnership, whether with limited or unlimited liability constituted or carrying on business or activities in any part of the world, units of or participation in any unit trust scheme, mutual fund or collective investment scheme in any part of the world, policies of insurance and assurance, domestic and foreign currency and any present or future rights and interests to or in any of the foregoing, to subscribe for the same either conditionally or otherwise, to enter into underwriting, stocklending and repurchase and similar contracts with respect thereto, to exercise and enforce all rights and powers conferred by or incidental to the ownership thereof and from time to time to sell, exchange, lend, vary or dispose of and grant and dispose of options over any of the foregoing and to deposit money (or place money on current account) with such persons in such currencies and otherwise on such terms as may seem expedient.

 

3.2        To deposit money, securities and/or property to or with such persons, and on such terms as may seem expedient and to discount, buy and sell bills, notes, warrants, coupons and other negotiable or transferable instruments, securities or documents of whatsoever nature.

 

3.3        Where required for the direct pursuit of the business of the Company, to acquire by purchase, lease, exchange, hire or otherwise lands and real or personal property wheresoever situate of any kind or of any tenure or any interest in the same; to erect and construct houses, buildings or works of every description on any land of the Company, or upon any other lands or property, and to pull down, rebuild, enlarge, alter or improve existing houses, buildings or works thereon and generally to manage deal with and improve the property of the Company; and to sell, lease, let, mortgage or otherwise dispose of the lands, houses, buildings, and other property of the Company.

 

3.4        To carry on business as capitalists and financiers, and to undertake and carry on all kinds of financial, trust, agency, broking, and other operations including underwriting, issuing on commission or otherwise of stocks and securities of all kinds.

 

3.5        To receive monies on loan and to borrow or raise money in any currency and secure or discharge any debt or obligation of or binding on the Company or any subsidiary of the Company in any manner and in particular by the issue of debentures and to secure the repayment of any money borrowed, raised or owing by mortgage, charge or lien against the whole or any part of the Company's property or assets (whether present or future) including uncalled capital and also by a similar mortgage charge or lien to secure or guarantee the performance of any obligation or liability undertaken by the Company or any subsidiary of the Company.

 

3.6        To guarantee the payment of money by or the performance of any contracts, liabilities, obligations, or engagements of any company, firm or person and to grant guarantees and indemnities of every description, and to undertake obligations of every description.

 

3.7        To enter into any arrangements with any government, or authority, supreme, municipal, local or otherwise, and to obtain from any such government or authority any rights, concessions and privileges that may seem conducive to the objects of the Company or any of them.

 

3.8        To employ any person, firm, company or other body to investigate and examine the conditions, prospects, values, character and circumstances of any business concern or undertaking and generally of any assets, concessions, properties or rights.

 

3.9        To take out, acquire, surrender and assign policies of assurance with any insurance company or companies it may think fit payable at fixed or uncertain dates or upon the happening of any contingency whatsoever and to pay the premiums thereon.

 

3.10      To promote and aid in promoting, constitute, form or organise companies, syndicates or partnerships of all kinds for the purpose of acquiring and undertaking any property and liabilities of the Company, or of advancing directly or indirectly the objects thereof, or for any purpose which the Company may think expedient.

 

3.11      To promote and aid in promoting, constitute, form or organise any company or companies, syndicates or partnerships of all kinds in any part of the world and to subscribe for shares therein or other securities thereof for the purpose of carrying on any business which the Company is authorised to carry on or of advancing directly or indirectly the objects thereof, or for any other purpose which may seem directly or indirectly calculated to benefit the Company.

 

3.12      To amalgamate or enter into partnership or into any arrangement for sharing profits, union of interest, joint venture, reciprocal concessions or co-operation with any person or company carrying on, engaged in, or about to carry on or engage in any business or transaction which the company is authorised to carry on or engage in, or any business or transaction capable of being conducted so as directly or indirectly to benefit the Company, and to take or otherwise acquire and hold, sell, re-issue, or otherwise deal with shares or stock in or securities or obligations of, and to subsidise or otherwise assist any such securities or obligations or any dividends upon any such shares or stock.

 

3.13      To apply for, purchase or otherwise acquire any patents, trademarks, copyrights, designs, licences, and like rights, conferring an exclusive or limited right to use, or any secret or other information as to any invention which may seem capable of being used for any of the purposes of the Company or the acquisition of which may seem calculated directly or indirectly to benefit the Company and to use, exercise, develop, sell, mortgage, grant licences in respect of, or otherwise turn to account the rights and information so acquired.

 

3.14      To establish and/or carry on any other business or businesses which may seem to the Company capable of being conveniently carried on in connection with any business which the Company is authorised to carry on, or may seem to the Company calculated directly or indirectly to benefit the Company or to enhance the value of or render profitable any of the Company's properties or rights.

 

3.15      To acquire and carry on all or any part of the business, goodwill or property, and to undertake any liabilities of any person, firm, association or company possessed of property suitable for any of the purposes of the Company, or carrying on or proposing to carry on any business which the Company is authorised to carry on, and as the consideration for the same to pay cash or to issue any fully or partly paid up shares, debentures, or obligations of the Company or undertake all or any of the liabilities of such person, firm association or company.

 

3.16      To create, issue, make, draw, accept and negotiate redeemable debentures or bonds or other obligations, bills of exchange, promissory notes or other negotiable instruments.

 

3.17      To distribute among the members of the Company in specie any assets of the Company or any proceeds of sale or disposal of any assets of the Company.

 

3.18      To sell, let, develop, dispose of or otherwise deal with the undertaking or all or any part of the property real or personal, rights or privileges of the Company upon such terms as the Company may think fit, with power to accept as the consideration, any shares, stocks, debentures, securities or obligations of or interest in any other company.

 

3.19      To establish and support or aid in the establishment and support of associations, institutions and conveniences calculated to benefit any of the employees or ex-employees of the Company or any associated company, or the dependants or connections of such persons, and to grant pensions and allowances and to make payment towards insurance and to subscribe or guarantee money for charitable or benevolent objects or for any exhibition, or for any public general or useful object.

 

3.20      To remunerate any companies, firm or person for services rendered or to be rendered in placing or assisting to place or guaranteeing the placing of any of the shares in the Company's capital or any debentures or other securities of the Company or in or about the promotion of the Company or the conduct of its business and whether by cash payment or by the allotment to him or them of stocks, shares, debentures,  bonds or other securities of the Company, credited as paid up in full in part or otherwise.

 

3.21      To promote any company or companies for the purpose of its or their acquiring all or any of the property, rights and liabilities of the Company, or for any other purpose which may seem directly or indirectly calculated to benefit the Company and to pay all the expenses of or incidental to such promotion.

 

3.22      To pay out of the funds of the Company all expenses which the Company may lawfully pay incidental to the formation, registration and advertising of or raising money for the Company and the issue of its capital or any class thereof, including brokerage and commissions for obtaining applications for or taking, placing or procuring the underwriting of shares, stocks, debentures, bonds or other securities of the Company and any other expenses which the Directors shall consider to be in the nature of preliminary expenses and to amortise such expenses over such period or periods as the Directors may determine.

 

3.23      To pay for any property or rights acquired by the Company either in cash or by the issue of fully paid shares of the Company.

3.24      To change, subject to the requirements of the Central Bank and applicable law, the structure of the Company from a public limited company to an Irish collective asset-management vehicle ("ICAV"), or to such other corporate fund vehicle permitted by the Central  Bank and applicable law from time to time.

 

3.25      3.24 To exercise all or any of the powers aforesaid in any part of the world, and as principals, agents, contractors, trustees or otherwise, and by or through trustees, agents, attorneys or otherwise, and either alone or in conjunction with others.

 

3.26      3.25 To do all such other things as the Company may deem incidental or conducive to the attainment of any of the objects of the Company.

 

3.27      3.26 To procure the Company to be registered or recognised in any part of the world outside Ireland.

 

3.28      3.27 Each of the ancillary powers of the Company (whether enumerated or not) is to be interpreted and exercised as ancillary to the objects of the Company but separate from and ranking equally to any other ancillary power.

 

And it is hereby declared that the word company (except where used in reference to this Company) in this clause shall be deemed to include any partnership or other body of persons, whether incorporated or not incorporated.

 

 

4.         The liability of the members is limited.

 

 

5.         The authorised share capital of the Company is 2 Subscriber Shares of 1 Euro each and 1,000,000,000,000 participating shares of no par value initially designated as unclassified.  The minimum issued share capital of the Company is Euro 2 or its equivalent in any other currency.  The maximum issued share capital of the Company is Euro 1,000,000,000,000 or its equivalent in any other currency.

 



 

WE, the several persons whose names and addresses are subscribed, wish to be formed into a Company, in pursuance of this Memorandum of Association, and we respectively agree to take the number of shares in the capital of the Company set opposite our respective names.

 

_________________________________________________________________________________________

 

Names, Addresses and Descriptions of Subscribers

Number of shares taken by each Subscriber

_________________________________________________________________________________________

 

 

 

Goodbody Subscriber One Limited                                              One

International Financial Services Centre,

North Wall Quay,

Dublin 1.

 

 

 

 

 

Goodbody Subscriber Two Limited                                               One

International Financial Services Centre,

North Wall Quay,

Dublin 1.

 

 

 

 

 

Total                                                                                        Two

 

_________________________________________________________________________________________

 

 

Dated the                      day of               2011

 

 

 

 

Witness to the above signatures:

 

 

Barry Walsh

International Financial Services Centre

North Wall Quay

Dublin 1

 



TABLE OF CONTENTS

 

PRELIMINARY.......................................................................................................................................... 11

1.             INTERPRETATION..................................................................................................................... 11

SHARE CAPITAL, UMBRELLA FUND AND RIGHTS.................................................................................... 12

2.             SHARE CAPITAL....................................................................................................................... 12

3.             UMBRELLA FUND..................................................................................................................... 12

4.             ISSUE OF SHARES................................................................................................................... 12

5.             VARIATION OF RIGHTS............................................................................................................. 13

6.             TRUSTS NOT RECOGNISED...................................................................................................... 13

7.             DISCLOSURE OF INTERESTS................................................................................................... 13

8.             PAYMENT OF COMMISSION..................................................................................................... 14

REPURCHASE AND EXCHANGE OF SHARES............................................................................................ 14

9.             RIGHT OF REPURCHASE.......................................................................................................... 14

10.           RIGHT OF EXCHANGE............................................................................................................... 15

SHARE CERTIFICATES/SHARE WARRANTS............................................................................................. 15

11.           CONFIRMATIONS OF OWNERSHIP/SHARE CERTIFICATES....................................................... 15

12.           BALANCE AND EXCHANGE CERTIFICATES............................................................................... 15

13.           SHARE WARRANTS.................................................................................................................. 15

14.           REPLACEMENT OF SHARE CERTIFICATES AND SHARE WARRANTS....................................... 16

15.           OTHER METHODS OF RECORDING TITLE................................................................................. 16

TRANSFER OF SHARES........................................................................................................................... 16

16.           FORM OF INSTRUMENT OF TRANSFER.................................................................................... 16

17.           EXECUTION OF INSTRUMENT OF TRANSFER............................................................................ 16

18.           PAYMENT OF TAXATION UPON TRANSFER.............................................................................. 16

19.           REFUSAL TO REGISTER TRANSFERS...................................................................................... 16

20.           PROCEDURE ON REFUSAL...................................................................................................... 17

21.           CLOSING OF TRANSFER BOOKS.............................................................................................. 17

22.           REGISTRATION FEES............................................................................................................... 17

23.           RETENTION OF TRANSFER INSTRUMENTS............................................................................... 17

24.           RENUNCIATION OF ALLOTMENT............................................................................................. 178

25.           COMPULSORY TRANSFER OF SHARES................................................................................... 18

TRANSMISSION OF SHARES.................................................................................................................... 18

26.           DEATH OF HOLDER.................................................................................................................. 18

27.           TRANSMISSION ON DEATH OR BANKRUPTCY/MINORS............................................................ 18

28.           RIGHTS BEFORE REGISTRATION.............................................................................................. 18

ALTERATION OF SHARE CAPITAL........................................................................................................... 18

29.           INCREASE OF CAPITAL............................................................................................................ 18

30.           CONSOLIDATION, SUB-DIVISION AND CANCELLATION OF CAPITAL.......................................... 19

GENERAL MEETINGS............................................................................................................................... 19

31.           ANNUAL GENERAL MEETINGS................................................................................................. 19

32.           EXTRAORDINARY GENERAL MEETINGS................................................................................... 19

33.           CONVENING GENERAL MEETINGS........................................................................................... 19

34.           NOTICE OF GENERAL MEETINGS............................................................................................. 19

PROCEEDINGS AT GENERAL MEETINGS.................................................................................................. 20

35.           QUORUM FOR GENERAL MEETINGS........................................................................................ 20

36.           SPECIAL BUSINESS................................................................................................................. 20

37.           CHAIRMAN OF GENERAL MEETINGS........................................................................................ 20

38.           DIRECTORS' AND AUDITORS' RIGHT TO ATTEND GENERAL MEETINGS.................................... 21

39.           ADJOURNMENT OF GENERAL MEETINGS................................................................................ 21

40.           DETERMINATION OF RESOLUTIONS......................................................................................... 21

41.           ENTITLEMENT TO DEMAND POLL............................................................................................. 21

42.           TAKING OF A POLL................................................................................................................... 21

43.           VOTES OF HOLDERS............................................................................................................... 22

44.           WRITTEN RESOLUTIONS.......................................................................................................... 22

45.           CHAIRMAN'S CASTING VOTE.................................................................................................... 22

46.           VOTING BY JOINT HOLDERS..................................................................................................... 22

47.           VOTING BY INCAPACITATED HOLDERS.................................................................................. 223

48.           RESTRICTION OF VOTING RIGHTS............................................................................................ 23

49.           TIME FOR OBJECTION TO VOTING............................................................................................ 23

50.           APPOINTMENT OF PROXY........................................................................................................ 23

51.           BODIES CORPORATE ACTING BY REPRESENTATIVES AT MEETINGS...................................... 24

52.           DEPOSIT OF PROXY INSTRUMENTS......................................................................................... 24

53.           EFFECT OF PROXY INSTRUMENTS........................................................................................... 24

54.           EFFECT OF REVOCATION OF PROXY OR OF AUTHORISATION................................................. 24

55.           CLASS MEETINGS.................................................................................................................. 245

DIRECTORS.............................................................................................................................................. 25

56.           NUMBER OF DIRECTORS......................................................................................................... 25

57.           SHARE QUALIFICATION............................................................................................................ 25

58.           ORDINARY REMUNERATION OF DIRECTORS............................................................................ 25

59.           SPECIAL REMUNERATION OF DIRECTORS............................................................................... 25

60.           EXPENSES OF DIRECTORS...................................................................................................... 25

61.           ALTERNATE DIRECTORS.......................................................................................................... 25

POWERS OF DIRECTORS......................................................................................................................... 26

62.           DIRECTORS' POWERS.............................................................................................................. 26

63.           POWER TO DELEGATE............................................................................................................ 26

64.           POWER TO USE COMPANY PROPERTY................................................................................... 26

645.         APPOINTMENT OF ATTORNEYS/AGENTS/DELEGATES/DEPOSITARY....................................... 26

656.         BORROWING POWERS............................................................................................................ 27

667.         EXECUTION OF NEGOTIABLE INSTRUMENTS.......................................................................... 278

APPOINTMENT AND RETIREMENT OF DIRECTORS................................................................................. 278

678.         NO RETIREMENT BY ROTATION.............................................................................................. 278

689.         ELIGIBILITY FOR APPOINTMENT............................................................................................. 278

6970.      NO RETIREMENT ON ACCOUNT OF AGE.................................................................................. 28

701.         APPOINTMENT OF ADDITIONAL DIRECTORS............................................................................. 28

DISQUALIFICATION AND REMOVAL OF DIRECTORS................................................................................ 28

712.         DISQUALIFICATION OF DIRECTORS.......................................................................................... 28

723.         REMOVAL OF DIRECTORS....................................................................................................... 29

DIRECTORS' INTERESTS.......................................................................................................................... 29

734.         DIRECTORS' INTERESTS........................................................................................................... 29

745.         RESTRICTION ON DIRECTORS' VOTING..................................................................................... 30

PROCEEDINGS OF DIRECTORS.............................................................................................................. 301

756.         CONVENING AND REGULATION OF DIRECTORS' MEETINGS................................................... 301

767.         QUORUM FOR DIRECTORS' MEETINGS.................................................................................... 31

778.         VOTING AT DIRECTORS' MEETINGS.......................................................................................... 31

789.         TELECOMMUNICATION MEETINGS.......................................................................................... 312

7980.      CHAIRMAN OF THE BOARD OF DIRECTORS........................................................................... 312

801.         VALIDITY OF ACTS OF DIRECTORS......................................................................................... 312

812.         DIRECTORS' RESOLUTIONS OR OTHER DOCUMENTS IN WRITING............................................ 32

THE SECRETARY...................................................................................................................................... 32

823.         APPOINTMENT OF SECRETARY............................................................................................... 32

THE SEAL............................................................................................................................................... 323

834.         USE OF SEAL......................................................................................................................... 323

845.         SEAL FOR USE ABROAD........................................................................................................ 323

856.         SIGNATURE OF SEALED INSTRUMENTS................................................................................. 323

DIVIDENDS AND RESERVES..................................................................................................................... 33

867.         DECLARATION OF DIVIDENDS.................................................................................................. 33

878.         ELIGIBILITY FOR DIVIDENDS..................................................................................................... 34

889.         DEDUCTION FROM DIVIDEND................................................................................................... 34

890.         UNCLAIMED DIVIDENDS........................................................................................................... 34

901.         CURRENCY OF DIVIDEND....................................................................................................... 345

912.         PAYMENT OF DIVIDEND......................................................................................................... 345

923.         JOINT HOLDERS..................................................................................................................... 345

ACCOUNTS............................................................................................................................................. 345

93.           ACCOUNTS............................................................................................................................... 34

NOTICES.................................................................................................................................................. 35

94.           NOTICES IN WRITINGACCOUNTS.............................................................................................. 35

NOTICES.................................................................................................................................................. 36

95.           SERVICE OF NOTICES............................................................................................................ 356

96.           SERVICE OF NOTICE ON JOINT HOLDERS................................................................................ 36

976.         SERVICE OF NOTICE ON TRANSFER OR TRANSMISSION OF SHARES................................... 367

98.           SIGNATURE TO NOTICES.......................................................................................................... 37

99.           DEEMED RECEIPT OF NOTICES............................................................................................... 37

WINDING UP............................................................................................................................................ 37

10097.    DISTRIBUTION ON WINDING UP................................................................................................ 37

10198.    DISTRIBUTION IN SPECIE........................................................................................................ 378

MISCELLANEOUS..................................................................................................................................... 38

10299.    MINUTES OF MEETINGS........................................................................................................... 38

1030.      INSPECTION AND SECRECY..................................................................................................... 38

1041.      DESTRUCTION OF RECORDS................................................................................................... 38

1052.      UNTRACED HOLDERS.............................................................................................................. 39

1063.      INDEMNITY............................................................................................................................... 39

1074.      OVERRIDING PROVISIONS....................................................................................................... 40

1085.      SCHEMES OF RECONSTRUCTION OR AMALGAMATION........................................................... 40

1096.      RESTRICTION ON MODIFICATIONS TO MEMORANDUM AND ARTICLES..................................... 40

APPENDIX I.............................................................................................................................................. 41

DEFINITIONS............................................................................................................................................ 41

1.             DEFINITIONS............................................................................................................................. 41

APPENDIX II............................................................................................................................................. 47

ISSUE OF SHARES.................................................................................................................................. 47

2.             TERMS AND CONDITIONS OF ISSUE OF SHARES..................................................................... 47

3.             SUBSCRIPTION PRICE............................................................................................................ 498

4.             ALLOTMENT OF SHARES FOR NON CASH CONSIDERATION.................................................... 49

5.             PRELIMINARY CHARGE............................................................................................................ 50

6.             NO SHARES ALLOTTED WHEN CALCULATION OF NET ASSET VALUE SUSPENDED................ 50

7.             ISSUE OF FRACTIONS OF SHARES.......................................................................................... 50

8.             MINIMUM INITIAL INVESTMENT AMOUNT................................................................................... 50

9.             CAPITAL CALLS........................................................................................................................ 50

10.           DEFAULT PROVISIONS............................................................................................................. 51

FUNDS.................................................................................................................................................... 502

911.         FUNDS.................................................................................................................................... 512

102.         FUND EXCHANGES................................................................................................................. 523

113.         TERMINATION OF FUNDS........................................................................................................ 535

RIGHT OF REPURCHASE........................................................................................................................ 556

124.         HOLDERS' RIGHT TO REQUEST A REPURCHASE OF SHARES................................................ 556

135.         REPURCHASE MECHANISM................................................................................................... 556

146.         REPURCHASE PRICE OF SHARES......................................................................................... 568

157.         LIMITATIONS ON REPURCHASE/EXCHANGE OF SHARES....................................................... 579

168.         NO SHARES REPURCHASED WHEN CALCULATION OF NET ASSET VALUE SUSPENDED.... 5961

DETERMINATION OF NET ASSET VALUE............................................................................................ 5961

179.         DETERMINATION OF NET ASSET VALUE............................................................................... 5961

1820.      SUSPENSION OF DETERMINATION OF NET ASSET VALUE/POSTPONEMENT OF A DEALING DAY   5961

219.         NOTIFICATION OF SUSPENSION TO COMPETENT AUTHORITY, STOCK EXCHANGES AND HOLDERS           602

COMPULSORY REPURCHASE OR TRANSFER OF SHARES................................................................... 602

202.         COMPULSORY REPURCHASE OR TRANSFER OF SHARES.................................................... 602

INVESTMENT OF ASSETS..................................................................................................................... 624

213.         INVESTMENT OF ASSETS OF THE COMPANY........................................................................ 624

DEPOSITARY.......................................................................................................................................... 634

224.         APPOINTMENT OF DEPOSITARY............................................................................................ 634

235.         APPOINTMENT OF SUB-CUSTODIANS..................................................................................... 635

246.         REMUNERATION OF DEPOSITARY.......................................................................................... 635

257.         RETIREMENT OR REPLACEMENT OF DEPOSITARY................................................................ 635

EQUALISATION PAYMENTS................................................................................................................... 645

268.         EQUALISATION PAYMENTS.................................................................................................... 645

DEALINGS IN SHARES........................................................................................................................... 646

279.         DEALINGS IN SHARES............................................................................................................ 646

APPENDIX III.......................................................................................................................................... 667

2830.      DETERMINATION OF NET ASSET VALUE................................................................................ 667

 

 



 

COMPANIES ACTS , 1963 TO 20134

 

A PUBLIC COMPANY LIMITED BY SHARES

 

AN INVESTMENT COMPANY WITH VARIABLE CAPITAL

 

AN UMBRELLA FUND WITH SEGREGATED LIABILITY BETWEEN SUB FUNDS

 

 

 

ARTICLES OF ASSOCIATION

 

OF

 

KKR EUROPEAN CREDIT INVESTMENT FUNDS

PUBLIC LIMITED COMPANY

 

(As adopted by special resolution dated 259 JuneSeptember 20146)

_________________________________________________________________________________________

 

 

PRELIMINARY

 

1.         INTERPRETATION

 

1.1 The regulations contained in Table A in the First Schedule to the Companies Act, 1963 shall not apply to the Company.

 

1.1        Sections 65, 77 to 81, 83(1), 94(8), 95(1), 96(2) to (11), 144(3), 144(4), 148(2), 158(3), 160 to 165, 178(2), 181(6), 182(2), 182(5), 186(c), 187, 188, 218(3),(4),(5), 228(1)(e), 229, 230, 281-286, 338(5), 338(6), 339(7), 618(1)(b), 620(8), 1090, 1092, 1093 and 1113 of the Act shall not apply to the Company.

 

1.2        Expressions in these Articles referring to writing shall be construed, unless the contrary intention appears, as including references to printing, lithography, photography and any other modes of representing or reproducing words in a visible form.  Expressions in these Articles referring to execution of any document shall include any mode of execution whether under seal or under hand.

 

1.3        Unless specifically defined herein or in Appendix I or unless the context otherwise requires, words or expressions contained in these Articles shall bear the same meaning as in the Companies Acts but excluding any statutory modification thereof not in force when these Articles become binding on the Company.

 

1.4        The table of contents, headings and captions included in these Articles are inserted for convenience of reference only and shall not be considered a part of or affect the construction or interpretation of these Articles.

 

1.5        References in these Articles to any enactment or any section or provision thereof shall mean such enactment, section or provision as the same may be amended and may be from time to time and for the time being in force.

 

1.6        In these Articles the masculine gender shall include the feminine and neuter, and vice versa, and the singular number shall include the plural, and vice versa, and words importing persons shall include firms or companies.  The words includes and including mean includes and including without limiting the generality of the preceding words.

 

1.7        References in these Articles to writing shall be construed, unless the contrary intention appears, as including references to printing, lithography, photography and any other modes of representing or reproducing words in a visible form provided, however, that it shall not include writing in electronic form except as provided in these Articles and/or where it constitutes writing in electronic form sent to the Company, the Company has agreed to its receipt in such form.  Expressions in these Articles referring to execution of any document shall include any mode of execution under seal or under hand or any mode of Electronic Signature as shall be approved by the Directors.  Expressions in these Articles referring to receipt of any Electronic Communication shall, unless the contrary intention appears, be limited to receipt in such manner as the Company has agreed to.

 

1.8        References in these Articles to Euro are to the currency, for the time being, of Ireland and references to US$ shall mean the currency, for the time being, of the United States.  References to the foregoing currencies shall include any successor currency.

 

 

SHARE CAPITAL, UMBRELLA FUND AND RIGHTS

 

 

2.         SHARE CAPITAL

 

The authorised share capital of the Company is 2 Subscriber Shares of 1 Euro each and 1,000,000,000,000 shares of no par value initially designated as unclassified participating shares.  The minimum issued share capital of the Company is Euro 2 or its equivalent in another currency and the maximum issued share capital of the Company is Euro 1,000,000,000,000 or its equivalent in any other currency.

 

 

3.         UMBRELLA FUND

 

The Company is an umbrella fund comprising separate portfolios of assets and liabilities attributable thereto referred herein as Fund(s) as further described in clause 911 of Appendix II by reference to which shares are issued.

 

 

4.         ISSUE OF SHARES

 

4.1        Shares may be issued as fully paid or partly paid and shall have no par value.

 

4.2        The amount of the paid up share capital of the Company shall at all times be equal to the Net Asset Value of the Company.

 

4.3        The Directors may from time to time issue fractions of shares.  Notwithstanding anything contained in the Articles the holder of a fraction of a share may not exercise any voting rights in respect of such share.

 

4.4        Subscriber Shares shall only be issued at par value.

 

4.5        The Directors may issue any of the unclassified shares as participating shares in a Fund with such rights or restrictions as the Directors may determine.  The Directors may establish open ended, closed ended and limited liquidity Funds with the prior approval of the Competent Authority.  The Directors may issue more than one class of shares which participate in a Fund.  The provisions contained in clauses 2 to 810 of Appendix II shall govern the terms and conditions relating to the issue of shares.

 

4.6        The Directors, on the allotment and issue of any shares, may impose restrictions on the transferability or disposal of the shares as may be considered by the Directors to be in the best interests of the Holders as a whole.

 

4.7        The Directors may in their absolute discretion refuse to accept any application for shares in the Company or accept any application in whole or in part.

 

4.8        The Directors are generally and unconditionally authorised to exercise all powers of the Company to issue and allot relevant securitiesshares, including fractions thereof, (as defined for the purposes of Section 20 of the 1983 Act) up to an amount equal to the authorised but as yet unissued share capital of the Company.

 

4.9        Subscriber Shares issued for the sole purpose of incorporating the Company may be transferred to investors who apply for shares during the relevant Initial Offer Period and prior to the expiration of such Initial Offer Period may be re-designated as participating shares.

 

4.10      Notwithstanding any other Article in these Articles of Association, in accordance with the requirements of the Competent Authority, and where provided for in the relevant Supplement, the Directors may issue shares in a Fund in series (which may be issued at a set amount per share and redeemed at their own net asset value per share) for the purposes of the separate calculation of performance fees (or equivalent) and reference to class or classes in these Articles of Association will be construed accordingly including, without limitation, as regards subscriptions, redemptions and distributions.  Such series may be consolidated or converted into other series of shares in the same fund or provided for in the Prospectus or the relevant Supplement.

 

4.11      Some members may obtain preferential treatment from time to time. The AIFM will seek to ensure the fair treatment of members by adhering to the requirements of these Articles, the Prospectus and any policies and procedures adopted by the Company or the AIFM in relation to the fair treatment of members. The preferential treatment may apply to any type of member (including members who have legal or economic links with the Company or the AIFM) and may relate to fees, information rights, redemption rights or other matters.  Information on the preferential treatment shall be made available to investors in the Prospectus or on request or by any other means in accordance with the requirements of the AIFMD Regulations.

 

5.         VARIATION OF RIGHTS

 

5.1        Whenever the share capital is divided into different classes of shares, the rights attached to any class may be varied or abrogated with the consent in writing of the Holders of three-fourths in number of the issued shares of that class, or with the sanction of a special resolution passed at a separate general meeting of the Holders of the shares of the class, and may be so varied or abrogated either whilst the Company is a going concern or during or in contemplation of a winding-up.  The quorum at any such separate general meeting, other than an adjourned meeting, shall be two persons present in person or by proxy and the quorum at an adjourned meeting shall be one person holding shares of the class in question or his proxy.

 

5.2        The rights conferred upon the Holders of the shares of any class issued with preferred or other rights shall not, unless otherwise expressly provided by these Articles or the terms of the issue of the shares of that class, be deemed to be varied by the creation or issue of further shares ranking pari passu therewith or subordinate thereto.

 

 

6.         TRUSTS NOT RECOGNISED

 

Except as required by law, no person shall be recognised by the Company as holding any share upon any trust, and the Company shall not be bound by or be compelled in any way to recognise (even when having notice thereof) any equitable, contingent, future or partial interest in any share or any interest in any fractional part of a share or (except only as by these Articles or by law otherwise provided) any other rights in respect of any share except an absolute right to the entirety thereof in the Holder.  This shall not preclude the Company from requiring the Holders or a transferee of shares to furnish the Company with information as to the beneficial ownership of any share when such information is reasonably required by the Company.

 

 

7.         DISCLOSURE OF INTERESTS

 

7.1        Notwithstanding the provisions of the immediately preceding Article, the Directors, at any time and from time to time if, in their absolute discretion, they consider it to be in the interests of the Company to do so, may give a notice to the Holder or Holders of any share (or any of them) requiring such Holder or Holders to notify the Company in writing within such period as may be specified in such notice (which shall not be less than twenty-eight days from the date of service of such notice) of full and accurate particulars of all or any of the following matters, namely:

 

7.1.1     his interest in such share;

 

7.1.2     if his interest in the share does not consist of the entire beneficial interest in it, the interests of all persons having any beneficial interest in the share (provided that one joint Holder of a share shall not be obliged to give particulars of interests of persons in the share which arise only through another joint Holder); and

 

7.1.3     any arrangement (whether legally binding or not) entered into by him or any person having any beneficial interest in the share whereby it has been agreed or undertaken or the Holder of such share can be required to transfer the share or any interest therein to any person (other than a joint Holder of the share) or to act in relation to any meeting of the Company or of any class of shares of the Company in a particular way or in accordance with the wishes or directions of any other person (other than a person who is a joint Holder of such share).

 

7.2        If, pursuant to any notice given under paragraph 7.1, the person stated to own any beneficial interest in a share or the person in favour of whom any Holder (or other person having any beneficial interest in the share) has entered into any arrangements referred to in sub-paragraph 7.1.3, is a body corporate, trust, society or any other legal entity or association of individuals and/or entities, the Directors, at any time and from time to time if, in their absolute discretion, they consider it to be in the best interests of the Company to do so, may give a notice to the Holder or Holders of such share (or any of them) requiring such Holder or Holders to notify the Company in writing within such period as may be specified in such notice (which shall not be less than twenty-eight days from the date of service of such notice) of full and accurate particulars of the name and addresses of the individuals who control (whether directly or indirectly and through any number of vehicles, entities or arrangements) the beneficial ownership of all the shares, interests, units or other measure of ownership of such body corporate, trust, society or other entity or association wherever the same shall be incorporated, registered or domiciled or wherever such individuals shall reside provided that if at any stage of such chain of ownership the beneficial interest in any share shall be established to the satisfaction of the Directors to be in the ownership of any body corporate any of whose share capital is listed or dealt in on any bona fide stock exchange, unlisted securities market or over-the-counter securities market, it shall not be necessary to disclose details of the individuals ultimately controlling the beneficial interests in the shares of such body corporate.

 

7.3        The Directors, if they think fit, may give notices under paragraphs 7.1 and 7.2 at the same time on the basis that the notice given pursuant to paragraph 7.2 shall be contingent upon disclosure of certain facts pursuant to a notice given pursuant to paragraph 7.1.

 

7.4        The Directors may require (before or after the receipt of any written particulars under this Article) any such particulars to be verified by statutory declaration.

 

7.5        The Directors may serve any notice pursuant to the terms of this Article irrespective of whether or not the Holder 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 Article 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 Holder concerned or any other joint Holder of the share or by any person to whom a notice may be given at any time.

 

7.6        For the purpose of establishing whether or not the terms of any notice served under this Article shall have been complied with the decision of the Directors in this regard shall be final and conclusive and shall bind all persons interested.

 

 

8.         PAYMENT OF COMMISSION

 

The Company may exercise the powers of paying commissions conferred by the Companies Acts.  Subject to the provisions of the Companies Acts and these Articles, any such commission may be satisfied by the payment of cash or by the allotment of fully paid shares or partly in one way and partly in the other.  On any issue of shares the Company may also pay such brokerage as may be lawful.

 

 

REPURCHASE AND EXCHANGE OF SHARES

 

 

9.         RIGHT OF REPURCHASE

 

As the Company is an investment company which may establish open-ended, closed-ended and limited liquidity Funds, Holders who subscribe for shares in open-ended and limited liquidity Funds shall have the right to request the Company to repurchase their shares in accordance with the terms and conditions set out in clauses 124 to 168 of Appendix II.

 

 

10.        RIGHT OF EXCHANGE

 

Holders shall have the right to exchange all or any of their shares in accordance with the terms and conditions set out in clause 102 of Appendix II.

 

 

SHARE CERTIFICATES/SHARE WARRANTS

 

 

11.        CONFIRMATIONS OF OWNERSHIP/SHARE CERTIFICATES

 

11.1      Every Holder shall receive written confirmation of ownership in respect of his holding of shares within such period as the Directors may determine from time to time (as disclosed in the Prospectus) after receipt of payment for the shares in question and the necessary documentation or lodgement of a transfer (or within such other period as the terms of issue shall provide).  The Company shall not be bound to register more than four persons as joint Holders of any share (except in the case of executors or trustees of a deceased member).  Notwithstanding any other provisions of these Articles and unless the Directors determine otherwise no Holder shall be entitled to request or receive a share certificate in respect of shares in the Company.  To be entered on the Register, an applicant or transferee must  apply for or acquire shares to the value of not less than the minimum subscription amount as set out in the Competent Authority's AIF Rulebook, and certify that they are a Qualifying Investor and certify that they are aware of the risks involved in the proposed investment and of the fact that inherent in such investment is the potential to lose all of the sum invested or, in the case of Accredited Employees, certify (to the satisfaction of the Company) that they are availing of an exemption from the minimum subscription requirement and qualifying investor criteria on the basis that they are an Accredited Employee, that they are aware that the Company is normally marketed solely to Qualifying Investors who are subject of a minimum subscription of at least €100,000, that  they are aware of the risk involved in the proposed investment and that they are aware that inherent in such investment is the potential to lose all of the sum invested.

 

11.2      Where issued, every certificate shall be sealed with the Seal in accordance with Articles 814 to 836 and signed by the Depositary, and shall specify the number, class and distinguishing number (if any) of the Shares to which it relates and that such Shares are fully paid.  No certificate will be issued to a stock exchange nominee in respect of whom the Company is not by law required to complete and have ready for delivery a certificate.

 

 

12.        BALANCE AND EXCHANGE CERTIFICATES

 

12.1      Where some only of the shares comprised in a share certificate are repurchased, transferred or exchanged the old certificate shall be cancelled and the new certificate for the balance of such shares shall be issued in lieu without charge.

 

12.2      Any two or more certificates representing shares of any one class held by any Holder at his request may be cancelled and a single new certificate for such shares issued in lieu, without charge unless the Directors otherwise determine.  If any Holder shall surrender for cancellation a share certificate representing shares held by him and request the Company to issue in lieu two or more share certificates representing such shares in such proportions as he may specify, the Directors may comply, if they think fit, with such request.

 

 

13.        SHARE WARRANTS

 

The Directors may issue warrants (hereinafter called share warrants) stating that the bearer is entitled to the shares therein specified, and may provide by coupons or otherwise for the payment of future dividends on the shares included in such warrants.  The Directors may determine and from time to time vary the conditions upon which share warrants shall be issued.  The Directors may also determine and from time to time vary the conditions upon which the bearer of a share warrant shall be entitled to receive notices of and attend and vote at general meetings or to join in requisitioning general meetings and upon which a share warrant may be surrendered and the name of the Holder entered in the Register in respect of the shares therein specified.  Subject to such conditions and to these Articles, the bearer of a share warrant shall be a member of the Company to the fullest extent.  The holder of a share warrant shall hold such warrant subject to the conditions for the time being in force with regard to share warrants whether made before or after the issue of such warrant.  Every share warrant shall be issued under the Seal in accordance with Articles 834 to 86.

 

 

14.        REPLACEMENT OF SHARE CERTIFICATES AND SHARE WARRANTS

 

If a share certificate or share warrant is defaced, worn out, lost, stolen or destroyed, it may be replaced on such terms (if any) as to evidence and indemnity and payment of any exceptional expenses incurred by the Company in investigating evidence or in relation to any indemnity as the Directors may determine but otherwise free of charge, and (in the case of defacement or wearing out) on delivery up of the old certificate or warrant.

 

 

15.        OTHER METHODS OF RECORDING TITLE

 

Nothing in these Articles shall preclude title to any shares of the Company being recorded other than in writing in accordance with such arrangements as may from time to time be permitted by the Companies Acts and approved by the Directors.

 

 

TRANSFER OF SHARES

 

 

16.        FORM OF INSTRUMENT OF TRANSFER

 

Subject to such of the restrictions of these Articles and to such of the conditions of issue as may be applicable, the shares of any Holder may be transferred by instrument in writing in any usual or common form or any other form which the Directors may approve.

 

 

17.        EXECUTION OF INSTRUMENT OF TRANSFER

 

The instrument of transfer of any share shall be executed by or on behalf of the transferor.  The transferor shall be deemed to remain the Holder of the share until the name of the transferee is entered in the Register in respect thereof.

 

 

18.        PAYMENT OF TAXATION UPON TRANSFER

 

The Directors may repurchase and cancel a sufficient portion of the transferor's Shares to discharge any taxation payable to a tax authority in respect of a transfer of Shares by a Holder in respect of which the Company is required to account for, deduct or withhold taxation.

 

 

19.        REFUSAL TO REGISTER TRANSFERS

 

19.1      The Directors in their absolute discretion and without assigning any reason therefor may decline to register:

 

19.1.1   any transfer of a share to a person who is not a Permitted Investor;

 

19.1.2   any transfer to or by a minor or person of unsound mind;

 

19.1.3   any transfer unless the transferee of such shares would following such transfer be the holder of shares with a value at the then current Subscription Price equal to or greater than the Minimum Initial Investment Amount;

 

19.1.4   any transfer in circumstances where as a result of such transfer the transferor or transferee would hold less than the Minimum Shareholding;

 

19.1.5   any transfer by the investment manager or its nominees of any Subscriber Shares;

 

19.1.6   any transfer in regard to which any payment of taxation remains outstanding;

 

19.1.7   any transfer to a person who does not provide all necessary anti-money laundering documentation or clear such anti-money laundering checks as the Directors or their delegate may determine;

 

19.1.8   any transfer where the transferee has failed to provide the Company or its agent with any documentation reasonably required by the Company or its agent;

 

19.1.9   any transfer to a person or entity who breached or falsified representations on subscription documents; or

 

19.1.10 any transfer unless the transferee has provided the Company with a certificate to the effect that he is a Qualifying Investor (or Accredited Employee as the case may be), that he is aware of the risks involved in the proposed investment and of the fact that inherent in such investment is the potential to lose all of the sum involved

 

19.2      The Directors may decline to recognise any instrument of transfer unless:

 

19.2.1   the instrument of transfer is accompanied by the certificate for the shares to which it relates (if issued) and such other evidence as the Directors may reasonably require to show the right of the transferor to make the transfer (save where the transferor is a Sstock Eexchange Nnominee);

 

19.2.2   the instrument of transfer is in respect of one class of share only;

 

19.2.3   the instrument of transfer is in favour of not more than four transferees; and

 

19.2.4   the instrument of transfer is lodged at the Office or at such other place as the Directors may appoint.

 

 

20.        PROCEDURE ON REFUSAL

 

            If the Directors refuse to register a transfer then, within two months after the date on which the transfer was lodged with the Company, they shall send to the transferee notice of the refusal.

 

 

21.        CLOSING OF TRANSFER BOOKS

 

The registration of transfers of shares or of transfers of any class of shares may be deferred at such times and for such periods (not exceeding thirty days in each year) as the Directors may determine.

 

 

22.        REGISTRATION FEES

 

A fee may be charged in respect of any transfer or for the registration of any instrument of transfer or other document relating to or affecting the title to any share.

 

 

23.        RETENTION OF TRANSFER INSTRUMENTS

 

The Company shall be entitled to retain any instrument of transfer which is registered, but any instrument of transfer which the Directors refuse to register shall be returned to the person lodging it when notice of the refusal is given.

 

 

 

 

24.        RENUNCIATION OF ALLOTMENT

 

Nothing in these Articles shall preclude the Directors from recognising a renunciation of the allotment of any shares by the allottee in favour of some other person provided such other person is a Permitted Investor.

 

 

25.        COMPULSORY TRANSFER OF SHARES

 

The Directors shall have the power to arrange for the compulsory transfer of shares acquired by or on behalf of a person who is not a Permitted Investor or who has failed to furnish the Directors such evidence and/or undertakings to be furnished to them as they may require for the purpose of any restrictions imposed for compliance with any anti-money laundering provisions applicable to the Company in accordance with the provisions set out in clause 202 of Appendix II.

 

 

TRANSMISSION OF SHARES

 

 

26.        DEATH OF HOLDER

 

If a Holder dies the survivor or survivors where he was a joint Holder, and his personal representatives where he was a sole Holder or the only survivor of joint Holders, shall be the only persons recognised by the Company as having any title to his interest in the shares; but nothing herein contained shall release the estate of a deceased Holder from any liability in respect of any share which had been jointly held by him.

 

 

27.        TRANSMISSION ON DEATH OR BANKRUPTCY/MINORS

 

Any guardian of an infant Holder and any curator or other legal representative of a Holder under legal disability and any person entitled to a share in consequence of the death or bankruptcy of a Holder may elect, upon such evidence being produced as the Directors may properly require, either to become the Holder of the share or to make such transfer thereof as the deceased or bankrupt Holder or Holder under a disability could have made.  If he elects to become the Holder he shall give notice to the Company to that effect and supply the Company or its agent with whatever documentation and/or information as the Company or its agent reasonably requests.  If he elects to have another person registered he shall execute an instrument of transfer of the share to that person.  All of these Articles relating to the transfer of shares shall apply to the notice or instrument of transfer as if it were an instrument of transfer executed by the Holder and the death or bankruptcy or disability of the Holder had not occurred.

 

 

28.        RIGHTS BEFORE REGISTRATION

 

A person becoming entitled to a share by reason of the death or bankruptcy of a Holder (upon supplying to the Company such evidence as the Directors may reasonably require to show his title to the share) shall have the rights to which he would be entitled if he were the holder of the share, except that, before being registered as the Holder of the share, he shall not be entitled in respect of it to attend or vote at any meeting of the Company or at any separate meeting of the Holders of any class of shares in the Company, so, however, that the Directors, at any time, may give notice requiring any such person to elect either to be registered himself or to transfer the share and, if the notice is not complied with within ninety days, the Directors thereupon may withhold payment of all dividends, bonuses or other moneys payable in respect of the share until the requirements of the notice have been complied with.

 

 

ALTERATION OF SHARE CAPITAL

 

 

29.        INCREASE OF CAPITAL

 

29.1      The Company from time to time by ordinary resolution may increase the share capital by such amount and/or number as the resolution shall prescribe.

 

29.2      Subject to the provisions of the Companies Acts and these Articles, the new shares shall be issued to such persons, upon such terms and conditions and with such rights and privileges annexed thereto as the Directors shall determine.

 

 

30.        CONSOLIDATION, SUB-DIVISION AND CANCELLATION OF CAPITAL

 

30.1      The Company, by ordinary resolution, may:

 

30.1.1   consolidate and divide all or any of its share capital into shares of larger amount;

 

30.1.2   subject to the provisions of the Companies Acts, subdivide its shares, or any of them, into shares of smaller amount or value, (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);

 

30.1.3   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; or

 

30.1.4   redenominate the currency of any class of shares.

 

 

GENERAL MEETINGS

 

 

31.        ANNUAL GENERAL MEETINGS

 

The Company shall hold in each year a general meeting as its annual general meeting in addition to any other meeting in that year and shall specify the meeting as such in the notice calling it.  Not more than fifteen months shall elapse between the date of one annual general meeting and that of the next PROVIDED THAT so long as the Company holds its first annual general meeting within eighteen months of its incorporation it need not hold it in the year of its incorporation or in the following year.  Subsequent annual general meetings shall be held once in each year.

 

 

32.        EXTRAORDINARY GENERAL MEETINGS

 

All general meetings other than annual general meetings shall be called extraordinary general meetings.

 

 

33.        CONVENING GENERAL MEETINGS

 

The Directors may convene general meetings.  Extraordinary general meetings may also be convened on such requisition, or in default may be convened by such requisitionists, and in such manner as may be provided by the Companies Acts.  If at any time there are not within the State sufficient Directors capable of acting to form a quorum, any Director or any two Holders may convene an extraordinary general meeting in the same manner as nearly as possible as that in which general meetings may be convened by the Directors.

 

 

34.        NOTICE OF GENERAL MEETINGS

 

34.1      Subject to the provisions of the Companies Acts allowing a general meeting to be called by shorter notice, an annual general meeting and an extraordinary general meeting called for the passing of a special resolution shall be called by at least twenty-one Clear Days' notice and all other extraordinary general meetings shall be called by at least fourteen Clear Days' notice.

 

34.2      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 Holder entitled to attend and vote is entitled to appoint a proxy to attend, speak and vote in his place and that a proxy need not be a Holder.  Subject to any restrictions imposed on any shares, the notice shall be given to all the Holders and to the Directors, the AIFM and the Auditors.

 

34.3      Any notice, communication or document to be given, served or delivered pursuant to these Articles may be sent with the consent of the member, by means of electronic mail or other means of Electronic Communication approved by the Directors to the address of the member notified to the Company by the member for such purpose (or if not so notified, then to the address of the member last known to the Company) and the giving, service or delivery thereof shall be deemed to have been effected at the expiration of 12 hours after despatch.

 

34.4      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.

 

34.5      Where, by any provision contained in the Companies Acts, extended notice is required of a resolution, the resolution shall not be effective (except where the Directors of the Company have resolved to submit it) unless notice of the intention to move it has been given to the Company not less than twenty-eight days (or such shorter period as the Companies Acts permit) before the meeting at which it is moved, and the Company shall give to the Holders notice of any such resolution as required by and in accordance with the provisions of the Companies Acts.

 

 

PROCEEDINGS AT GENERAL MEETINGS

 

 

35.        QUORUM FOR GENERAL MEETINGS

 

35.1      No business other than the appointment of a chairman shall be transacted at any general meeting unless a quorum of Holders is present at the time when the meeting proceeds to business.  Except as provided in relation to an adjourned meeting, two persons entitled to vote upon the business to be transacted, each being a Holder or a proxy for a Holder or a duly authorised representative of a corporate Holder, shall be a quorum provided that, in the case of a general meeting of a Fund or class, in the event that there is only one Holder in that Fund or class, the quorum shall be one Holder present in person or by proxy at the meeting.

 

35.2      If such a quorum is not present within half an hour from the time appointed for the meeting, or if during a meeting a quorum ceases to be present, the meeting shall stand adjourned to the same day in the next week at the same time and place, or to such other day, time and place as the Directors may determine.  If at the adjourned meeting such a quorum is not present within half an hour from the time appointed for the meeting, the meeting, if convened otherwise than by resolution of the Directors, shall be dissolved, but if the meeting shall have been convened by resolution of the Directors, one person entitled to be counted in a quorum present at the meeting shall be a quorum.

 

 

36.        SPECIAL BUSINESS

 

All business shall be deemed special that is transacted at an extraordinary general meeting.  All and also all business that is transacted at an annual general meeting shall also be deemed special, with the exception of declaring a dividend, the consideration of the accounts, balance sheets andstatutory financial statements and the reports of the Directors and Auditors, the re-appointment of the retiring the report of the Auditors on the financial statements and the report of the Directors, the review by the Holders of the Company's affairs, the election of Directors in the place of those retiring and the appointment or reappointment of the Auditors and the fixing of the remuneration of the Auditors.

 

37.        CHAIRMAN OF GENERAL MEETINGS

 

37.1      The chairman of the bBoard of Directors or, in his absence, the deputy chairman (if any) or, in his absence, some other Director nominated by the Directors shall preside as chairman at every general meeting of the Company.  If at any general meeting none of such persons shall be present within fifteen minutes after the time appointed for the holding of the meeting and willing to act, the Directors present shall elect one of their number to be chairman of the meeting and, if there is only one Director present and willing to act, he shall be chairman.

 

37.2      If at any meeting no Director is willing to act as chairman or if no Director is present within fifteen minutes after the time appointed for holding the meeting, the Holders present (in person or by proxy or by representative) and entitled to vote shall choose one of the Holders (including his proxy or its duly authorised representative) personally present to be chairman of the meeting.

 

 

38.        DIRECTORS' AND AUDITORS' RIGHT TO ATTEND GENERAL MEETINGS

 

A Director shall be entitled, notwithstanding that he is not a Holder, to attend and speak at any general meeting and at any separate meeting of the Holders of any class of shares in the 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.

 

 

39.        ADJOURNMENT OF GENERAL MEETINGS

 

The chairman, with the consent of a meeting at which a quorum is present, may (and if so directed by the meeting, shall) adjourn the meeting from time to time (or sine die) and from place to place, but no business shall be transacted at any adjourned meeting other than business which might properly have been transacted at the meeting had the adjournment not taken place.  Where a meeting is adjourned sine die, the time and place for the adjourned meeting shall be fixed by the Directors.  When a meeting is adjourned for fourteen days or more or sine die, at least seven Clear Days' notice shall be given specifying the time and meeting and the general nature of the business to be transacted.  Save as aforesaid it shall not be necessary to give any notice of an adjourned meeting.

 

 

40.        DETERMINATION OF RESOLUTIONS

 

At any general meeting a resolution put to the vote of the meeting shall be decided on a show of hands unless before, or on the declaration of the result of, the show of hands a poll is duly demanded.  Unless a poll is so demanded a declaration by the chairman that a resolution has been carried or carried unanimously, or by a particular majority, or lost, or not carried by a particular majority and an entry to that effect in the minutes of the meeting shall be conclusive evidence of the fact without proof of the number or proportion of the votes recorded in favour of or against the resolution.  The demand for a poll may be withdrawn before the poll is taken but only with the consent of the chairman, and a demand so withdrawn shall not be taken to have invalidated the result of a show of hands declared before the demand was made.

 

 

41.        ENTITLEMENT TO DEMAND POLL

 

41.1      Subject to the provisions of the Companies Acts, a poll may be demanded:

 

41.1.1   by the chairman of the meeting;

 

41.1.2   by at least two Holders present (in person or by proxy) having the right to vote at the meeting; or

 

41.1.3   by any Holder or Holders present (in person or by proxy) representing not less than one-tenth of the total voting rights of all the Holders having the right to vote at the meeting.

 

 

42.        TAKING OF A POLL

 

42.1      Save as provided in paragraph 42.2 of this Article, a poll shall be taken in such manner as the chairman directs and he may appoint scrutineers (who need not be Holders) 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.

 

42.2      A poll demanded on the election of a chairman 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 chairman 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.  If a poll is demanded before the declaration of the result of a show of hands and the demand is duly withdrawn, the meeting shall continue as if the demand had not been made.

 

42.3      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.

 

 

43.        VOTES OF HOLDERS

 

43.1      Votes may be given either personally or by proxy. Subject to any rights or restrictions for the time being attached to any class or classes of shares:

 

43.1.1   on a show of hands every Holder, who is present in person or by proxy, shall have one vote and the Holder(s) of Subscriber Shares present in person or by proxy shall have one vote in respect of all the Subscriber Shares in issue;

 

43.1.2   on a poll every Holder present in person or by proxy shall have one vote for every share of which he is the Holder and every Holder of a Subscriber Share present in person or by proxy shall have one vote in respect of his holding of Subscriber Shares;

 

43.1.3   on a poll of all the Holders of shares in a Fund, where there is more than one class of shares in existence in that Fund, the voting rights of such Holders may at the discretion of the Directors be adjusted in such manner, determined by the Directors, so as to reflect the most recently calculated price at which the shares of each of the classes in question may be repurchased by the Company;

 

43.1.4   a Holder or Holders who hold a fraction of a share may not exercise any voting rights, whether on a show of hands or on a poll, in respect of such fraction of a share.

 

 

44.        WRITTEN RESOLUTIONS

 

ASubject to Section 193 of the Act, a resolution in writing executed by or on behalf of each Holder who would have been entitled to vote upon it if it had been proposed at a meeting at which he was present shall be as effectual as if it had been passed at a general meeting duly convened and held and may consist of several instruments in thedocuments in like form each executed by or on behalf of one or more Holders.  In the case of a corporation a resolution in writing may be signed on its behalf by a director or the secretary thereof or by its duly appointed attorney or duly authorised representative.  Any such resolution shall be served on the Company.

 

 

45.        CHAIRMAN'S CASTING VOTE

 

Where there is an equality of votes, whether on a show of hands or on a poll, the chairman of the meeting at which the show of hands takes place or at which the poll is demanded shall be entitled to a casting vote in addition to any other vote he may have.

 

 

46.        VOTING BY JOINT HOLDERS

 

Where there are joint Holders of a share, the vote of the senior who tenders a vote, whether in person or by proxy, in respect of such share shall be accepted to the exclusion of the votes of the other joint Holders and for this purpose seniority shall be determined by the order in which the names of the Holders stand in the Register in respect of the share.

 

 

 

 

47.        VOTING BY INCAPACITATED HOLDERS

 

A member of unsound mind, 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, whether on a show of hands or on a poll, by his committee, receiver, guardian or other person appointed by that court and any such committee, receiver, guardian or other person may vote by proxy on a show of hands or on a poll.  Evidence to the satisfaction of the Directors of the authority of the person claiming to exercise the right to vote 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 by such time as the Directors may determine 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.

 

 

48.        RESTRICTION OF VOTING RIGHTS

 

48.1      If at any time the Directors shall determine that a Specified Event (as defined in paragraph 48.5 of this Article) shall have occurred in relation to any share or shares the Directors may serve a notice to such effect on the Holder or Holders thereof.  Upon the service of any such notice (in these Articles referred to as a restriction notice) no Holder or Holders of the share or shares specified in such restriction notice shall be entitled, for so long as such restriction notice shall remain in force, to attend or vote at any general meeting, either personally or by proxy.

 

48.2      A restriction notice shall be cancelled by the Directors as soon as reasonably practicable, but in any event not later than forty-eight hours, after the Holder or Holders concerned shall have remedied the default by virtue of which the Specified Event shall have occurred.  A restriction notice shall automatically cease to have effect in respect of any share transferred upon registration of the relevant transfer provided that a restriction notice shall not cease to have effect in respect of any transfer where no change in the beneficial ownership of the share shall occur and for this purpose it shall be assumed that no such change has occurred where a transfer form in respect of the share is presented for registration having been stamped at a reduced rate of stamp duty by virtue of the transferor or transferee claiming to be entitled to such reduced rate as a result of the transfer being one where no beneficial interest passes.

 

48.3      The Directors shall cause a notation to be made in the Register against the name of any Holder or Holders in respect of whom a restriction notice shall have been served indicating the number of shares specified in such restriction notice and shall cause such notation to be deleted upon cancellation or cesser of such restriction notice.

 

48.4      Any determination of the Directors and any notice served by them pursuant to the provisions of this Article shall be conclusive as against the Holder or Holders of any share and the validity of any notice served by the Directors in pursuance of this Article shall not be questioned by any person.

 

48.5      For the purpose of these Articles the expression Specified Event in relation to any share shall mean the failure by the Holder thereof or any of the Holders thereof to comply, to the satisfaction of the Directors, with all or any of the terms of Article 7 in respect of any notice or notices given to him or any of them thereunder.

 

 

49.        TIME FOR OBJECTION TO VOTING

 

No objection shall be raised to the qualification of any voter except at the meeting or adjourned meeting at which the vote objected to is tendered and every vote not disallowed at such meeting shall be valid.  Any such objection made in due time shall be referred to the chairman of the meeting whose decision shall be final and conclusive.

 

 

50.        APPOINTMENT OF PROXY

 

Every Holder entitled to attend and vote at a general meeting may appoint a proxy to attend, speak and vote on his behalf.  The instrument appointing a proxy shall be in writing in any usual form or in any other form which the Directors may approve and shall be executed by or on behalf of the Holder.  The appointment of a proxy by electronic means shall be effective only in such form as the Directors may approve. The signature on such instrument need not be witnessed.  A body corporate may execute a form of proxy under its common seal or under the hand of a duly authorised officer thereof.  A proxy need not be a Holder. Where the appointment of a proxy and any authority under which it is signed is to be received by the Company in electronic form, it may also be 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.

 

 

51.        BODIES CORPORATE ACTING BY REPRESENTATIVES AT MEETINGS

 

Any body corporate which is a Holder may by resolution of its directors or other governing body authorise such person as it thinks fit to act as its representative at any meeting of the Company or of any class of Holders of the Company and the person so authorised shall be entitled to exercise the same powers on behalf of the body corporate which he represents as that body corporate could exercise if it were an individual Holder.

 

 

52.        DEPOSIT OF PROXY INSTRUMENTS

 

The instrument appointing a proxy and any authority under which it is executed or a copy, certified notarially or in some other way approved by the Directors, shall be deposited at the Office or (at the option of the Holder) 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 or adjourned meeting at such time and in such manner as may be determined by the Directors before the time appointed for the holding of the meeting or adjourned meeting or (in the case of a poll taken otherwise than at or on the same day as the meeting or adjourned meeting) for the taking of the poll at which it is to be used, and in default shall not be treated as valid.  Provided that an instrument of proxy relating to more than one meeting (including any adjournment thereof) having once been so delivered for the purposes of any meeting shall not require to be delivered again for the purposes of any subsequent meeting to which it relates. 

 

 

53.        EFFECT OF PROXY INSTRUMENTS

 

Deposit of an instrument of proxy in respect of a meeting or adjourned meeting shall not preclude a Holder from attending and voting at the meeting or at any adjournment thereof.  The instrument appointing 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.

 

 

54.        EFFECT OF REVOCATION OF PROXY OR OF AUTHORISATION

 

54.1      A vote given or poll demanded in accordance with the terms of an instrument of proxy or a resolution authorising a representative to act on behalf of a body corporate shall be valid notwithstanding the death or insanity of the principal, or the revocation of the instrument of proxy or of the authority under which the instrument of proxy was executed or of the resolution authorising the representative to act or transfer of the share in respect of which the instrument of proxy or the authorisation of the representative to act was given, provided that no intimation in writing of such death, insanity, revocation or transfer shall have been received by the Company at the Office at least one hour before the commencement of the meeting or adjourned meeting at which the instrument of proxy is used or at which the representative acts.

 

54.2      The Directors may send, at the expense of the Company, by post or otherwise, to the Holders instruments of proxy (with or without stamped 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 Holders entitled to be sent a notice of the meeting and to vote thereat by proxy.

 

 

55.        CLASS MEETINGS

 

Save as otherwise provided in these Articles, the provisions of Articles 33 to 54 shall apply mutatis mutandis to class meetings and meetings of Holders of shares in a Fund as they apply to general meetings.

 

 

DIRECTORS

 

 

56.        NUMBER OF DIRECTORS

 

Unless otherwise determined by the Company in general meeting the number of Directors shall not be less than two.

 

 

57.        SHARE QUALIFICATION

 

A Director shall not be required to hold any shares in the Company.

 

 

58.        ORDINARY REMUNERATION OF DIRECTORS

 

Unless and until otherwise determined from time to time by the Company in general meeting, the ordinary remuneration of each Director shall be determined from time to time by resolution of the Directors.

 

 

59.        SPECIAL REMUNERATION OF DIRECTORS

 

Any Director who holds any executive office (including for this purpose the office of chairman or deputy chairman) or who serves on any committee, or who otherwise performs services which in the opinion of the Directors are outside the scope of the ordinary duties of a Director, may be paid such extra remuneration by way of salary, commission or otherwise as the Directors may determine.

 

 

60.        EXPENSES OF DIRECTORS

 

The Directors may be paid all travelling, hotel and other expenses properly incurred by them in connection with their attendance at meetings of Directors or committees established by the Directors or general meetings or separate meetings of the Holders of any class of shares of the Company or otherwise in connection with the discharge of their duties.

 

 

61.        ALTERNATE DIRECTORS

 

61.1      Any Director may appoint by writing under his hand any person (including another Director) to be his alternate.  Any such authority may be sent 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 giving such authority.

 

61.2      An alternate Director shall be entitled to receive notices of all meetings of the Directors and of all meetings of committees established by the 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).

 

61.3      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 remuneration of the Director as shall be agreed between the alternate and the Director appointing him.

 

61.4      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 but is reappointed or deemed to have been re-appointed 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 reappointment.

 

61.5      Any appointment or revocation by a Director under this Article shall be effected by notice in writing given under his hand to the Secretary or deposited at the Office or in any other manner approved by the Directors.

 

 

POWERS OF DIRECTORS

 

 

62.        DIRECTORS' POWERS

 

62.1      Subject to the provisions of the Companies Acts, the Memorandum of Association of the Company and these Articles and to any directions by the Holders given by ordinary resolution, not being inconsistent with these Articles or with the Companies Acts, the business of the Company shall be managed by the Directors who may do all such acts and things and exercise all the powers of the Company as are not by the Companies Acts or by these Articles required to be done or exercised by the Company in general meeting.  Without prejudice to the generality of the foregoing, the Directors may exercise all powers of the Company in relation to the investment of the Assets in accordance with clause 213 of Appendix II.

 

62.2      No alteration of the Memorandum of Association of the Company or of these Articles and no such direction shall invalidate any prior act of the Directors which would have been valid if that alteration had not been made or that direction had not been given.  The powers given by this Article shall not be limited by any special power given to the Directors by these Articles and a meeting of Directors at which a quorum is present may exercise all powers exercisable by the Directors.

 

 

63.        POWER TO DELEGATE

 

Without prejudice to the generality of the last preceding Article, the Directors may delegate any of their powers to any committee whether or not consisting of Directors.  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.

 

 

64.        POWER TO USE COMPANY PROPERTY

 

A Director is expressly permitted (for the purposes of Section 228(1)(d) of the Act) to use the Company's property subject to such conditions as may be approved by the Board or such conditions as may have been approved pursuant to such authority as may be delegated by the Board in accordance with these Articles.

 

65.        64. APPOINTMENT OF ATTORNEYS/AGENTS/DELEGATES/DEPOSITARY

 

65.1      64.1 The Directors, from time to time and at any time by power of attorney under seal or otherwise, may appoint any company, firm or person or fluctuating body of persons, whether nominated directly or indirectly by the Directors, to be the attorney or agent or delegate of the Company for such purposes and with such powers, authorities and discretions (not exceeding those vested in or exercisable by the Directors under these Articles) and for such period and subject to such conditions as they may think fit.  Any such appointment may contain such provisions for the protection of persons dealing with any such appointee as the Directors may think fit, may contain indemnities in favour of any appointee and may authorise any such appointee to sub-delegate all or any of the powers, authorities and discretion vested in him.

 

65.2      64.2 Without prejudice to the generality of the foregoing, the Directors may, with the prior approval of the Competent Authority appoint a person, firm or corporation to act as AIFM of the Company, provided that the Company may determine that it shall be an internally-managed AIF, in which case the Company shall be the AIFM; and in accordance with the requirements of the Competent Authority, the Directors or the AIFM may appoint an investment manager and/or investment adviser, Administrator and/or other similar entity to manage and/or advise on the investment of the Assets and the administration of the Company, on such terms and conditions as the Directors may deem fit.  The remuneration and expenses of such appointees may be charged to the Company.

 

65.3      64.3 The terms of appointment of an AIFM will require that the AIFM make available such information as may be required pursuant to the AIFMD Regulations to be made available to prospective members. The terms of appointment may authorise an AIFM to delegate any of its functions and duties to any person or persons so appointed, provided that such appointment or appointments shall first have been approved by the Company and otherwise be in accordance with the AIFMD Regulations. The Competent Authority may at its discretion have the power to replace the AIFM with another AIFM at any time.

 

65.4      64.4 In the event of the AIFM desiring to retire or being removed from office, the Company shall use its reasonable endeavours to find an entity willing to act as AIFM who must be authorised to act as AIFM and upon so doing the Company shall appoint such entity to be AIFM in place of the former AIFM.

 

65.5      64.5 If within a period of 90 days (or such other reasonable period as may be determined by the Directors) from the date on which the AIFM notifies the Company of its desire to retire, or from the date on which the AIFM ceases to be approved to act as such, no replacement AIFM shall have been appointed and the Company is not capable of acting as an internally-managed AIF, the Directors may resolve to repurchase all of the shares in issue and/or the Secretary, at the request of the Directors, shall forthwith convene an extraordinary general meeting of the Company, at which there shall be proposed a resolution to wind up the Company and if a resolution is passed to wind up the Company in accordance with the Companies Acts, the assets of the Company shall be distributed in accordance with the provisions of Article 10097 hereof.

 

65.6      64.6 The Company, or the AIFM on behalf of the Company, may use the services of a prime broker, the terms of which shall be set out in a written contract. Such contract may provide for the possibility of the transfer and re-use of the assets of the Company.

 

65.7      64.7 Notwithstanding the generality of Article 645.1 above the Directors may appoint an agent for the purposes of exercising their power to allot relevant securities in accordance with the provisions of Article 4.

 

65.8      64.8 Without prejudice to the generality of the foregoing, the Directors shall appoint a Depositary toin respect of all of the Assets (including cash) of the Company in accordance with the provisions of clauses 22-25-27 of Appendix II.

 

65.9      64.9 Any dealings (including, but not limited to, dealing in shares of the Company) by any person referred to in this Article will be subject to such rules and conditions as may be laid down by the Competent Authority from time to time.

 

66.        65. BORROWING POWERS

 

Subject to the Act, the Directors may exercise all the powers of the Company to borrow or raise money (including employing leverage) and to mortgage, charge or transfer its undertaking, property and assets (both present and future), and uncalled capital or any part thereof and to issue debentures, debenture stock and other securities whether outright or as collateral security for any debt, liability or obligation of the Company provided that all such borrowings and any such transfer of assets shall be within the limits laid down by the Competent Authority.

 

 

67.        66. EXECUTION OF NEGOTIABLE INSTRUMENTS

 

All cheques, promissory notes, drafts, bills of exchange and other negotiable instruments and all receipts for moneys paid to the Company shall be signed, drawn, accepted, endorsed or otherwise executed, as the case may be, by such person or persons and in such manner as the Directors shall determine from time to time.

 

 

APPOINTMENT AND RETIREMENT OF DIRECTORS

 

 

68.        67. NO RETIREMENT BY ROTATION

 

No Director will be required to retire by rotation.

 

 

69.        68. ELIGIBILITY FOR APPOINTMENT

 

To be eligible for appointment as a Director at a general meeting of the Company, a person must be recommended by the Directors or, not less than six nor more than thirty Clear Days before the date appointed for the meeting, notice executed by a Holder qualified to vote at the meeting must have been given to the Company of the intention to propose that person for appointment stating the particulars which would be required, if he were so appointed, to be included in the Company's register of Directors together with notice executed by that person of his willingness to be appointed.

 

 

70.        69. NO RETIREMENT ON ACCOUNT OF AGE

 

No Director shall be required to retire on account of age. 

 

 

71.        70. APPOINTMENT OF ADDITIONAL DIRECTORS

 

71.1      70.1 Subject as aforesaid, the Company by ordinary resolution may appoint a person to be a Director either to fill a vacancy or as an additional Director.

 

71.2      70.2 The Directors may appoint a person who is willing to act to be a Director, either to fill a vacancy or as an additional Director, provided that the appointment does not cause the number of Directors to exceed any number as fixed by or in accordance with these Articles as the maximum number of Directors.  Any Director so appointed shall not be required to retire at any subsequent annual general meeting of the Company.

 

71.3      70.3 The continuing Directors may act notwithstanding any vacancy in their body, provided that if the number of the Directors is reduced below two, the remaining Director shall appoint forthwith an additional Director or additional Directors to make up a quorum or shall convene a general meeting of the Company for the purpose of making such appointment or appointments.  If, in such circumstances, there be no Director or Directors able or willing to act then any two Holders may summon a general meeting for the purpose of appointing Directors.  Any additional Director so appointed shall not be required to retire at any subsequent annual general meeting of the Company.

 

 

DISQUALIFICATION AND REMOVAL OF DIRECTORS

 

72.        71. DISQUALIFICATION OF DIRECTORS

 

72.1      71.1 The office of a Director shall be vacated ipso facto if:

 

72.1.1   71.1.1 he ceases to be a Director by virtue of any provision of the Companies Acts or he becomes prohibited by law from being a Director;

 

72.1.2   71.1.2 he becomes bankrupt or makes any arrangement or composition with his creditors generally;

 

72.1.3   71.1.3 in the opinion of a majority of his co-Directors, he becomes incapable by reason of mental disorder of discharging his duties as a Director;

 

72.1.4   71.1.4 he resigns his office by notice in writing to the Company signed by him and delivered to the Office;

 

72.1.5   71.1.5 he is convicted of an indictable offence, unless the Directors otherwise determine;

 

72.1.6   71.1.6 he shall have been absent for more than six consecutive months without permission of the Directors from meetings of the Directors held during that period and his alternate Director (if any) shall not have attended any such meeting in his place during such period, and the Directors pass a resolution that by reason of such absence he has vacated office;

 

72.1.7   71.1.7 he is required in writing by all his co-Directors to resign; or

 

72.1.8   71.1.8 the Competent Authority requires him to resign.

 

 

73.        72. REMOVAL OF DIRECTORS

 

The Company, by ordinary resolution of which extended notice has been given in accordance with the provisions of the Companies Acts, may remove any Director 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.  Nothing in this Article shall be taken as depriving a person removed hereunder of compensation or damages payable to him in respect of the termination of his appointment as Director or of any appointment terminating with that of the Director.

 

 

DIRECTORS' INTERESTS

 

 

74.        73. DIRECTORS' INTERESTS

 

74.1      73.1 Subject to the provisions of the Companies Acts, and provided that he has disclosed to the Directors the nature and extent of any material interest of his, a Director notwithstanding his office:

 

74.1.1   73.1.1 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;

 

74.1.2   73.1.2 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

 

74.1.3   73.1.3 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.

 

74.2      73.2 No Director or intending Director shall be disqualified by his office from contracting with the Company either as vendor, purchaser or otherwise, nor shall any such contract or any contract or arrangement entered into by or on behalf of the other company in which any Director shall be in any way interested be avoided nor shall any Director so contracting or being so interested be liable to account to the Company for any profit realised by any such contract or arrangement by reason of such Director holding that office or of the fiduciary relationship thereby established.  The nature of a Director's interest must be declared by him at the meeting of the Directors at which the question of entering into the contract or arrangement is first taken into consideration, or if the Director was not at the date of that meeting interested in the proposed contract or arrangement at the next meeting of the Directors held after he became so interested, and in a case where the Director becomes interested in a contract or arrangement after it is made, at the first meeting of the Directors held after he becomes so interested.

 

74.3      73.3 A copy of every declaration made and notice given under this Article shall be entered within three days after the making or giving thereof in a book kept for this purpose.  Such book shall be open for inspection without charge by any Director, Secretary, Auditor or Holder 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.

 

74.4      73.4 For the purposes of this Article:

 

74.4.1   73.4.1 a general notice given to the Directors that a Director is to be regarded as having an interest of the nature and extent specified in the notice in any transaction or arrangement in which a specified person or class of persons is interested shall be deemed to be a disclosure that the Director has an interest in any such transaction of the nature and extent so specified; and

 

74.4.2   73.4.2 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.

 

 

75.        74. RESTRICTION ON DIRECTORS' VOTING

 

75.1      74.1 Save as otherwise provided by these Articles, a Director shall not vote at a meeting of the Directors or any committee established by the Directors on any resolution concerning a matter in which he has, directly or indirectly, an interest which is material (other than an interest arising by virtue of his interest in shares or debentures or other securities or otherwise in or through the Company) 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.

 

75.2      74.2 A Director shall be entitled to vote (and be counted in the quorum) in respect of any resolutions concerning any of the following matters, namely:

 

75.2.1   74.2.1 the giving of any security, guarantee or indemnity to him in respect of money lent by him to the Company or any of its subsidiary or associated companies or obligations incurred by him at the request of or for the benefit of the Company or any of its subsidiary or associated companies;

 

75.2.2   74.2.2 the giving of any security, guarantee or indemnity to a third party in respect of a debt or obligation of the Company or any of its subsidiary or associated companies for which he himself has assumed responsibility in whole or in part and whether alone or jointly with others under a guarantee or indemnity or by the giving of security;

 

75.2.3   74.2.3 any proposal concerning any offer of shares or debentures or other securities of or by the Company or any of its subsidiary or associated companies for subscription, purchase or exchange in which offer he is or is to be interested as a participant in the underwriting or sub-underwriting thereof; or

 

75.2.4   74.2.4 any proposal concerning any other company in which he is interested, directly or indirectly and whether as an officer or shareholder or otherwise howsoever.

 

75.3      Nothing in Section 228(1)(e) of the Act shall restrict a Director from entering into any commitment which has been approved by the Board or has been approved pursuant to  such authority as may be delegated by the Board in accordance with these Articles. It shall be the duty of each Director to obtain the prior approval of the Board before entering into any commitment permitted by Sections 228(1)(e)(ii) and 228(2) of the Act.

 

75.4      74.3 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 under sub-paragraph 745.2.4 of this Article) shall be entitled to vote (and be counted in the quorum) in respect of each resolution except that concerning his own appointment.

 

75.5      74.4 If a question arises at a meeting of Directors or of any committee established by the 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.

 

75.6      The Directors may exercise the voting powers conferred by 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 their voting powers in favour of any resolution appointing the Directors or any of them as directors or officers of such other company or providing for the payment of remuneration to the directors or officers of such other company.

 

75.7      74.5 The Company by ordinary resolution may suspend or relax the provisions of this Article to any extent or ratify any transaction not duly authorised by reason of a contravention of this Article.

 

 

PROCEEDINGS OF DIRECTORS

 

 

76.        75. CONVENING AND REGULATION OF DIRECTORS' MEETINGS

 

76.1      75.1 Subject to the provisions of these Articles, the Directors may regulate their proceedings as they think fit. A Director may, and the Secretary at the request of a Director shall, call a meeting of the Directors.  Any Director may waive notice of any meeting and any such waiver may be retrospective.  If the Directors so resolve, it shall not be necessary to give notice of a meeting of Directors to any Director or alternate Director who, being a resident of the State, is for the time being absent from the State.

 

76.2      75.2 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 any other means of communication approved by the Directors to him at his last known address or any other address given by him to the Company for this purpose.

 

 

77.        76. QUORUM FOR DIRECTORS' MEETINGS

 

77.1      76.1 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.  A person who holds office only as an alternate Director shall, if his appointer is not present, be counted in the quorum but notwithstanding that such person may act as alternate Director for more than one Director he shall not count as more than one for the purposes of determining whether a quorum is present.

 

77.2      76.2 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 for calling a general meeting.

 

 

78.        77. VOTING AT DIRECTORS' MEETINGS

 

78.1      77.1 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 have a casting vote.

 

78.2      77.2 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, electronic mail or any other means of communication approved by the Directors and may bear a printed or facsimile signature of the Director giving such authority.  The authority must be delivered to the Secretary for filing prior to or must be produced at the first meeting at which a vote is to be cast pursuant thereto provided that no Director shall be entitled to any vote at a meeting on behalf of another Director pursuant to this paragraph if the other Director shall have appointed an alternate Director and that alternate Director is present at the meeting at which the Director proposes to vote pursuant to this paragraph.

 

 

79.        78. TELECOMMUNICATION MEETINGS

 

All or any of the Directors (or any alternate Directors), or of the members of a committee of the Directors (a Committee) can take part in a meeting of the Directors, or of a Committee as the case may be, by the use of conference telephone, video conferencing or other telecommunications equipment designed to allow all persons participating to hear each other speak (an Electronic Meeting).  A person taking part in this way will be counted as being present at the meeting, and an Electronic Meeting will be considered to be a meeting of Directors, or of a Committee as the case may be, for the purpose of passing resolutions but not for doing any other act or thing which, under specific requirements of the Companies Acts, must be done at a meeting of Directors.  The provisions of these regulations, insofar as they relate to the summoning of meetings of Directors or of Committees, the appointment and powers of a chairman, the transaction of business, alternated, quorum, voting, adjournment and the keeping of minutes, will apply to an Electronic Meeting as if it were a meeting of Directors, or of a Committee as the case may be, at which all those taking part were in the physical presence of each other.

 

 

80.        79. CHAIRMAN OF THE BOARD OF DIRECTORS

 

Subject to any appointment to the office of chairman made pursuant to these Articles, the Directors may elect a chairman of their meetings and determine the period for which he is to hold office, but if no such chairman is elected or if at any meeting the chairman is unwilling to act or is not present within five minutes after the time appointed for holding the same the Directors present may choose one of their number to be chairman of the meeting.

 

 

81.        80. VALIDITY OF ACTS OF DIRECTORS

 

All acts done by any meeting of the Directors or of a committee established by the Directors or by any person acting as a Director, notwithstanding that it be afterwards discovered that there was some defect in the appointment of any such Director or person acting as aforesaid, or that they or any of them were disqualified from holding office or had vacated office, shall be as valid as if every such person had been duly appointed and was qualified and had continued to be a Director and had been entitled to vote.

 

 

82.        81. DIRECTORS' RESOLUTIONS OR OTHER DOCUMENTS IN WRITING

 

A resolution or other document in writing signed by all the Directors entitled to receive notice of a meeting of Directors or of a committee established by the Directors shall be as valid as if it had been passed at a meeting of Directors or (as the case may be) a committee established by the Directors duly convened and held. Such resolution or other document may consist of several documents in the like form each signed by one or more Directors or by one or more persons (which may include Directors) being the members of the committee established by the Directors, and such resolution or other document or documents when duly signed may be delivered or transmitted (unless the Directors or the members of the committee as the case may be shall otherwise determine either generally or in any specific case) by facsimile transmission or some other similar means of transmitting the contents of documents.  A resolution or other documents signed by an alternate Director need not also be signed by his appointor and, if it is signed by a Director who has appointed an alternate Director, it need not be signed by the alternate Director in that capacity.

 

 

THE SECRETARY

 

 

83.        82. APPOINTMENT OF SECRETARY

 

The Secretary shall be appointed by the Directors for such term, at such remuneration and upon such conditions as they may think fit and any Secretary so appointed may be removed by them.  Anything required or authorised by the Companies Acts or these Articles to be done by, or given to, the Secretary may be done by or given to any assistant or acting secretary readily available and capable of acting by or to any officer of the Company authorised generally or specially in that behalf by the Directors, if the office is vacant or there is for any other reason no Secretary readily available and capable of acting Provided that any provision of the Companies Acts or these Articles requiring or authorising a thing to be done by or to a Director and the Secretary shall not be satisfied by its being done by or to the same person acting both as a Director and as, or in the place of, the Secretary.

 

 

THE SEAL

 

 

84.        83. USE OF SEAL

 

The Directors shall ensure that the Seal (including any official securities seal kept pursuant to the Companies Acts) shall be used only by the authority of the Directors or of a committee authorised by the Directors.

 

 

85.        84. SEAL FOR USE ABROAD

 

The Company may exercise the powers conferred by the Companies Acts with regard to having an official seal for use abroad and such powers shall be vested in the Directors.

 

 

86.        85. SIGNATURE OF SEALED INSTRUMENTS

 

Every instrument to which the Seal shall be affixed shall be signed by a Director and shall also be signed by the Secretary or by a second Director or by some other person appointed by the Directors for the purpose (which may include the Depositary) save that as regards any debentures or other securities of the Company the Directors may determine by resolution that such signatures or either of them shall be dispensed with, or be printed thereon or affixed thereto by some method or system of mechanical signature provided that in any such case the document to be sealed shall have been approved for sealing by the Secretary or by the registrar of the Company or by the Auditors or by some other person appointed by the Directors for this purpose in writing (and, for the avoidance of doubt, it is hereby declared that it shall be sufficient for approval to be given and/or evidenced either in such manner (if any) as may be approved by or on behalf of the Directors or by having such documents initialled before sealing or presented for sealing accompanied by a list thereof which has been initialled).

 

 

DIVIDENDS AND RESERVES

 

 

87.        86. DECLARATION OF DIVIDENDS

 

87.1      86.1 The Directors at such times as they think fit may declare such dividends on any class (or series thereof) of shares as appear to the Directors to be justified by the profits of the relevant Fund being:

 

87.1.1   86.1.1 the accumulated net revenue (consisting of all revenue accrued including interest and dividends);

 

87.1.2   86.1.2 realised and unrealised capital gains on the disposal/valuation of Investments and other funds less realised and unrealised accumulated capital losses and expenses of the relevant Fund; and/or

 

87.1.3   86.1.3 the capital of the relevant Fund. 

 

87.2      86.2 The Directors may, satisfy any dividend due to Holders of the shares in whole or in part by distributing to them in specie any of the Assets of the relevant Fund, and in particular any Investments to which the relevant Fund is entitled. A Holder may require the Directors instead of transferring any assets in specie to him, to arrange for a sale of the Assets and for payment to the Holder of the net proceeds of same.

 

87.3      86.3 Shares of any class may at the discretion of the Directors be issued on the basis that any dividends declared in respect of those shares will be reinvested in the subscription of further shares of that class.  In addition, Holders may either when applying for shares or subsequently, request the Directors or their agents in writing to reinvest all dividends to which they are entitled in the subscription of further shares; every such request will remain effective until countermanded in writing or, if earlier, the person making the request ceases to be a Holder.  Further shares will be issued on the date the dividend is declared or, if that is not a Dealing Day, for subscription for shares on the next following Dealing Day at a price calculated in the same way as for other issues of shares of the same class on that Dealing Day but without incurring any initial charge.

 

87.4      86.4 Shares of any class may at the discretion of the Directors be issued on the basis that any dividends declared in respect of those shares will be reinvested and form part of the assets of the relevant Fund and will be applied when calculating the Subscription Price and the Repurchase Price as part of the proportion of the relevant Fund which is attributable to the Holders of that class of shares.

 

87.5      86.5 Shares of any class may at the discretion of the Directors be issued on the basis that no dividends will be declared in respect of those shares and that any profits available for distribution will form part of the assets of the relevant Fund and will be applied when calculating the Subscription Price and the Repurchase Price as part of the proportion of the relevant Fund which is attributable to the Holders of that class of shares.

 

87.6      86.6 Shares of any class in a Fund may at the discretion of the Directors be issued on the condition that any dividends declared in respect of those assets' shares will be paid by the Company into an account in the name of the Depositary for the account of the holders of those shares (the Reinvestment Account). The amount standing to the credit of the Reinvestment Account shall not, unless otherwise determined by the Directors and disclosed in the Prospectus, be an asset of the relevant Fund or the Company. The amount standing to the credit of the Reinvestment Account will be immediately transferred from such account to the account of the relevant Fund.  It is anticipated that the Net Asset Value per share will not change as a result of this reinvestment process because the income will be paid to the external account and reinvested back into the assets of the relevant Fund on the same day and between two pricing points. However, the Directors reserve the right to issue additional shares.

 

87.7      Where a dividend is declared in or around the same time as a Capital Call is made, the Company may offset the amount payable to a Holder as a dividend against the amount to be drawn down and the Holder, at the absolute discretion of the Directors, shall only be required to forward the balancing amount to the relevant Fund to satisfy the Capital Call and such offset amount shall be treated as a dividend for purposes of calculating a Holder's uncalled Capital Commitment and shall be eligible for recall as provided in this Memorandum and Articles of Association and the Prospectus.

 

 

88.        87. ELIGIBILITY FOR DIVIDENDS

 

If any share is issued on terms providing that it shall rank for dividend as from or after a particular date or to a particular extent, such share shall rank for dividend accordingly.

 

 

89.        88. DEDUCTION FROM DIVIDEND

 

89.1      88.1 The Directors may deduct from any dividend or other monies payable to any Holder on or in respect of a share all sums of money (if any) presently payable by him to the Company in relation to the shares of the Company.

 

89.2      88.2 Where the Company is required to deduct, pay, withhold or account for any taxation to a tax authority as a consequence of making any dividend payment to a Holder (whether in cash or otherwise), the Directors may deduct from the payment an amount equal to the taxation attributable to the relevant payment(s) or arrange for the repurchase and cancellation of such number of the Shares of such Holder as are sufficient after the deduction of any repurchase charges to discharge any such tax liability and pay such amount to the taxation authorities.

 

 

90.        89. UNCLAIMED DIVIDENDS

 

All unclaimed dividends on shares may be invested or otherwise made use of by the Directors for the benefit of the relevant Fund until claimed.  No dividend shall bear interest against the Company.  The payment by the Directors of any unclaimed dividend or other monies payable on or in respect of a share into a separate account shall not constitute the Company a trustee in respect thereof and any dividend unclaimed after a period of six years from the date of declaration of such dividend shall be forfeited and shall revert to the relevant Fund.

 

 

91.        90. CURRENCY OF DIVIDEND

 

Any dividend or other monies payable on or in respect of a share shall be expressed and payment shall be made in the currency in which the relevant class of shares is designated or in such other currency as the Directors may determine either generally or in relation to a particular class of shares or in any specific case.

 

 

92.        91. PAYMENT OF DIVIDEND

 

Any dividend or other monies payable on or in respect of a share may be paid by electronic transfer to the account nominated by the Holder or person entitled thereto, and in the case of joint Holders to a bank account nominated by that one whose name stands first on the Register in respect of their joint holding or be paid by cheque or warrant sent through the post to the registered address of the Holder or the person entitled thereto.  Every such payment by cheque or warrant shall be made payable to the order of the person to whom it is sent, and payment of the cheque or warrant shall be a good discharge to the Company and, in the case of payment by telegraphic transfer, every such payment shall be a good discharge to the Company.  Every such transfer or, where applicable, cheque or warrant shall be sent or, as the case may be, made at the risk and cost of the person entitled to the money represented thereby or, as the case may be, payment remitted.

 

 

93.        92. JOINT HOLDERS

 

If several persons are registered as joint holders of any share, any one of them may give effectual receipts for any dividend or other monies payable on or in respect of the share.

 

 

ACCOUNTS

 

 

94.        93. ACCOUNTS

 

94.1      93.1 The Directors shall cause proper books of account to be kept adequate accounting records as are necessary in relationg to: the conduct of its business or as are required by the Act so as to enable the accounts of the Company to be prepared.

 

93.1.1 all sums of money received and expended by the Company and the matters in respect of which the receipt and expenditure takes place; and

93.1.2 all sales and purchases of Investments by the Company; and

93.1.3 the assets and liabilities of the Company.

Proper books shall not be deemed to be kept if there are not kept such books of account as are necessary to give a true and fair view of the state of the Company's affairs and to explain its transactions.

94.2      93.2 The books of accounting records shall be kept at the registered Ooffice, or, subject to the provisionsSection 283 of the Companies Acts, at such other place or places as the Directors shall think fit, and shall at all times be open at all reasonable times to the inspection of the Directors. but no person, other than a Director, the Auditors, or the Competent Authority shall be entitled to inspect the financial statements or accounting records of the Company, except on ten (10) days' notice to the Company and as provided by the Act or the AIF Rulebook or authorised by the Directors or by the Company in general meeting.

 

93.3 In accordance with the provisions of the Companies Acts, the Directors shall cause to be prepared and to be laid before the annual general meeting of the Company from time to time such profit and loss accounts, balance sheets and reports as are required by the Companies Acts to be prepared and laid before such meeting.

94.3      The statutory financial statements of the Company and reports are required by the Act shall be made out as at the end of each financial year of the Company as determined by the Directors from time to time and shall be audited by the Auditors and laid before the Company at its annual general meeting in each year, together with a copy of the Directors' report and the Auditors' report. Such financial statements shall include a balance sheet, a detailed income and expenditure account for the financial year, a report on the activities of the financial year and the other information provided for in the AIF Rulebook as well as any significant information which will enable investors to make an informed judgement on the development of the activities of the Company and its results. The Auditors' report shall be read at the annual general meeting.

 

94.4      Once at least in every year the Directors shall cause to be prepared an Annual Report relating to the management of the Company. The Annual Report shall include the statutory financial statements of the Company duly audited by the Auditors and the Directors' report and the auditors' report as provided for in Article 94.4 and shall be in a form approved by the Competent Authority and shall contain such information required by the Act and the AIF Rulebook. There shall be attached to such Annual Report such additional information and reports as the Competent Authority may specify.

 

94.5      93.4 A copy of every balance sheetthe Annual Report including the statutory financial statements of the Company (including every document required by law to be annexed thereto) which is to be laid before the annual general meeting of the Company together with a copy of the Directors'' report and the Auditors'' report shall be sent by the Company (by post or where a member so elects, by electronic mail or by any other means of Electronic Communication), including by placing a copy of such document on the website of the Company)) to every person entitled under the Act and the AIF Rulebook to receive them and if any of the shares are quoted on any stock exchange, the required number of copies of these documents shall be forwarded at the same time to such stock exchange not less than twenty-onetwenty one Clear Days before the date of the annual general meeting, to every person entitled under the provisions of the Companies Acts to receive them PROVIDED THAT this Article shall not require a copy of these documents to be sent to more than one of the joint Holders of any shares;.  A hard copy of the Annual Report shall be available for inspection upon request at the registered office of the Company.

 

93.5 The Company's financial statements shall be prepared in accordance with International Financial Reporting Standards (IFRS) or such other internationally recognised accounting standards as the Directors may determine.

 

93.6 When prepared, copies of the half yearly report shall be sent to Holders not later than two months from the end of the period to which it relates.

94.6      The Auditors' certificate appended to the Annual Report and statement referred to therein shall declare that the accounts or statement attached respectively thereto (as the case may be) have been examined together with the books and records of the Company in relation thereto and that the Auditors have obtained all the information and explanations they have required and the Auditors shall report whether the accounts are in their opinion properly drawn up in accordance with such books and records and present a true and fair view of the state of affairs of the Company, and whether the accounts are in their opinion properly drawn up in accordance with the provisions hereof.

94.7      93.7 The Company shall provide the Competent Authority with all reports and information to which it is entitled under the Act.

 

93.8 Auditors shall be appointed and their duties regulated in accordance with the Companies Acts.

 

94.8      93.9 The information required by Regulation 24 of the AIFMD Regulations shall be disclosed by way of the Prospectus, a report to members or other means permitted under, and at the frequency required by, AIFMD.

 

 

NOTICES

 

94. NOTICES IN WRITING

Any notice to be given, served or delivered pursuant to these Articles shall be in writing.

95.        SERVICE OF NOTICES

 

95.1      AAny notice or other document required to be given to, delivered, served or delivered inupon or sent to a Holder pursuancet ofto these Articles and/or the applicable law may be given to, served on or delivered, served or sent to any Holder by the Company by any of the following means:-

 

95.1.1   by handing same to him or his authorised agentpersonally;

 

95.1.2 by leaving the same at his registered address;

95.1.2   95.1.3 by sending it through the same by post (by airmail where applicable) in a pre-paid coverletter addressed to him at his registeredthe Holder at the Holder's address as appearing in the Register;

 

95.1.4 where permitted by law, by transmitting the same by facsimile or otherwise electronically;

95.1.3   by sending it by courier to or leaving it at the Holder's address appearing on the Register;

 

95.1.5 by sending it electronically to the address previously identified to the Company or by posting such notice or document on a web-site which is duly notified to the Holders by post or by sending such notice electronically to an address previously identified to the Company; or

95.1.4   subject to such Holder's consent to Electronic Communications, by the Company sending it by email or other electronic means, in each case to an address or number supplied by such Holder;

 

95.1.6 by such other method as may be agreed between the Company and the Holder from time to time.

95.1.5   subject to such Holder's consent to the use of the website, by publication of an electronic record of it on a website and notification of such publication (which shall include the address of the website and the place on the website where the document may be found).

 

95.2 Where a notice or document is given, served or delivered pursuant to sub-paragraph 95.1.1 or 95.1.2 of this Article, the giving, service or delivery thereof shall be deemed to have been effected at the time the same was handed to the Holder or his authorised agent, or left at his registered address (as the case may be).

95.2      Any notice or other document shall be deemed to have been given to, delivered, served upon or sent to any Holder by the Company:-

 

95.2.1   if sent by personal delivery, at the time of delivery;

 

95.2.2   if sent by post, 48 hours after it was put in the post;

 

95.2.3   if sent by courier, 24 hours after sending;

 

95.2.4   if sent by email or other electronic means, 12 hours after sending; or

 

95.2.5   if published as an electronic record on a website, 12 hours after it has been published;

 

95.3 Where a notice or document is given, served or delivered pursuant to sub-paragraph 95.1.3 of this Article, the giving,and in proving such service or delivery thereof shall be deemed to have been effected at the expiration of forty-eight hours after the cover containing it was posted.  In proving service or delivery, it shall be sufficient to prove that such coverthe notice or document was properly addressed, and stamped and postedput in the post or sent by courier, email or by electronic means, or published on a website, as the case may be, in accordance with these Articles.

95.3      95.4 Where a notice or document is given, served or delivered pursuant to sub-paragraph 95.1.4 of this Article, the giving, service or delivery thereof shall be deemed to have been effected at the time of transmission provided in the case of notice sent by facsimile the correct number Any requirement in these Articles for the consent of a Holder with regard to Electronic Communications and the use of a website shall be deemed to have been satisfied where the Holder subscribes for or holds shares in the Company as the Holder is bound by these Articles as if they had been signed by such Holder. The Holder may at any time revoke such consent by requesting the Company to communicate with that Holder in documented form; provided however, that this requirement to communicate in documented form shall not take effect until 30 days after written notice of the requirement is received onby the transmission reportCompany.

 

95.4      In the case of joint Holders of a share, service or delivery of any notice or other document on or to one of the joint Holders shall for all purposes be deemed sufficient service on delivery to all joint holders.

 

95.5      Every legal personal representative, committee, receiver, curator bonis or other legal curator, assignee in bankruptcy or liquidator of a Holder shall be bound by a notice given as aforesaid if sent to the last Any notice or document sent by post to or left at the registered address of sucha Holder or, with the consent of a Holder, sent in electronic form by electronic means or by the use of a website shall, notwithstanding that the Company may have notice of the death, lunacy, bankruptcy, liquidation or disability of such Holder.

95.6 such Holder be then dead or bankrupt and whether or not the Company or the Administrator has notice of his death or bankruptcy, be deemed to have been duly served or sent and such service shall be deemed a sufficient service on receipt Without prejudice to the provisions of sub-paragraphs 95.1.1 and 95.1.2 of this Article, if at any time by reason of the suspension or curtailment of postal services within the State, the Company is unable effectively to convene a general meeting by notice sent through the post, a general meeting may be convened by a notice advertised on the same day in at least one leading national daily newspaper published in the Stateby all persons interested (whether jointly with or as claiming through or under him) in the shares concerned and such notice shall be deemed to have been duly served on all Holders entitled thereto at noon on the day on which the said advertisement or advertisements shall appear.  In any such case the Company shall send confirmatory copies of the notice through the post to those Holders whose registered addresses are outside the State (if or to the extent that in the opinion of the Directors it is practical so to do) or are in areas of the State unaffected by such suspension or curtailment of postal services.  If at least ninety-six hours prior to the time appointed for the holding of the meeting the posting of notices to Holders has become practical in the opinion of the Directors, the Directors shall send forthwith confirmatory copies of the notice by post to such Holders.  The accidental omission to give any such confirmatory copy of a notice of a meeting to, or the non-receipt of any such confirmatory copy by, any person entitled to receive the same shall not invalidate the proceedings at the meeting.received by the Holders twenty four hours after the time of posting or sending by electronic means.

 

95.7 Notwithstanding anything contained in this Article the Company shall not be obliged to take account of or make any investigations as to the existence of any suspension or curtailment of postal services within or in relation to all or any part of any jurisdiction or other area other than the State.

95.6      The Company may establish a scheme whereby electronic means may be used by Holders to appoint a proxy (the "Electric Proxy Scheme"). Any Electronic Proxy Scheme shall require a Holder appointing a proxy to complete a specified electronic form of proxy which shall be either signed by the Holder using an electronic signature or completed using another form of electronic authentication or password in accordance with the requirements of the Electronic Commerce Act, 2000 or any other applicable law or regulation.

 

96.        SERVICE OF NOTICE ON JOINT HOLDERS

A notice may be given by the Company to the joint Holders of a share by giving the notice to the joint Holder whose name stands first in the Register in respect of the share and notice so given shall be sufficient notice to all the joint Holders.

97. SERVICE OF NOTICE ON TRANSFER OR TRANSMISSION OF SHARES

96.1      97.1 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 paragraph shall not apply to any notice served under Article 7 unless, under the provisions of Article 7, it is a notice which continues to have effect notwithstanding the registration of a transfer of the shares to which it relates.

 

97.2 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 Holder by sending or delivering it, in any manner authorised by these Articles for the giving of notice to a Holder, addressed to them at the address, if any, supplied by them for that purpose.  Until such an address has been supplied, a notice may be given in any manner in which it might have been given if the death or bankruptcy had not occurred.

 

 

98. SIGNATURE TO NOTICES

 

The signature to any notice to be given by the Company may be written or printed.

99. DEEMED RECEIPT OF NOTICES

A Holder present, either in person or by proxy, at any meeting of the Company or the Holders of any class of shares in the Company shall be deemed to have received notice of the meeting and, where requisite, of the purposes for which it was called.

WINDING UP

 

 

97.        100. DISTRIBUTION ON WINDING UP

 

97.1      100.1 Subject to the provisions of the Companies Acts, if the Company shall be wound up the liquidator shall apply the assets of each Fund in such manner and order as he thinks fit in satisfaction of creditors' claims relating to that Fund. 

 

97.2      100.2 The assets available for distribution amongst the Holders shall be applied as follows:  first those assets in a Fund attributable to each class (or series of a class) of share shall be distributed to the Holders of shares in the relevant class (or series of a class) in the proportion that the number of shares held by each Holder bears to the total number of shares relating to each such class (or series of a class) of shares in issue as at the date of commencement to wind up and secondly, any balance then remaining and not attributable to any of the classes (or series of classes) of shares shall be apportioned pro-rata as between the classes (or series of classes) of shares based on the Net Asset Value of each class (or series of a class) of shares as at the date of commencement to wind up and the amount so apportioned to a class (or series of a class) shall be distributed to Holders pro-rata to the number of shares in that class (or series of a class) of shares held by them.

 

97.3      100.3 A Fund may be wound up pursuant to Section 256E1407(3) of the Act and in such event the provisions of Articles 10097 and 10198 shall apply mutatis mutandis in respect of that Fund.

 

 

98.        101. DISTRIBUTION IN SPECIE

 

If the Company shall be wound up (whether the liquidation is voluntary, under supervision or by the court) the liquidator may, with the authority of a special resolution of the relevant Holders and any other sanction required by the Companies Acts, divide among the Holders of shares of any class or classes (or series of a class) within a Fund in specie the whole or any part of the Assets of the Company relating to that Fund, and whether or not the assets shall consist of property of a single kind, and may for such purposes set such value as he deems fair upon any one or more class (or series of a class) or classes of property, and may determine how such division shall be carried out as between the Holders of Shares or the Holders of different classes (or series of a class) of shares in a Fund as the case may be.  The liquidator may, with the like authority, vest any part of the Assets in trustees upon such trusts for the benefit of Holders as the liquidator, with the like authority, shall think fit, and the liquidation of the Company may be closed and the Company dissolved, but so that no Holder shall be compelled to accept any Assets in respect of which there is a liability.  A Holder may require the liquidator instead of transferring any assets in specie to it, to arrange for a sale of the assets and for payment to the Holder of the net proceeds of same.

 

 

MISCELLANEOUS

 

 

99.        102. MINUTES OF MEETINGS

 

99.1      102.1 The Directors shall cause minutes to be made of the following matters, namely:

 

99.1.1   102.1.1 of all appointments of officers and committees made by the Directors and of their salary or remuneration;

 

99.1.2   102.1.2 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 established by the Directors; and

 

99.1.3   102.1.3 of all resolutions and proceedings of all meetings of the Company and of the Holders of any class of shares in the Company and of the Directors and of committees established by the Directors.  Any such minute as aforesaid, if purporting to be signed by the chairman of the meeting at which the proceedings were had, or by the chairman of the next succeeding meeting, shall be receivable as prima facie evidence of the matters stated in such minute without any further proof.

 

 

100.      103. INSPECTION AND SECRECY

 

The Directors shall determine from time to time whether and to what extent and at what times and places and under what conditions or regulations the accounts and books and records of the Company or any of them shall be open to the inspection of Holders, not being Directors, and no Holder (not being a Director) shall have any right of inspecting any account or book or record of the Company except as conferred by the Companies Acts or authorised by the Directors or by the Company in general meeting.  No Holder shall be entitled to require discovery of or any information respecting any detail of the Company's trading, or any matter which is or may be in the nature of a trade secret, mystery of trade, or secret process which may relate to the conduct of the business of the Company and which in the opinion of the Directors it would be inexpedient in the interests of the Holders to communicate to the public.

 

 

101.      104. DESTRUCTION OF RECORDS

 

101.1    104.1 The Company shall be entitled to destroy all instruments of transfer which have been registered at any time after the expiration of six years from the date of registration thereof, all notifications of change of address at any time after the expiration of two years from the date of recording thereof and all share certificates and dividend mandates which have been cancelled or ceased to have effect at any time after the expiration of one year from the date of such cancellation or cessation.  It shall be presumed conclusively in favour of the Company that every entry in the Register purporting to have been made on the basis of an instrument of transfer or other document so destroyed was duly and properly made and every instrument duly and properly registered and every share certificate so destroyed was a valid and effective document duly and properly cancelled and every other document hereinbefore mentioned so destroyed was a valid and effective document in accordance with the recorded particulars thereof in the books or records of the Company.  Provided always that:

 

101.1.1 104.1.1 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;

 

101.1.2 104.1.2 nothing herein contained shall be construed as imposing upon the Company any liability in respect of the destruction of any document earlier than as aforesaid or in any other circumstances which would not attach to the Company in the absence of this Article; and

 

101.1.3 104.1.3 references herein to the destruction of any document include references to the disposal thereof in any manner.

 

 

102.      105. UNTRACED HOLDERS

 

102.1    105.1 The Company shall be entitled to sell at the best price reasonably obtainable any share of a Holder or any share to which a person is entitled by transmission if and provided that:

 

102.1.1 105.1.1 for a period of twelve years no cheque or warrant sent by the Company through the post in a pre-paid letter addressed to the Holder or to the person entitled by transmission to the share at his address on the Register or the last known address given by the Holder or the person entitled by transmission to which cheques and warrants are to be sent has been cashed and no communication has been received by the Company from the Holder or the person entitled by transmission (provided that during such twelve year period at least three dividends shall have become payable in respect of such share);

 

102.1.2 105.1.2 at the expiration of the said period of twelve years by advertisement in a national daily newspaper published in the State and in a newspaper circulating in the area in which the address referred to in sub-paragraph 1052.1.1 of this Article is located, the Company has given notice of its intention to sell such share;

 

102.1.3 105.1.3 during the further period of three months after the date of the advertisement and prior to the exercise of the power of sale the Company has not received any communication from the Holder or person entitled by transmission.

 

102.2    105.2 To give effect to any such sale the Company may appoint any person to execute as transferor an instrument of transfer of such share and such instrument of transfer shall be as effective as if it had been executed by the Holder or the person entitled by the transmission to such share.  The transferee shall be entered in the Register as the Holder of the shares comprised in any such transfer and he shall not be bound to see to the application of the purchase moneys nor shall his title to the shares be affected by any irregularity in or invalidity of the proceedings in reference to the sale.

 

102.3    105.3 The Company shall account to the relevant Fund or, if the Fund is no longer in existence, to such other person as the Directors may determine for the net proceeds of such sale.

 

 

103.      106. INDEMNITY

 

103.1    106.1 Subject to the provisions of and insofar as may be permitted by the Companies Acts and the Act, every Director, Secretary and other officer or servant of the Company shall be indemnified by the Company against, and it shall be the duty of the Directors out of the Assets to pay, all costs, losses and expenses which any such officer or servant may incur or become liable to by reason of any contract entered into, or act or thing done by him as such officer or servant or in any way in discharge of his duties, including travelling expenses, and the amount for which such indemnity is provided shall immediately attach as a lien on the property of the Company and have priority as between the Holders over all other claims.

 

103.2    106.2 Subject to the provisions of Section 200 of the Companies Acts, no Director or other officer of the Company shall be liable for the acts, receipts, neglects or defaults of any other Director or officer or for joining in any receipt or other act for conformity or for any loss or expense happening to the Company through the insufficiency or deficiency of title to any property acquired for or on behalf of the Company or for the insufficiency or deficiency of any security in or upon which any of the monies of the Company shall be invested or for any loss or damage arising from the bankruptcy, insolvency or tortious act of any person with whom any monies, securities or effects shall be deposited or any other loss, damage or misfortune whatever which shall happen in the execution of the duties of his office or in relation thereto.

 

103.3    106.3 Where the law of a Third Country requires that certain financial instruments are held in custody by a local entity and there are no local entities that satisfy the requirements specified in Regulation 22(11)(b)(iv)(II) of the AIFMD Regulations, the Depositary may discharge itself of liability provided that the conditions of Regulation 22(14) of the AIFMD Regulations are met.

 

104.      107. OVERRIDING PROVISIONS

 

In the event of there being any conflict between the provisions of these Articles and the Act, provisions of the Act that are mandatory, those mandatory provisions of the  Act shall prevail. 

 

 

105.      108. SCHEMES OF RECONSTRUCTION OR AMALGAMATION

 

105.1    108.1 The Directors shall have the power to reconstruct and amalgamate the Company or any Fund on such terms and conditions as set out in a scheme of reconstruction and amalgamation approved by the Directors and whether or not such reconstruction or amalgamation involves a merger with or transfer of assets to another entity, whether body corporate or otherwise, subject to the following conditions namely:

 

105.1.1 108.1.1 that the reconstruction or amalgamation is carried out in accordance with   the Competent Authority's requirements; and

 

105.1.2 108.1.2 that the Holders of the Company or of the relevant Fund have been circulated with particulars of the scheme in the form approved by the Directors and a special resolution of the Holders of the Company or of the relevant Fund has been passed approving the said scheme.

 

The relevant scheme of reconstruction and amalgamation shall take effect upon such conditions being satisfied or upon such later date as the scheme may provide whereupon the terms of such scheme shall be binding upon all the Holders who shall be bound to give effect thereof and the Directors shall do all such acts and things as may be necessary for the implementation thereof.

 

106.      109. RESTRICTION ON MODIFICATIONS TO MEMORANDUM AND ARTICLES

 

No modification shall be made to the Memorandum or Articles of Association of the Company which would result in the Company ceasing to be authorised under the Act. The approval of the Competent Authority shall be required to any amendment to the Memorandum or Articles of Association.

 

107.      110. CROSS INVESTMENT

 

Subject to the provisions of sSection 2551399 of the Act, the Company may on behalf of a Fund acquire Shares in another Fund.

 



 

APPENDIX I

 

DEFINITIONS

 

1.         DEFINITIONS

 

In these Articles and these Appendices the following expressions shall have the following meanings where the context so permits:

 

Accredited Employee means an individual or entity to whom an exemption is granted from the minimum subscription requirement and qualifying investor criteria, as set out in Chapter 2 of the Competent Authority's AIF Rulebook and the Minimum Initial Investment Amount, subject to the conditions and requirements of the Competent Authority in respect of whom the following conditions shall have been satisfied:

 

(a)                the investor is a company appointed to provide investment management or advisory services to the Company;

(b)                the investor is a Director or is a director or member, as appropriate of the investment manager or other company appointed to provide investment management or advisory service to the Company;

(c)                the investor is an employee of the investment manager or other company appointed to provide investment management or advisory services to the Company and has experience in the provision of investment management services; and

in the case of investment by investors referred to in at (b) and (c) above, who certifies in writing to the Company that:

                    (i) he is availing of the exemption from the minimum subscription requirement of €100,000 on the basis that he is a "Knowledgeable Investor" as defined above;

(ii) he is aware that the Company is usually marketed to Qualifying Investors who are normally subject to a minimum subscription requirement of €100,000;

(iii) he is aware of the risk involved in the proposed investment; and

(iv) he is aware that inherent in such investment is the potential to lose all of the sum invested;

and provided further that the Company is satisfied that the investor satisfies the conditions at (ii) and (iii) above;

 

Act means Part XIII of the Companies Act, 1990 (as amended) as the same may be further amended, supplemented or re-enacted from time to time and includes any regulations made thereunder by ministerial order and any conditions that may be imposed from time to time thereunder by the Competent Authority whether by notice or otherwise affecting the Company;2014 and every statutory modification and re-enactment thereof for the time being in force and all statutes and statutory instruments which are to be read as one with, or construed or read together with or as one with, the Act and every statutory modification and re-enactment thereof for the time being in force;

 

address includes any number or address used for the purposes of communication by way of electronic mail or other Electronic Communications;

 

Administrator means any corporation appointed and for the time being acting as the administrator of the Assets of the Company in accordance with the AIF Rulebook and also, as appropriate, acting as the Company's registrar and transfer agent;

 

AIF means an alternative investment fund within the meaning of AIFMD;

 

AIFM means an alternative investment fund manager within the meaning of AIFMD;

 

AIFMD means Directive 2011/61/EU of the European Parliament and of the Council of 8 June 2011 on Alternative Investment Fund Managers and amending Directives 2003/41/EC and 2009/65/EC and Regulations (EC) No 1060/2009 and (EU) No 1095/2010;

 

AIF Rulebook means the AIF Rulebook issued by the Competent Authority, as amended, added to or replaced from time to time;

 

AIFMD Regulations means the European Union (Alternative Investment Fund Managers) Regulations 2013, as amended from time to time;

 

1983 Act means the Companies (Amendment) Act, 1983;

Annual Report means a report prepared in accordance with Article 94 hereof;

 

Appendix or Appendices means the Appendix or Appendices which is/are attached to and form(s) part of the Articles;

 

Articles means the Articles of Association and the Appendices appended thereto as amended from time to time and for the time being in force;

 

Assets mean all of the assets including the Investments for the time being of the Company and any Fund acquired in accordance with the provisions of clause 213 of Appendix II;

 

Auditors means the auditors for the time being of the Company;

 

Base Currency means the base currency of the Company or a Fund, as may be specified in the Prospectus;

 

Board means the board of directors of the Company including any committee of the Board;

 

Business Day means any day on which banks are generally open for business in such jurisdictions and/or cities or such other days as the Directors may determine in relation to each Fund;

 

Capital Call means any capital call made by the Company to request payment for shares pursuant to a Capital Commitment;

 

Capital Commitment means an amount committed to the Company by a Holder as set forth in the application form or subscription agreement to which such Holder has completed or an equivalent form or agreement;

 

Clear Days means in relation to the period of a notice, that period excluding the day when the notice is given or deemed to be given and the day for which it is given or on which it is to take effect;

 

Companies Acts means the Companies Acts 1963 to 2005 and Parts 2 and 3 of the Investment Funds, Companies and Miscellaneous Provisions Act 2006, the Companies (Amendment) Act 2009, the Companies (Miscellaneous Provisions) Act 2009, and the Companies (Amendment) Act 2012 and the Companies (Miscellaneous Provisions) Act 2013, all enactments which are to be read as one with, or construed or read together as one with, the Companies Acts and every modification, extension or re-enactment thereof for the time being in force, including any regulations issued pursuant thereto, insofar as they apply to investment companies with variable capital;

Company means the company whose name appears in the heading to the Articles;

 

Competent Authority means the Central Bank of Ireland or such other or successor authority with responsibility for authorising and supervising the Company;

 

Currency Share Class means a class of shares denominated in a currency other than the base currency of the relevant Fund;

 

Dealing Day means such Business Day or Business Days as the Directors may, from time to time, determine in relation to any Fund for the subscription, repurchase or exchange of shares provided that: (i) there shall be at least one Dealing Day per calendar quarter for repurchase of shares in the case of open-ended funds; (ii) in the event of a change in a Dealing Day, reasonable notice thereof shall be given by the Company to each Holder; and (iii) the assets of a Fund shall be valued in respect of each Dealing Day;

 

Dealing Deadline means such day and time as may be specified from time to time by the Directors in relation to any class of shares;

 

Defaulting Holder means a Holder who fails to pay a Capital Call by its due date;

 

            Depositary means any corporation appointed and for the time being acting as depositary of all of the assets of the Company in accordance with the Companies Acts and the AIFMD Regulations;

 

Depositary Agreement means any agreement for the time being subsisting between the Company and the Depositary relating to the appointment and duties of such Depositary;

 

Derivative Specific Share Class means a Cclass of shares in respect of which the Company will enter into derivative transactions the benefits and costs of which will accrue solely to holders of shares of that Cclass;

 

Directors mean the Directors for the time being of the Company and Director means any one of those;

 

Duties and Charges mean all stamp and other duties, taxes, governmental charges, brokerage, bank charges, transfer fees, registration fees, any transaction and safekeeping fees payable to the Depositary or its delegates or agents and other duties and charges whether in connection with the original acquisition or increase of the Assets of the Company or the creation, issue or sale of shares or the sale or purchase of Investments by the Company or in respect of certificates or otherwise which may have become or may be payable in respect of or prior to or upon the occasion of the transaction or dealing in respect of which such duties and charges are payable but shall not include any commission, taxes, charges or costs which may have been taken into account in ascertaining the Net Asset Value of the relevant Fund;

 

Electronic Communication has the meaning given to that expression in the Electronic Commerce Act, 2000;

 

Electronic Proxy Scheme means any scheme established by the Company whereby electronic means may be used by members to appoint a proxy;

 

Electronic Signature has the meaning given to that expression in the Electronic Commerce Act, 2000;

 

Equalisation Account mean an equalisation account which may in the discretion of the Directors be maintained in respect of any Fund in accordance with clause 26.2paragraph 28 of Appendix II.

 

Equalisation Payment means an amount paid in accordance with clauseparagraph 268.1 of Appendix II (subject to any determination of the Directors to the contrary) calculated at such rate per share of a class of shares as shall be determined by the Directors by reference to their estimate from time to time of the next dividend to be declared in respect of the relevant class Fund(s) the portfolio(s) maintained in accordance with clause 911 of Appendix II which shall be kept separate in respect of each class of share or the relevant classes of share (where more than one class of share has been created to participate in a Fund) to which all assets and liabilities, income and expenditure attributable or allocated to each such Fund shall be applied and charged;

           

Foreign Person means a person who is neither resident nor ordinarily resident in Ireland for tax purposes who has provided the Company with the appropriate declaration under the TCA and in respect of whom the Company is not in possession of any information that would reasonably suggest that the declaration is incorrect or has at any time been incorrect, or the Company is in possession of written notice of approval from the Revenue Commissioners to the effect that the requirement to have been provided with such declaration is deemed to have been complied with in respect of that person or class of Shareholders to which that person belongs, and that approval has not been withdrawn and any conditions to which that approval is subject to have been satisfied.

 

Funds(s) mean the portfolio(s) maintained in accordance with clause 911 of Appendix II which shall be kept separate in respect of each class of share or the relevant classes of share (where more than one class of share has been created to participate in a Fund) to which all assets and liabilities, income and expenditure attributable or allocated to each such Fund shall be applied and charged;

 

Holder means in relation to any share or subscriber share the member whose name is entered in the Register as the holder of such share and in the case of a share warrant the holder of such warrant;

 

Initial Offer Period means any period determined by the Directors during which any class of shares in the relevant Fund may be offered for subscription at a fixed price;

 

Investment means an Investment acquired by the Company pursuant to clause 213 of Appendix II;

 

Irish Stock Exchange means The Irish Stock Exchange Limited and any successor thereof;

 

Market means in relation to any Investment, any stock exchange, over the counter market or other regulated securities market on which an Investment is listed and/or traded;

 

Member State means any member state of the European Union;

 

MiFID means Directive 2004/39/EC (Markets in Financial Instruments Directive);

 

Minimum Additional Investment Amount means such minimum cash amount or minimum number of Shares as the case may be (if any) as the Directors may from time to time require to be invested in any Fund by each Holder (after investing the Minimum Initial Investment Amount);

 

Minimum Capital Commitment means the minimum amount of money required to be committed by a Holder as set out in the Prospectus, provided that it shall not be less than the minimum subscription amount prescribed by the Central Bank from time to time;

 

Minimum Fund Size means such amount (if any) as the Directors may from time to time prescribe as the minimum fund size for each Fund;

 

Minimum Initial Investment Amount means such amount as the Directors may from time to time prescribe as the minimum initial subscription for shares of any class provided that such amount shall (except in respect of shares acquired by Accredited Employees) at all times be equal to or greater than the minimum amount required by the Competent Authority for the Company to obtain Qualifying Investor AIF status;

 

Minimum Redemption Amount means such minimum number or minimum value of Shares of any class as the case may be (if any) which may be redeemed at any time by a Holder;

 

Minimum Shareholding means such number or value of shares of any class (if any) as the Directors may, from time to time, prescribe, as the minimum permitted holding of shares of that class;

 

month means a calendar month;

 

Net Asset Value means the net asset value of the Company or of any Fund or any class (or any series thereof) of any share, which shall be calculated as at a Valuation Point by valuing the Assets of the Company or any Fund in accordance with the provisions of Appendix III;

 

Office means the registered office for the time being of the Company;

 

Par Value means the nominal value assigned to a security (which term includes loans) by the issuer of such security;

Permitted Investor
means any person not disqualified from holding shares by virtue of clause 202 of Appendix II;

Property means a freehold or leasehold interest in any land or building;

 

Prospectus means the prospectus issued from time to time by the Company as same may be amended, supplemented, consolidated, substituted or otherwise modified from time to time and includes, where the context permits any relevant Supplement(s);

 

Qualifying Investor means an investor who:

(a)               is a professional client within the meaning of Annex II of MiFID; or

(b)               receives an appraisal from an European Union credit institution, a MiFID firm or a UCITS management company that the investor has the appropriate expertise, experience and knowledge to adequately understand the investment in the scheme; or

(c)               certifies that they are an informed investor by providing the following:

                   (i) confirmation (in writing) that the investor has such knowledge of an experience in financial and business matters as would enable the investor to properly evaluate the merits and risks of the prospectus investment; or

                   (ii) confirmation (in writing) that the investor's business involves, whether for its own account or the account of others, the management, acquisition or disposal of property of the same kind as the property of the scheme; 

                   (Within the European Union, Qualifying Investor AIFs may only be marketed to professional investors as defined in AIFMD unless the member state in question permits, under the laws of the Member State, AIFs to be sold to other categories of investors and this permission encompasses investors set out in categories (b) and (c))

                                         and 

                   certifies in writing to the Company that such investor meets these minimum criteria and is aware of the risk involved in the proposed investment and of the fact that inherent in such investment is the potential to lose all of the sum invested;

                   or is an Accredited Employee;

 

Qualifying Investor AIF means an AIF authorised by the Competent Authority which may be marketed to investors who meet the criteria set out in Chapter 2 of the Competent Authority's AIF Rulebook;

 

Register means the register of Holders to be kept as required by the Companies Acts;

 

Repurchase Price means the repurchase price of shares calculated and determined in accordance with clauses 12 to 16 to 18 of Appendix II;

 

Seal means the common seal of the Company or (where relevant) the official securities seal kept by the Company pursuant to the Companies Acts;

 

Secretary means any person appointed to perform the duties of the secretary of the Company;

 

Settlement Date means the latest date(s) as may be determined by the Directors from time to time by which payment of the Subscription Price or the Repurchase Price of shares of any class must be received or made as disclosed in the Prospectus and in the case of payment of the Repurchase Price of Shares, the Settlement Date, in the case of Funds other than limited liquidity or closed-ended funds, shall not be later than 90 days and, in the case of Funds which are feeder funds or fund of funds, other than limited liquidity or closed-ended funds, shall not be later than 95 days from receipt of completed redemption documentation unless the calculation of Net Asset Value is suspended in accordance with Clause 1820 of Appendix II;

 

Share or Shares means participating shares in the Company representing interests in a Fund and where the context so permits or requires, any class of participating shares representing interests in a Fund;

 

Special Investments means investment that the Directors in their discretion deem illiquid or otherwise not freely transferable.;

 

Special Situation Shares means shares which have been so designated by the Directors in accordance with Articleclause 2.103 of Appendix II of the Articles of Association.;

 

State means the Republic of Ireland;

 

Stock Exchange Nominee is the meaning given to this expression by Section 1 of the Companies (Amendment) Act, 1977;

Subscriber Share means a non-participating share in the capital of the Company issued for the purpose of incorporation of the Company in accordance with these Articles and with the rights provided for under these Articles;

 

Subscription Price means the issue price of shares calculated and determined by the Directors in accordance with clause 3 of Appendix II;

 

Supplement means any supplement to the Prospectus issued on behalf of the Company in relation to a Fund from time to time;

 

Taxable Irish Person shall have the meaning set out in the Prospectus;

 

TCA means the Irish Taxes Consolidation Act, 1997 as amended from time to time;

 

Third Country means a country other than a Member State.;

 

Unhedged Currency Share Class means a class of shares where typically, shares may be subscribed for and dividends calculated and paid and repurchase proceeds paid in a currency other than the base currency of the relevant Fund on the basis of a currency conversion at the prevailing spot currency exchange rate of the relevant base currency for the currency of the relevant share class but in respect of which no hedging will be made other than at the Fund level;

 

United States means the United States of America (including each of the states, the District of Columbia and the Commonwealth of Puerto Rico) its territories, possessions and all other areas subject to its jurisdiction.;

 

United States Person shall have the meaning prescribed in Regulation S under the United States Securities Act of 1933, as amended (the Securities Act) and unless otherwise determined by the Directors shall include (i) any natural person resident in the United States; (ii) any partnership or corporation organised or incorporated under the laws of the United States; (iii) any estate of which any executor or administrator is a U.S. Person; (iv) any trust of which any trustee is a U.S. Person; (v) any agency or branch of a foreign entity located in the United States; (vi) any non-discretionary account or similar account (other than an estate or trust) held by a dealer or other fiduciary for the benefit or account of a U.S. Person; (vii) any discretionary account dealer or other fiduciary organised or similar account (other than an estate or trust) held by a dealer or other fiduciary organised, incorporated, or (if an individual) resident in the United States; and (viii) any partnership or corporation if (A) organised or incorporated under the laws of any foreign jurisdiction; and (B) formed by a U.S. Person principally for the purpose of investing in securities not registered under the Securities Act, unless it is organised or incorporated, and owned by accredited investors (as defined in Rule 501(a) under the Securities Act) who are not natural persons, estates or trusts.;

 

Valuation Point means such point in time, in such place or places as the Directors may, from time to time determine, by reference to which the Net Asset Value of the Company, Fund or any Share is calculated as is specified in the Supplement to the Prospectus for the relevant Fund or such other time after the Dealing Deadline as the Company may from time to time determine with the prior approval of the Depositary provided that, where required by the Competent Authority, there shall be at least one Valuation Point in every quarteryear.

 



APPENDIX II

 

ISSUE OF SHARES

 

 

2.         TERMS AND CONDITIONS OF ISSUE OF SHARES

 

2.1        Prior to the issue of any class of shares the Directors shall determine the rights and restrictions attaching thereto including the Fund to which they relate, the designated currency of the shares and the fees and expenses to be borne by the class of shares.  In accordance with the requirements of the Competent Authority the decision to subscribe for any class of shares in respect of which the voting rights are restricted shall be made solely by the investor.  The Directors may in relation to a Fund create more than one class or series of shares to participate in the Fund in accordance with the requirements of the Competent Authority.  The Directors may create more than one class or series of shares to participate in a Fund which may be denominated by the Directors in the same or different currencies.  The Directors shall at the time of creation of such class determine if such class of shares shall be constituted as a Derivative Specific Share Class and/or an Unhedged Currency Share Class.  Notwithstanding anything contained in these Articles, the costs and gains/losses of any derivative transactions relating to a Derivative Specific Share Class shall accrue solely to the Holders of shares in such class and shall not form part of the assets of the relevant Fund or constitute a liability of the relevant Fund to which the share relates.  Any derivative transaction relating to a Derivative Specific Share Class shall be valued in accordance with the provisions of Appendix III and shall be clearly attributable to the specific Derivative Specific Share Class.

 

2.2        The Company may establish classes of shares which may be differentiated on the basis of subscription/redemption procedures, distribution policies or charging structure, hedging policies or other criteria disclosed in the Prospectus.  The creation of further classes of shares in a Fund must be effected in accordance with the requirements of the Competent Authority. 

 

2.3        Without prejudice to the generality of clauseparagraph 2.1 and subject to the Companies Acts and the Prospectus, the Directors may issue segregated asset class shares, in such numbers and on such terms as they may resolve, provided that such terms are consistent with the provisions of these Articles. Without prejudice to the generality of the foregoing, the Directors may establish one or more segregated asset classes into which assets may be placed which when purchased or subsequent to purchase (i) are or become illiquid and/or (ii) are or become difficult to value and/or (iii) should be held until the resolution of a special event or circumstance.  The Company shall distribute and/or accrue capital gains or losses and/or income arising in relation to a segregated asset class to each memberHolder relative to its participation in the relevant class. 

 

2.4        The Funds in relation to which shares shall be issued and designated are set out below. The names of each Fund, including the name set out below, may be amended by the Directors, subject to the prior approval of the Competent Authority and any such change of name shall not require the approval of the Holders in the relevant Fund:.

 

KKR European Floating Rate Loan Fund

Absalon Loan Fund

KKR Value Fund

Avoca Loan Fund 1

Gardar Loan Fund

2.5        Shares in relation to the abovea Fund or other Funds may be issued and designated from time to time with the prior approval of the Competent Authority.

 

2.6        Subject as hereinafter provided and subject to any regulations made or conditions imposed by the Competent Authority pursuant to the Act, the issue of shares by the Company shall be subject to the receipt by the Company or its authorised agents of:

 

2.6.1     an application in such form as the Directors may from time to time determine to include, where appropriate, the indication of the class of shares in which the applicant wishes to invest; and

 

2.6.2     payment of the Subscription Price (or equivalent) into the assets of the relevant Fund within a reasonable time;

 

2.6.3     such information and declarations as the Directors may from time to time require; or

 

2.6.4     subject to the requirements of the Competent Authority subsequent subscriptions may be made by telephone in accordance with the procedure to be set out in the Prospectus.

 

2.7        Payment for shares shall be made by the Settlement Date in such currency and at such time, place and manner and to such person, on behalf of the Company, as the Directors may from time to time determine.

 

2.8        The Company may (at the option of the Directors) satisfy any application for the allotment of shares by procuring the transfer to the applicant of fully-paid shares, the effective date of such transfer to be the relevant Dealing Day.  In any such case, references in these Articles to allotting shares shall, where appropriate, be taken as references to procuring the transfer of shares.

 

2.9        The allotment of shares may take place notwithstanding that the information or declarations referred to in sub-paragraph 2.46.23 above have not been received by the Company or its authorised agent provided that the application referred to in sub-paragraph 2.46.1 above has been received, and provided further that if the said information or declarations have not been received within one month (or such other period as the Directors may determine) after the Dealing Day on which such shares are allotted, the Directors shall be entitled to cancel the allotment and if so cancelled the relevant application monies (if any) shall be returnable to the applicant at his risk (together with such additional amount, if any, or after deducting such amount, if any, as the Directors may in their absolute discretion think fit, any such amount so deducted being retained by the Company for its own benefit) and until returned may be made use of by the Company for its own benefit.

 

2.10      If payment in full for any shares is not received by the relevant Settlement Date, or in the event of non-clearance of funds, the Directors or their delegates shall be entitled to cancel the allotment and either return the relevant monies to the applicant at his risk or to treat the relevant monies as payment in respect of an application for shares made by the Dealing Deadline for the Dealing Day next following receipt of such monies.  Where an allotment of shares is cancelled, the Company may charge the applicant for any resulting loss incurred by the Company.  Where subscriptions are settled late, the Company reserves the right to charge an applicant interest at a reasonable commercial rate on such subscriptions.

 

2.11      Applications within the meaning of sub-paragraph 2.46.1 above that are received by or on behalf of the Company on or prior to the Dealing Deadline for a Dealing Day shall, unless the Directors determine otherwise, be dealt with on that Dealing Day.  Such applications as are received after the Dealing Deadline for a Dealing Day shall, (unless the Directors otherwise agree and provided they are received before the relevant Valuation Point), be deemed to have been received by the following Dealing Deadline. The Directors may, in their absolute discretion and subject to the prior approval of the Depositary, agree to designate additional Dealing Days and Valuation Points for the purchase of shares relating to any Fund which will be open to all Holders and which will be notified in advance to all Holders.

 

2.12      Applications for the issue of shares will be irrevocable unless the Directors, or a delegate, otherwise agree.

 

2.13      The Directors may, in their sole and absolute discretion, at any time on a pro rata basis compulsorily repurchase shares and simultaneously issue Special Situation Shares to the holders of shares on a pro rata basis and use the proceeds of the aforementioned repurchase to pay the issue price for such Special Situation Shares.  The issue price for the initial issue of a new Cclass of Special Situation Shares will be determined by the Directors.  The Directors will allocate Special Investments to such Special Situation Shares which will reflect any such investments.  Once the Special Situation Shares are issued, the Special Investments relating to the Special Situation Shares will not be considered as assets attributable to any other shares and will not be taken into account in the calculation for the Net Asset Value of any other shares.  In the event of a realisation in whole or in part of the relevant Special Investments, the Directors may, in their sole and absolute discretion, compulsorily repurchase all or part of the related Special Situation Shares and simultaneously issue participating shares to the holders thereof and at the then prevailing issue price for such participating shares and use the proceeds of the repurchase to pay the issue price.  Alternatively the Directors may in their sole and absolute discretion, redesignate all or part of such Special Situation Shares as participating shares.  The designation or issuance of any such Special Situation Shares and the allocation of Special Investments to them will only be effected in accordance with the requirements of the Competent Authority and in circumstances where the Directors consider it to be appropriate and in the interests of the relevant shareholders.

 

3.         SUBSCRIPTION PRICE

 

3.1        During the Initial Offer Period in relation to a Fund the Subscription Price per share of the relevant class shall be the price as determined by the Directors.  After the Initial Offer Period, the Subscription Price shall be the Net Asset Value per share of the relevant class plus such sum as the Directors may consider represents the appropriate allowance for Duties and Charges plus a preliminary charge, if any, at the discretion of the Directors and a charge in respect of any performance fee payable to any investment manager/adviser and (at the discretion of the Directors) where there are net subscriptions, an anti dilution levy to cover dealing costs and to preserve the value of the underlying assets of the Fund with the resulting sum being rounded mathematically to the nearest three decimal places or such other number of decimal places as may from time to time be determined by the Directors.  Notwithstanding the foregoing, the Directors may issue any new series of shares in a class in a Fund at a fixed price subject to complying with the requirements of the Competent Authority.

 

3.2        Where shares are issued based on the Net Asset Value per share as outlined in the preceding paragraph, the Net Asset Value per share of the relevant class shall be ascertained by:

 

3.2.1     determining that proportion of the Net Asset Value of the relevant Fund which is attributable to the relevant class of shares as at the Valuation Point for the relevant Dealing Day;

 

3.2.2     where the class of shares is a Derivative Specific Share Class, adding to or deducting from (as the case may be) the sum calculated in accordance with 3.2.1 above the costs and gainslosses of any derivative transactions effected in respect of that class;

 

3.2.3     dividing the sum calculated in accordance with paragraph 3.2.1 above by the number of shares of the relevant class in issue or deemed to be in issue in the relevant Fund at the Valuation Point for the relevant Dealing Day; and

 

3.2.4     rounding the resulting amount so determined mathematically to three decimal places of the unit of the currency in which such share is designated (unit for such purposes being the smallest fraction of the relevant currency which is legal tender in the country of issue of that currency) or to such other number of decimal places or significant figures as the Directors may from time to time determine.

 

3.3        For the purposes of this clause 3, shares which have been allotted shall be deemed to be in issue from the close of business on the Dealing Day on which they are allotted and shares which have been repurchased shall be deemed to cease to be in issue at the close of business on the Dealing Day of such repurchase.

 

3.4        In calculating the Subscription Price, the Directors may on any Dealing Day where there are net subscriptions adjust the Subscription Price by adding an anti dilution levy to cover dealing costs and to preserve the value of the underlying assets of a Fund.

 

4.         ALLOTMENT OF SHARES FOR NON CASH CONSIDERATION

 

4.1        The Directors may, subject to the provisions of the Companies Acts and the investment objective and policies of the relevant Fund, in their absolute discretion allot shares against the vesting in the Depositary on behalf of the Company (provided the nature of the Investments to be transferred to the relevant Fund would qualify as investments of such Fund in accordance with the investment objective, policies and restrictions of the Fund) of any Investments and in connection therewith the following provisions shall apply:

 

4.1.1     the number of shares to be allotted (which will only be allotted after the Investments have been vested in the Depositary on behalf of the Company) shall be not more than that number which would have fallen to be issued for cash on the basis that the amount of such cash was an amount equal to the value as at the relevant Valuation Point for the relevant Dealing Day of the Investments to be vested in the Depositary on behalf of the Company, as determined in accordance with paragraph 4.1.3 below;

 

4.1.2     the Directors may provide that the whole or any part of the Duties and Charges arising in connection with the vesting of the Investments in the Depositary on behalf of the Company shall be paid by the Company or by the person to whom the shares are to be issued or partly by the Company and partly by such person;

 

4.1.3     the value of the Investments to be vested in the Depositary on behalf of the Company shall be determined by the Directors on such basis as they shall decide so long as such value does not exceed the highest amount which would be obtained if the Investments were valued in accordance with Appendix III hereof;

 

4.1.4     in the case of the initial issue of shares of any class, the Directors shall determine the number of shares of the relevant class to be allotted against the vesting in the Depositary on behalf of the Company of any Investments; and

 

4.1.5     in exercising their discretion under this clause, the Directors shall consider whether the terms of any such allotment are such as would result in any material prejudice to existing Holders provided that the Depositary is satisfied that the terms of such allotment will not be such as are likely to result in any material prejudice to existing Holders.

 

5.         PRELIMINARY CHARGE

 

The Directors may require any person to whom shares of any class are to be allotted to pay to the Company or any of its appointees or as any of them may direct, for its or their absolute use and benefit, a preliminary charge in respect of each share to be allotted of such amount as may be determined by the Directors.  The Directors may on any Dealing Day differentiate between applicants as to the amount of the preliminary charge required to be paid to the Company, or its appointees or as they may direct and as to the amount of preliminary charge to be levied on each class of share.

 

6.         NO SHARES ALLOTTED WHEN CALCULATION OF NET ASSET VALUE SUSPENDED

 

The Directors may in their absolute discretion determine that no shares shall be allotted or issued during any period when the determination of the Net Asset Value of the relevant Fund is suspended pursuant to clause 1820 of Appendix II below.  The Directors will notify investors applying for shares of such suspension at the time of application.  Any application for shares which is not withdrawn shall, subject to the provisions of these Articles, be dealt with on the first Dealing Day after the suspension is lifted.

 

7.         ISSUE OF FRACTIONS OF SHARES

 

Where payments or other consideration received by or on behalf of the Company in respect of the issue or allotment of shares are not an exact multiple of the Subscription Price for those shares, a fraction of a share may be allotted to the investor who shall be registered as the Holder of such a fraction provided that any holding of shares is a multiple of 1/1000 part of a share or such other fractional amount as the Directors may determine from time to time.  Rights, entitlements and benefits of a Holder of a share under the Articles are granted to a Holder of a fraction of a share in proportion to the fraction of a share held by him and, except where the context otherwise requires or is otherwise provided herein, reference in the Articles to share shall include a fraction of a share.  Notwithstanding anything contained in these Articles, the Holder of a fraction of a share may not exercise any voting rights in respect of such share.

 

8.         MINIMUM INITIAL INVESTMENT AMOUNT

 

The Directors may in their absolute discretion decline to issue shares of any class to satisfy any initial application unless the amount in value of the shares to which an application relates equals or exceeds the Minimum Initial Investment Amount or its equivalent in another currency provided that in no circumstances may the Directors issue shares of any class to satisfy any initial application where the amount in value of the shares to which an application relates does not equal or exceed the minimum amount required by the Competent Authority to be invested by such investor for the Company to obtain Qualifying Investor AIF status.  Thereafter, Holders may make additional subscriptions for shares having a value, at the then current Subscription Price of not less than the Minimum Additional Investment Amount or its equivalent in another currency.

 

9.         CAPITAL CALLS

 

9.1        In the case of a Fund that provides for investment by way of Capital Commitment, any uncalled Capital Commitment may be called by the Company by determination of the Directors pursuant to a Capital Call in the circumstances more particularly outlined in the Prospectus.

 

9.2        No Holder will be required to make aggregate capital contributions in excess of the sum of (a) the amount of its Capital Commitment as set forth in its application form or subscription agreement, as the case may be, and accepted by the Company, (b) any amount returned to such Holder which constitutes an increase in such Holder's unused capital commitment as set out in the Prospectus, (c) any distributions previously received by the Holder and required to be returned as described in the Prospectus, and (d) an additional amount equal to, unless otherwise provided for in the Prospectus, the sum of (A) the lower of (i) 100% of the Capital Commitment of the Holder to the Fund and (ii) the aggregate unfunded commitments of the relevant Fund to the underlying investments of the Fund allocable to such Holder as more particularly described in the Prospectus and (B) 30% of the Capital Commitment of the Holder.

 

9.3        Additional capital contributions (if any) called by the Company from the Holders in connection with any further subscriptions for Shares that may be required by the Company will be calculated and called from each Holder on a pro rata basis relative to the number of Shares held by each Holder except that in the event of a default by any Holder in connection with the funding of any amount of any additional capital contributions required to be made by such Holder (such defaulted amount, a "Shortfall Amount"), in addition to taking action in respect of the relevant defaulting Holder as described below in clause 10.1, the Directors may call for additional capital contributions and subscriptions for Shares from the non-defaulting Holders (subject to the limits described in the prior paragraph) to make up all or any part of the relevant Shortfall Amount.  Any such further capital contributions called by the Company will be called from each Holder.

 

9.4        Each Holder may be required to return previously received dividend distributions or any redemption proceeds received to the extent necessary to satisfy the Fund's indemnity obligations in respect of the underlying investments in which it has invested in the circumstances provided for in the Prospectus, provided that Holders will not be required to make a contribution or payment for such purposes to the extent such contribution or payment, when combined with all such prior contributions and payments, would exceed, unless otherwise provided for in the Prospectus, the lesser of (i) 50% of the Capital Commitment of such Holder or (ii) the lesser of (a) 50% of the aggregate dividend distributions or redemption proceeds received by such Holder and (b) 100% of the net dividend distributions or redemption proceeds (i.e., payments of such amounts to such Holder reduced by capital contributions by such Holder) received by such Holder. 

 

10.        DEFAULT PROVISIONS

 

10.1      Where any amount is not paid by a Holder by the due date specified in the Capital Call, the Company may impose a late payment fee at the rate provided for in the Prospectus (the "Default Rate"). If a Holder fails to contribute any portion of its uncalled Capital Commitment on the date on which such portion of the uncalled Capital Commitment is due under a Capital Call (and fails to remedy such default within such period (if any) as set out in the Prospectus), the Directors may declare such Holder to be a "Defaulting Holder". In the event that a Holder is declared a Defaulting Holder, the Company may take any or all of the following actions:

 

10.1.1   the Company may sell the Shares, or any portion thereof, of any Defaulting Holder to any other Holder or any other person (including the AIFM or its affiliate) without further notice to the Defaulting Holder. Unless otherwise provided for in the Prospectus, such Shares will be sold for the lesser of: (i) 50% of their aggregate Net Asset Value per Share (or if lower, the amount actually paid for such Shares by a third party in a sale on an arm's length basis); and (ii) 50% of the Defaulting Holder's capital contributions in respect of such Shares, and on such other terms as the Company, in the sole discretion of the Directors, may determine.  The proceeds of such sale will be applied: (i) first, to the payment of the relevant Shortfall Amount and any costs and expenses incurred by the Company in respect of the Fund as a result of the Defaulting Holder's failure to contribute (including to reimburse the Company for any costs (including taxes) incurred in connection with such sale); and (ii) then, to pay interest to the Company at the Default Rate on any amounts due and owing by the Defaulting Holder from the date the payment was due until the date of the sale. Thereafter, the Defaulting Holder will not be entitled to make any further capital contributions to the Company in respect of further subscriptions for Shares.

 

10.1.2   The Company may withhold from and set off against any amount otherwise payable to the Defaulting Holder in respect of its Shares the amount of any Shortfall Amount, plus any costs and expenses (including the costs of any borrowing) incurred by or on behalf of the Fund in connection with such default and interest on any amounts due and owing by the Defaulting Holder from the date the payment was due to the date of any such withholding and set off.

 

10.1.3   As of the date of any sale of Shares pursuant to the above provisions, the transferee of such Defaulting Holder's Shares will become the owner of the Defaulting Holder's Shares and will be treated for all purposes as having made all payments made by the Defaulting Holder pursuant to any Capital Calls, and will be obligated to pay all outstanding Shortfall Amounts and future capital contributions payable in respect of the relevant Shares.

 

10.1.4   Effective as of such sale, the Defaulting Holder will cease to be a Holder and will have no further rights in or against the Company or the Fund and will not be entitled to receive notice of, attend or vote at any general meeting of the Company or the Fund or class or to participate in any subsequent votes or resolutions of Holders.

 

10.1.5   The Directors will have the sole authority to compromise any claim of a Fund relating to the obligation of any Holder to fund a Capital Call, and no consent or approval of any other Holder or other person shall be required for such purpose.

 

10.1.6   In addition to the above remedies, the Company will retain the right to pursue all legal remedies available to it including the right to institute legal proceedings to collect all amounts due and owing by a Holder together with all expenses incurred by the Company in the collection of the relevant amount. The Company will not be required to exercise the above  default remedies and, in the sole discretion of the Directors may pursue any other available legal remedies or none at all.

 

FUNDS

 

11.        9. FUNDS

 

11.1      9.1 All consideration, other than the preliminary charge (if any) payable to the Company or its appointees or as any of them may determine pursuant to clause 5 of this Appendix or other amounts referred to in clause 3 of this Appendix, received by or on behalf of the Company for the allotment or issue of shares of a Fund, or if there is more than one class of shares in a particular Fund, of all such classes, together with all Investments in which such consideration is invested or reinvested, all income, earnings, profits and proceeds thereof shall be segregated and kept separate from all other monies of the Company and such assets and monies shall be referred to as a Fund there being one Fund in respect of each class (or all such classes, as the case may be) of shares and to which the following provisions shall apply:

 

11.1.1   9.1.1 for each Fund the Company shall keep separate books and records in which all transactions relating to the relevant Fund shall be recorded and, in particular, the proceeds from the allotment and issue of shares of each class in the Fund, the Investments and the liabilities and income and expenditure attributable thereto shall be applied or charged to such Fund subject to the provisions of this clause 911;

 

11.1.2   9.1.2 any Asset derived from any other Asset(s) (whether cash or otherwise) comprised in any Fund shall be applied in the books and records of the Company to the same Fund as the Asset from which it was derived and any increase or diminution in the value of such an Asset shall be applied to the relevant Fund.

 

11.1.3   9.1.3 no shares will be issued on the terms that entitle the Holder of any Shares in a Fund to participate in the Assets of the Company other than the Assets (if any) of the Fund relating to such shares.  If the realised Net Assets of any Fund are insufficient to pay any amounts due on the relevant shares in full, in accordance with the terms of the relevant Fund, the relevant Holders of that Fund will have no further right of payment in respect of such shares or any claim against the Company, any other Fund or any Assets of the Company in respect of any shortfall.

 

11.1.4   9.1.4 in the event that there are any Assets of the Company which the Directors do not consider are attributable to a particular Fund or Funds, the Directors shall, with the approval of the Depositary, allocate such Assets to and among any one or more of the Funds in such manner and on such basis as they, in their discretion, deem fair and equitable; and the Directors shall have the power to and may at any time and from time to time, with the approval of the Depositary, vary the basis in relation to Assets previously allocated.

 

11.1.5   9.1.5 each Fund shall be charged with the liabilities, expenses, costs, charges or reserves of the Company in respect of or attributable to that Fund and any such liabilities, expenses, costs, charges or reserves of the Company not attributable to any particular Fund or Funds shall be allocated and charged by the Directors, with the approval of the Depositary, in such manner and on such basis as the Directors, in their sole and absolute discretion deem fair and equitable, and the Directors shall have the power to and may at any time and from time to time, with the approval of the Depositary, vary such basis including, where circumstances so permit, the re-allocation of such liabilities, expenses, costs, charges and reserves.

 

11.1.6   9.1.6 where hedging strategies are used in relation to a Fund or class of shares, the financial instruments used to implement such strategies shall be deemed to be assets or liabilities (as the case may be) of the relevant Fund as a whole but will be clearly attributable to a specific class and the gains/losses on and the costs of the relevant financial instruments will accrue solely to the relevant class of shares.

 

11.1.7   9.1.7 in the event that any Asset attributable to a Fund is taken in execution of a liability not attributable to that Fund, the provisions of Section 1406(256E(5) of the  Act shall apply.

 

11.2      9.2 Without prejudice to its obligations under the Companies Acts, the Company shall aim to achieve segregation of liability between different segregated asset classes and those classes participating in the common pool of assets of a Fund, and in seeking to achieve that aim, shall in relation to each segregated asset class:

 

11.2.1   9.2.1 procure that the Company's books and records shall be operated so that the assets, along with any corresponding hedges and reserves, attributable to any segregated asset class shares can, at all times, be separately identified and, in particular but without prejudice to the generality of the foregoing, the Company shall procure that separate cash and securities accounts shall be created and maintained in the books of the Company for the assets attributable to the segregated asset class shares;

 

11.2.2   9.2.2 allocate to the assets attributable to the segregated asset class shares such proportion of the expenses or liabilities of the Company incurred or accrued between the date of issuance of the segregated asset class shares and the date the segregated asset class shares are redeemed or redesignated by the Company (both dates inclusive) as the Directors fairly consider to be attributable to the segregated asset class shares from time to time; and

 

11.2.3   9.2.3 give appropriate instructions to the investment manager, the AIFM, the Depositary and the Administrator to manage the Company's assets so that such undertakings can be complied with by the Company.

 

11.3      9.3 Subject as otherwise provided herein, the Assets held in each Fund shall be applied solely in respect of the shares of the class (or classes as the case may be) to which such Fund appertains and shall not be used to discharge directly or indirectly the liabilities of or claims against any other sub- fund and shall not be available for any such purpose.

 

11.4      9.4 If the Directors shall determine that a sufficient amount of subscription monies (such amount to be determined by the Directors in their discretion) have not been received during the Initial Offer Period of a Fund, the Directors may determine in their discretion not to proceed to launch that Fund and shall return the subscription monies to each investor at their risk and expense.

 

12.        10. FUND EXCHANGES

 

12.1      10.1 Unless otherwise determined by the Directors and subject to the provisions of the Companies Acts and to these Articles and as hereinafter provided a Holder holding shares in any class in a Fund (the first class) on any Dealing Day shall have the right from time to time to exchange all or any of such shares for shares of the corresponding class in another class or Fund (the new class) (such class being either an existing class or a class agreed by the Directors to be brought into existence with effect from that Dealing Day) provided that all criteria for applying for the new shares have been met on the following terms:

 

12.1.1   10.1.1 the Holder shall give to the Company or its authorised agent(s) instructions (hereinafter called an Exchange Notice) in such form as the Directors may from time to time determine.

 

12.1.2   10.1.2 the exchange of the shares specified in the Exchange Notice pursuant to this clause 102 shall occur on a Dealing Day for the first class and the new class in respect of Exchange Notices received on or prior to the relevant Dealing Deadline for that Dealing Day (or prior to such other time of day as the Directors may determine either generally or in relation to a particular Fund or in any specific case) by the Company or its authorised agent(s) or on such other Dealing Day as the Directors at the request of the Holder may agree the Company or its authorised agents may in their discretion accept Exchange Notices received after the Dealing Deadline for the relevant Dealing Day provided the Exchange Notices are received prior to the relevant Valuation Point and a Holder's entitlement to shares as recorded in the Register shall be altered accordingly with effect from that Dealing Day.

 

12.2      10.2 Exchange of the shares of the first class specified in the Exchange Notice shall be effected in the following manner, that is to say:

 

12.2.1   10.2.1 such shares of the first class shall be repurchased by the issue of shares of the new class;

 

12.2.2   10.2.2 the shares of the new class shall be issued in respect of and in proportion to (or as nearly as may be in proportion to) the holding of the shares of the first class which is being exchanged; and

 

12.2.3   10.2.3 the proportion in which shares of the new class are to be issued in respect of shares of the first class shall be determined in accordance with paragraph 102.3 below;

 

Provided always that the right of a Holder to exchange his shares in the first class for shares in the new class conferred by this clause 102 shall be conditional upon the Company having sufficient available share capital to enable the exchange to be implemented as aforesaid.

 

12.3      10.3 The Directors shall determine the number of shares of the new class to be issued on exchange in accordance with the following formula:

 

                                                                                                S          =          [R   x    (RP  x  ER) - F]

                                                                                            SP

 

where:

 

R          is the number of shares of the first class specified in the Exchange Notice which the Holder             thereof has requested to be exchanged;

 

S          is the number of shares of the new class to be issued;

 

RP        is the Repurchase Price per share of the first class as calculated as at the relevant Valuation Point for the Dealing Day on which the exchange is to be effected;

 

ER        in the case of an exchange of shares designated in the same currency is 1.  In any other case it is the currency conversion factor determined by the Directors as representing the effective rate of exchange applicable to the transfer of assets relating to the first and new classes of shares after adjusting such rate as may be necessary to reflect the effective costs of making such transfer; and

 

SP        is the Subscription Price per share for the new class as calculated as at the relevant Valuation Point for the Dealing Day on which the exchange is to be effected.

 

F          the exchange charge, if any, payable on the exchange of Shares (as set out in paragraph 102.4 below).

 

AND the number of shares of the new class to be created or issued pursuant to this clause 102 shall be so created or issued in respect of each of the shares of the first class being exchanged in the proportion (or as nearly as may be in the proportion) S to R where S and R have the meanings ascribed to them above.

 

12.4      10.4 On any exchange of shares pursuant to this Cclause 102, the Directors may add to the Subscription Price per Share for the shares of the new class to be issued a fee, for payment to the Company or any of its appointees or as any of them may direct out of the Fund relating to the shares of such class.  In the case of open-ended Funds, such amount shall not exceed 5% of the Redemption Price per Share of shares in the first class to be issued calculated as at the relevant Valuation Point for the Dealing Day on which the exchange is effected.

 

12.5      10.5 Requests for the exchange of shares as an initial investment in a new class will only be made if the value of the shares to be exchanged is equal to or exceeds the Minimum Initial Investment Amount or Minimum Capital Commitment, as applicable, for the new class.  The Directors may refuse to give effect to any Exchange Notice if to do so would cause the relevant Holder's holding in the first class to fall below the Minimum Shareholding specified for that class.

 

12.6      10.6 Shares in a class may not be exchanged for shares in another class during any period when the calculation of the Net Asset Value of the relevant Fund or either of the relevant Funds as the case may be is suspended by reason of a declaration by the Directors pursuant to clause 1820 hereof.  Applicants will be notified of such suspension at the time of application and any request for the exchange of shares not withdrawn shall, subject to the provisions of these Articles, be dealt with on the first Dealing Day after such suspension is lifted.

 

13.        11. TERMINATION OF FUNDS

 

13.1      11.1 A Fund may be terminated and/or all of the shares of a Fund (or any class of a Fund) may be redeemed by the Directors, in their sole and absolute discretion, by notice in writing to the Depositary in any of the following events:

 

13.1.1   11.1.1 if at any time the Par Value or Net Asset Value of the relevant Fund shall be less than such amount as may be determined by the Directors in respect of that Fund;

 

13.1.2   11.1.2 if any Fund shall cease to be authorised or otherwise officially approved;

 

13.1.3   11.1.3 if any law shall be passed which renders it illegal or in the opinion of the Directors impracticable or inadvisable to continue the relevant Fund;

 

13.1.4   11.1.4 if such termination is provided for in the relevant Supplement; or

 

13.1.5   11.1.5 if the Directors consider that it is in the best interests of the Shareholders of the Fund.

 

The decision of the Directors in any of the events specified herein shall be final and binding on all the parties concerned but the Directors shall be under no liability on account of any failure to terminate the relevant Fund pursuant to this clause 113 or otherwise.

 

13.2      11.2 In any event the initial duration of each closed-ended Fund will not exceed 15 years from the end of the Initial Offer Periodthe period specified in the Prospectus for such Fund and the duration of the closed period will in any event comply with the requirements of the Competent Authority.  At the end of the duration of a Fund, the Fund will terminate and each terminating Fund will redeem all outstanding Shares and will apply to the Competent Authority for revocation of authorisation.  The initial period may be extended for two successive periods of one year each subject to the approval of a special resolution of the Shareholders in each closed-ended Fundsuch period or periods as may be specified in the Prospectus.

 

13.3      11.3 The Directors shall give notice of termination of a Fund to the Holders of shares in the relevant Fund and by such notice fix the date at which such termination is to take effect, which date shall be for such period after the service of such notice as the Directors shall in their sole and absolute discretion determine.

 

13.4      11.4 With effect on and from the date as at which any Fund is to terminate or in the case of 113.4.1 below such other date as the Directors may determine:-

 

13.4.1   11.4.1 No shares of the relevant Fund may be issued or sold by the Company;

 

13.4.2   11.4.2 The AIFM and / or the investment manager shall, on the instructions of the Directors, realise all the Assets then comprised in the relevant Fund (which realisation shall be carried out and completed in such manner and within such period after the termination of the relevant Fund as the Directors think advisable);

 

13.4.3   11.4.3 The Depositary shall, on the instructions of the Directors from time to time, distribute to the Holders of shares of the relevant Fund in proportion to their respective interests in the relevant Fund all net cash proceeds derived from the realisation of the relevant Fund and available for the purpose of such distribution, provided that the Depositary shall not be bound (except in the case of the final distribution) to distribute any of the monies for the time being in its hands the amount of which is insufficient to pay Euro 1 or its equivalent amount in the relevant currency in respect of each share of the relevant Fund and provided also that the Depositary shall be entitled to retain out of any monies in its hands as part of the relevant Fund full provision for all costs, charges, expenses, claims and demands incurred, made or apprehended by the Depositary or the Directors in connection with or arising out of the termination of the relevant Fund and out of the monies so retained to be indemnified and saved harmless against any such costs, charges, expenses, claims and demands; and

 

13.4.4   11.4.4 Every such distribution referred to above shall be made in such manner as the Directors shall, in their sole and absolute discretion, determine but shall be made only against production of the certificates or warrants relating to the shares of the relevant Fund if issued in respect of which the same is made and upon delivery to the Depositary of such form of request for payment as the Depositary shall in its absolute discretion require.  All certificates shall in the case of an interim distribution be enfaced by the Depositary with a memorandum of payments made and in the case of the final distribution shall be surrendered to the Depositary.  Any unclaimed proceeds or other cash held by the Depositary hereunder may at the expiration of twelve months from the date upon which the same were payable be paid into court subject to the right of the Depositary to deduct therefrom any expenses it may incur in making such payment.

 

 

RIGHT OF REPURCHASE

 

14.        12. HOLDERS' RIGHT TO REQUEST A REPURCHASE OF SHARES

 

The Company is an investment company, which may establish open-ended, closed-ended and limited liquidity Funds.  Holders who subscribe for shares in open-ended and limited liquidity Funds shall have the right to request the Company to repurchase their shares, other than in the case of Special Situation Shares, in accordance with the provisions of clause 135 below. The Directors shall have the power to determine the terms on which shares in limited liquidity Funds and/or Special Situation Shares will be repurchased by the Company and such terms will be set out in the Prospectus and/or each relevant Supplement.

 

15.        13. REPURCHASE MECHANISM

 

15.1      13.1 Subject to the provisions of the Companies Acts and these Articles and subject as hereinafter provided the Company may, on receipt by it or its authorised agent(s) of a request (which request may, at the Directors' discretion, either generally or in relation to any specific request, be made in writing, by facsimile or by another method (e.g. electronic) in accordance with the procedure set out in the Prospectus or in such other form as the Directors may, from time to time, determine) by a Holder of shares (the Applicant), repurchase all or any portion of the shares held by the Applicant at the Repurchase Price, determined in accordance with clause 146 hereof, or procure the purchase thereof at not less than the Repurchase Price on the relevant Dealing Day.  Such request to repurchase must be accompanied by the duly endorsed certificate or certificates (if any) issued for the shares to which it relates.

 

PROVIDED THAT:

 

15.1.1   13.1.1 The repurchase of shares pursuant to this clause 135 shall be made on a Dealing Day in respect of requests (equal or greater to the Minimum Redemption Amount if any, subject to the discretion of the Directors to allow lesser amounts)  received by the Company or its authorised agent on or prior to the Dealing Deadline for that Dealing Day. 

 

15.1.2   13.1.2 Any such request received after the Dealing Deadline for a Dealing Day shall, unless the Directors shall otherwise agree and provided it is received before the relevant Valuation Point, be treated as having been received prior to the following Dealing Deadline.

 

15.1.3   13.1.3 If the determination of the Net Asset Value of the relevant Fund is suspended on any Dealing Day by reason of a declaration by the Directors pursuant to clause 1820 hereof, an Applicant may withdraw his request to have his shares repurchased pursuant to this clause 135.  If the request is not so withdrawn the Company shall be at liberty to repurchase the shares on the Dealing Day next following the end of the suspension.

 

15.1.4   13.1.4 Subject as aforesaid and to the discretion of the Directors, an Applicant shall not be entitled to withdraw a request duly made in accordance with this clause 135.

 

15.1.5   13.1.5 The Company may retain a sufficient portion of the amount payable to the Applicant in respect of the redemption to pay any taxation payable to the Revenue Commissioners in Ireland in respect of the redemption of the shares.

 

15.1.6   13.1.6 Any amount payable to the Applicant in connection with the repurchase of shares shall, at the risk and cost of the Applicant, be paid in the same currency as that in which the shares are designated or in such other currency as the Directors shall determine.  Any such amount may be remitted by or on behalf of the Company by electronic transfer to the bank account specified by the Applicant not later than the relevant Settlement Date or at the option of the Directors, and at the request of the Applicant (but at his risk and cost) by post in the form of a negotiable instrument at the Applicant's risk by or on behalf of the Company to the Applicant not later than the relevant Settlement Date. If the amount to be paid by the Company as aforesaid shall not be expressed in the currency in which the shares which the Company has repurchased were designated then the rate of exchange between that currency and the currency agreed for payment shall be such rate as the Directors shall consider appropriate.  The cost of conversion (if any) shall be debited from the converted payment.  The certificate of the Directors as to the conversion rate applicable and as to the cost of conversion shall be conclusive and binding on all persons.

 

15.1.7   13.1.7 Subject to written instructions from the Applicant to the Company (or its authorised agent) directing otherwise, which the Company (or its authorised agent) may require to be verified or otherwise supported by additional documentation, the Company (or its authorised agent) shall pay the proceeds of repurchase to the Applicant.

 

15.1.8   13.1.8 If requested, the Directors may, in their absolute discretion and subject to the prior approval of the Depositary, agree to designate additional Dealing Days and Valuation Points for the repurchase of shares relating to any Fund which will be open to all Holders and which will be notified in advance to all Holders.

 

PROVIDED THAT, notwithstanding the foregoing, the Directors may, subject to the conditions of the  Competent Authority, from time to time establish a closed-ended Fund or limited liquidity Fund with such finite closed-ended duration or limited liquidity features as shall be stipulated in the Prospectus or relevant Supplement at the time of its establishment (provided that the initial duration for closed-ended funds, which disclosed in the Prospectus, may only be extended with the consent of a special resolution of the Holders of Shares in any such Fund, will not exceed 12 years from the date of that Fund approved by the Competent Authority) and the Holders of Shares in any closed-ended Fund shall not be entitled to realise any of the Shares held by them in the relevant Fund (other than in any circumstances set out in the Prospectus and/or the relevant Supplement) but at the end of the finite closed-ended duration the Directors shall terminate such Fund in accordance with the provisions of clause 113 of Appendix II.

 

15.2      13.2 The repurchase of shares under the provisions of this clause 135 shall be deemed to be effected immediately after the Valuation Point for the relevant Dealing Day.  Shares repurchased in accordance with the provisions of this clause 135 shall be deemed to cease to be in issue at the close of business on the Dealing Day on which they are repurchased.

 

15.3      13.3 Upon the repurchase of a share being effected, the Applicant shall cease to be entitled to any rights in respect thereof (excepting always the right to receive a dividend which has been declared in respect thereof prior to such repurchase being effected) and accordingly his name shall be removed from the Register with respect thereto and the shares shall be treated as cancelled and the amount of issued share capital in respect of such class of shares shall be reduced accordingly.

 

15.4      13.4 The Directors may in their absolute discretion accept instructions from a Holder to cancel a redemption request which he/she has submitted to the Company (or its agent) provided such instructions are received by the Company (or its agent) before the shares have been redeemed.  The Company may charge such Holder any fees or expenses incurred in processing and/or cancelling the redemption request.

 

15.5      13.5 Subject as aforesaid and to the discretion of the Directors or their delegate, an Applicant shall not be entitled to withdraw a request duly made in accordance with this clause 135.

 

16.        14. REPURCHASE PRICE OF SHARES

 

16.1      14.1 The Repurchase Price per share shall be the Net Asset Value per share less such sum as the Directors may consider represents the appropriate allowance for Duties and Charges in relation to the repurchase of the shares to be repurchased, less a repurchase charge, if any, at the discretion of the Directors, a charge in respect of any performance fee payable to any investment manager/adviser and at the discretion of the Directors, on any Dealing Day when there are net redemptions for a Fund, an anti-dilution levy to cover dealing costs and to preserve the value of the underlying assets of the Fund in question with the resulting sum being rounded mathematically to the nearest three decimal places.  The Net Asset Value per Share of the relevant class or series shall be an amount as determined by the Directors on the relevant Dealing Day referred to in clauseparagraph 135.1.1 above by:

 

16.1.1   14.1.1 determining that proportion of the Net Asset Value of the relevant Fund which is attributable to the relevant class or series of shares as at the Valuation Point for the relevant Dealing Day;

 

16.1.2   14.1.2 where the class of share is a Derivative Specific Share Class, adding to or deducting from (as the case may be) the sum calculated in accordance with paragraph 146.1.1 above the costs and gainslosses of any derivative transactions effected in respect of that class;

 

16.1.3   14.1.3 dividing the sum calculated in accordance with paragraph 146.1.1 above by the number of shares of the relevant class in issue or deemed to be in issue in the relevant Fund at the Valuation Point for the relevant Dealing Day; and

 

16.1.4   14.1.4 rounding the amount so determined mathematically to six decimal places of the unit of the currency of the shares (unit for such purposes being the smallest fraction of the relevant currency which is legal tender in the country of issue of that currency) or to such other number of decimal places or significant figures as the Directors may from time to time determine.

 

16.2      14.2 The Directors may on any Dealing Day require an Applicant to pay to the Company or any of its appointees or as any of them may direct, for its or their absolute use and benefit, a repurchase charge in respect of each share to be repurchased of not more than 5 per cent of the Net Asset Value (or such higher amount as may be permitted by the Competent Authority and set out in the relevant Supplement) of a share of the relevant class prevailing on that Dealing Day.   The amount of any such charge may be deducted from the amount to be paid by the Company to the Applicant in respect of the shares to be repurchased.  The Directors may on any Dealing Day differentiate between Applicants as to the amount of the repurchase charge required to be paid to the Company, or its appointees or as they may direct and as to the amount of repurchase charge to be levied on each class of share (subject to the maximum aforesaid).

 

16.3      14.3 Such portion of the Repurchase Price of any shares repurchased on a Dealing Day (except a Dealing Day which is a record day for the declaration of a dividend) as the Directors in their absolute discretion consider appropriate shall be deemed to be a distribution to the relevant Applicant of the proportion of the undistributed net revenue accrued to the relevant Fund up to such Dealing Day attributable to the shares in respect of which such Repurchase Price is payable.

 

16.4      14.4 Where the Company is required to deduct, pay, withhold or account for any taxation to a tax authority in respect of the disposal of Shares by a Holder (whether upon a repurchase of Shares, a transfer of Shares or otherwise) or in any other circumstances in which a taxation liability arises, the Directors shall be entitled to arrange for the repurchase and cancellation of such number of the Shares of such Holder as are sufficient after the deduction of any repurchase charges to discharge any such tax liability and the Directors may decline to register a transferee as a Holder until such time as they receive from the transferee such declarations as to residency or status as they may require. The Depositary shall ensure that the repurchase proceeds are held for the purposes of discharging any applicable tax liability as aforesaid. Where the Company receives a request for the repurchase of Shares from any Holder in respect of which the Company is required to account for, deduct or withhold taxation, the Company shall be entitled to deduct from the proceeds of repurchase such amount of taxation as the Company is required to account for, deduct or withhold.

 

16.5      14.5 In calculating the Repurchase Price, the Directors may on any Dealing Day where there are net redemptions adjust the Repurchase Price by deducting an anti dilution levy to cover dealing costs and to preserve the value of the underlying assets of a Fund

 

17.        15. LIMITATIONS ON REPURCHASE/EXCHANGE OF SHARES

 

17.1      15.1 The repurchase of shares in limited liquidity funds is entirely at the discretion of the Directors who shall have the right to refuse a repurchase request subject to the terms of the relevant Supplement which may limit this right. Shares not redeemed, but which would otherwise have been redeemed, will be carried forward for redemption on the next Dealing Day (subject to the discretion of the Directors to refuse redemptions). 

 

17.2      15.2 In addition for open ended funds and (without prejudice to the generality of Section 157.1 for limited liquidity funds), in circumstances where repurchase requests on any Dealing Day are for shares representing more than ten per cent (twenty five per cent in the case of quarterly dealing Funds) of the Net Asset Value of any Fund in issue at the Valuation Point for that Dealing Day, the Company shall be at liberty to scale down the number of shares to be repurchased in response to each request pro rata to such extent as may be necessary to ensure that the foregoing limit is not exceeded and may carry forward for repurchase to the next following Dealing Day the balance of each request and so on to each succeeding Dealing Day until each request has been dealt with in full, PROVIDED THAT in respect of open-ended funds, requests for repurchase that have been carried forward from an earlier Dealing Day shall (subject always to the foregoing limits) be dealt with in priority (on a rateable basis) to later requests. 

 

Special Situation Shares may not be repurchased at the option of the Holder, but the Directors in their sole and absolute discretion may determine that the Special Situation Shares shall be repurchased on the realisation in whole or in part of a Special Investment.  At that time the Directors or their delegate will at their sole and absolute discretion give the Holder of the Special Situation Shares notice in writing of such realisation and of (i) their intention to repurchase a corresponding portion of the relevant Special Situation Shares and number of participating shares of corresponding value thereto, or to redesignate a corresponding portion of such Special Situation Shares as participating shares of a corresponding value or (ii) the possibility for the Holders of the Special Situation Shares to request the repurchase of their Special Situation Shares on a dealing day designated by the Directors in the notice for such purpose.

 

17.3      15.3

17.3.1   15.3.1 In addition for open ended funds and (without prejudice to the generality of Section 157.1 for limited liquidity funds) if in respect of any Applicant the repurchase amount in respect of shares held by him to be repurchased on any Dealing Day amount to more than five per cent of the Net Asset Value of a Fund; the Company shall have the power, at its sole discretion, to divide in specie the whole or any part of the Assets of the relevant Fund and shall have the right to elect by notice in writing to the Applicant (such notice to be sent by the Company to the Applicant within three Business Days of the relevant Dealing Day and in any event before the relevant Settlement Date) to appropriate and transfer Assets to him in full or part satisfaction of the Repurchase Price or any part of the said Repurchase Price (provided that such a distribution would not be prejudicial to the interests of the remaining Holders in such Fund).  Alternatively, where it is not possible to transfer all or part of the Assets to the Applicant, the Company shall have the right to elect to sell all or any part of the Assets so appropriated and to arrange for the payment to the Applicant of the net proceeds of such sale in satisfaction or part satisfaction of the Repurchase Price or any part of the Repurchase Price.  In addition, with the consent of the Applicant, the Company may, in circumstances not covered by the foregoing, appropriate and transfer Assets to him in full or part satisfaction of the Repurchase Price or any part of the Repurchase Price (provided that such a distribution would not be prejudicial to the interests of the remaining Holders in such Fund).  In each case the allocation of Assets to the Applicant will be subject to the approval of the Depositary.

 

17.3.2   15.3.2 Where a notice of election is served under sub-paragraph 157.3.1 of this clause 157 on an Applicant, the Applicant (following a redemption request amounting to more than 5 per cent of the Net Asset Value of a Fund) may by a further notice served on the Company (such notice to be received by the Company within two Business Days of the deemed receipt by the Applicant of the notice of election served under sub-paragraph 157.3.1 of this clause 157) require the Company instead of transferring the Assets in question to arrange:-

 

(1)        for a sale of the Assets; and

 

(2)        for payment to the Applicant of the net proceeds of sale.

 

No such notice is required to be given by the Applicant where the Supplement for the relevant Fund provides for an irrevocable instruction to be given by a holder of shares in the relevant Fund for such a sale and payment in these circumstances.

 

17.3.3   15.3.3 Where there is a transfer of Assets pursuant to paragraph 157.3.1 above, the Depositary shall transfer to the Applicant his proportionate share of the Assets of the relevant Fund.  For the purposes of this paragraph proportionate share means such part of each type of Asset in the relevant Fund as is proportionate to or as nearly as practicable proportionate to the Applicant's share or such selection from the Assets of the relevant Fund as the Directors shall, following consultation with the Depositary, decide is reasonable having regard to the need to be fair both to the Applicant and continuing Holders of shares in the relevant Fund.

 

17.3.4   15.3.4 Where there is to be a sale of Assets under sub-paragraph 157.3.1 above:

 

(1)        the Company shall forthwith notify the Depositary of that fact and shall arrange for the sale of the Assets that would have been transferred under sub-paragraph 157.3.1 above (other than Assets which are in cash in the relevant currency for the purposes of the repurchase); and

 

(2)        the Depositary shall on receipt of such evidence of title as it may require pay to the Applicant the net proceeds of the sale and any relevant amounts in cash.

 

17.3.5   15.3.5 The foregoing provisions (and in particular the obligation to sell assets for an Applicant) may be dis-applied by the Directors in relation to a limited liquidity fund, as set out in the relevant Supplement.

 

17.4      15.4 If any request to the Company to repurchase shares of any class shall reduce the number of shares of the relevant class held by the Applicant below the Minimum Shareholding such request may be treated by the Directors as a request to repurchase the Applicant's entire holding.  The foregoing shall not prevent a repurchase of the whole of a holding of shares of any class less than the Minimum Shareholding nor shall this paragraph apply in circumstances where as a result of the Company exercising its rights to scale down any repurchase requests, in accordance with paragraph 157.4 above, a Holder's holding of shares is reduced below the Minimum Shareholding.

 

17.5      15.5 If any repurchase requests received by the Directors would necessitate, in the opinion of the Directors, the breaking of deposits at a penalty or the realisation of Investments at a discount below their value, as calculated in accordance with Appendix III, the Repurchase Price in respect of the relevant shares may be reduced by a proportionate part of such reduction in value or penalty which will be suffered by the relevant Fund in such manner as the Directors may consider fair and equitable and which is approved by the Depositary.  Alternatively, the Directors may arrange for the Company to borrow funds in accordance with Article 656 subject always to any borrowing restrictions in force in relation to the Company or the relevant Fund, and the costs of such borrowings may be apportioned as aforesaid to such extent as the Directors may consider fair and equitable.

 

17.6      15.6 The Company will not be permitted to repurchase shares if, after payment of any amount in connection with such repurchase, the Net Asset Value of the issued share capital of the Company would be equal to or less than €2 or the foreign currency equivalent thereof.  The foregoing shall not apply to a repurchase request permitted by the Directors in contemplation of the dissolution of the Company in accordance with the Companies Acts.

 

17.7      15.7 The Company may compulsorily redeem all of the Shares of any Fund if the Net Asset Value of the relevant Fund is less than the Minimum Fund Size.

 

17.8      15.8 The Directors reserve the right to withhold payment of repurchase proceeds at their sole discretion for such period of time as they may think fit in circumstances where they determine it is appropriate or necessary to do so to comply with any anti-money laundering procedures and legislation or any regulation, code of practice or guidance note promulgated under relevant legislation applicable to the Company or its service providers, directly or indirectly, in any jurisdiction.

 

 

18.        16. NO SHARES REPURCHASED WHEN CALCULATION OF NET ASSET VALUE SUSPENDED

 

The Directors may, in their absolute discretion, determine that no shares will be repurchased and no repurchase proceeds paid during any period when the determination of the Net Asset Value of the relevant Fund is suspended pursuant to clause 1820 of Appendix II below.  Holders applying for a repurchase of their shares will be notified of such suspension at the time of application.  Any application which is not withdrawn shall, subject to the provisions of these Articles, be dealt with on the first Dealing Day for the relevant Fund after such suspension is lifted. 

 

 

DETERMINATION OF NET ASSET VALUE

 

19.        17. DETERMINATION OF NET ASSET VALUE

 

The Net Asset Value of a Fund shall be determined in accordance with Appendix III.

 

20.        18. SUSPENSION OF DETERMINATION OF NET ASSET VALUE/POSTPONEMENT OF A DEALING DAY

 

20.1      18.1 The Directors may at any time declare a temporary suspension of the determination of the Net Asset Value of a Fund and the issue, redemption and exchange of shares and the payment of redemption proceeds during:

 

20.1.1   18.1.1 any period when dealing in the units/shares of any collective investment scheme in which a Fund may be invested are restricted or suspended; or

 

20.1.2   18.1.2 any period when any of the principal markets or stock exchanges on which a substantial portion of the Investments of the relevant Fund from time to time are quoted, listed or dealt is closed, otherwise than for ordinary holidays, or during which dealings therein are restricted or suspended; or

 

20.1.3   18.1.3 any period when, as a result of political, economic, military or monetary events or any circumstances outside the control, responsibility and power of the Directors, disposal or valuation of a substantial portion of the Investments of the relevant Fund is not reasonably practicable without this being seriously detrimental to the interests of the Holders of the relevant Fund or if, in the opinion of the Directors, the Net Asset Value of the Fund cannot be fairly calculated; or

 

20.1.4   18.1.4 any breakdown in the means of communication normally employed in determining the price of a substantial portion of the Investments of the relevant Fund or when for any other reason the current prices on any market or stock exchange of any of the Investments of the relevant Fund cannot be promptly and accurately ascertained; or

 

20.1.5   18.1.5 any period during which any transfer of funds involved in the realisation or acquisition of Investments of the relevant Fund cannot, in the opinion of the Directors, be effected at normal prices or rates of exchange; or

 

20.1.6   18.1.6 any period when the Company is unable to repatriate funds required for the purpose of making payments due on the redemption of shares in the relevant Fund; or

 

20.1.7   18.1.7 any period when the Directors consider it to be in the best interest of the relevant Fund; or

 

20.1.8   18.1.8 following the circulation to Holders of a notice of a general meeting at which a resolution proposing to wind up the Company or terminate the relevant Fund is to be considered.

 

20.2      18.2 Any such suspension shall take effect at such time as the Directors shall declare but not later than the close of business on the Business Day next following the declaration and thereafter there shall be no determination of the Net Asset Value of the relevant Fund and no issues, repurchases or exchanges of shares of the relevant Fund and no repurchase proceeds paid until the Directors shall declare the suspension at an end.

 

20.3      18.3 The Directors may postpone any Dealing Day for a Fund to the next Business Day if in the opinion of the Directors, a substantial portion of the Investments of the relevant Fund cannot be valued on an equitable basis and such difficulty is expected to be overcome within one Business Day.

 

20.4      18.4 The determination of the Net Asset Value of a Fund shall also be suspended where such suspension is required by the Competent Authority in accordance with the Act.

 

21.        19. NOTIFICATION OF SUSPENSION TO COMPETENT AUTHORITY, STOCK EXCHANGES AND HOLDERS

 

Any such suspension of the determination of the Net Asset Value of a Fund shall be notified to the Competent Authority immediately and in any event within the same Business Day on which such suspension occurred.  If the shares are listed on the official list and trading on the main securities market of the Irish Stock Exchange or any other exchange any such suspension shall be notified to the Irish Stock Exchange and such other exchange within the time frame specified above.  Details of any such suspension will also be notified to all Holders if in the opinion of the Directors, it is likely to exceed 14 days. 

 

COMPULSORY REPURCHASE OR TRANSFER OF SHARES

 

22.        20. COMPULSORY REPURCHASE OR TRANSFER OF SHARES

 

22.1      20.1 The Directors shall have power (but shall not be under any duty) to impose such restrictions as they may think necessary for the purpose of ensuring that no shares of any class are acquired or held directly or beneficially by a person who is in the opinion of the Directors any of the following:

 

22.1.1   20.1.1 any person who is not a Qualifying Investor; or

 

22.1.2   20.1.2 any person who appears to be in breach of any law or requirement of any country or governmental authority or by virtue of which such person is not qualified to hold such shares or if the holding of the shares by any person is unlawful; or

 

22.1.3   20.1.3 any United States Person (other than pursuant to an exemption available under the laws of the United States); or

 

22.1.4   20.1.4 a person under the age of 18 (or such other age as the Directors may think fit) or a person of unsound mind; or

 

22.1.5   20.1.5 a person or entity who breached or falsified representations on subscription documents; or

 

22.1.6   20.1.6 if the holding of Shares any person is less than the minimum holding set for that Fund or class of Shares by the Directors; or

 

22.1.7   20.1.7 any person or persons in circumstances which, (whether directly or indirectly affecting such person or persons and whether taken alone or in conjunction with any other person or persons connected or not, or any other circumstances appearing to the Directors to be relevant) in the opinion of the Directors might result in the Company incurring any liability to taxation or suffering pecuniary, legal or administrative disadvantages or being in breach of any law or regulation (including all relevant anti-money laundering laws and regulations) which the Company might not otherwise have incurred, suffered or breached.

 

References in these Articles to Permitted Investor means any person other than any of the persons specified above.

 

22.2      20.2 The Directors shall, unless any Director has reason to believe otherwise, be entitled to assume without enquiry that none of the shares are held in such a way as to entitle the Directors to give a notice in respect thereof pursuant to paragraph 202.3 below.  The Directors may, however, upon an application for shares or at any other time and from time to time require such evidence and/or undertakings to be furnished to them in connection with the matters stated in paragraph 202.1 above as they shall in their discretion deem sufficient or as they may require for the purpose of any restriction imposed pursuant thereto or for compliance with any anti-money laundering provisions applicable to the Company.  In the event of such evidence and/or undertakings not being so provided within such reasonable period (not being less than 21 days after service of notice requiring the same) as may be specified by the Directors in the said notice, the Directors may, in their absolute discretion, treat any shares held by such a Holder or joint Holder as being held in such a way as to entitle them to serve a notice in respect thereof pursuant to paragraph 202.3 below.

 

22.3      20.3 If it shall come to the notice of the Directors that any shares are or may be owned or held directly or beneficially by any person who is not a Permitted Investor (the relevant shares), the Directors may give notice to the person in whose name the relevant shares are registered requiring him to transfer (and/or procure the disposal of interests in) the relevant shares to a person who is in the opinion of the Directors a Permitted Investor.  If any person upon whom such a notice is served pursuant to this paragraph does not within 21 days after the giving of such notice (or such extended time as the Directors in their absolute discretion shall consider reasonable) transfer the relevant shares to a Permitted Investor, or establish to the satisfaction of the Directors (whose judgement shall be final and binding) that he is not subject to such restrictions, the Directors may in their absolute discretion upon the expiration of such 21 days either arrange the transfer of all the relevant shares to a Permitted Investor in accordance with paragraph 202.4 below or arrange for the relevant shares to be repurchased by the Company at the relevant Repurchase Price.  The Holder of the relevant shares shall be bound forthwith to deliver his certificate (if any) to the Directors and the Directors shall be entitled to appoint any person to sign on his behalf such documents as may be required for the purpose of the transfer or repurchase, as the case may be, of the relevant shares by the Company.

 

22.4      20.4 A person who becomes aware that he holds or owns relevant shares shall forthwith unless he has already received a notice pursuant to paragraph 202.3 above transfer all his relevant shares to a Permitted Investor or with the approval of the Directors request the repurchase of the shares.

 

22.5      20.5 A transfer of relevant shares arranged by the Directors pursuant to paragraph 202.3 above shall be by way of sale at the best price reasonably obtainable and may be of all of or part only of the relevant shares with a balance available for transfer to other Permitted Investors or repurchase by the Company.  Any payment received by the Company for the relevant shares so transferred shall be paid to the person whose shares have been so transferred subject to paragraph 202.6 below. 

 

22.6      20.6 Payment of any amount due to such person pursuant to paragraphs 202.3, 202.4, 202.5 above shall be subject to any requisite exchange control consents first having been obtained and the Company not being in breach of any other law or regulation.  The amount due to such person will be deposited by the Company in a bank for payment to such person upon such consents being obtained and against surrender of the certificate, if any, representing the relevant shares previously held by such person.  Upon deposit of such amount as aforesaid such person shall have no further interest in such relevant shares or any of them or any claim against the Company in respect thereof except the right to receive such amount so deposited (without interest) upon such consents as aforesaid being obtained.

 

22.7      20.7 Notwithstanding any other provisions of these Articles, where the Company is required to pay tax or on the occurrence of a chargeable event as defined in sSection 739(B) of the TCA or on the transfer of shares by a Holder, the Company shall be entitled to repurchase and cancel a sufficient portion of the Holder's shares and to appropriate the proceeds thereof as is necessary to discharge the amount of taxation payable in respect of the transfer or the relevant chargeable event.

 

22.8      20.8 The Directors may compulsorily redeem all of the Shares of any Fund if the Net Asset Value of the relevant Fund is less than the Minimum Fund Size.

 

22.9      20.9 The Directors shall not be required to give any reasons for any decision, determination or declaration taken or made in accordance with this clause 202. The exercise of the powers conferred by this clause 202 shall not be questioned or invalidated in any case on the grounds that there was insufficient evidence of direct or beneficial ownership of shares by any person or that the true, direct or beneficial owner of any shares was otherwise than appeared to the Directors at the relevant date provided that the powers shall be exercised in good faith.

 

22.10    20.10 In addition, the Directors may provide for the mandatory redemption of shares in other circumstances as set out in the Prospectus and/or the relevant Supplement and redeem such Shares accordingly.

 

 

 

 

 

 

INVESTMENT OF ASSETS

 

 

23.        21. INVESTMENT OF ASSETS OF THE COMPANY

 

23.1      21.1 The Directors shall subject to the restrictions and limits imposed under the Articles and the Act determine the investment objectives and policies (including the permissible forms of Investments) and restrictions applying to the Company and any Fund and the Assets shall be invested in accordance with the investment objectives, policies and restrictions determined by the Directors. 

 

23.2      21.2 The Prospectus shall, where appropriate, set out details of the size, portfolio structure and investment strategies and objectives of the Company.

 

23.3      21.3 Subject to the limits and conditions set forth in the AIFMD Regulations and in the Prospectus and subject to the provisions of these Articles, the Directors may exercise all the powers of the Company to invest the Company's Assets. 

 

23.4      21.4 The Directors may exercise all the powers of the Company to invest all or any funds of the Company as authorised by these Articles and may establish subsidiary companies in the circumstances specified by the Competent Authority and subject to the conditions imposed by the Competent Authority, including restrictions on the subsidiary company acting other than under the control of the Company and restrictions on any person or entity other than the Company holding shares in the subsidiary company. 

 

23.5      21.5 Subject to the prior approval of the Competent Authority, the Company may wholly own subsidiaries, which for fiscal or other reasons the Directors consider it necessary or desirable for the Company to incorporate or acquire or utilise for the purpose of entering into transactions or contracts and/or holding certain of the Investments or other property comprised in the Assets of the relevant Fund(s).  None of the limitations or restrictions determined to apply to the Company or any Fund by the Directors shall apply to investments in, loans to or deposits with any such entity.  For the purpose of this clause 213 the investments or other property acquired by any such entity shall be deemed to be an Asset of the relevant Fund and shall be held by the Depositary or its nominees.  All shares and shares certificates issued relating to a Fund in respect of its holding in any such entity shall be held by the Depositary or its nominees or otherwise in accordance with the requirements of the Competent Authority.

 

23.6      21.6 Subject to the Act, the Directors may decide to retain, during such time or times as they think fit, all or any amount of cash of any Fund in any currency or currencies either in cash or on deposit with, or in certificates of deposit or other banking instruments issued by, the Depositary or any banker or other financial institution in any part of the world including any appointee of the Company or any associate or affiliate of such appointee subject to the provisions of the Central Bank Acts, 1942 to 1998, as amended by the Central Bank and Financial Services Regulatory Authority of Ireland Act, 2003;

 

23.7      21.7 Subject to the investment objectives, policies and restrictions determined by the Directors, the Company may acquire or utilise derivative contracts of any description under any conditions and within any limits applicable to the Company laid down by the Competent Authority from time to time for the purposes of the Act.

 

DEPOSITARY

 

24.        22. APPOINTMENT OF DEPOSITARY

 

The Directors shall subject to the prior approval of the Competent Authority appoint a Depositary who shall be responsible for the safe custody of all the Assets (including any shares or assets of a subsidiary of the Company), perform its duties prescribed by the Act and AIFMD and perform such other duties upon such terms as the Directors or the AIFM may, from time to time, (with the agreement of the Depositary) determine.  The Depositary must exercise due care and diligence in the discharge of its duties and will be liable to the Company and the Holders for the loss of custody assets in certain circumstances and for any other loss arising from the Depositary's negligent or intentional failure to properly fulfil its obligations pursuant to AIFMD.

 

 

 

25.        23. APPOINTMENT OF SUB-CUSTODIANS

 

The Depositary may pursuant to the Depositary Agreement, appoint sub-custodians, nominees, agents or other delegates to perform in whole or in part any of its duties or exercise any of its discretions as a custodian.  For the avoidance of doubt the Depositary may not delegate the performance of any of its fiduciary duties or discretions and its liability shall not be affected by the fact that it has entrusted to a third party some or all of the Assets in its safe-keeping.

 

 

26.        24. REMUNERATION OF DEPOSITARY

 

26.1      24.1 In consideration for its services as Depositary, the Depositary shall be entitled to be paid by or on behalf of the Company out of the property of the Company:

 

26.1.1   24.1.1 a fee of such amount specified in the Depositary Agreement; and

 

26.1.2   24.1.2 reasonable expenses and disbursements incurred by the Depositary in the performance of its functions and all other charges or fees expressly authorised by the Depositary Agreement;

 

and the Depositary shall not be obliged to account to the Holders or any of them for any payment received in accordance with the foregoing provisions.

 

 

27.        25. RETIREMENT OR REPLACEMENT OF DEPOSITARY

 

27.1      25.1 Subject to the prior approval of the Competent Authority, and in accordance with the terms of the Depositary Agreement, the Depositary may be removed or retire and a new Depositary appointed in the manner specified in paragraph 257.2 below.  The Competent Authority may at its discretion have the power to replace the Depositary with another Depositary at any time.

 

27.2      25.2 In the event of the Depositary desiring to retire or on being removed in accordance with paragraph 257.1 above, the Company shall with the prior approval of the Competent Authority appoint a duly qualified corporation which is approved by the Competent Authority to be the Depositary in place of the Depositary so retiring or being removed on or before the date on which such retirement or removal is to take effect.  In the event of the Depositary having given to the Company notice of its desire to retire or in the event of the Depositary being removed and no successor Depositary having been appointed within such period as may be agreed between the Company and the Depositary, the Depositary shall be entitled to request the Company to repurchase all the then issued shares of the Company or to convene an extraordinary general meeting to consider a resolution to wind up the Company.  Following such repurchase or the passing of any such resolution, the Company shall be wound up in accordance with the Companies Acts and these Articles.  The Depositary will remain in office until authorisation of the Company has been revoked by the Competent Authority.

 

EQUALISATION PAYMENTS

 

 

28.        EQUALISATION PAYMENTS

 

26. EQUALISATION PAYMENTS

28.1      26.1 On any allotment or issue of any Shares of any class after the Initial Offer Period, if the Directors are operating an Equalisation Account in relation to the relevant Fund (but not otherwise), the Subscription Price in respect of each such share subscribed for should include an Equalisation Payment the same to be repayable in whole or in part as is hereinafter provided.

 

28.2      26.2 In the event of an Equalisation Account being operated in respect of any Fund, all Equalisation Payments received in accordance with paragraph 268.1 above, or deemed to have been received, shall be credited to the Equalisation Account in respect of the relevant Fund.  Any amounts paid by way of Equalisation Payment shall be returnable in whole or in part to the payer only in the events specified in paragraph 268.3 below and not otherwise.

 

28.3      26.3 The Holder of a share on which an Equalisation Payment was paid or deemed to be paid on its issue shall be entitled to payment from the relevant Equalisation Account of a capital sum in the amount hereinafter provided on the payment of the first dividend thereon in respect of the same accounting period after the date of issue of such share but prior to any repurchase being made subsequent to the date of issue of such share.

 

28.4      26.4 The capital sum payable pursuant to paragraph 268.3 above shall be an amount equal to the Equalisation Payment paid or deemed to be paid on the issue of such share or, if the Directors so think fit, a sum calculated by dividing the aggregate of all Equalisation Payments standing to the credit of the relevant Equalisation Account at the date to which the relevant dividend relates, by the number of shares in respect of which such capital sums are payable PROVIDED that in so doing such shares may be divided into two or more groups issued within different periods of time as may be selected by the Directors in any one accounting period and the capital sum payable on each share in each such group shall be a sum calculated by dividing the aggregate of all Equalisation Payments standing to the credit of the relevant Equalisation Account in respect of the shares of each such group by the number of shares in such group.  Provided further that in no circumstances shall the capital sum payable in respect of any one share pursuant to this paragraph exceed the amount of the dividend declared on such share.

 

28.5      26.5 Any capital sums repaid to a Holder in accordance with the provisions of this clause shall release the Company from any liability to repay to the Holder the Equalisation Payment paid, and such Holder shall accept any such capital sum in full and final satisfaction of any Equalisation Payment otherwise payable.

 

 

DEALINGS IN SHARES

 

29.        27. DEALINGS IN SHARES

 

29.1      27.1 Without prejudice as to the generality of these Articles, the investment manager may purchase on any Dealing Day shares of any class at not less than the Subscription Price (in respect of a purchase from the Company) or the Repurchase Price (in respect of a purchase from a Holder) for shares of the class in question established as at the relevant Dealing Day.  Any amount payable by the investment manager in respect of the purchase of shares shall be paid not later than the relevant Settlement Date.

 

29.2      27.2 The investment manager shall be entitled in the name and on behalf of any Holder whose shares are to be purchased by the investment manager to execute an instrument of transfer in respect of the shares.  The investment manager may be registered as a Holder in respect of such shares.

 

29.3      27.3 Any shares of any class acquired by the investment manager pursuant to the foregoing provisions and for the time being outstanding may be sold by the investment manager on the Dealing Day on which the investment manager acquired them or any subsequent Dealing Day in satisfaction of the whole or any part of any application for shares of the class in question.  Such sale shall be effected at any price not exceeding the aggregate of the Subscription Price of shares of the relevant class as at the Dealing Day for which such application is made as at the relevant day in the case of such application plus the preliminary charge (if any) to which the investment manager would be entitled under these Articles and the investment manager shall be entitled to retain for its own use and benefit all monies received by it on such sale.

 

29.4      27.4 Subject to the provisions of these Articles, the investment manager shall have the right on any Dealing Day, provided that the Company is notified on or prior to the Dealing Deadline for such Dealing Day, to surrender certificate(s) to the Company for cancellation of some or all of the shares represented thereby.  In respect of any such cancellation of shares, the investment manager shall be entitled to receive out of the relevant Fund an amount equal to the Repurchase Price that would be payable in respect of such shares if they were repurchased as at that Dealing Day pursuant to the provisions of these Articles.  Any amount payable to the investment manager on foot of such request for cancellation shall be payable not later than the relevant Settlement Date.  The right of the investment manager to require cancellation of any share shall be suspended during any period when the right of holders of shares to require the repurchase of those shares is suspended pursuant to these Articles.

 



APPENDIX III

 

 

30.        28. DETERMINATION OF NET ASSET VALUE

 

30.1      28.1 The Net Asset Value of any Fund (i.e. the value of the assets of a Fund having deducted the liabilities (excluding Holders equity) of that Fund therefrom) or any share shall be expressed in the currency in which the Fund or the shares are designated or in such other currency as the Directors may determine, from time to time, and shall be determined, in accordance with the valuation rules set out hereafter.

 

30.2      28.2 For the purposes of such valuation, Assets of the Company, (which shall include assets of its wholly owned subsidiaries) shall be determined to include but are not limited to:-

 

30.2.1   28.2.1 all cash in hand, on deposit, or on call including any interest accrued thereon as at the relevant Valuation Point and all accounts receivable, (ii) all bills, demand notes, certificates of deposit, and promissory notes, (iii) all bonds, shares, stock, securities, obligations, leveraged loans, debentures, debenture stock, forward rate agreements, subscription rights, warrants, promissory notes, futures contracts, options, commodities, asset backed securities, mortgage backed securities, swap contracts, contracts for differences, fixed rate securities, variable and floating rate securities, securities in respect of which the return and/or repurchase amount is calculated by reference to any index, price or rate, monetary and financial instruments of all kinds, (iv) all stock and cash dividends and cash distributions to be received by the Company and not yet received by it but declared to stockholders of record on a date on or before the relevant Valuation Point as at which the Net Asset Value is determined, (v) all interest accrued on or before the relevant Valuation Point on any interest-bearing securities owned by the Company except to the extent that the same is included or reflected in, the principal value of such security, (vi) all other Investments of the Company, (vii) the preliminary expenses incurred in establishing the Company which are payable by the Company and which may include the cost of issuing, distributing, marketing and promoting shares of the Company insofar as the same have not been written off and (viii) all other Assets of the Company of every kind and nature including prepaid expenses as valued and defined from time to time by the AIFM.

 

30.3      28.3 The AIFM shall be entitled to determine in relation to any preliminary costs, charges, fees and expenses that the same may be amortised over such period as they think fit.

 

30.4      28.4 The Assets and liabilities of a Fund will be valued in accordance with the rules which are set out in these Articles and the Prospectus. MembersHolders shall be informed of the valuation(s) of Investments attributable to their Shares in the manner provided for in the Prospectus or as otherwise determined by the AIFM.

 

30.5      28.5 The assets and liabilities of a Fund will in general be valued as follows:

 

30.5.1   28.5.1 Assets listed or traded on a stock exchange or over-the-counter market (other than those referred to at 2830.5.9 and 2830.5.10 below) for which market quotations are readily available shall be valued at the closing mid-market price on the principal exchange or market for such investment as at the Valuation Point for the relevant Dealing Day provided that the value of any investment listed on a stock exchange but acquired or traded at a premium or at a discount outside the relevant stock exchange may with the approval of the AIFM be valued taking into account the level of premium or discount as at the date of valuation of the investment.  Such premiums or discounts thereon above shall be provided by an independent broker or market maker or if such premiums/discounts are unavailable, by the AIFM. However, the AIFM may adjust the value of investments traded on an over-the-counter market if the AIFM considers such adjustment is required to reflect the fair value thereof in the context of currency, marketability, dealing costs and/or such other considerations as are deemed relevant.

 

30.5.2   28.5.2 If for specific assets the closing mid-market prices do not, in the opinion of the AIFM, reflect their fair value or are not available, the value shall be calculated with care and in good faith by the AIFM or by a competent person appointed by the AIFM, with a view to establishing the probable realisation value for such assets as at the Valuation Point for the relevant Dealing Day.

 

30.5.3   28.5.3 If the assets are listed or traded on several stock exchanges or over-the-counter markets, the closing mid-market prices on the stock exchange or over-the-counter market which, in the opinion of the AIFM, constitutes the main market for such assets, will be used.

 

30.5.4   28.5.4 In the event that any of the investments as at the Valuation Point for the relevant Dealing Day are not listed or traded on any stock exchange or over-the-counter market, such securities shall be valued at their probable realisation value determined by the AIFM or by a competent person appointed by the AIFM with care and in good faith. Such probable realisation value will be determined:

 

(1)        by using the original purchase price;

 

(2)        where there have been subsequent trades with substantial volumes, by using the closing mid-market price provided the AIFM or the competent person consider such trades to be at arm's length;

 

(3)        where the AIFM or the competent person believe the investment has suffered a diminution in value, by using the original purchase price which shall be discounted to reflect such a diminution;

 

(4)        if the AIFM or the competent person believe a mid-quotation from a broker is reliable, by using such a mid-quotation or, if unavailable, a bid quotation.

 

30.5.5   28.5.5 Alternatively, the AIFM or the competent person may use such probable realisation value estimated with care and in good faith and as may be recommended by a competent professional appointed by the AIFM. 

 

30.5.6   28.5.6 Cash and other liquid assets will be valued at their face value with interest accrued, where applicable, to the relevant Valuation Point.

 

30.5.7   28.5.7 Units or shares in open-ended or limited liquidity collective investment schemes will be valued at the latest available net asset value per unit, share or class thereof as at the Valuation Point for the relevant Dealing Day; units or shares in closed-ended collective investment schemes will, if listed or traded on a stock exchange or regulated market, be valued at the closing mid-market price on the principal exchange or market for such investment as at the Valuation Point for the relevant Dealing Day or, if unavailable at the probable realisation value, as estimated with care and in good faith and as may be recommended by a competent professional appointed by the AIFM.

 

30.5.8   28.5.8 Any value expressed otherwise than in the Base Currency of the relevant Fund (whether of an investment or cash) and any non-Base Currency borrowing shall be converted into the Base Currency at the rate (whether official or otherwise) which the AIFM deem appropriate in the circumstances.

 

30.5.9   28.5.9 Exchange traded derivative instruments will be valued at the settlement price for such instruments on such market as at the Valuation Point for the relevant Dealing Day; if such price is not available such value shall be the probable realisation value estimated with care and in good faith by the AIFM or a competent person.  Over-the-counter derivative instruments will be valued at the latest valuation for such instruments as provided by a competent person (including an independent pricing vendor) having adequate human and technical means to perform the valuation, appointed by the AIFM, on a monthly basis and verified against the counterparty valuation on a monthly basis.  Where significant differences arise they shall be promptly investigated and explained by the competent person.  In valuing over-the-counter derivatives the AIFM will follow best international practice and adhere to the principles on valuation of over-the-counter instruments established by bodies such as IOSCO and AIMA.  Forward foreign exchange contracts and interest rate swaps shall be valued as at the Valuation Point for the relevant Dealing Day by reference to the prevailing market maker quotations, namely, the price at which a new forward contract of the same size and maturity could be undertaken, or, if unavailable, they shall be valued in the same manner as other over-the-counter derivatives as listed above.

 

30.5.10 28.5.10 The AIFM will use the mid-market price provided by an independent pricing source suitable to that particular loan to value most loans at market value. If this is unavailable the AIFM will use the average of two mid-market quotes provided by reputable dealers. If this is not practicable the AIFM may in accordance with criteria that are set down from time to time by the AIFM, use a fair value method estimated with care and in good faith by the AIFM or a competent person appointed by the AIFM, to value loans if market quotations for them are not readily available or are deemed unreliable, or if events occurring after the close of a market and before a Fund values its assets would materially affect Net Asset Value.  A loan that is fair valued may be valued at a price higher or lower than actual market quotations or the value determined by other funds using their own fair valuation procedures.

 

30.5.11 28.5.11 Notwithstanding the provisions of paragraphs 130.5.1 to 930.5.9 above:

 

(1)        In the case of a Fund which is a money market fund, the AIFM or the competent person may value any investment through the use of amortised cost. The amortised cost method of valuation may only be used in relation to Funds which comply with the Competent Authority's requirements for money market funds and where a review of the amortised cost valuation vis-à-vis market valuation will be carried out in accordance with the Competent Authority's guidelines.

(2)        Money market instruments in a non-money market Fund may be valued by the AIFM or the competent person at their amortised cost, in accordance with the Competent Authority's requirements.

 

30.5.12 28.5.12 If in any case a particular value is not ascertainable as provided above or if the AIFM shall consider that some other method of valuation better reflects the fair value of the relevant investment, then in such case the method of valuation of the relevant investment shall be such as the AIFM, or a competent person appointed by the AIFM, shall determine.

 

30.5.13 28.5.13 Notwithstanding the foregoing, where at any Valuation Point any asset of the Company has been realised or contracted to be realised there shall be included in the assets of the Company in place of such asset the net amount receivable by the Company in respect thereof, provided that if such amount is not then known exactly then its value shall be the net amount estimated by the AIFM as receivable by the Company.  If the net amount receivable is not payable until some future time after the Valuation Point in question the AIFM shall make such allowance as they consider appropriate to reflect the true current value thereof as at the relevant Valuation Point. In the event that the Company has contracted to purchase an asset but settlement has yet to occur, the asset (rather than the cash to be used to settle the trade) will be included in the assets of the Company.

 

30.5.14 28.5.14 In the event of it being impossible or incorrect to carry out a valuation of a specific Investment in accordance with the valuation rules set out above or if such valuation is not representative of a security's fair market value, the AIFM is entitled to use other generally recognised valuation principles in order to reach a proper valuation of that specific instrument.

 

30.5.15 28.5.15 The AIFM may delegate any of its functions in relation to the calculation of Net Asset Value to the Administrator, to an external valuer or to any other duly authorised person.  In the absence of wilful misconduct or manifest error, every decision taken by the AIFM or any external valuer or by the Administrator or any duly authorised person on behalf of the Company in calculating the Net Asset Value shall be final and binding on the Company and on present, past or future membersHolders. Where the AIFM appoints or procures the appointment of an external valuer to the Company to perform the valuation function whether as a competent person as referred to above or otherwise in accordance with the AIFMD Regulations, the AIFM shall ensure that such appointment adheres to the requirements of the AIFMD Regulations. 

 

30.6      28.6 Subject to the provisions of the Prospectus, in calculating the Net Asset Value of the Assets:

 

30.6.1   28.6.1 every Share allotted by the Company shall be deemed to be in issue and the Assets shall be deemed to include not only the relevant cash and property in the hands of the Depositary but also the amount of any cash or other property to be received in respect of Shares allotted;

 

30.6.2   28.6.2 where Investments have been agreed to be purchased or sold but such purchase or sale has not been completed such Investments shall be included or excluded and the gross purchase or net sale consideration excluded or included as the case may require as if such purchase or sale had been duly completed;

 

30.6.3   28.6.3 where notice of a redemption of Shares has been given to the Depositary but such cancellation has not been completed the Shares to be cancelled shall be deemed not to be in issue and the value of the Assets shall be reduced by the amount payable to the membersHolders upon such cancellation;

 

30.6.4   28.6.4 where any amount in one currency is required to be converted into another currency the AIFM may effect such conversion using such rates as the AIFM shall determine at the relevant time except where otherwise specifically provided herein;

 

30.6.5   28.6.5 there shall be deducted from the Assets the total amount of any actual or estimated liabilities properly payable out of capital including outstanding borrowings (if any) but excluding liabilities taken into account under sub-paragraph (ii) above and any estimated liability for tax on unrealised capital gains;

 

30.6.6   28.6.6 there shall be deducted from the Assets such sum in respect of tax (if any) on net capital gains realised during the current fiscal period prior to the valuation being made as in the estimate of the Company will become payable;

 

30.6.7   28.6.7 there shall be deducted from the value of any Investment in respect of which a call option has been written the value of such option calculated by reference to the relevant closing price quoted on a regulated market or if no such price is available a price determined by a competent person or such price as the AIFM considers in the circumstances to be reasonable;

 

30.6.8   28.6.8 there shall be added to the Assets a sum representing any interest or dividends accrued but not received and a sum representing unamortised expenses;

 

30.6.9   28.6.9 there shall be added to the Assets the amount (if any) available for distribution in respect of the last preceding Accounting Period (as defined in the Prospectus) but in respect of which no distribution has been declared and any unauthorised expenses;

 

30.6.10 28.6.10 there shall be deducted from the Assets the total amount (whether actual or estimated by the AIFM) of any other liabilities properly payable including accrued interest on borrowings (if any); and

 

30.6.11 28.6.11 the value of the Assets shall be rounded upwards or downwards as appropriate to the nearest two decimal places or such other number of decimal places as the AIFM may decide and as may be disclosed in the Prospectus.

 

30.7      28.7 Notwithstanding the rules which are set out in the Prospectus for valuing the Assets and liabilities of a Fund, where at any Valuation Point any Asset of the Company has been realised or contracted to be realised there shall be included in the Assets of the Company in place of such Asset the net amount receivable by the Company in respect thereof, provided that if such amount is not then known exactly then its value shall be the net amount estimated by the AIFM as receivable by the Company.  If the net amount receivable is not payable until some future time after the Valuation Point in question the AIFM shall make such allowance as they consider appropriate to reflect the true current value thereof as at the relevant Valuation Point.

 

30.8      28.8 For the purposes of this Appendix:

 

30.8.1   28.8.1 monies payable to the Company in respect of the allotment of Shares shall be deemed to be an Asset of the Company as of the time at which such Shares are deemed to be in issue in accordance with clauseparagraph 43.3 of Appendix II;

 

30.8.2   28.8.2 monies payable by the Company as a result of the cancellation of allotments or on the compulsory repurchase or transfer of Shares or on repurchase of Shares shall be deemed to be a liability of the Company from the time at which such Shares are deemed to cease to be in issue in accordance with clauseparagraph 43.3 or clause 135 of Appendix II.

 

30.8.3   28.8.3 monies due to be transferred as a result of an exchange of Shares to another pursuant to an exchange notice shall be deemed to be a liability of the first class and an Asset of the new class immediately after the Valuation Point for the Dealing Day on which the Exchange Notice is received or deemed to be received in accordance with clause 102 of Appendix II.

 

30.9      28.9 Where the current price of an Investment is quoted ex any dividend (including stock dividend), interest or other rights to which the relevant Fund is entitled but such dividend, interest or the property to which such rights relate has not been received and is not taken into account under any other provisions of this Appendix III, the amount of such dividend, interest, property or cash shall be treated as an Asset of the relevant Fund.

 

30.10    28.10 For the purposes of ascertaining or obtaining any price, quotation, rate or other value referred to in this Appendix III for use in determining the value of any Asset, the AIFM shall be entitled to use, or may authorise the Administrator of the Company to use, the services of any recognised information or pricing service.

 

30.11    28.11 Any valuations made pursuant hereto shall be binding on all persons.

 

30.12    28.12 The liabilities of the Company and where the context so admits or requires any Fund shall be deemed without limitation to include:

 

30.12.1 28.12.1 the costs of dealing in the Assets of the Company;

 

30.12.2 28.12.2 interest incurred in effecting, or varying the terms of, borrowings;

 

30.12.3 28.12.3 all administrative expenses payable and/or accrued;

 

30.12.4 28.12.4 any costs incurred in respect of meetings of Holders;

 

30.12.5 28.12.5 costs incurred in respect of the establishment and maintenance of the Register;

 

30.12.6 28.12.6 the audit fees and expenses of the Auditor;

 

30.12.7 28.12.7 costs incurred in respect of the distribution of income to Holders;

 

30.12.8     28.12.8 costs incurred in respect of the preparation and publication of prices of Shares and of prospectuses, annual and interim reports and financial statements;

 

30.12.9     28.12.9 regulatory, legal and other professional fees and expenses incurred in connection with the business of the Company;

 

30.12.10   28.12.10 costs and expenses incurred in respect of the formation of the Company and the initial offer of Shares in the Company which may be amortised over such period or periods as the AIFM may determine;

 

30.12.11   28.12.11 taxation and duty payable by the Company in respect of the Assets of the Company including any dealings in Shares or Assets;

 

30.12.12   28.12.12 costs and expenses incurred in modifying the Articles and in respect of any agreement entered into by or in relation to the Company from time to time;

 

30.12.13   28.12.13 unless otherwise agreed fees, expenses and disbursements of the Depositary and any sub-custodians, the AIFM, the investment manager/adviser, the Administrator, and any other appointees of the Company or the AIFM including where appropriate any performance fees payable;

 

30.12.14   28.12.14 secretarial fees and all costs incurred by the Company in complying with statutory requirements imposed upon it;

 

30.12.15   28.12.15 Directors' fees and expenses;

 

30.12.16   28.12.16 any fees of any regulatory authority in a country or territory outside Ireland and, if applicable, any fees levied by the Competent Authority;

 

30.12.17   28.12.17 the fees and expenses including overheads, administrative costs, expenses and commissions incurred by any distributor appointed to market and distribute the Shares;

 

30.12.18   28.12.18 the fees and expenses of any paying agent or representative appointed in another jurisdiction in compliance with the law or other requirements of that jurisdiction;

 

30.12.19   28.12.19 all costs and expenses (including copyright expenses) incurred in relation to the marketing and promotion of the Company and the sale of the Shares;

 

30.12.20   28.12.20 any amount payable under indemnity provisions contained in the Articles or any agreement with any appointee of the Company;

 

30.12.21   28.12.21 all sums payable in respect of any policy of insurance taken out by the Company on behalf of the Directors in respect of directors' and officers' liability insurance cover;

 

30.12.22   28.12.22 all known liabilities including the amount of any unpaid dividend declared upon the Shares or for the payment of moneys and other outstanding payments on Shares previously repurchased;

 

30.12.23   28.12.23 legal and other professional fees and expenses incurred in any proceedings instituted or defended to enforce, protect, safeguard, defend or recover the rights or Assets of the Company.

 

30.12.24   28.12.24 the costs associated with terminating and or liquidating the Company and/or a Fund.

 

30.12.25   28.12.25 all other liabilities of the Company of whatsoever kind and nature including an appropriate provision for taxes (other than taxes taken into account as Duties and Charges) and contingent liabilities as determined by the AIFM, from time to time.

 

30.13    28.13 In determining the amount of such liabilities the Directors may calculate administrative and other expenses of a regular or recurring nature on an estimated figure for yearly or other periods in advance and accrue the same in equal proportions over any such period.

 

30.14    28.14 The Directors may at their discretion apply to the Net Asset Value of a Fund a sum representing a provision for Duties and Charges relating to the acquisition and disposal of Investments of the Fund.

 

30.15    28.15 Subject to the provisions of these Articles and the requirements of the Competent Authority, the Directors may determine that certain fees and expenses incurred by the Company and its Funds including, without limitation, formation costs and expenses and management/investment management fees and expenses (including any performance fee payable) will be charged to capital.

 

 



 

 

 

 

_________________________________________________________________________________________

 

Names, Addresses and Descriptions of Subscribers

_________________________________________________________________________________________

 

 

.

Goodbody Subscriber One Limited

International Financial Services Centre,

North Wall Quay,

Dublin 1.

 

Limited Liability Company.

 

 

 

Goodbody Subscriber Two Limited,

International Financial Services Centre,

North Wall Quay,

Dublin 1.

 

Limited Liability Company.

 

 

 

 

 

 

 

 

_________________________________________________________________________________________

 

Dated the                      day of                           2011

 

 

 

 

 

Witness to the above signatures:

 

 

Barry Walsh

International Financial Services Centre

North Wall Quay

Dublin 1

 

 

 

 

 

 

 

 

 

 

KKR European Credit Investment Funds plc

an umbrella fund with segregated liability between sub-funds

(the "Company")

 

NOTICE OF ANNUAL GENERAL MEETING

 

NOTICE is hereby given that the annual general meeting of the members of the Company will be held at 2.00p.m. (Irish time) on 29 September 2016 at 75 St. Stephens Green, Dublin 2, Ireland for the following purposes:

 

ORDINARY BUSINESS

 

2.         To receive and consider the reports of the directors and of the auditors and the accounts for the year ended 31 December 2015.

3.         To re-appoint the auditors of the Company.

4.         To authorise the directors to fix the remuneration of the auditors.

5.         To re-elect Mr. Greg Hickey as a director of the Company.

SPECIAL BUSINESS

To consider and, if thought fit, pass the following as a special resolution of the shareholders of the Company:

"RESOLVED that the objects clauses in the form presented to the annual general meeting of the Company held on 29 September 2016 be and are hereby adopted as the objects clauses of the Company to the exclusion of all existing objects clauses and that the constitution of the Company in the form presented to the annual general meeting of the Company held on 29 September 2016 be and is hereby adopted as the constitution of the Company to the exclusion of the existing memorandum and articles of association of the Company."

 

By Order of the Board:               

 

 

 

 

 

 

______________________

for and on behalf of                            

Bradwell Limited, Secretary

 

Dated:  5 September 2016

 

 

Registered Office:

Pinnacle 2

Eastpoint Business Park

Dublin 3

Ireland

 

 



Note:  

The constitution of the Company, in the form attached to the shareholder circular dated 5 September 2016 may be subject to change to reflect any additional amendments required by the Central Bank of Ireland or otherwise and a final version of the constitution of the Company will be presented to the shareholders at the annual general meeting scheduled to be held on 29 September 2016

 

A shareholder entitled to attend and vote is entitled to appoint a proxy to attend, speak and vote instead. A body corporate may appoint an authorised representative to attend, speak and vote on its behalf. A proxy need not be a shareholder of the Company. Proxies to be used at the meeting should be lodged at the office of the administrator, Deutsche International Corporate Services (Ireland) Limited, Pinnacle II Eastpoint Business Park, 3 Dublin, Ireland or by fax to +353 1 680 6051 or by email to [email protected] marked for the attention of Deutsche Bank Transfer Agency Team with the originals to arrive not later than 2.00p.m. (Irish time) on 27 September 2016.  The meeting will take place at 2.00p.m. (Irish time) on 29 September 2016.

 



PROXY FORM

 

KKR European Credit Investment Funds plc

an umbrella fund with segregated liability between sub-funds

(the "Company")

 

 

I/We                                                                                                                                        

 

of                                                                                                                                            

 

being a member/members of the Company and the holder of _______________ shares hereby appoint ______________ or failing him or her the Chairman of the meeting or failing him or her any one of Mr. Kevin Murphy, Ms. Sarah Cunniff,  Mr. Dara Harrington, Ms. Siobhan McBean, Mr. Patrick Daly, Ms. Sarah O'Sullivan, Ms. Louise O'Leary, Ms. Lisa Ryan, Mr. Neasan Cavanagh of Arthur Cox, Earlsfort Terrace, Dublin 2, Ireland as my/our proxy to vote for me/us on my/our behalf at the annual general meeting of the Company to be held at 2.00p.m. (Irish time) on 29 September 2016, and at any adjournment thereof.

 

Signed: _______________________

 

Dated this          day of              2016

 

ORDINARY RESOLUTIONS

 

For

Against

1.     

To receive and consider the reports of the directors and of the auditors and the accounts for the year ended 31 December 2015.



2.     

To re-appoint the auditors of the Company.



3.     

To authorise the directors to fix the remuneration of the auditors.



4.     

To re-elect Mr. Greg Hickey as a director of the Company.




Special Business

To consider and, if thought fit, pass as a special resolution the special business in item 5 of the notice of the meeting to adopt the new objects clauses to the exclusion of all existing objects clauses and to adopt the constitution of the Company to the exclusion of the existing memorandum and articles of association of the Company.



 

If you wish this form to be used in favour of the Resolution, please mark "X" in the box above under the heading "For". If you wish this form to be used against the Resolution, please mark "X" in the box above under the heading "Against". Otherwise, the Proxy will vote as he or she thinks fit.

 



NOTES:        

1.         Unless otherwise instructed, the proxy will vote as he or she thinks fit.

2.         This instrument of proxy, to be valid, must be sent to arrive, or be lodged, at the address printed below not later than 48 hours before the time fixed for the meeting.

3.         Where this form of proxy is executed by a corporation, it must be either under its seal or under the hand of an officer or attorney duly authorised.

4.         For omnibus/nominee shareholders, who without going to underlying investors do not have the authority to vote, please indicate how you wish your proxy/representative to vote by inserting the aggregate number of underlying investor votes "for" and/or "against" in the relevant box.

5.         If you wish to appoint a proxy other than the Chairman of the meeting, please insert his/her name and address and delete "the Chairman of the meeting".

6.         If this instrument is signed and returned without any indication of how the person appointed proxy shall vote, he will exercise his discretion as to how he votes and whether or not he abstains from voting.

7.         In the case of joint holders, the vote of the senior who tenders a vote whether in person or by proxy, shall be accepted to the exclusion of the votes of the other joint holders and for this purpose seniority should be determined by the order in which the names stand in the register of shareholders in respect of the joint holding.

8.         Any alterations made to this form must be initialled.

9.         Signed forms of proxy must be returned to the administrator at Deutsche International Corporate Services (Ireland) Limited, Pinnacle II Eastpoint Business Park, 3 Dublin, Ireland or by fax to +353 1 680 6051 or by email to [email protected] marked for the attention of Deutsche Bank Transfer Agency Team with the originals to arrive not later than 2:00 p.m. (Irish time) on 27 September 2016.  The meeting will take place at 2.00p.m. (Irish time) on 29 September 2016.

10.       The constitution of the Company, in the form attached to the shareholder circular dated 5 September 2016 may be subject to change to reflect any additional amendments required by the Central Bank of Ireland or otherwise and a final version of the constitution of the Company will be presented to the shareholders at the annual general meeting scheduled to be held on 29 September 2016.

 

 

 

 

 

 

This announcement has been issued through the Companies Announcement Service of

The Irish Stock Exchange

 

 

 


This information is provided by RNS
The company news service from the London Stock Exchange
 
END
 
 
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