Regulatory Filings • Nov 24, 2020
Regulatory Filings
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If you are in any doubt about the contents of this Circular and what action you should take, you are recommended to consult your independent professional adviser, who is authorised or exempted under the European Union (Markets in Financial Instruments) Regulations 2017 (as amended) or the Investment Intermediaries Act 1995 (as amended), if you are resident in Ireland, or who is authorised under the Financial Services and Markets Act, 2000 (as amended), if you are resident in the United Kingdom, or from another appropriately authorised independent financial adviser if you are in a territory outside Ireland or the United Kingdom.
If you sell or otherwise transfer or have sold or otherwise transferred all of your Ryanair Holdings plc shares ("Shares"), please forward this Circular and the accompanying Form of Proxy to the purchaser or transferee of such Shares or to the stockbroker, or other agent through whom the sale or transfer is/was effected for onward transmission to the purchaser or transferee.
The distribution of this Circular and/or the accompanying documents (in whole or in part) in certain jurisdictions may be restricted by the laws of those jurisdictions and therefore persons into whose possession this Circular comes should inform themselves about and observe any such restrictions. Failure to comply with any such restrictions may constitute a violation of the securities laws of any such jurisdiction.
Your attention is drawn to the letter from the Chairman of the Company which is set out on pages 7 to 13 of this Circular, which contains the recommendation of the Board to Shareholders to vote in favour of the Resolutions to be proposed at the Extraordinary General Meeting referred to below. You should read this Circular in its entirety and consider whether or not to vote in favour of the Resolutions in light of the information contained in this Circular.
A form of proxy for use at the Extraordinary General Meeting is enclosed ("Form of Proxy"). If you wish to validly appoint a proxy, the Form of Proxy should be completed and signed in accordance with the instructions printed thereon, and returned by post to the Company's Registrar, Link Registrars Limited, PO Box 1110, Maynooth, Co. Kildare, Ireland ("Company's Registrar") or by hand to Link Registrars Limited, Level 2, Block C, Maynooth Business Campus, Maynooth, Co Kildare, W23 F854, Ireland as soon as possible, but in any event so as to be received by the Company's Registrar no later than 9.00 a.m. on 15 December 2020. The completion and return of a Form of Proxy will not preclude you from attending and voting in person at the Extraordinary General Meeting, or any adjournment thereof, should you wish to do so.
Alternatively, electronic proxy appointment is also available for the Extraordinary General Meeting. This facility enables shareholders to appoint a proxy by electronic means by logging on to www.signalshares.com and entering the Company name: Ryanair Holdings plc. You will need to register for Signal Shares by clicking on "registration section" (if you have not registered previously) and following the instructions thereon.
For those shareholders who hold Shares in CREST, a shareholder may appoint a proxy by completing and transmitting a CREST Proxy Instruction (as defined in Part 9 of this Circular) to the Company's Registrar, (ID Number 7RA08). In each case, the proxy appointment must be received electronically by no later than 9.00 a.m. on 15 December 2020. The completion of either an electronic proxy appointment or a CREST Proxy Instruction (as the case may be) will not prevent you from attending and voting in person at the Extraordinary General Meeting, or any adjournment thereof, should you wish to do so.
Further instructions on how to appoint a proxy are set out in the notes to the Notice of EGM and on the Form of Proxy.
Holders of American Depositary Shares ("ADS"), each representing five Shares, may instruct the ADS Depositary as to the way in which the Shares represented by their ADSs should be voted by completing and returning the voting card provided to such holders by the ADS Depositary (as defined in Part 9 of this Circular) in accordance with the accompanying instructions (including any applicable deadlines).
This Circular contains (or may contain) certain forward-looking statements with respect to certain of the Company's current expectations and projections about future events, including Migration, and the Company's future financial condition and performance. These statements, which sometimes use words such as "aim", "anticipate", "believe", "may", "will", "should", "intend", "plan", "assume", "estimate", "expect" (or the negative thereof) and words of similar meaning, reflect the directors' current beliefs and expectations and involve known and unknown risks, uncertainties and assumptions, many of which are outside the Company's control and difficult to predict (certain of which are set out in this Circular with respect to Migration).
Due to such uncertainties and risks, readers are cautioned not to place undue reliance on such forward-looking statements, which speak only as of the date hereof. In light of these risks, uncertainties and assumptions, the events described in the forward-looking statements in this Circular may not occur. The information contained in this Circular, including the forwardlooking statements, speaks only as of the date of this Circular and is subject to change without notice and the Company does not assume any responsibility or obligation to, and does not intend to, update or revise publicly or review any of the information contained herein save where indicated in this Circular, whether as a result of new information, future events or otherwise, except to the extent required by Euronext Dublin ("Euronext Dublin"), the Central Bank of Ireland, the UK Financial Conduct Authority ("FCA"), the London Stock Exchange ("London Stock Exchange"), the NASDAQ Stock Market ("NASDAQ"), the U.S. Securities and Exchange Commission or by applicable law.
Information in this Circular in relation to the process of Migration and/or Market Migration (as defined in Part 9 of this Circular) is based on information contained in the Euroclear Bank SA/NV ("Euroclear Bank") Migration Guide (Version 2, October 2020) ("EB Migration Guide"), to which the attention of all Shareholders holding Migrating Shares (as defined in Part 9 of this Circular) is specifically drawn. The EB Migration Guide has been made available for inspection, in the manner outlined in section 6 of Part 1B of this Circular.
In addition, information in this Circular in relation to the service offering available following Migration from Euroclear Bank in the case of participants in the securities settlement system operated by Euroclear Bank ("Euroclear System") ("EB Participants") and from Euroclear UK & Ireland Limited ("EUI") in the case of CREST Depository Interests ("CDI") holders is based on information contained in the EB Services Description, the EB Rights of Participants Document and the CREST International Manual respectively (each as defined in Part 9 of this Circular). All three documents have been made available for inspection, in the manner outlined in section 6 of Part 1B of this Circular outlined below.
In all cases, the versions of the documents from which information contained in this Circular is drawn is the last published document as of the Latest Practicable Date.
Shareholders intending to hold their interests in Migrating Shares via the Euroclear System or CREST should carefully review the EB Migration Guide, the EB Services Description, the EB Rights of Participants Document and the CREST International Manual (including any updated versions thereof to the extent they are published after the date of this Circular), together with the additional documentation made available for inspection as set out in section 6 of Part 1B of this Circular and should consider those documents and consult with their stockbroker or other intermediary in making their decisions with respect to their Migrating Shares.
The Company is not making any recommendation with respect to the manner in which Shareholders should hold their interests in the Company prior to, on, or subsequent to, the Migration (as defined below). No reliance should be placed on the contents of this Circular for the purposes of any decision in that regard.
The date of this Circular is 17 November 2020.
| EXPECTED TIMETABLE OF PRINCIPAL EVENTS | 4 | |
|---|---|---|
| PART 1A: | LETTER FROM THE CHAIRMAN OF RYANAIR | 7 |
| PART 1B | SUMMARY OF CERTAIN KEY ASPECTS OF THE MIGRATION |
14 |
| PART 2: | QUESTIONS AND ANSWERS IN RELATION TO MIGRATION |
29 |
| PART 3: | FURTHER INFORMATION PROVIDED FOR THE PURPOSE OF SECTION 6(1) OF THE MIGRATION ACT |
37 |
| PART 4: | COMPARISON OF EUROCLEAR BANK AND EUI SERVICE OFFERINGS |
41 |
| PART 5 | OVERVIEW OF BELGIAN LAW RIGHTS | 51 |
| PART 6 | OVERVIEW OF CREST DEPOSITORY INTERESTS | 58 |
| PART 7: | TAX INFORMATION IN RESPECT OF THE MIGRATION |
62 |
| PART 8: | PROPOSED AMENDMENTS TO THE ARTICLES OF ASSOCIATION |
78 |
| PART 9: | DEFINITIONS | 83 |
| APPENDIX I: | NOTICE OF EXTRAORDINARY GENERAL MEETING | 91 |
| APPENDIX II: | RIGHTS OF MEMBERS OF IRISH INCORPORATED PLCs UNDER THE COMPANIES ACT THAT ARE NOT DIRECTLY EXERCISABLE UNDER THE EUROCLEAR BANK SERVICE OFFERING |
97 |
| Publication date of this Circular, dated 17 November 2020 | 24 November 2020 |
|---|---|
| Latest time and date for receipt of Forms of Proxy in respect of | 9.00 a.m. on 15 |
| Extraordinary General Meeting | December 2020 |
| Voting Record Time | 7.00 p.m. on 15 |
| December 2020 | |
| Time and date of Extraordinary General Meeting | 9.00 a.m. on 17 |
| December 2020 | |
Indicative Timetable for Key Migration Steps
The further dates below, which relate to Migration, are indicative only, are subject to change, and will depend, amongst other things, on the date to be appointed by Euronext Dublin as the Live Date in accordance with the provisions of the Migration of Participating Securities Act 2019 ("Migration Act").
The Company will give notice of confirmed dates, when known, by issuing an announcement through a Regulatory Information Service. All times relating to Migration in this timetable are subject to subsequent clarification and announcement.
If the Company fails to meet all required conditions to participate in Migration, including that it has consented to Migration (which requires the prior approval of the Resolutions by Shareholders) the Shares will no longer be eligible for settlement in the CREST System (as defined in Part 9 of this Circular), nor will they be eligible in Euroclear Bank. According to the EB Migration Guide (as defined in Part 9 of this Circular), EUI will cease to provide Issuer CSD (as defined in Part 9)services in respect of ineligible securities, and will suspend and remove ineligible securities from the CREST System, as of the close of business on Thursday, 11 March 2021 and such ineligible securities will thereupon be rematerialised (i.e. re-certificated). In the absence of an alternative electronic settlement system, this would be expected to adversely impact trading and liquidity in the Company's Shares and put continued admission to trading and listing of the Shares on Euronext Dublin and the London Stock Exchange at risk, as referred to in section 2 of Part 1A of this Circular.
| (1) EUI and Euroclear Bank to announce Migration timetable. |
February/March 2021 |
|---|---|
| Euronext Dublin to announce Live Date. | Prior to Friday, |
| 12 March 2021 |
|
| It should be noted that the Company has no control over the selection of the | |
| Live Date and the timetable for Migration consequent upon it. |
|
| Expected latest time and date for Shareholders who hold their Shares in | By 6.00 p.m. on |
| uncertificated (i.e. dematerialised) form, and who do not want their Shares |
Thursday, 11 March |
| to be subject to the Migration, to withdraw the relevant Shares from the |
2021 at the latest. |
| CREST System and hold them in certificated (i.e. paper) form. | |
| Shareholders wishing to hold their Shares in certificated (i.e. paper) form prior to the Migration taking effect should make arrangements with their stockbroker or custodian in good time so as to allow their stockbroker or custodian sufficient time to withdraw their Shares from the CREST System prior to the closing date set out above for such CREST withdrawals. |
|
|---|---|
| Expected latest time and date for Shareholders who hold their Shares in certificated (i.e. paper) form to deposit the relevant Shares into the CREST System and hold them in uncertificated (i.e. dematerialised) form so as to ensure that such Shares are subject to Migration.(2) |
Expected to be no less than two (2) business days prior to the Live Date |
| Shareholders wishing to hold their Shares in uncertificated (i.e. dematerialised) form prior to Migration taking effect should make arrangements with a stockbroker or other custodian in good time so as to allow their stockbroker or custodian sufficient time to deposit their Shares into the CREST System prior to the time and date for such CREST deposits. |
|
| Expected latest time holders of Shares can transfer their Shares from their account in EUI to an account in Euroclear Bank in which the Shares will be held under Euroclear Bank's service as Investor CSD (as defined in Part 9 of this Circular) until Migration. The services described in the EB Services Description will only become applicable as of the Live Date. |
Any time before and until close of business on Friday, 12 March 2021 |
| Latest date for allotments directly to CREST members. | Friday, 12 March 2021 |
| EUI to stop settlement of Irish Securities as domestic securities. | 6.00 p.m. on Friday, 12 March 2021 |
| Migration Record Date. | 7.00 p.m. on Friday, 12 March 2021 |
| Live Date. | Expected to be Monday, 15 March 2021 |
| All Participating Securities in the Company at the Migration Record Date ("Migrating Shares") enabled as CDIs in CREST (please see below at section 4 of Part 1B, Part 4 and Part 6 of this Circular for further information concerning CDIs). |
Commencement of trading on the Live Date |
| All trades conducted on the London Stock Exchange from, and including this date, will settle in CDI form via CREST.(3)* |
Live Date |
| All trades conducted on Euronext Dublin from, and including this date, will settle via Euroclear Bank.* |
Live Date |
| CREST members who wish to move all or part of a CDI holding to an EB Participant can do so by way of a cross-border delivery free of payment. |
As of the start of business on the Live Date |
Notes:
(1) The dates specified in this table are indicative dates which the Company currently reasonably anticipates will be the Live Date and the date Migrating Shares are enabled as CDIs in the CREST System. The actual Live Date will be
specified by Euronext Dublin in accordance with the provisions of the Migration Act and EUI/Euroclear Bank will confirm the timing of consequent steps. Should the Live Date change or not be as expected, the dates for other actions will change accordingly.
(Registered in Ireland No. 249885)
Stan McCarthy (Non-Executive Director, Chairman) Louise Phelan (Non-Executive Director, Senior Independent Director) Roisin Brennan (Non-Executive Director) Michael Cawley (Non-Executive Director) Emer Daly (Non-Executive Director) Howard Millar (Non-Executive Director) Dick Milliken (Non-Executive Director) Mike O'Brien (Non-Executive Director) Michael O'Leary (Executive Director, Chief Executive Officer) Julie O'Neill (Non-Executive Director)
GROUP SECRETARY Juliusz Komorek
REGISTERED OFFICE Ryanair Dublin Office, Airside Business Park, Swords, Co. Dublin
17 November 2020
Dear Shareholder,
The purpose of this Circular is to convene the EGM in order to approve certain resolutions which are necessary to ensure the Company's Shares can continue to be settled electronically when they are traded on Euronext Dublin and the London Stock Exchange and remain eligible for continued admission to trading and listing on those exchanges.
Continued access to electronic settlement, and approval of the resolutions set out in this Circular, are important to enable continued trading and liquidity in the Company's Shares and the Board believes that they are therefore crucial to the interests of the Company and its Shareholders as a whole. The Board strongly urges Shareholders to review the contents of this Circular in their entirety and consider the Board's recommendation to vote in favour of the proposed resolutions.
In order for trading in shares to be settled electronically, shares must be in uncertificated (i.e. dematerialised/non-paper) form. Approximately, 95% of the Company's issued share capital is held in uncertificated form. These uncertificated shares ("Participating Securities", as more fully defined in Part 9 of this Circular) are not represented by any share certificates, nor do they need to be transferred by the execution of a written stock transfer form. Instead, they are currently transferred by operator instructions issued via CREST, which is the London-based securities settlement system operated by Euroclear UK & Ireland Limited ("EUI") ("CREST System").
The regulation of central securities depositories ("CSDs"), which operate securities settlement systems, is harmonised across the European Union ("EU") under the EU Central Securities Depositories Regulation (Regulation (EU) No. 909/2014) ("CSDR"). As a result of the withdrawal of the United Kingdom from the EU ("Brexit"), EUI will, at the end of the Brexit transition period on 31 December 2020, no longer be subject to EU law. A European Commission decision is expected to be published in order to extend the current temporary status as a "recognised" CSD for the purposes of CSDR granted to EUI to 30 March 2021, however, as at the Latest Practicable Date, no such decision has been published.
As a result, it is expected that the CREST System will cease to be available for the settlement of trades in Participating Securities with effect from 30 March 2021. In December 2018, Euronext Dublin announced that, based on the analysis it had carried out of four possible CSD options for settlement post-Brexit, it had selected Euroclear Bank, with a Belgian-based model, to replace EUI as the longterm CSD for Irish securities settlement. At the date of this Circular, no alternative securities settlement system authorised to provide settlement services in respect of Irish securities has been actively engaging with Irish market participants to facilitate the transition of Irish shares to its settlement system. As a result, no alternative securities settlement system to the Euroclear System is expected to be available for the electronic settlement of trades in the Company's Shares on or before 30 March 2021.
To facilitate a common migration procedure from EUI to an alternative CSD, which is authorised for the purposes of CSDR for all Irish listed companies whose shares are currently held and settled through the CREST System, the Oireachtas (the Irish Parliament) enacted the Migration of Participating Securities Act 2019 ("Migration Act"). To participate in the migration procedure under the Migration Act, eligible companies must, among other requirements, pass certain shareholder resolutions prior to 24 February 2021 at a general meeting of its shareholders.
As it is essential for the Company that electronic settlement of trading of its Shares can continue on Euronext Dublin and on the London Stock Exchange, the purpose of the EGM is to consider, and if thought fit, approve a number of resolutions ("Resolutions") which are intended to facilitate the migration of the Company's Participating Securities from the CREST System to the settlement system operated by Euroclear Bank, an international CSD incorporated in Belgium, in the manner described in this Circular ("Migration") and to make certain other changes to the Company's Articles of Association ("Articles of Association"). Subject to the approval of the Resolutions, it is intended that the Migration will occur as part of Market Migration, which is expected to occur in mid-March 2021.
If the Resolutions are not passed, and the Company does not participate in the Migration, all Participating Securities in the Company will be required to be re-materialised into certificated (i.e. paper) form and Shareholders will no longer be able to settle trades in the Shares electronically. This could materially and adversely impact on trading and liquidity in the Shares as it would result in significant delays for Shareholders and investors wishing to sell or acquire Shares. It would also put at risk the continued admission to trading and listing of the Shares on Euronext Dublin and the London Stock Exchange as the absence of electronic settlement of Shares would mean that the Company would cease to meet the eligibility criteria for admission to trading on Euronext Dublin and the London Stock Exchange. The Company believes that the failure to participate in the Migration would have a material adverse impact on liquidity in, and could have a material adverse impact on the market value of, the Shares/ADSs as well as the relative attractiveness of the Shares/ADSs for investors.
The Board has convened this EGM to occur prior to 31 December 2020 in anticipation of a "hard" end to the Brexit transition period to ensure all Shareholders as at the Voting Record Time are entitled to vote on the Resolutions, notwithstanding the outcome of Brexit negotiations, and in light of the specific quorum requirements set out in the Migration Act for the EGM, which require that at least three
persons holding or representing by proxy at least one third in nominal value of the issued shares of the Company are in attendance. As previously communicated to Shareholders, and set out at section 2 of Part 1B of this Circular, in the event of a "hard" Brexit, voting by Shareholders who are non-EU Nationals will be restricted in accordance with the Articles of Association from 1 January 2021. As a result, it is expected that satisfying this quorum requirement may be materially more challenging and may not actually be possible if the EGM was convened on or adjourned to a date after 31 December 2020. The Board therefore strongly urges Shareholders to review the contents of this Circular in their entirety and consider the Board's recommendation to vote in favour of the Resolutions.
Neither the Migration, nor the proposed changes to the Articles of Association, are expected to impact on the on-going business operations of the Company. The Company will remain headquartered, incorporated and resident for tax purposes in Ireland. The nature and venue of the stock exchange listings of the Company will not change in connection with Migration. The Company does not expect that Migration will result in any change in the eligibility of the Company for the indices of which it is a constituent as of the date of this Circular. The current restrictions on non-EU Nationals holding interests in Shares (other than through ADSs) will not be affected by the Migration and so will continue to apply post-Migration. In addition, the ISIN relating to the Shares will be unchanged.
Migration will entail all of the uncertificated (i.e. dematerialised) Shares which are held in electronic form on the Migration Record Date moving from the CREST System to the Euroclear System. Following Migration, title to all Shares which are admitted to the Euroclear System will be held by a single nominee shareholder entered on the register of members of the Company (the "Register of Members"), Euroclear Nominees Limited ("Euroclear Nominees"), holding all of these Shares on behalf of the Holders of Participating Securities (as defined in Part 9 of this Circular) on the Migration Record Date, subject to the rules and procedures of the Euroclear System.
Under the Euroclear System, pursuant to Royal Decree No. 62 (as defined in Part 9 of this Circular) Belgian Law Rights (as defined in Part 9 of this Circular) representing any Shares admitted to the Euroclear System will automatically be granted to participants in the Euroclear System ("EB Participants"). The Belgian Law Rights will entitle EB Participants to direct the exercise of certain rights relating to the Shares in accordance with the terms of the EB Services Description. Existing Shareholders that are entitled to become EB Participants will be able to hold the Belgian Law Rights directly. Existing Shareholders which are not entitled to become EB Participants but who wish for their Shares to be admitted to the Euroclear System will either need to make arrangements for an existing EB Participant to hold the Belgian Law Rights as a custodian on their behalf, or hold their Shares through CDIs, as described below (in which case CIN (Belgium) Limited ("CREST Nominee") will act as EB Participant).
A CDI is a security constituted under English law issued by EUI that represents an entitlement to international securities. CDIs are a technical means by which interests in Shares can be held in the CREST System as an alternative to holding Belgian Law Rights directly as an EB Participant. CDIs will allow a Shareholder to continue to hold interests in the CREST System (albeit indirectly) and to settle trades in the Shares conducted on the London Stock Exchange.
Following the Migration, transactions in Shares resulting from trades on Euronext Dublin will settle via the Euroclear System and transactions in the Shares resulting from trades on the London Stock Exchange will settle via CDIs in CREST. Following the Migration, it is expected that outstanding ADSs will continue to trade and settle on NASDAQ in the same manner as before the Migration.
Further information on the Belgian Law Rights which will be issued to EB Participants and CDIs is set out in Parts 5 and 6 of this Circular.
Resolution 1 is being proposed in order to satisfy the requirement in sections 4, 5 and 8 of the Migration Act that the Shareholders of the Company pass a special resolution to approve of the Company giving its consent to the Migration. The Migration Act requires that this special resolution be approved at a general meeting at which there is in attendance at least three (3) persons holding or representing by proxy at least one-third in nominal value of the issued Shares in the Company. Resolution 1 is being proposed on the basis that it must be approved by 75% or more of votes properly cast, in person or by proxy at the EGM.
If Resolution 1 is approved, the consent of the Company to the Migration will, subject to market wide migration proceeding, be given by a resolution of the Board (or a committee thereof), notice of which shall be published via an announcement through a Regulatory Information Service prior to the Live Date.
Resolution 2 is being proposed as a special resolution for the purposes of the Companies Act as it seeks to approve and adopt new Articles of Association to facilitate the new arrangements required as a result of the Migration and to take account of changes introduced by the Migration Act. The adoption of Resolution 2 is subject to the approval of Resolution 1.
An explanation of the proposed changes to the Articles of Association is contained in Part 8 of this Circular. These changes will include an amendment to the Articles of Association so as to allow the Directors to take all steps necessary to implement the Migration including the processes and procedures described in the EB Migration Guide including, where considered necessary or desirable, the appointment of an agent to effect the Migration on behalf of all holders of Migrating Shares in the manner described in more detail in Part 8 of this Circular. The Company is also proposing that the Directors would have discretion under the Articles of Association to facilitate the exercise of certain rights of registered shareholders (i.e. members), in appropriate circumstances, which would otherwise become un-exercisable directly by a holder of Participating Securities following the Migration.
A copy of the Articles of Association in the form amended by Resolution 2 (marked to highlight the proposed changes) is available (and will be so available until the conclusion of the EGM) on the Company's website (https://investor.ryanair.com/), at its registered office and will also be available at the EGM for at least 15 minutes before, and for the duration of, the EGM. In accordance with applicable regulations and public health guidelines in force in Ireland in connection with COVID-19, we request Shareholders not to attend at the Company's offices but instead inspect the Articles of Association on the Company's website.
Resolution 2 is being proposed on the basis that it must be approved by 75% or more of votes properly cast, in person or by proxy, at the EGM. If approved by Shareholders, the Articles of Association in the form amended by Resolution 2 will be effective on the passing of Resolution 2.
Resolution 3 is being proposed as an ordinary resolution for the purposes of the Companies Act. As the Migration involves the taking of certain procedural steps which are not specifically provided for in the Migration Act, including the issue of CDIs as explained in further detail at Part 1B, the Company is seeking shareholder approval by way of an ordinary resolution to give flexibility to the Board to give effect to these arrangements. It is expected that any such arrangements will be in substantial conformity with measures taken by all Irish listed and traded issuers which participate in the Migration. Resolution 3 will authorise and instruct the Company to take any and all actions which the Directors, in their absolute discretion, consider necessary or desirable to implement the Migration and/or the matters in connection with the Migration referred to in this Circular (including the procedures and processes described in the EB Migration Guide as amended from time to time), including appointing any necessary parties to act as the agents of the holders of Migrating Shares in order to implement the Migration and/or the matters in connection with the Migration referred to in the Circular (including the procedures and processes described in the EB Migration Guide as amended from time to time). The adoption of Resolution 3 is subject to the approval of Resolutions 1 and 2.
You should read this Circular in in its entirety. In particular Part 1B of this Circular summarises:
Nothing in this Circular constitutes legal, tax or other advice, and if you are in any doubt about the contents of this Circular, you should consult your own professional adviser(s).
The well-being of our Shareholders and our people is a primary concern for the Directors. We are closely monitoring the COVID-19 situation and any advice by the Government of Ireland in relation to the pandemic. We will take all recommendations and applicable law into account in the conduct of the EGM. There will likely be very limited ability to attend the EGM in person and we would therefore encourage Shareholders to submit their Form of Proxy to ensure they can vote and be represented at the EGM. By submitting a Form of Proxy in favour of the chairman of the EGM you can ensure that your vote on the Resolutions is cast in accordance with your wishes without attending in person.
The Company continues to monitor the impact of COVID-19 and any relevant updates regarding the EGM, including any changes to the arrangements outlined in this Circular, will be announced via a Regulatory Information Service and will be available on https://investor.ryanair.com/.
In the event that it is not possible to hold the EGM either in compliance with public health guidelines or applicable law or where it is otherwise considered that proceeding with the EGM as planned poses an unacceptable health and safety risk, the EGM may be adjourned or postponed or relocated to a different time and/or venue, in which case notification of such adjournment or postponement or relocation will be given in accordance with applicable law.
The formal Notice of EGM appears at Appendix I of this Circular, on pages 91 to 93, and this Circular explains the items to be transacted at the EGM.
Even if you are not able to attend the meeting in person, all Shareholders can still vote, and I urge all Shareholders, regardless of the number of Shares that you own, and regardless of whether you hold or wish to continue to hold your Shares in certificated form (i.e. paper) or electronically, to complete, sign and return your Form of Proxy as soon as possible but, in any event, so as to reach the Company's Registrar, no later than 9.00 a.m. on 15 December 2020. Alternatively, Shareholders may register their proxy appointment and voting instructions electronically via the internet, or, where they hold their Shares in the CREST System, via the CREST Electronic Proxy Appointment Service. Details of how to do this are provided in the notes section of Appendix I on pages 94 to 96 of this Circular.
There are a number of matters which remain to be clarified in connection with the Migration and which are relevant for all Irish companies whose shares are admitted to trading on a market of Euronext Dublin or the London Stock Exchange.
The Board is not making any recommendation with respect to the manner in which Shareholders should hold their interests in the Company prior to, on, or subsequent to, the Migration. Shareholders should make their own investigation in relation to the manner in which they may hold their interests in the Company at such times. Shareholders intending to hold their interests in Migrating Shares through the Euroclear System via Belgian Law Rights or through the CREST System via CDIs should carefully review the EB Migration Guide, the EB Services Description, the CREST International Manual and the EB Rights of Participants Document (including any updated versions thereof to the extent they are published after the date of this Circular), together with the additional documentation made available for inspection as set out in section 6 of Part 1B below and should consider those documents in making their decisions with respect to their Shares. Nothing in this Circular constitutes legal, tax or other advice, and if you are in any doubt about the contents of this Circular, you should consult your own professional adviser.
The impact of the Migration on shareholder rights, trading flows, liquidity, share custody costs, the nature, range and cost of corporate services, and the ease and ability for underlying Shareholders to exercise their economic rights, and the costs of so doing is not expected to entail an improvement from the CREST System. Nevertheless and notwithstanding the matters described above which remain to be clarified in advance of the Migration, in order to ensure that following March 2021 electronic trading of the Company's Shares may continue to be settled in compliance with EU law, and to ensure ongoing compliance with the electronic share trading requirements for listing on Euronext Dublin and the London Stock Exchange, the Board believes that each of the Resolutions are in the best interests of the Company and its Shareholders as a whole and the Board unanimously recommends that you vote in favour of each of these Resolutions, as they intend to do so themselves in respect of all of the Shares held or beneficially owned by them (as at 16 November 2020 the Board held, in aggregate, 46,729,609 Shares representing approximately 4.15% of the issued ordinary share capital of the Company on that date).
Yours faithfully,
Stan McCarthy Chairman
Currently, anyone acquiring Participating Securities via the CREST System in accordance with the Irish Crest Regulations, can either have the Participating Securities registered in its own name in the Company's Register of Members, if it is a CREST member, or, if it is not a CREST member, it can arrange for a custodian which is a CREST Member to hold the Participating Securities on its behalf, in which case the custodian will be registered as the holder of the Participating Securities in the Company's Register of Members. In both cases, the owner of the Participating Securities is able to exercise all rights attaching to the Participating Securities either directly as the registered shareholder or indirectly via instructions given to the relevant custodian shareholder in accordance with the terms of the private contract entered into with the custodian.
Migration will entail all of the uncertificated (i.e. dematerialised) Shares, which are held in electronic form on the Migration Record Date moving from the CREST System to the Euroclear System. Following Migration, title to all Shares which are admitted to the Euroclear System will be held by a single nominee shareholder entered on the Register of Members, Euroclear Nominees, holding all of these Shares on behalf of the Holders of Participating Securities on the Migration Record Date, subject to the rules and procedures of the Euroclear System.
Under the Euroclear System, pursuant to Royal Decree No. 62 Belgian Law Rights, representing any Shares admitted to the Euroclear System, will automatically be granted to EB Participants. The Belgian Law Rights will entitle EB Participants to direct the exercise of certain rights relating to the Shares in accordance with the terms of the EB Services Description. Existing Shareholders that are entitled to become EB Participants will be able to hold the Belgian Law Rights directly. Existing Shareholders who are not entitled to become EB Participants but who wish for their Shares to be admitted to the Euroclear System will either need to make arrangements for an existing EB Participant to hold the Belgian Law Rights as a custodian on their behalf, or hold their Shares through CDIs, as described below (in which case CREST Nominee will act as EB Participant). Further information on the Belgian Law Rights which will be issued to EB Participants is set out in Part 5 of this Circular.
On Migration, CDIs will be issued in respect of all of the Shares held in electronic form by CREST members (as defined in Part 9 of this Circular) (i.e. Participating Securities) on the Migration Record Date. While the underlying Shares will be admitted to the Euroclear System, the CDIs will entitle CREST members to direct the exercise of certain rights relating to the Shares, through the interface of the CREST System, in accordance with the EB Services Description and the CREST International Manual. These CDIs will represent the Participating Securities deposited in the Euroclear System. In its book entry system, Euroclear Bank will record all of the deposited Participating Securities as being in the account of the CREST Nominee. The CREST Nominee is nominee of the CREST Depository for the purpose of creating CDIs. Please see below at section 3 and Part 4 of this Circular for further information concerning CDIs.
Such CREST members will then be able to either continue to hold their interest in Participating Securities via CDI or, subject to being, becoming, or having a custody relationship with, an EB Participant, will be able to hold via the Euroclear System. In all cases the rights of EB Participants (including the CREST Nominee) in respect of shares will be to a Belgian Law Right (see Part 5 of this Circular) and the services available to EB Participants and to CDI holders will be governed by the EB Services Description and, additionally in the case of CDIs, the CREST International Manual. This is a significant change in both the form and nature of shareholding in the Company, and the substance of, and manner in which, rights can be exercised.
Under the Company's existing settlement arrangements with EUI, when trades in Participating Securities are settled via the CREST System, electronic instructions are issued via the CREST System in accordance with the Companies Act, 1990 (Uncertificated Securities) Regulations, 1996 (as amended) ("Irish CREST Regulations"), which results in a change in the Company's Register of Members in order to reflect the transfer of legal title. When trades in securities are settled via the Euroclear System, there will be no change in the Company's Register of Members in order to reflect a transfer of legal title. It is a key difference between the Euroclear System and the CREST System that the former is an 'intermediated' or 'indirect' system, under which the rights of EB Participants in the Participating Securities are governed by Belgian law. For so long as securities remain in the Euroclear System, Euroclear Bank's nominee, Euroclear Nominees will be recorded in the Company's Register of Members as the holder of the relevant Shares and trades in the securities will instead be reflected by a change in Euroclear Bank's book-entry system, as detailed in Part 5 of this Circular. A holder must be or become an EB Participant (or have access to an EB Participant as custodian) for its holding to be recorded in Euroclear Bank's book-entry system. The rights of EB Participants in respect of the Participating Securities will be determined by a Belgian law governed contract specified in Euroclear Bank's Terms and Conditions governing use of Euroclear including the Operating Procedures of the Euroclear System ("EB Operating Procedures").
Unlike the private contract which an owner of a Share can currently enter into with a custodian which has agreed to hold Shares on the owners behalf in the CREST System, neither the EB Operating Procedures, nor the EB Services Description are capable of being varied to suit an individual owner of the Shares. The EB Operating Procedures, the EB Services Description and the EB Rights of Participants Document are governed by Belgian law. Furthermore, the services available under the Euroclear System in respect of the exercise of shareholder rights as set out in the EB Services Description are limited and this means that the rights exercisable by an owner of Shares will not be as extensive as is currently the case for a person holding Participating Securities in the CREST System pursuant to the Irish CREST Regulations.
The effect of the Migration on the rights of registered shareholders and how they may be exercised is described below:
Holders of Participating Securities should read the EB Rights of Participants Document and the EB Services Description, which are available for inspection as explained in section 2 below. In particular, Holders of Participating Securities need to be aware that in addition to its services with respect to the settlement of trades in shares, Euroclear Bank is offering to facilitate the exercise of shareholder rights by EB Participants as set out in the EB Services Description, which does not include the exercise of certain rights available to registered shareholders under Irish company law. Appendix II of this Circular contains a list of shareholder rights that are not directly exercisable under the EB Services Description. It will however be possible for these rights to be capable of being exercised by a Shareholder holding in certificated (i.e. paper) form, including following a withdrawal of the relevant Shares from the Euroclear System as described at section 20 of Part 2. In seeking to effect such a withdrawal and the direct exercise of such rights, Holders of Participating Securities should be aware that in order to comply with Article 3(2) of CSDR, settlement of trades in Shares that have been withdrawn from the Euroclear System to be held in certificated (i.e. paper) form has to take place within a CSD and consequently any subsequent sale of such positions will necessitate the Shares being redeposited into either the Euroclear System or CREST System, as appropriate. It should be noted that, as a result of EU regulatory reform effective from 2023, Irish listed PLCs will be required to arrange for their transferable securities to be represented in book-entry (uncertificated) form only. The future ability to exercise rights as a registered shareholder after 1 January 2023 (for newly issued shares) and 1 January 2025 (for all shares) will therefore depend on legislative changes which have not yet been proposed or determined by the relevant authorities. Please see section 6 below for further information on possible legislative changes.
Please see section 5 below and Part 8 of this Circular for a description of the manner in which the Company proposes that the exercise of certain of the rights of registered shareholders listed in Appendix II may be facilitated without the necessity of re-materialising Shares.
In addition to the rights of registered shareholders generally, the effect of the Migration for holders of certificated shares and Holders of Participating Securities (i.e. holders of uncertificated shares) is as set out below:
The legal effects of the Migration for holders of certificated Shares can be summarised as follows:
This will also be the case for Shareholders that currently hold their Shares in the CREST System but who withdraw their Shares from the CREST System and hold them in certificated (i.e. paper) form prior to the latest time for doing so prior to the Migration.
Shareholders who wish to deposit Shares currently held in certificated (i.e. paper) form into the CREST System, in order that the Shares be subject to the Migration, should either become a CREST member themselves or make arrangements with their stockbroker or CREST nominee in good time so as to allow their stockbroker or CREST nominee sufficient time to deposit their Shares into the CREST System by the closing date for CREST deposits prior to the Migration. Such Shareholders will then receive CDIs on Migration, as further referred to below.
As is the case currently, in the event that shareholders holding certificated Shares wish to transact in their Shares on Euronext Dublin or the London Stock Exchange they will need to arrange for such Shares to be dematerialised (which can be done through their broker).
As of the Latest Practicable Date, approximately 4.49% of the issued share capital of the Company is held by Shareholders in certificated form. These Shareholders, who are not directly impacted by the Migration, represent approximately 44.48% in number of the total registered Shareholders in the Company.
For Holders of Participating Securities, the immediate legal effects of the Migration can be summarised as follows:
Furthermore, CDIs will be issued in respect of all of the Shares held in electronic form to the CREST members on the Migration Record Date. Once the CDIs have been issued, the relevant CREST members will then be able to either continue to hold via CDI or, subject to being, becoming, or having a custody relationship with, an EB Participant, will be able to hold via the Euroclear System.
As a result, Holders of Participating Securities on the Migration Record Date ("Former Holders") will no longer have direct rights as registered shareholders (i.e. members) of the Company in respect of such Participating Securities. In addition, holders in the Euroclear System will be required to utilise the services offered by Euroclear Bank in relation to the exercise of their rights as EB Participants. The services which can be availed of via the Euroclear System in respect of the exercise of shareholder rights are limited and this means that the rights exercisable by EB Participants in respect of these securities will not be as extensive as is currently the case for a person holding Participating Securities in the CREST System pursuant to the Irish CREST Regulation.
2. An explanation of how the rights and services accessible to uncertificated shareholders following Migration (provided via the Euroclear System and via CREST in respect of CDIs) differ from those currently provided.
In particular, Holders of Participating Securities should note that the Euroclear Bank service offering in respect of Irish securities differs from that which is provided by CREST in respect of Irish securities pre-Migration. The service offering from CREST in respect of CDIs is also different from that which is provided by CREST in respect of Irish securities pre-Migration.
Part 4 of this Circular contains a high level comparison of certain elements of the service offering which will be available following Migration in relation to common corporate actions. In general terms there will be earlier deadlines for action (including deadlines for the submission of proxy instructions and restrictions on the withdrawal of proxy instructions by holders) than currently apply and different procedural requirements (these may in some cases be more onerous) than currently apply but the ability to vote electronically, to receive dividends and to participate in share issuances will be preserved in accordance with the terms of the service offering. Shareholders are strongly encouraged to consult the EB Migration Guide, the EB Services Description and the EB Rights of Participants Document (including any updated versions thereof to the extent they are published after the date of this Circular), together with the additional documentation made available for inspection as set out in section 6 of this Part 1B and should consider those documents in making their decisions with respect to their Migrating Shares.
In particular, persons engaged in stock lending and borrowing transactions in Shares, as currently facilitated as part of the EUI CREST service offering under the Irish CREST Regulations, should note that such services do not form part of the EB Services Description. Persons who wish to lend and borrow Shares in the Company after the Migration may seek to register for Euroclear Bank's automated Securities Lending and Borrowing programme or use one of the other services of Euroclear Bank that can achieve an equivalent effect. It is important for Shareholders to note that the foregoing change in service offering will have an impact on any stock lending and borrowing transactions in Shares that remain outstanding as at the Live Date. The CREST stock lending and borrowing service will remain available to CREST members holding CDIs via the CREST System.
CDIs are a technical means by which interests in Shares can be held in the CREST System as an alternative to holding Belgian Law Rights as an EB Participant. In order to ensure an orderly transfer to the intermediated Euroclear System, as part of Migration, Euroclear Bank will have arranged with EUI for CDIs to be issued to all Former Holders on the Live Date. Following Migration, CDIs will allow a Former Holder to continue to hold interests in the CREST System (albeit indirectly) and to settle trades in the Shares conducted on the London Stock Exchange. These CDIs will represent the Participating Securities deposited in the Euroclear System. In its book entry system, Euroclear Bank will record all of the deposited Participating Securities as being in the account of the CREST Nominee. The CREST Nominee is an EB Participant and is nominee of the CREST Depository for the purpose of creating CDIs. The CREST Depository's relationship with CREST members is governed by the global deed poll made on 25 June 2001 by CREST Depository (as defined in Part 9 of this Circular), a copy of which is set out in the CREST International Manual (the "CREST Deed Poll"). CDIs may also be of assistance for Holders of Participating Securities who do not qualify as, or do not have a custody relationship with, an entity which is an EB Participant. The practical result of the Migration taking effect will be that all Migrating Shareholders (as defined in Part 9 of this Circular) (other than ADS holders) will receive one CDI for each Migrating Share held at the Migration Record Date. Migrating Shareholders will then be entitled to choose whether (1) to continue to hold via CDI, or (2) to convert their holding via CDI into a holding of the Belgian Law Rights as an EB Participant (subject to such Migrating Shareholder being or becoming an EB Participant), or through a custodian, broker or other nominee which is an EB Participant.
Further information in relation to CDIs is set out in Part 6 of this Circular and a summary comparing the service offering of EUI with respect to CDIs and Euroclear Bank to EB Participants via the Euroclear System is set out at Part 4 of this Circular.
American Depositary Shares ("ADS"), each representing five (5) Shares, are listed on NASDAQ Stock. ADSs are evidenced by American Depositary Receipts ("ADRs"). ADSs are registered and delivered by The Bank of New York Mellon, as depositary ("ADS Depositary"). The terms and conditions of the ADSs are set forth in the deposit agreement, dated 29 May 1997, as amended and restated on 12 February 2007, entered into among the Company, the ADS Depositary and all holders from time to time of ADSs issued thereunder ("Deposit Agreement"). Currently, the Shares represented by the ADSs are held directly on the Register of Members via the CREST System in the name of a nominee of the ADS Depositary ("CREST ADS Nominee").
Because the Shares represented by the ADSs are Participating Securities, such Shares will be subject to the Migration. It is currently expected that, on the Live Date, the Shares representing ADSs will cease to be held directly by the CREST ADS Nominee on the Register of Members in the CREST System, and the Euroclear Nominee will be entered into the Register of Members as the holder of such Shares in place of the CREST ADS Nominee. Euroclear Bank will then credit the rights and interests in such Shares to the Euroclear Bank account of the CREST Nominee and CDIs representing those Shares will be credited to the CREST account of the CREST ADS Nominee. The CREST ADS Nominee will on the same day direct CREST to cancel those CDIs and deliver the interests in the underlying Shares to the Euroclear Bank account of the ADS Depositary, which is an EB Participant, by using cross-border delivery. As a result, the rights and interests of the ADS Depositary in such Shares represented by ADSs will comprise the Belgian Law Rights summarised in Part 5 of this Circular.
It is envisaged that the Migration will not require any changes to the terms of the ADSs or the Deposit Agreement. Following the Migration, it is expected that outstanding ADSs will continue to trade and settle on NASDAQ in the same manner as before the Migration.
If holders of ADSs wish to exercise the rights of holders of Shares listed in Appendix II following the Live Date, then they should, prior to the Live Date, surrender their ADSs to the ADS Depositary for cancellation and arrange to hold the Shares represented by their ADSs in certificated (i.e. paper) form. Any surrender of ADSs and withdrawal of the Shares represented by such ADSs will result in the incurrence of (i) the charges specified in the Deposit Agreement for the surrender of the Company ADSs and (ii) any applicable taxes and/or governmental charges. In addition, as is the case at present and will remain the position following the Live Date, where ADS holders arrange to surrender their ADSs and instead to hold the Shares which were previously represented by such ADSs, ADS holders who are non-EU Nationals would become subject to the restrictions on non-EU Nationals holding interests in Shares set out in the Articles of Association and referred to below such that they would be required to transfer their interests in the Shares to an EU National.
Following the Migration, in the event a holder of ADSs surrenders their ADSs to the ADS Depositary for cancellation, it is currently expected that the ADS Depositary would arrange to credit the Euroclear Bank account of such holder (or its designated EB Participant) with the rights and interests of the ADS Depositary (as EB Participant) in the Shares represented by such ADSs. As per the previous paragraph, if the relevant ADS holder were a non-EU National, they would be subject to the restrictions referred to below and would be required to transfer their interests in the relevant Shares to an EU National.
The Migration is not expected to impact existing restrictions on the acquisition of interests in Shares by non-EU Nationals or the Company's plans in the event of a "hard" Brexit.
The restrictions announced by the Company in February 2002 will continue to apply to all Participating Securities following the Migration, such that the acquisition of an interest in Shares by non-EU Nationals, whether that transaction is settled via CDIs though the CREST System, or in the Euroclear System, will result in the issuance of a restricted share notice compelling the non-EU National to sell their interests in the relevant Shares to an EU National within twenty one (21) days of the date of issuance (a "Restricted Share Notice"). As a result, non-EU Nationals are effectively prohibited from purchasing interests in Shares for as long as these restrictions remain in place. There can be no assurance that these restrictions will ever be amended/removed. Further information on the service offering of Euroclear Bank and EUI with respect to nationality declarations is set out at Part 4 of this Circular.
The Company remains concerned at the likelihood of a "no deal" or "hard" end of the Brexit transition period currently set at 31 December 2020 and its potential impact on the Company's Shareholders. In light of ongoing uncertainty about the negotiation of the future trading relationship between the EU and the UK, the Company continues to plan for a "hard" Brexit to occur on 31 December 2020. In the event of a "hard" Brexit, the measures announced by the Company on 11 March 2019 to ensure continued compliance with the airline ownership and control requirements of EU Regulation 1008/2008 shall apply to all Shares held by or on behalf of non-EU (including UK) Nationals from the date on which UK nationals cease to qualify as nationals of Member States for the purposes of Article 4 of EU Regulation 1008/2008. Such Shares will be treated as "Restricted Shares" under the Articles of Association and the registered holder(s) of such Restricted Shares shall not be entitled to attend, speak or vote at any general meeting of the Company. In practice this will mean that Euroclear Nominees, as registered shareholder, will not be able to exercise the right to attend, speak or vote at any general meeting of the Company in respect of any Shares which are registered in the name of Euroclear Nominees, and which are treated as Restricted Shares as a result of a Non-EU National having an interest in those Shares. The rights of holders of interests in such Restricted Shares (including through Euroclear Bank and EUI) will be restricted accordingly. One of the proposed amendments to the Articles of Association is to expressly empower the Directors to require that a form of proxy includes a nationality declaration requirement which, if not satisfied, would enable the Directors to treat such proxy appointment as being invalid. This would apply to Euroclear Nominees as registered shareholder. In addition, where the Board avails of the service that will be offered by Euroclear Bank and EUI, whereby a nationality declaration is required for instructions on certain corporate actions including voting (as set out in Part 4 of this Circular), Euroclear Bank and EUI will reject an instruction that (a) omits to make a nationality declaration, or (b) makes a nationality declaration indicating that a non-EU National is interested in the relevant underlying Shares. For further information in relation to nationality declarations, please section 6 of Part 4 of this Circular. Subject to the Resolutions, any Participating Securities which are Restricted Shares immediately prior to Migration will continue to be restricted pursuant to the terms of the amended Articles of Association following Migration.
The Board has convened this EGM to occur prior to 31 December 2020 in anticipation of a "hard" end to the Brexit transition period to ensure all holders of Shares as at the Voting Record Time are entitled to vote on the Resolutions, notwithstanding the outcome of Brexit negotiations.
Further information on Brexit is available on the Company's website at https://investor.ryanair.com/Brexit/.
Appendix II of this Circular contains a list of shareholder rights that are not directly exercisable under the EB Services Description. While it is possible to exercise the rights listed in Appendix II by withdrawing the Participating Securities from Euroclear Bank (see below), resulting in a certificated (i.e. paper) holding, this is likely to require additional actions to be taken, both with regard to withdrawal and any subsequent attempt to trade the Shares on a stock exchange. Moreover, it is expected that this will cease to be possible after the EU-wide dematerialisation deadline of 1 January 2025 required by Articles 3(1) and 76(2) of CSDR, subject to applicable legislation being implemented.
In order to mitigate potential adverse impacts for Shareholders, the Company is proposing that the Directors would have the discretion to facilitate the exercise of certain of these rights in certain circumstances and subject to certain requirements, by making amendments to the Articles of Association as part of the approval of Resolution 2. These amendments are also detailed in Part 8 of this Circular.
Until the EU-wide dematerialisation deadline of 1 January 2025 required by Articles 3(1) and 76(2) of CSDR, it will be possible to withdraw the Participating Securities from Euroclear Bank and hold them in certificated (i.e. paper) form. Information concerning the process for withdrawing securities from Euroclear Bank is contained in the EB Services Description. Generally, this involves the sending of an instruction by the EB Participant to Euroclear Bank, which will be communicated to the Company's Registrar, which will proceed to effect a transfer of the relevant shareholding from Euroclear Nominees to the EB Participant or other transferee, whose name will be entered on the Register of Members. The time period for any such withdrawal of securities from Euroclear Bank has not yet been finalised but is expected to be longer than the equivalent period which would currently apply in respect of a withdrawal from the CREST System. Settlement of trades in Shares that have been withdrawn from the Euroclear System to be held in certificated (i.e. paper) form cannot be facilitated within the Euroclear System.
Under the Brexit Omnibus Bill (as defined below), it will not be necessary to execute a written instrument of transfer in order to withdraw shares from Euroclear Bank (in favour of any holder of rights or interests in those securities) or transfer those securities from one authorised CSD to another.
Since 1996, the electronic settlement of share trading in Irish incorporated companies has been carried out through the CREST System as operated by EUI. EUI is incorporated in England and Wales and is regulated in the UK by the Bank of England. Insofar as it applies to Irish companies, the CREST System is also regulated in Ireland by the Minister for Business, Enterprise and Innovation under the Irish CREST Regulations.
Since 17 September 2014, both EUI and Euroclear Bank have been central securities depositories ("CSD") operating in the EU for the purpose of the EU Central Securities Depositories Regulation ("CSDR"). While EUI has not technically been authorised as a CSD for the purposes of CSDR as of the date of this Circular, it has been able to provide CSD services in Ireland on account of the 'grandfathering provision' in Article 69(4) of CSDR and the fact that the CREST System is regulated in Ireland by the Minister for Business, Enterprise and Innovation under the Irish CREST Regulations. The aim of CSDR is to harmonise certain aspects of the settlement cycle and settlement discipline and to provide a set of common requirements for a CSD operating securities settlement systems across the EU. CSDR plays a pivotal role for post-trade harmonisation efforts in Europe, enhancing the legal and operational conditions for cross-border settlement in the EU.
On account of its incorporation in England and Wales, EUI will become a third country CSD on the date of the expiry of the Brexit transition period on 31 December 2020 ("Brexit Date"). Under CSDR, third country CSDs need to be recognised by the European Securities and Markets Authority ("ESMA") to offer Issuer CSD services in the EU with respect to securities constituted under the laws of a member state of the European Union. Prior to recognition, the European Commission must adopt an implementing act determining, amongst other issues, that the legal and supervisory arrangements of the relevant third country impose legally binding requirements, which are equivalent to those contained in CSDR. Recognising that Irish companies rely on EUI to provide CSD services (through the CREST System), the European Commission issued an Implementing Decision on 19 December 2018 under Article 25 of CSDR, which would be effective from the Brexit Date until 30 March 2021. This was the first step in granting equivalence recognition for EUI as a third country CSD under CSDR, (although no such equivalence recognition has been granted as of the date of this Circular). The Implementing Decision of 19 December 2018 was followed by an announcement by ESMA on 1 March 2019 that in the event of a no-deal Brexit, EUI will be recognised as a third country CSD to provide its services in the European Union under CSDR. In the absence of longer-term third-country equivalence being granted to EUI by the European Commission, EUI has confirmed that the CREST System will cease to be available for the settlement of trading in Irish securities with effect from 30 March 2021.
In December 2018, Euronext Dublin announced that, based on the analysis it had carried out of four possible CSD options for settlement post-Brexit, it had selected Euroclear Bank with a Belgian-based model to replace EUI as the long-term CSD for Irish securities settlement.
In May 2019, Euroclear Bank issued a white paper which set out its proposal for Euroclear Bank to become the Issuer CSD (as defined in Part 9 of this Circular) for Irish corporate securities from March 2021.
On 26 December 2019, the Migration Act was enacted with the intention that it would provide a legislative mechanism to facilitate the migration of Irish securities from their current CSD to another EU-based CSD. The Migration Act facilitates the vesting of title in Migrating Shares in Euroclear Nominees on the Live Date. While the issue of CDIs to Former Holders who are CREST members, as described in this Circular, is a key part of the implementation of Migration, it is not provided for in the Migration Act. Instead, this aspect of the Migration is to be covered by the taking of certain operational steps by Euroclear Bank, the CREST Nominee and the CREST Depository as set out in the EB Migration Guide and in accordance with the terms of the CREST Deed Poll and the CREST International Manual and the amendment of the Company's Articles of Association, including by the adoption of the proposed new Article 13A pursuant to Resolution 2 and the approval of Resolution 3.
On 4 November 2020, the Company notified Euroclear Bank of its intention to seek shareholder consent in order for Participating Securities in the Company to be subject to the Migration in accordance with the Migration Act ("Notification to Euroclear"). In the Notification to Euroclear, the Company confirmed that the following matters will be done or satisfied in time for the Migration:
On 6 November 2020, the Company received a statement in writing from Euroclear Bank (as required by section 5(6)(a) of the Migration Act) to the effect that the provision of the services of the Euroclear System to the Company will, on and from the Live Date, be in compliance with Article 23 of CSDR. In the same letter, the Company also received the statement from Euroclear Bank (as required by section 5(6)(b) of the Migration Act) to the effect that following (i) such inquiries as have been made of the Company by Euroclear Bank, and (ii) the provision of such information by or on behalf of the Company, in writing, to Euroclear Bank as specified by Euroclear Bank, Euroclear Bank is satisfied that the relevant Participating Securities in the Company meet the criteria stipulated by Euroclear Bank for the entry of the Participating Securities into the settlement system operated by Euroclear Bank. This confirmation from Euroclear Bank was stated as being subject to the information which the Company has provided to Euroclear Bank as mentioned in (ii) above being true and correct at the time of the Migration. These communications were all required before the Company could issue this Circular.
In the UK, HM Treasury and the Bank of England have put in place a transitional regime for non-UK CSDs, such as Euroclear Bank. This will enable non-UK CSDs to continue to provide services in the UK after the end of the Brexit transition period, pending the CSD's receipt of full recognition from the Bank of England, for which application must be made within six (6) months following the applicable third country regime being assessed as equivalent by HM Treasury.
The practical arrangements to implement these decisions have yet to be put in place. These include agreeing the necessary cooperation and information-sharing arrangements between the Bank of England and the relevant third country authority.
If the Resolutions are passed, and the Company satisfies the other requirements necessary for the Migration to become effective, title to all the Participating Securities in the Company at the Migration Record Date ("Migrating Shares") will be vested in Euroclear Nominees as nominee for Euroclear Bank on the Live Date. The Live Date has not yet been confirmed and will be specified by Euronext Dublin in accordance with the Migration Act. For the same reason, the Migration Record Date has not yet been confirmed and will be specified by the Company when the Live Date is known. The Live Date is currently expected to be on or around 15 March 2021 with the Migration occurring over the weekend immediately prior to the Live Date and then taking effect on the Live Date. The Company will give notice of further confirmed dates in connection with the Migration, when known, by issuing an announcement through a Regulatory Information Service.
While the issue of CDIs to Former Holders who are CREST members as described in this Circular is a key part of the implementation of Migration, it is not provided for in the Migration Act. Instead, this aspect of the Migration is to be covered by the taking of certain operational steps by Euroclear Bank, the CREST Nominee and the CREST Depository as set out in the EB Migration Guide and in accordance with the terms of the CREST Deed Poll and the CREST International Manual and the amendment of the Company's Articles of Association, including by the adoption of the proposed new Article 13A pursuant to Resolution 2 and the approval of Resolution 3.
Euroclear Bank and EUI have identified the following sequence of steps to be taken in order to implement the Migration:
By 12.00 p.m. on Saturday, 13 March 2021, the Company's Registrar will enter Euroclear Nominees into the Register of Members as the holder of the Migrating Shares (i.e. Participating Securities which are on the Register of Members at the Migration Record Date) although Euroclear Nominees' title to the relevant Shares will take effect on the Live Date.
Euroclear Bank will credit its interest in such Shares (which it holds via Euroclear Nominees) to the account of the CREST Nominee, and the CREST Nominee will hold its interest in such Shares (i.e. the Belgian Law Rights) as nominee and for the benefit of the CREST Depository. The CREST Depository will, in turn, hold its interest in such Shares (i.e. the Belgian Law Rights) on trust and for the benefit of the holders of the CDIs.
Under the proposed new Article 13A any holder of a Migrating Share shall be deemed to have consented to and authorised the carrying out of these steps with respect to its Migrating Share. Any holder of Participating Securities who does not wish to give such consent and authorisation must withdraw the relevant Participating Securities from the CREST System before the latest date for such withdrawal prior to Migration. If there is a systems failure on the part of Euroclear or EUI which prevents any of these steps from taking place as described above, the new Article 13A makes it clear that a holder of Migrating Shares shall have no recourse against the Company, the Directors or the Company's Registrar. While these steps are set out in the EB Migration Guide, neither Euroclear Bank nor EUI are required to do any of these steps by the Migration Act.
As indicated, upon completion of the foregoing steps, the Migrating Shares (other than Migrating Shares represented by ADSs) will be enabled as CDIs in the CREST System. If the Former Holder wishes to exercise the rights relating to the underlying Migrating Shares via the Belgian Law Rights in the Euroclear System, rather than CDIs in the CREST System, the Former Holder must:
As the Migrating Shares are subject to a nationality declaration, where a Migrating Shareholder wishes to transfer its Migrating Shares to an account in Euroclear Bank, in order to ensure that the nationality position of a Migrating Shareholder is correctly reflected in Euroclear Bank, the Migrating Shareholder will need to input separate transfer instructions for each nationality position making up the total holding of that Migrating Shareholder.
It will be for each Shareholder to decide whether, following the Migration, it will hold the new Belgian Law Rights as EB Participants or hold its interest in the Participating Securities by way of CDIs representing those Belgian Law Rights. The practical result of the Migration taking effect will be that all Migrating Shareholders (other than ADS holders) will receive one CDI for each Migrating Share held at the Migration Record Date. Migrating Shareholders will then be entitled to choose whether (1) to continue to hold via CDI, or (2) to convert their holding via CDI into a holding of the Belgian Law Rights as an EB Participant (subject to such Migrating Shareholder being or becoming an EB Participant), or through a custodian, broker or other nominee which is an EB Participant. ADS holders will continue to hold their ADSs as before, but the ADS Depositary will (following cancellation of the CDIs initially received by it) hold the underlying Shares through Belgian Law Rights in its account with Euroclear Bank instead of in CREST through CDIs.
For the avoidance of doubt, CDIs are separate and different from shares currently held within the CREST System. Currently legal title in shares entered in the Register of Members is transferred electronically in the CREST System. CDIs, however, are a technical means by which interests in Shares can be held in the CREST System as an alternative to holding Belgian Law Rights directly in the Euroclear System as an EB Participant. CDIs will allow a Shareholder to continue to hold interests in the CREST System (albeit indirectly) and to settle trades in the Shares conducted on the London Stock Exchange. Further information on CDIs is set out in Part 6 of this Circular.
Shareholders should further note that the Belgian Law Rights are not securities that can be traded. Instead, they are special co-ownership rights in respect of the pool of the Company's Shares of the same type (i.e. same ISIN), which are held through the Euroclear System. Belgian law grants such rights to the relevant EB Participants, and, in certain specifically identified cases, to the holders of the underlying Shares. Further information on the Belgian Law Rights is set out in Part 5 of this Circular.
With effect from the Live Date, unless a decision is made by the European Central Bank to permit settlement of trades on the London Stock Exchange in euro, the settlement of Shares traded on the London Stock Exchange will occur via CDI through the CREST System only in GBP as of two (2) days following the Live Date and the settlement of Shares traded on Euronext Dublin will occur via Belgian Law Rights through the Euroclear System only as of two (2) days following the Live Date in Euro. This is due to the respective requirements of, inter alia, the London Stock Exchange Trading Rules and the Euronext Dublin Trading Rules (each as defined in Part 9 of this Circular).
Where persons hold interests in Migrating Shares via a contractual arrangement with another party, such as a broker or other custodian, they should consult that party as well as their independent professional advisers to ascertain the effect of the Migration on such interests.
Migration will impact a number of areas of Irish company law as referred to below.
If enacted, this would mean that, following Migration, the Company will not be required to issue share certificates in respect of Shares which are admitted to the Euroclear System (but will not affect the existing entitlements of Shareholders to a share certificate where their Shares are held in certificated (i.e. paper) form).
If enacted, this would facilitate the deposit of Shares into, and withdrawal of Shares from, the Euroclear System following Migration as well as the transfer of Shares between Euroclear Bank and any other authorised CSD by eliminating the need for a written instrument of transfer in order to implement such transactions. Any such withdrawals, deposits or transfers will remain subject to the procedural requirements established by Euroclear Bank in the EB Services Description and EB Operating Procedures, as applicable.
If enacted, this would alter the threshold for shareholder approval of any proposed scheme of arrangement that the Company may implement while securities are admitted to the Euroclear System and, assuming that some Shares continue to be held outside of an authorised CSD following Migration, would increase the necessary quorum for any meeting to consider a resolution to approve a scheme of arrangement.
• In the case of an issuer with any securities admitted to an authorised CSD, the disapplication of the additional requirement set out in section 458(3) of the Companies Act in order for a right of buy-out to apply in certain circumstances.
If enacted, this would mean that an offeror for the Company which already held beneficial ownership of more than 20% of the Company's Shares would no longer be required to satisfy the additional requirement in section 458(3) of the Companies Act that the assenting shareholders in respect of the relevant scheme, contract or offer are not less than 50% in number of the holders of the relevant shares, in order for the offeror to be entitled to compulsorily acquire the Shares of any dissenting shareholders.
• The insertion of a new section 1087F into the Companies Act providing that an irrevocable power of attorney will be deemed to be granted where the terms of any offer to acquire all of the issued share capital of any issuer with securities admitted to an authorised CSD provide that acceptance of the offer constitutes an irrevocable power of attorney and acceptance of that offer is communicated by instructions that are sent or received by means of a securities settlement system of a central securities depository in accordance with the procedures of that settlement system.
If enacted, this would facilitate the granting of irrevocable powers of attorney by way of acceptance of an offer for the Company which is communicated through the Euroclear System following Migration, in line with the current practice with respect to acceptances communicated through CREST.
• In the case of an issuer with any securities admitted to an authorised CSD, the modification of section 1105(1) of the Companies Act to provide that the record date for voting would be close of business on the day preceding a date not more than 72 hours before the general meeting to which it relates.
If enacted, this would mean that, at any general meeting of the Company following Migration, the record date for determining entitlements to vote at that meeting would be set at close of business on the day preceding a date not more than 72 hours before meeting. Currently, under the Companies Act and the Articles of Association, the record date can be no more than 48 hours prior to the general meeting, however, the Company understands that a longer period is required to facilitate the voting process under the Euroclear System and CREST System (with respect to CDIs). An amendment to the record date specified in the Articles of Association is being proposed as part of the amendments being proposed in Resolution 2 in order to align the Articles of Association with section 1105(1), as modified.
The Brexit Omnibus Bill is expected to be enacted, and the provisions of Part 4 are expected to be commenced, on or prior to Migration. If this does not occur, the legislative changes outlined above will not immediately apply following Migration.
(b) It should also be noted that Article 3(1) CSDR requires Irish listed PLCs to arrange for their securities to be represented in book-entry form. This obligation applies from 1 January 2023 with respect to new issues of shares. From 1 January 2025, this requirement will apply to all transferable securities. The effect of these provisions, when implemented, will be that the option of holding shares in certificated (i.e. paper) form will no longer be available in the case of new issues from 1 January 2023 and in the case of existing issued shares from 1 January 2025. Furthermore, Article 3(2) CSDR requires that where brokers undertake a transaction in transferable securities on a trading venue, the relevant securities shall be recorded in book-entry form in a CSD, on or before the intended settlement date, unless they have already been so recorded.
Depending on the model adopted for dematerialisation, which has not yet been confirmed by the relevant authorities, this may mean that the investors in the Company may not subsequently be able to enforce rights which are expressed as members' rights in company law absent amendments to Irish company law. It is understood that the Company Law Review Group (the statutory body charged with monitoring, reviewing and advising the Minister for Business, Enterprise & Innovation in relation to company law in Ireland) has conducted a review of certain Irish company law provisions in light of the move to an intermediated settlement system. Certain of their proposals are included in the Brexit Omnibus Bill 2020, which has yet to be finalised and enacted. The extent of any further amendments which may be made to Irish company law, having regard also to the fact that the model to be adopted for dematerialisation has not been determined, are not known as at the date of this Circular.
One possible approach to the implementation of dematerialisation is that legislative amendments are advanced in the period prior to 1 January 2023 addressing some or all of the potential deficiencies in the exercise of shareholder rights. Another possible solution is that each issuer proposes amendments to its constitution so as to accommodate the exercise of those rights subject to certain conditions. It is in this context that the Company is proposing, pursuant to Resolution 2, a number of amendments to its Articles of Association, designed to seek to provide that Shareholders can continue to exercise certain members' rights without the necessity of re-materialising their holdings. Details of these amendments are contained in Part 8 of this Circular.
Holders of Participating Securities are strongly urged to read Appendix II as some of the rights listed in that Appendix cannot be accommodated by the proposed amendments to the Articles of Association and may not be accommodated by changes in law.
Copies of the following documents relevant to the Migration will be made available for inspection during normal business hours on any business day from the date of this Circular until the EGM at the registered office of the Company, and online at https://investor.ryanair.com:
In accordance with applicable regulations and public health guidelines in force in Ireland in connection with COVID-19, the Company requests Shareholders not to attend the Company's offices but instead to inspect the documents on the Company's website.
The questions and answers set out below are intended to address briefly some commonly asked questions regarding the Migration. These questions and answers only highlight some of the information contained in this Circular and may not contain all the information that is important to you. Accordingly, you should read carefully the full contents of this Circular before deciding what action to take. If you are in any doubt as to the action you should take, you are recommended to consult your independent professional personal adviser, who is authorised or exempted under the European Union (Markets in Financial Instruments) Regulations 2017 (as amended) or the Investment Intermediaries Act 1995 (as amended), if you are resident in Ireland, or who is authorised under the Financial Services and Markets Act 2000 (as amended), if you are resident in the United Kingdom, or from another appropriate authorised independent financial adviser if you are in a territory outside Ireland or the United Kingdom. The contents of this Circular, including this Part 2, should not be construed as legal, business, accounting, tax, investment or other professional advice.
It is a requirement of the continued admission of the Shares to trading and listing on Euronext Dublin and the London Stock Exchange that adequate procedures are available for the clearing and settlement of trades in the Shares conducted on those venues, including that the Shares are eligible for electronic settlement. At present, trading in Shares is settled electronically via the CREST System, which is the London-based securities settlement system operated by EUI. Only Shares which are held in uncertificated (i.e. dematerialised) form are eligible for admission to the CREST System. Approximately 95% of the Company's issued share capital is currently held in uncertificated form.
As a result of Brexit, the CREST System will cease to be available for the settlement of trades in Shares with effect from 30 March 2021. As it is essential for the Company that electronic settlement of trading of its Shares can continue in order to ensure ongoing compliance with the electronic share trading requirements for listing on Euronext Dublin and the London Stock Exchange, the Board believes that it is appropriate to seek admission of the Company's Shares to an alternative securities settlement system that will facilitate the electronic settlement of trades in the Company's Shares following Brexit.
In December 2018, Euronext Dublin announced that, based on the analysis it had carried out of four possible post-Brexit securities settlement options, it had selected the CSD system operated by Euroclear Bank, an international CSD incorporated in Belgium, to replace the CREST System operated by EUI as the long-term securities settlement system for Irish issuers. At the date of this Circular, no alternative securities settlement system authorised to provide settlement services in respect of Irish securities has been actively engaging with Irish market participants to facilitate the transition of Irish shares to its settlement system to the Euroclear System. As a result, no alternative securities settlement system is expected to be available for the electronic settlement of trades in the Company's Shares on or before 30 March 2021.
Accordingly, the Migration of those Shares which are held in uncertificated form on a designated Live Date from the CREST System to the Euroclear System is being proposed in order to preserve the continued listing and admission to trading of the Shares on Euronext Dublin and the London Stock Exchange. Further consequences of the failure to implement the Migration are discussed in the response to Question 3 below.
In the absence of longer-term third-country equivalence being granted to EUI by the European Commission, EUI has confirmed that it will cease to settle trades in Irish Securities pursuant to the Irish CREST Regulations via the CREST System with effect from 30 March 2021. A European Commission decision is expected to be published in order to extend the current temporary status as a "recognised"
CSD for the purposes of CSDR granted to EUI to 30 March 2021, however, as at the Latest Practicable Date, no such decision has been published.
If the Resolutions are not passed and the Company does not participate in the Migration, all Shares in the Company which are currently held in uncertificated (i.e. dematerialised) form through the CREST System will be required to be re-materialised into certificated (i.e. paper) form and Shareholders and other investors will no longer be able to settle trades in the Shares electronically.
This could materially and adversely impact on trading and liquidity in the Shares as it would result in significant delays for Shareholders and investors wishing to sell or acquire Shares. It would also put at risk the continued admission to trading and listing of the Shares on Euronext Dublin and the London Stock Exchange as the absence of electronic settlement of Shares would mean that the Company would cease to meet the eligibility criteria for admission to trading on Euronext Dublin and the London Stock Exchange. The Company believes that the failure to participate in Migration would have a material adverse impact on liquidity in, and could have a material adverse impact on the market value of, the Shares/ADSs as well as the relative attractiveness of the Shares/ADSs for investors.
You are encouraged to complete, sign and return the Form of Proxy to vote on the Resolutions as explained on the front page of this Circular and in the Notice of EGM.
Any further actions that you may take/wish to take will depend on whether you hold and/or wish to continue to hold, your Shares in certificated (i.e. paper) form or in uncertificated (i.e. dematerialised) form. These possible actions are referred to below.
The Migration is expected to occur in mid-March 2021, with the Live Date to be specified by Euronext Dublin in accordance with the provisions of the Migration Act. It is currently expected that the Live Date will be 15 March, 2021.
No. Neither the Migration, nor the proposed changes to the Articles of Association, will impact on the on-going business operations of the Company. The Company will remain headquartered, incorporated and resident for tax purposes in Ireland. The nature and venue of the stock exchange listings of the Company will not change in connection with Migration. The Company does not expect that Migration will result in any change in the eligibility of the Company for the indices of which it is a constituent as of the date of this Circular. In addition, the ISIN relating to the Shares will be unchanged.
Shares which are held in certificated (i.e. paper) form on the Migration Record Date will not be subject to Migration and can continue to be held in certificated (i.e. paper) form, at the option of the Shareholder.
Accordingly, Shareholders holding their Shares in certificated (i.e. paper) form and wishing to continue to do so following the Migration are not required to take any action in advance of the Migration (other than voting in respect of the Resolutions should a Shareholder wish to do so).
Shareholders currently holding their Shares in certificated (i.e. paper) form and wishing to hold their interests in book-entry form via CDIs in the CREST System following the Migration should become a CREST member or engage the services of a broker or custodian who is a CREST member in order to have their Shares admitted to the CREST System so that they are held in uncertificated form within the CREST System in advance of the Migration Record Date. If they wish to have this completed before Migration so that the relevant Shares participate in Migration, they will need to have completed the deposit of their Shares into the CREST System prior to Migration in accordance with timelines to be confirmed by EUI.
Shareholders wishing to hold their interests in electronic form via Belgian Law Rights in the Euroclear System following the Migration must be or become EB Participants (or must appoint an EB Participant to hold the Belgian Law Rights on their behalf) and will need to make arrangements to have their certificated Shares deposited into the Euroclear System following Migration. Where a Shareholder is not an EB Participant and does not wish to become an EB Participant, it should consult its broker or custodian in order to arrange for the relevant Shares to be deposited into the Euroclear System and held in electronic form via Belgian Law Rights by an EB Participant on behalf of that Shareholder using arrangements put in place by such broker or custodian. Information on how to become an EB Participant can be accessed on the Euroclear website at:
These arrangements can also be put in place prior to the Migration as referred to in section 3.5.8 of the EB Migration Guide and will enable a holding through the Euroclear System following Migration once the transfer out of the initial CDIs holding has been completed, or at any time following Migration. If such arrangements are effected before Migration, the Shares will be transferred to an account in Euroclear Bank in which the Shares will be held under Euroclear Bank's Investor CSD service until Migration. The services described in the EB Services Description will however only become applicable as of the Live Date.
Shares which are held in uncertificated (i.e. dematerialised) form through the CREST System on the Migration Record Date will automatically be subject to Migration and will be held in book-entry form via CDIs in the CREST System following Migration, unless Shareholders take the steps referred to in the response to Question 11 below (in which case their interests will be held via Belgian Law Rights in the Euroclear System).
Accordingly, no action is required to be taken in advance of the Migration (other than voting in respect of the Resolutions should a Shareholder wish to do so) by Shareholders wishing to hold their interests in book-entry form via CDIs in the CREST System following the Migration.
Shareholders wishing to hold their interest in electronic form via Belgian Law Rights in the Euroclear System rather than via CDIs in the CREST System following the Migration, must be or become an EB Participant (or must appoint an EB Participant to hold the Belgian Law Rights on their behalf) and must transfer such Belgian Law Rights from the CREST International Account in Euroclear Bank to the account of another EB Participant by way of cross-border delivery. Upon matching with a pending receipt instruction from the EB Participant, the transfer will settle if the applicable other settlement conditions are satisfied. As referred to in section 9 above, these transfers can occur following the Migration and can also occur ahead of Migration as referred to in section 3.5.8 of the EB Migration Guide.
If a Shareholder does not wish their Shares to participate in the Migration they will need to hold their interests in certificated (i.e. paper) form before the Migration Record Date. To do this they will need to withdraw the relevant Shares from the CREST System prior to the Migration (by a time which will be confirmed closer to the Migration). Based on the Expected Timetable of Principal Events the deadline for this action will be 6.00 p.m. on Thursday, 11 March 2021.
Shareholders wishing to hold their Shares in certificated (i.e. paper) form prior to the Migration taking effect should make arrangements with their broker or custodian in good time so as to allow their stockbroker or custodian sufficient time to withdraw their Shares from the CREST System prior to the closing date set out above for CREST withdrawals.
Shares which are held in certificated (i.e. paper) form on the Migration Record Date will not be subject to Migration and can continue to be held in certificated (i.e. paper) form following Migration, at the option of the Shareholder.
While it is not expected that the Migration will initially directly impact Shareholders who continue to hold their Shares in certificated (i.e. paper) form, such Shareholders should note that, as is currently the case, in order to settle an on market trade in their Shares following the Migration, they will need to effect a deposit of their Shares by depositing them into the Euroclear System to be held via Belgian Law Rights or into the CREST System to be held via CDIs prior to such trades occurring. Any such deposit of Shares will entail interaction with a broker and/or custodian and may involve certain costs being incurred and/or, a delay in execution of a share trade being experienced by the Shareholder which may differ from the comparable process applicable in respect of deposit of Shares into the CREST System.
After the Migration, Euroclear Nominees will hold title to all Shares admitted to the Euroclear System. As a result, Euroclear Nominees will be recorded in the Register of Members of the Company as the holder of the relevant Shares. EB Participants' rights with respect to the Shares deposited in the Euroclear System will be governed by the Belgian Law Rights and the EB Services Description.
Holding Shares through the Euroclear System will entail share custody costs and certain differences in the nature, range and cost of corporate services, including with respect to the manner in which voting
rights can be exercised in person or by proxy, relative to a direct holding of Shares through the CREST System.
Shareholders who anticipate holding their Shares via the Euroclear System should familiarise themselves with the EB Services Description in this regard.
"CDI" stands for CREST Depository Interest. A CDI is a security constituted under English law issued by EUI (through the CREST Depository) that represents an entitlement to international securities.
It is only possible to hold and transfer certain securities in the CREST System (this currently includes shares constituted under Irish law ("Irish Securities")). Once it ceases to be possible to hold, settle or transfer Irish Securities directly through the CREST System, EUI can facilitate the issuance of CDIs representing such Irish Securities, in order to provide an alternative settlement mechanism involving CREST. A CDI is issued by the CREST Depository to CREST members and represents an entitlement to identifiable underlying securities. Following the Migration, holders of Irish Securities wishing to continue to hold, and settle transactions in, Irish Securities in the CREST System, including in respect of all trades executed on the London Stock Exchange, will only be able to do so for their Shares held via CDIs.
Each CDI issued on Migration will reflect the Belgian Law Rights related to each underlying Migrating Share. On Migration each Migrating Shareholder will receive one CDI for each Migrating Share held by them at the Migration Record Date. Thereafter, the Former Holder may choose to hold its interests via Belgian Law Rights through the Euroclear System rather than via CDIs representing those Belgian Law Rights. To do this the Former Holder must be or become an EB Participant (or must appoint an EB Participant to hold the Participating Securities on its behalf) and must transfer such Participating Securities from the CREST International Account in Euroclear Bank to the account of another EB Participant by way of cross-border delivery instruction. The delivery instruction will need to match with a receipt instruction in order for the transfer to settle. Separate transfer instructions should be given for different nationality positions held in pooled custodian accounts as only one country code can be entered for each transfer. Please see answer number 11 above as to what steps should be undertaken to convert a holding via CDIs into a holding via Belgian Law Rights.
In the case of a CDI the CREST Nominee (CIN (Belgium) Limited) will be an EB Participant and will hold rights to securities held within the Euroclear System on behalf of the CREST Depository for the account of CDI holding CREST members. The CREST Depository's relationship with CDI holding CREST members will be governed by the CREST Deed Poll and the CREST International Manual.
Holding by way of a CDI will entail international custody costs and certain differences in the nature, range and cost of corporate services, including with respect to the manner in which voting rights can be exercised in person or by proxy, relative to a direct holding in the CREST System or relative to a position in Euroclear Bank.
The manner (if you do not now hold Shares through a custodian/nominee) and time period within which any such voting rights may be exercised by CDI holders may differ from arrangements which would currently apply in respect of direct holdings in the CREST System or in the Euroclear System.
CREST members who anticipate holding their interests in Shares following the Migration via CDI should familiarise themselves with the CDI service offering, details of which are included in the CREST International Manual and the terms of the CREST Deed Poll.
Because the Shares represented by the ADSs are Participating Securities, such Shares will be subject to the Migration. It is currently expected that, on the Live Date, the Shares representing ADSs will cease to be held directly by the CREST ADS Nominee on the Register of Members in the CREST System, and the Euroclear Nominee will be entered into the Register of Members as the holder of such Shares in place of the CREST ADS Nominee. Euroclear Bank will then credit the rights and interests in such Shares to the Euroclear Bank account of the CREST Nominee and CDIs representing those Shares will be credited to the CREST account of the CREST ADS Nominee. The CREST ADS Nominee will on the same day direct CREST to cancel those CDIs and deliver the interests in the underlying Shares to the Euroclear Bank account of the ADS Depositary, which is an EB Participant, by using cross-border delivery. As a result, the rights and interests of the ADS Depositary in such Shares represented by ADSs will comprise the Belgian Law Rights summarised in Part 5 of this Circular.
The Board does not currently expect that the Migration will require any changes to the terms of the ADSs or the Deposit Agreement. The Board currently expects that, following the Migration, outstanding ADSs will continue to trade and settle on NASDAQ in the same manner as before the Migration.
If, following Migration, you continue to hold your interest in Shares through a CDI in the CREST System then your nationality position immediately prior to Migration will remain unchanged.
If, following Migration you wish to hold your interest via Belgian Law Rights in the Euroclear System, and thus you transfer your interest in Shares from a CDI position to an EB Participant account, you must enter the nationality of the beneficial owner as transferor in CDI and on the receipt instruction in Euroclear Bank as transferee.
Where your total holding of Shares currently comprises a single nationality position, this nationality position will then be reflected in the Euroclear System following Migration.
Where your total holding of Shares currently comprises more than one nationality position, to ensure the nationality position is correctly reflected in the Euroclear System, you will need to input separate instructions for each nationality position comprising your total holding. Currently, the Company's Nationality Declaration Form is referenced in the CREST Manual (as defined in Part 9 of this Circular). Following Migration, a copy of the Company's Nationality Declaration Form will be available on the Company's website at https://investor.ryanair.com/ and a description of the services offered in connection with nationality declarations is expected to be set out in:
You should refer to Part 7 of this Circular in relation to taxation. Shareholders should consult their own tax advisers about the Irish tax consequences (and the tax consequences under the laws of other relevant jurisdictions), which may arise as a result of being Migrating Shareholders and the acquisition, ownership and disposition of Shares in the future. In general terms, as referred to in Part 7, legislation is being enacted in Ireland to provide that Migration is a tax neutral event for Shareholders and that the Irish taxation regime subsequently applying is not materially different from that currently applying.
In general terms, as referred to in Part 7 of this Circular, Shareholders, whether they be Belgian residents or not, are not expected to be subject to Belgian income tax on capital gains as a consequence of the Migration on the basis that the Migration should normally not give rise (or should not be treated as giving rise) to a definitive disposal of the Shares.
In general terms, as referred to in Part 7 of this Circular, from a UK tax perspective the Migration should be a tax neutral event for Shareholders and the UK taxation regime subsequently applying should not be materially different from that which currently applies.
U.S. Holders (as defined in Part 7 of this Circular) are not expected to recognise any gain or loss for U.S. federal income tax purposes as a consequence of the Migration.
The procedures for withdrawing Shares will be different depending on whether a holder of Participating Securities holds his interests through the Euroclear System via Belgian Law Rights or through the CREST System via CDIs.
The process involved in order to withdraw the Participating Securities from Euroclear Bank and hold them in certificated (i.e. paper) form is contained in the EB Services Description. This involves the sending of an instruction by the EB Participant to Euroclear Bank, which will be communicated to the Registrar, which will proceed to effect a transfer of the relevant shareholding from Euroclear Nominees to the transferee whose name will be entered on the Register of Members. The time period for any such withdrawal of securities from the Euroclear System is expected to be within one (1) business day such that the owner of the Participating Securities will be entered on the Register of Members of the Company within one business day. It may take up to ten (10) business days for a transferee to receive the relevant share certificate; however, entry on the Register of Members is prima facie evidence of a shareholding under Irish law.
Former Holders whose interests in Shares are held through EB Participants (or other nominees) on their behalf will need to engage with their stockbroker or other custodian to procure that the steps outlined above are taken on their behalf by the relevant EB Participant. For a description as to what EB Participants need to do to withdraw their Shares from Euroclear Nominees into a direct name on register (mark-down), please refer to the EB Services Description section "4.2.3 Mark-up and Mark-down".
The process involved in order to withdraw the Participating Securities from the CREST System (which are held via CDIs following Migration as described in Part 3 and Part 4 of this Circular) is as provided in the CREST International Manual and requires a cancellation of CDIs in the CREST System and the receipt of the relevant Belgian Law Rights into a shareholding account with a depository financial institution which is an EB Participant. This involves the input of a cross-border delivery instruction in favour of the relevant EB Participant, which should separately input a matching cross-border receipt instruction to ensure receipt of the Belgian Law Rights. After this, the process to withdraw the Participating Securities from the Euroclear System is as described above. It is expected that the time period to withdraw the CDIs and receive the Belgian Law Rights into the Euroclear System will be one (1) business day.
Please also see section 5 in Part 1B of this Circular in which it is explained that the future ability to enjoy direct exercise of rights after 1 January 2023 (for newly issued Shares) and 1 January 2025 (for all Shares) will depend on legislative changes which have not yet been proposed or determined by the relevant authorities.
Holders of Shares which are held in certificated (i.e. paper) form on the Migration Record Date will not be subject to Migration and can continue to be held in certificated (i.e. paper) form following Migration, at the option of the Shareholder. Such holders can attend, vote and speak at a general meeting of the Company in person or by proxy in the same way as before Migration.
EB Participants holding Belgian Law Rights via the Euroclear System can instruct Euroclear Bank to vote in favour, against or abstain, in advance of the relevant Euroclear Bank voting deadline. EB Participants can also, in advance of the Euroclear Bank voting deadline, instruct Euroclear Bank to appoint a third party (other than Euroclear Bank's nominee or the chairman of the meeting) identified by the EB Participant to attend and vote at a general meeting for the number of Shares specified in the proxy voting instruction. For example, such third party may be the EB Participant or, where the EB Participant is a broker or custodian, the client of that broker or custodian or a corporate representative.
CDI holders are able to instruct Broadridge, in advance of the relevant Broadridge voting deadline, to vote in favour, against or abstain. CDI holders can also, in advance of the Broadridge deadline, instruct Broadridge to appoint a third party (other than Euroclear Bank's nominee or the chairman of the meeting) identified by the CDI holder to attend and vote at a general meeting for the number of Shares specified in the proxy voting instruction. The third party identified in the proxy instruction, could be for example the CREST member, the client of a CREST member or a corporate representative. The CREST Nominee (as EB Participant) will then action that instruction to Euroclear Bank as set out above.
The proposed new Article 3(d) will, subject to the approval of Resolution 2 and any restrictions which may be imposed pursuant to the Articles of Association or otherwise, provide that indirect owners of Shares which are recorded in book-entry form in a central securities depository, who the Directors deem eligible to receive notice of a meeting under Article 3(b) at the date the notice was given, served or delivered, may also be deemed eligible by the Directors (in their absolute discretion) to attend and speak at the meeting, provided that such person remains an owner of a Share at the relevant record date of the meeting. However, such persons will not be entitled to vote or exercise any other right conferred by membership in relation to meetings of the Company while in attendance. Instead, EB Participants and CDI holders should issue voting instructions (which may include a proxy appointment as set out above) through the Euroclear System and / or the CREST System in accordance with the relevant deadlines set by Euroclear Bank, EUI and / or Broadridge.
If you have any questions about the action you should take as a result of the receipt of this Circular, you should contact your stockbroker, bank or other appropriately authorised independent advisor in the first instance.
If you have any questions about this Circular, the proposed Migration detailed herein or the EGM, or are in any doubt as to how to complete the Form of Proxy, please call Link Registrars Limited on + 353 1 5530050. Lines are open from 9:00 a.m. to 5:00 p.m. Monday to Friday, excluding bank holidays in Ireland. Please note that calls may be monitored or recorded and Link Registrars Limited cannot provide legal, tax or financial advice or advice on the merits of the Migration or the Resolutions.
Only those Shares which are Participating Securities (i.e. Shares which are held in uncertificated form through the CREST System) on the Migration Record Date will be subject to Migration. Shareholders holding a direct interest in shares in certificated (i.e. paper) form on the Migration Record Date will continue to do so following Migration, without any further action being required. No new share certificates will be issued in connection with Migration. Such Shareholders should note however that in order to settle trades in their Shares on a trading venue, such as Euronext Dublin or the London Stock Exchange, following the Migration, they will need to take steps to deposit their Shares in the Euroclear System to be held via Belgian Law Rights, or in the CREST System to be held via CDI prior to such trades occurring.
A CDI is a security constituted under English law, which is issued by the CREST Depository, and that represents an interest in other securities (which may be securities constituted under the laws of other countries). In the case of the Migration each CDI will reflect the interests of the CREST member in each underlying Migrating Share. Interests do not need to be held as CDIs in order to be traded, but will need to be held as a CDI in order to settle a transaction conducted on the London Stock Exchange. Any conversion of a certificated holding into a CDI holding will entail interaction with a broker and/or custodian and may involve certain costs being incurred, and/or, a delay in execution of a share trade being experienced by the Shareholder (as would be the case currently, although these may differ following Migration). Further information on CDIs is set out in Part 6 of this Circular.
Shareholders who currently hold their Shares in certificated (i.e. paper) form and who wish to deposit those Shares into the CREST System, in order that the Shares are the subject of the Migration, should either become a CREST member themselves or engage the services of a broker or custodian who is a CREST member.
A Shareholder wishing to deposit some or all of its Shares into the CREST System in advance of the Migration is recommended to ensure that the procedures are implemented in advance of the Migration Record Date. Shareholders wishing to hold indirect interests in their Shares in uncertificated (i.e. dematerialised) form on and immediately following the Migration should make arrangements with a stockbroker or other CREST nominee in good time so as to allow their stockbroker or CREST nominee sufficient time to deposit their Shares into the CREST System in advance of the Migration Record Date.
Shareholders wishing to hold their Shares in certificated form following Migration are also advised that, as described in further detail in section 5 of Part 1B of this Circular, their ability to do so following 1 January 2023 (in respect of new issues of Shares) and 1 January 2025 (in respect of all issued Shares) will be subject to the model of dematerialisation adopted in order to comply with the requirements of Article 3(1) of CSDR.
All Shares which are Participating Securities (i.e. Shares which are held in uncertificated form through the CREST System) on the Migration Record Date will be subject to Migration. On Migration, all such Participating Securities will be registered in the Register of Members of the Company in the name of Euroclear Nominees, which will be holding the Shares in trust for Euroclear Bank. Pursuant to Royal Decree No. 62, Belgian Law Rights representing the underlying Shares will automatically be granted to EB Participants. The Belgian Law Rights will entitle EB Participants to exercise certain rights in respect of the Shares, in accordance with the EB Services Description. With effect from the Live Date, each holding of Participating Securities credited to any stock account in the CREST System on the Migration Record Date will be disabled and reclassified in the CREST System as a holding via CDIs which represent the Belgian Law Rights issued by Euroclear Bank. The practical result of the Migration taking effect will be that all Migrating Shareholders will receive one CDI for each Migrating Share held on the Migration Record Date, on the basis described at sub-paragraph 2(a) below. Migrating Shareholders will then be entitled to choose whether (1) to continue to hold via CDI or (2) to convert their CDIs and instead hold and exercise the Belgian Law Rights in respect of the underlying Migrating Shares (subject to such Migrating Shareholders being or becoming an EB Participant, or appointing an EB Participant to hold the Belgian Law Rights on its behalf). However, in order to avail of the second option without delay following the Migration, Migrating Shareholders will need to have completed the steps outlined below prior to the Migration Record Date.
As outlined above, on the Live Date, the CREST accounts of Migrating Shareholders who held Participating Securities on the Migration Record Date will be credited with CDIs.
Each CDI will reflect the indirect Belgian Law Rights of a Migrating Shareholder in the underlying Migrating Shares title of which vests in Euroclear Nominees, as nominee for Euroclear Bank, as part of Migration. The terms on which CDIs are issued and held in the CREST System on behalf of CREST members are set out in the CREST International Manual (and, in particular, the CREST Deed Poll set out in the CREST International Manual) and the CREST Terms and Conditions (as defined in Part 9 of this Circular) issued by EUI.
On the Migration, the Company will instruct the Registrar to credit the Migrating Shares to Euroclear Nominees for credit to the Securities Clearance Account (as defined in Part 9 of this Circular) of the CREST Nominee.
The CREST Nominee is an EB Participant and holds rights to securities held in Euroclear Bank (i.e. the Belgian Law Rights representing Migrating Shares) on behalf of the CREST Depository for the account of CREST members. The CREST Depository is the entity responsible for the issue of CDIs to CREST members. The CREST Depository holds its rights to international securities (such rights being held on its behalf by the CREST Nominee) upon trust for the holders of the related CDIs.
Upon Migration of the Migrating Shares to the Euroclear System, Euroclear Bank will instruct EUI, pursuant to the terms of the CREST Deed Poll, to issue CDIs to, and credit the appropriate stock account in the CREST System of, the Migrating Shareholders which held the Migrating Shares on the Migration Record Date. The CDIs will represent the Belgian Law Rights held by the CREST Nominee on behalf of the CREST Depository. As the Belgian Law Rights in turn represent the underlying Migrating Shares admitted to the Euroclear System, each CDI will reflect an indirect interest in the underlying Migrating Shares. The stock account credited will be the same account of the relevant Migrating Shareholder in respect of the relevant Migrating Shares.
CDIs are designated as "international securities" within the CREST System and have access to different services in terms of voting and other custody services when compared to securities held directly in the CREST System. However, the manner (if the relevant holder does not now hold Shares through a custodian/nominee) and time period within which any such voting rights may be exercised by CDI holders will differ from arrangements which would currently apply in respect of direct holdings in the CREST System.
A safekeeping fee and a transaction fee, as determined by EUI from time to time, is charged for the CREST International Settlement Links Service and in respect of transactions.
Following the enablement of CDIs in the CREST System on the Live Date, CREST members may choose to hold their interests via Belgian Law Rights in the Euroclear System rather than via CDIs in the CREST System. To hold interests via Belgian Law Rights in the Euroclear System, a Former Holder must be or become an EB Participant (or must appoint an EB Participant to hold the Belgian Law Rights on its behalf) and must transfer such Belgian Law Rights from the CREST International Account in Euroclear Bank to the account of another EB Participant by using cross-border delivery. Upon matching with a pending receipt instruction and satisfaction of other relevant settlement criteria from the Euroclear System, the transfer will settle.
Information on how to become an EB Participant can be accessed on the Euroclear website at https://www.euroclear.com/about/en/business/Becomingaclient/BecomingaclientEuroclearBank.html.
Shareholders that currently hold interests in Shares through a custodian, broker or other nominee should consult that custodian, broker or nominee to determine the manner in which they intend to hold those Shares following Migration.
The arrangements in relation to holdings of interests by Former Holders through a custodian, broker or nominee that is an EB Participant will be subject to the terms between that custodian, broker or nominee and the Former Holder.
Shareholders who hold interests in Shares through the CREST System via CDIs immediately following Migration do not need to make a new nationality declaration in respect of their pre-Migration position and their nationality position will remain unchanged immediately post Migration.
If, following Migration, Shareholders wish to hold their interest in Shares via Belgian Law Rights in the Euroclear System and thus transfer their interest in Shares from a CDI position to an EB Participant account, they must enter the nationality of the beneficial owner as transferor in CDI and on the receipt instruction in Euroclear Bank as transferee.
Where a holder's total holding of Shares currently comprises a single nationality position, this nationality position will then be reflected in the Euroclear System following Migration.
Where a holder's total holding of Shares currently comprises more than one nationality position, to ensure the nationality position is correctly reflected in the Euroclear System, the Shareholder will need to input separate instructions for each nationality position making up their total holding.
Information on the service offering of EUI and Euroclear Bank with respect to nationality declarations is set out at Part 4 of this Circular.
Following Migration, a copy of the Company's Nationality Declaration Form will be available on the Company's website at https://investor.ryanair.com/ and it is expected that a description of the services offered in connection with nationality declarations will be set out in:
Shareholders holding a direct interest in Shares in certificated (i.e. paper) form on the Migration Record Date will not be subject to the Migration. No action needs to be taken by a Shareholder who holds Shares in certificated (i.e. paper) form and wishes to continue to do so following Migration.
If a holder of Participating Securities does not wish their Shares to be subject to the Migration, the relevant Participating Securities must be converted into certificated (i.e. paper) form by withdrawing them from the CREST System.
The recommended latest time for receipt by EUI of a properly authenticated dematerialised instruction requesting withdrawal of Participating Securities from the CREST System in order to ensure that the Participating Securities will not be subject to the Migration is expected to be 6.00 p.m. on 11 March 2021. You are recommended to refer to the CREST Manual for details of the procedures applicable in relation to withdrawal of shares from the CREST System. Shareholders wishing to hold their Shares in certificated (i.e. paper) form prior to the Migration should make arrangements with their stockbroker or other CREST nominee in good time so as to allow their stockbroker or other CREST nominee sufficient time to withdraw their Shares from the CREST System by the closing date for CREST withdrawals as outlined in the EB Migration Guide.
Following the Migration, Migrating Shares which are held through the Euroclear System via Belgian Law Rights will be subject to the service offering set out in the EB Services Description. Migrating Shares which are held through the CREST System via CDIs will be subject to the service offering expected to be set out in the CREST International Manual. These service offerings differ from each other in some respects as well as from the current service offering available in respect of Participating Securities which are currently admitted directly to the CREST System. This Part 4 provides a summary of the key differences between these service offerings.
Whilst the timelines and mechanics of a CREST participant holding a security constituted under Irish law taking part in certain corporate actions may be affected by the change of model from a direct 'name on register' legal holding to an intermediated CDI holding (through Euroclear Bank), the effective exercise of the rights of such CREST participant will be substantially unaffected. In particular, Shareholders should be aware that the timeline for exercising certain corporate actions on securities held as a CDI in EUI will be different to the timelines to exercise equivalent corporate actions in respect of securities held directly in Euroclear Bank. This is because EUI, being an EB Participant through the CREST Nominee, will receive notifications later and will have to set earlier deadlines for the receipt of instructions from CDI holders in order to be able to communicate those instructions to Euroclear Bank by the deadline set by Euroclear Bank.
Shareholders who expect to hold their interests in Migrating Shares through a custodian, nominee or other intermediary should be aware that earlier deadlines for some corporate actions may apply under the arrangements between the Shareholder and that custodian, nominee or other intermediary. Shareholders intending to hold their interests in Migrating Shares through the Euroclear System via Belgian Law Rights or the CREST System via CDIs should carefully review the EB Migration Guide, the EB Services Description and the EB Rights of Participants Document and, in the case of CDIs, the CREST Deed Poll and the CREST International Manual (including any updated versions thereof to the extent they are published after the date of this Circular), together with the additional documentation made available for inspection as set out in section 6 of Part 1B of this Circular, and consult with their stockbroker or other custodian in making any decisions with respect to manner in which they hold any interests in Migrating Shares. Shareholders should not rely on the summary below, which is incomplete and may exclude descriptions of differences which are material to the circumstances of an individual Shareholder. While it is expected that a revised CREST International Manual will be published prior to Migration, that document is not yet available as at the date of this Circular. This Part reflects the revisions expected to be made to the CREST International Manual based on discussions with Euroclear Bank.
The Company is not making any recommendation with respect to the manner in which Shareholders should hold their interests in the Company prior to, on, or subsequent to, the Migration. No reliance should be placed on the contents of this Circular for the purposes of any decision in that regard.
Section 5.3.2.7 of the EB Operating Procedures describes the specific contractual aspects of how the voting service is operated by Euroclear Bank. This section is further supplemented by the 'Online Market Guides ("Online Market Guides") for market specific operational elements (currently the EB Services Description) (the Online Market Guides forming part of the contractual relationship between Euroclear Bank and EB Participants).
Section 5.3.2.7 of the EB Operating Procedures makes clear that Euroclear Bank has no discretion in exercising any corporate action, including a voting instruction, and will act only upon instruction of the EB Participant (where an instruction is needed).
| Item | Euroclear Bank Offering to EB Participants |
EUI offering to CDI holders |
Pre-Migration CREST System offering |
|---|---|---|---|
| Meeting announcements |
The Registrar notifies Euroclear Bank of an event. Euroclear Bank automatically sends this event notification to all EB Participants either (a) having or receiving a position in that security up to Euroclear Bank's voting deadline or, (b) having a pending instruction, the settlement of which would result in an EB Participant having such a position. |
As an EB Participant, the CREST Nominee (via a third party service provider engaged by EUI, currently Broadridge Proxy Voting Service ("Broadridge")) receives an event notification from Euroclear Bank. Upon receipt of an event notification from Euroclear Bank, Broadridge notifies that event to any CREST member who holds CDIs up to the Broadridge voting deadline. The notification will be made available to all CREST members (those |
The CREST member can be notified through the CREST System directly by the issuer or the issuer's agent. The announcement is available once notice is entered correctly on the CREST System. |
| either having or receiving a position in that CDI) within forty eight (48) hours of receipt by Broadridge of complete information. |
|||
| Determination of record date for voting |
Record date is determined by the issuer and is a market-wide applicable date. |
Record date is determined by the issuer and is a market-wide applicable date. |
Record date is determined by the issuer and is a market-wide applicable date. |
| Submission of proxy appointment instructions |
From a Euroclear Bank perspective, there are two distinct options, with the same operational timelines. EB Participants can either send: 1. electronic voting instructions to instruct Euroclear Nominees (or to |
CREST members can complete and submit proxy appointments (including voting instructions) electronically through Broadridge. The same voting options as in Euroclear Bank will be available (i.e. electronic |
CREST members can complete and submit proxy appointments (including voting instructions) electronically through the CREST System to a CREST member acting on behalf of the issuer. |
| Item | Euroclear Bank Offering to EB Participants |
EUI offering to CDI holders |
Pre-Migration CREST System offering |
|---|---|---|---|
| appoint the chairman of the meeting as proxy to) : ✓ Vote in favour of all or a specific resolution(s). ✓ Vote against all or a specific resolution(s). ✓ Abstain from all or a specific resolution(s). ✓ Give a discretionary vote to the chairman in respect of one or more of the resolutions being put to a shareholder vote, or 2. proxy voting instruction to: ✓ appoint a third party (other than Euroclear Nominees/the chairman of the meeting) to attend the meeting and vote for the number of Shares specified in the proxy voting instruction. |
votes or appointing the chairman of the meeting or appointing a third party proxy). |
||
| Deadline for submission of voting instructions |
Euroclear Bank will, wherever practical, aim to have a voting instruction deadline of one (1) hour prior to the issuer's proxy appointment deadline. |
Broadridge will process and deliver proxy voting instructions received from CREST members by the Broadridge voting deadline date to Euroclear Bank, by their cut-off and to agreed market requirements. Broadridge's deadline will be earlier than Euroclear Bank's voting instruction deadline. |
The proxy appointment instruction may be submitted at any time from the time of input of the meeting announcement instruction up to the issuer's proxy appointment deadline. |
| Item | Euroclear Bank Offering to EB Participants |
EUI offering to CDI holders |
Pre-Migration CREST System offering |
|---|---|---|---|
| Amending, withdrawing or cancelling submitted voting instructions |
Voting instructions cannot be changed after Euroclear Bank's proxy appointment deadline. |
Voting instructions cannot be changed after Broadridge's voting deadline. |
CREST members can appoint a Corporate Representative to attend the meeting in person and change their vote at the meeting. |
| Attending and voting at meetings |
Upon receipt of a third party proxy voting instruction from an EB Participant before the voting instruction deadline, Euroclear Bank will appoint a third party identified by the EB Participant (other than Euroclear Nominees or the chairman of the issuer) to attend the meeting and vote for the number of Shares specified in the proxy voting instruction. There is no facility to offer a letter of representation/appoint a corporate representative other than through the submission of third party proxy appointment instructions. |
A CREST member will be able to send a third party proxy voting instruction through Broadridge in order to appoint a third party to attend and vote at the meeting for the number of Shares specified in the proxy instruction (subject to the Broadridge voting deadline). There is no facility to offer a letter of representation/appoint a corporate representative other than through the submission of third party proxy appointment instructions. |
CREST members can, after the date of submission of proxy instructions to the Registrar, and after the deadline for doing so, which is usually at any time up to the meeting, appoint a corporate representative to attend and vote at the meeting in any manner, including contrary to that set out in the proxy instructions. |
| Announcement of results |
In practice an EB Participant is expected to access this information when published by way of announcement on a Regulatory Information Service and/or published on the website of the issuer. |
In practice a CDI holder is expected to access this information when published by way of announcement on a Regulatory Information Service and/or published on the website of the issuer. |
CREST functionality supports the announcement of meeting results through the CREST System, if a registrar chooses to use this functionality. However in practice these announcements are normally communicated outside the CREST System by way of announcement on a Regulatory Information Service and/or published on the website of the issuer. |
| Item | Euroclear Bank |
EUI Offering to CDI | Pre-Migration CREST |
|---|---|---|---|
| offering to EB |
holders | System offering | |
| ID Request | Participants Issuers will be able to investigate the underlying beneficial ownership or interests in Shares by making a disclosure request either via the existing "section 1062" process set out in the Companies Act or via a disclosure request under an issuer's constitution or by a process that will be facilitated by systems that are to be put in place by Euroclear Bank in connection with the implementation of SRD II. If Euroclear Bank (through Euroclear Nominees) receives a section 1062 or Articles request from an issuer, it will provide to the issuer or its agent the name, account number and holding of any EB Participant having a holding in the relevant security. As is the case today, the issuer or the issuer's agent will then contact EB Participants to understand on whose behalf they are holding the position. If an issuer or its agent submits a request to Euroclear Bank via ISO 20022 (STP) message (as opposed to a request in the format habitually used for section 1062 requests), (i) Euroclear Bank will provide to the requestor the EB Participant Legal Entity Identifier (LEI), name, |
CREST members may be contacted by issuer agents as part of the "section 1062" process set out in the Companies Act or under an issuer's constitution. Alternatively, issuers and their agents may enter into an agreement to subscribe to a CDI register which will, at pre-agreed intervals (for example every last business day of the month) be sent in an agreed format showing all CREST members and the holding they have in that particular security. The Company may enter into a CDI register agreement. |
Each issuer is legally obliged to maintain a register of members. As such, the register maintained by the issuer (or by its registrar) records shareholder information. For dematerialised securities this is the CREST member recorded against the issuance in the CREST System. If an issuer wants to identify the holders behind a nominee structure it may issue a section 1062 request or a request under the issuer's constitution to the nominee account holder in CREST in accordance with the procedures specified in the Companies Act. |
| Item | Euroclear Bank offering to EB |
EUI Offering to CDI holders |
Pre-Migration CREST System offering |
|---|---|---|---|
| Participants full address, address (if available), position split between an EB Participant's own assets and assets held by the EB Participant on behalf of (an) underlying client(s) and, (ii) Euroclear Bank will request via ISO 20022 its EB Participants having a holding to disclose the relevant data to the issuer/registrar/issuer's agent or relevant shareholder identification provider. |
| Item | Euroclear Bank |
EUI Offering to CDI | Pre-Migration CREST |
|---|---|---|---|
| offering to EB Participants |
holders | System offering | |
| Payment of |
The entitlement of EB | The entitlement of |
This is determined by |
| dividends | Participants to a |
CREST members |
the issuer and their |
| dividend will be based | holding a CDI to a |
receiving agent. EUI |
|
| on their holdings of the |
dividend will be based | has in place various |
|
| relevant security in |
on their holdings in |
instructions which |
| Item | Euroclear Bank offering to EB Participants |
EUI Offering to CDI holders |
Pre-Migration CREST System offering |
|---|---|---|---|
| Euroclear Bank on the relevant record date. Upon receipt of funds and successful reconciliation by Euroclear Bank, EB Participants will get credited an amount based on their record date holdings. |
CREST on the relevant record date. Upon receipt of funds from Euroclear Bank and successful reconciliation by CREST, CREST members will be credited an amount based on their record date holdings with timing dependent on when the cash correspondent of the issuer's registrar credits Euroclear Bank's cash account. |
facilitate the payment of dividends to shareholders. CREST members can receive dividends by cheque or alternatively via SEPA or BACS or through the CREST System, should the issuer offer these options. |
|
| Other corporate actions (including dividends with options) |
The issuer's registrar will advise Euroclear Bank of corporate actions in a standardised way. Upon receipt of a notification, Euroclear Bank will notify every EB Participant having a position or a pending settlement instruction in the relevant security. The notification will inform the EB Participant of the relevant deadlines (Euroclear Bank deadline, record date, election date etc.) as well as the actions the EB Participant needs to undertake (i.e. is it a mandatory event, elective event, is there a default action or not). Upon receipt of the instructions from EB Participants, an aggregated instruction (consolidating the instructions received from those EB Participants having a position in the relevant |
As an EB Participant, EUI (through the CREST Nominee) will receive a notification regarding the relevant corporate action from Euroclear Bank. Broadridge on behalf of EUI, will notify CREST members of the event as soon as possible after receipt of a complete notification of the corporate action from Euroclear Bank (normally shortly after the announcement by the issuer). The notification will inform the CREST member of the relevant deadlines (EUI deadline, record date, election date etc.) as well as the actions the CREST member needs to undertake (i.e. is it a mandatory event, elective event, is there a default action or not). Upon receipt by EUI of the corporate action |
Each corporate action set up in the CREST System is ascribed its own corporate action number which identifies the corporate actions data held under the ISIN of the underlying security. CREST members can receive notifications of corporate actions via their chosen CREST communication method or can obtain the information directly from the CREST System via an enquiry function. |
| Item | Euroclear Bank offering to EB Participants |
EUI Offering to CDI holders |
Pre-Migration CREST System offering |
|---|---|---|---|
| security) is sent by Euroclear Bank to the issuer's registrars. Where relevant to the corporate action, the registrars will credit the relevant proceeds to Euroclear Bank, and Euroclear Bank will then credit the entitled EB Participants based on either their elections or their holdings on the relevant record date. |
instructions from the CDI holders by the CREST deadline, EUI will send the instructions to Euroclear Bank, who in turn will include these instructions in the aggregated instructions Euroclear Bank sends to the registrars. Where relevant to the corporate action, the registrar will credit the relevant proceeds to Euroclear Bank and upon receipt of the proceeds, Euroclear Bank will then credit the entitled EB Participants (including EUI as an EB Participant) with their respective entitlement. Upon receipt of the relevant proceeds, EUI will credit the CREST members with their entitlement based on either their elections or their holdings on the relevant record date. |
||
| Deadline for corporate action instructions |
The deadline will be determined on a case-by case basis as it is dependent upon the market deadline (set by the issuer) and the type of corporate action event. |
The deadline would be earlier than the Euroclear Bank deadline, as EUI needs to ensure it sends its instructions to Euroclear Bank within the Euroclear Bank deadline. |
The deadline is managed by the issuer, their agent in the CREST System and the shareholder. EUI is not involved and does not supervise the way in which corporate actions are offered. Deadlines are not enforced by EUI. |
| Remedies of holders |
EB Participants' rights and remedies are set out in the Belgian law governed contract entered into with Euroclear Bank. |
CREST members' remedies are set out in the English law governed contract entered into with EUI (the CREST Deed Poll). |
As directly registered shareholders, all rights and remedies are governed by the Companies Act and the company's constitution. |
| Item Euroclear offering Participants |
to | Bank EB |
EUI Offering to CDI holders |
Pre-Migration CREST System offering |
|---|---|---|---|---|
| Treatment of fractional credit entitlements. entitlements. Participants largest entitlement rounded fractional |
Euroclear Bank does not fractional with fractional will up until entitlements |
EB the be all |
As Euroclear Bank will not credit fractions of securities proceeds, CREST members will not be credited with fractional entitlements. |
Fractional entitlements are managed by the issuer. Fractions are generally sold for the benefit of the shareholder, save for de minimis amounts. |
For securities that are subject to a nationality declaration, such as the Shares, nationality information is currently identifiable within the CREST System. The CREST System functionality enables CREST members to make a nationality declaration on the acquisition or sale of Shares without the need to submit a Nationality Declaration Form, a copy of which is annexed to the CREST Manual.
Completion of the relevant data field (by use of a country code) is an acceptable form of compliance with the Company's nationality declaration requirements, as set out in its Articles of Association, and the Company treats the data input as being equivalent to the execution of the full declaration set out in the Nationality Declaration Form, and transferees are bound as if they had submitted the declaration using that form.
Following the Migration, Euroclear Bank will offer a similar service, whereby upon the acquisition or sale of interests in Shares, details of the selling and purchasing investor's nationality must be reported to Euroclear Bank via a nationality declaration, by specifying the ISO 3166 country code of the relevant investors in accordance with the terms set out in the EB Services Description. Euroclear Bank may also require a nationality declaration to be made for instructions relating to additional corporate actions, as set out in the EB Services Description, which may include voting. The Board will determine from time to time whether to avail of this service.
If the nationality declaration is omitted from an internal instruction with respect to Shares, Euroclear Bank will reject that instruction. Euroclear Bank will report to the Company or its Registrar the nationality of the buying and selling investors on all transfer instructions and all executed corporate action instructions.
Currently, EUI provides similar functionality for the making of nationality declarations on transfers in CDIs as for Shares held in the CREST System, as set out in the CREST International Manual, which binds CDI holders in a substantially similar way to the mechanism currently set out in the CREST Manual. Based on discussions between the Company and Euroclear Bank, it is also intended that the CREST International Manual will be updated prior to the Migration to further reflect the service offering set out in the EB Services Description, including to require a nationality declaration to be provided on additional corporate actions, including voting. Similar to the Euroclear Bank service, it is intended that where a nationality declaration is omitted from an internal instruction with respect to CDIs, CREST and/or Broadridge will reject that instruction.
It is further intended that EUI and/or Broadridge will report nationality information provided by CDI holders to Euroclear Bank, which will then form part of Euroclear Bank's reports to the Company and/or the Registrar.
Appendix II of this Circular contains a list of shareholder rights under the Companies Act that are not directly exercisable under the EB Services Description or CREST International Manual. For this reason, the Company is proposing that many of these rights remain exercisable by making certain amendments to the Articles of Association as part of the approval being sought in Resolution 2 in the Notice of EGM. These amendments are also detailed in Part 8 of this Circular. Holders of Participating Securities are strongly urged to read Appendix II as some of the rights listed in that appendix cannot be accommodated by the proposed amendments to the Articles of Association. These rights will still be capable of being exercised following Migration but, in order to do so, the relevant intermediated holder will need to arrange to have its interests in Shares withdrawn from the Euroclear System (and the CREST System in the case of CDI holders) and held in certificated (i.e. paper) form. The process for doing so is set out below:
EB Participants can withdraw their Shares from Euroclear Nominee into a direct name on register (mark-down). For a detailed description as to what EB Participants would need to do, please refer to the EB Services Description section 4.2.3 –Mark-up and Mark-down.
A CDI only exists in the CREST System as a settlement mechanic. It is not possible to directly rematerialise a CDI. Please see Clause 6 of the CREST Deed Poll set out in Chapter 8 of the CREST International Manual. There are two distinct steps in this process:
A description of the Belgian Law Rights that, as a matter of Belgian law, are granted to EB Participants in respect of the Shares credited to them in the Euroclear System is set out below.
Section 4(b) of the Terms and Conditions governing use of Euroclear ("Euroclear Terms and Conditions") lists the various pieces of legislation which govern securities held in the Euroclear System, namely:
The asset protection rules set out in the pieces of legislation listed at sub-paragraphs 1(b) to (d) above provide a protection which is equivalent, in substance, to the protection afforded by Royal Decree No. 62. In addition, some of the pieces of legislation listed above do not apply to shares issued by an Irish issuer (for example, due to the fact that they only apply to securities issued by a Belgian issuer or by a Belgian public authority) and the remainder of this summary, therefore, relates only to those rules provided for by Royal Decree No. 62.
Royal Decree No. 62 applies to all securities (other than with a limited number of exceptions those governed by one of the specific pieces of legislation mentioned in sub-paragraphs 1(b) to (d) above) deposited with Euroclear Bank by EB Participants, irrespective of whether:
(a) the securities have been initially deposited with Euroclear Bank or have first been deposited with another CSD before being transferred to a Securities Clearance Account opened on the books of Euroclear Bank;
Securities held by Euroclear Bank on behalf of EB Participants are fungible (Article 6 of Royal Decree No. 62). This means that once the securities have been accepted by Euroclear Bank for deposit in the Euroclear System, it is no longer possible to identify (whether on the books of Euroclear Bank or in the books of the relevant depository) a specific security (by means of a serial number or otherwise) as belonging to a particular EB Participant.
Owing to this fungibility, securities held in the Euroclear System are treated on a book-entry basis. Rights to such securities (i.e. the co-ownership right on the pool of securities of the same issue held in the Euroclear System as discussed below) are evidenced by entries to the Securities Clearance Account of the relevant EB Participant pursuant to Article 8 of Royal Decree No. 62.
The rights that EB Participants have in respect of securities held in the Euroclear System are twofold: an EB Participant has a right to claim back the underlying securities initially deposited or transferred to a Securities Clearance Account under the fungibility regime but also, as long as the securities are held in the Euroclear System, a co-ownership right on all securities of the same issue held under the fungibility regime. The deposit of securities in the Euroclear System amounts to the exchange by the depositor of an ownership interest in specific securities for an intangible co-ownership right over the pool of securities of the same issue as such specific securities held in the Euroclear System by all EB Participants. It is this co-ownership right that is the subject of book-entry transfers between the EB Participants in the Euroclear System. If an EB Participant wishes to take possession of or recover an ownership interest in specific securities it may at any time request the delivery of an amount of underlying securities corresponding to the amount of such securities the co-ownership right of which are recorded on the EB Participant's Securities Clearance Account. As from such delivery, the securities will no longer be held in the Euroclear System. Such delivery would satisfy the recovery claim the EB Participant has against Euroclear Bank, as evidenced by the credit to the EB Participant's Securities Clearance Account.
Royal Decree No. 62 offers enhanced protection to holders of book-entry securities compared with mere contractual rights. Under Royal Decree No. 62, EB Participants are granted an intangible co-ownership right over the pool of book-entry securities of the same issue held by Euroclear Bank on behalf of all EB Participants that hold securities of that issue (Article 2 of Royal Decree No. 62). Securities of the same issue are securities that have been issued by the same issuer and have the same maturity and rights (and are therefore fungible) (i.e. the same ISIN).
The existence of this co-ownership right affords EB Participants specific rights with respect to the securities recorded on their Securities Clearance Account, (in this case the Migrating Shares) which would not otherwise arise under Belgian law in favour of holders of pure contractual rights, namely:
of Euroclear Bank (or any other proceedings in which the rule of equal treatment of creditors applies (geval van samenloop/situation de concours)).
These rights are regarded as the two essential attributes of ownership under Belgian law.
As a consequence of the fungibility of the securities deposited with Euroclear Bank, Article 12 of Royal Decree No. 62 provides that the right of recovery is a collective right, to be exercised by all EB Participants collectively that have deposited the relevant securities (rather than an individual right to be exercised by each EB Participant). This right is as a matter of principle to be exercised by the administrator of Euroclear Bank's bankruptcy or any other procedure where the rule of equal treatment of creditors applies (geval van samenloop/situation de concours), and it is the administrator that would, on behalf of all EB Participants having deposited the securities concerned, claim those securities back from the depositaries. Where the administrator would fail to take any action to effect the recovery of the securities held on behalf of EB Participants, it is considered that each EB Participant may directly make a claim with the depositaries for the portion of securities held by it in the Euroclear System, as evidenced by the entries in the Securities Clearance Account(s) of the EB Participant.
Euroclear Bank has no proprietary right in respect of securities recorded in EB Participants' Securities Clearance Accounts. This is without prejudice to the other rights Euroclear Bank may have with respect to securities held in the Euroclear System, as described elsewhere in this Part 5 (see in particular the statutory liens and other rights described further below).
Under Belgian law, were bankruptcy proceedings (faillissement/faillite) to be opened in respect of Euroclear Bank, the assets of Euroclear Bank would be placed under judicial control to be conserved, administered and liquidated by one or more bankruptcy administrators (curator/curateur), in order to reimburse the creditors of Euroclear Bank. The administrator would also be responsible for returning to each EB Participant the number of securities it held in the Euroclear System.
The National Bank of Belgium ("NBB") may also commence resolution measures in respect of Euroclear Bank in accordance with Title VIII of the Act of 25 April 2014 on the status and supervision of credit institutions and stock brokerage firms ("Banking Act") which has implemented amongst others, Directive 2014/59/EU of the 15 May 2014 establishing a framework for the recovery and resolution of credit institutions and investment firms ("BRRD") in Belgium. The impact of such resolution measures on EB Participants would depend on the measures taken. Section 288 of the Banking Act provides that the resolution authority should ensure that the exercise of its resolution powers does not affect the operation of and regulation of payment and settlement covered by Directive 98/26/EC of 19 May 1998 on settlement finality in payment and securities settlement systems ("Settlement Finality Directive").
EB Participants are granted an intangible co-ownership right over the pool of book-entry securities of the same issue held by Euroclear Bank on behalf of all EB Participants that hold securities of that issue (Article 2 of Royal Decree No. 62). Such securities would not form part of the assets of Euroclear Bank which would be available for the satisfaction of the claims of Euroclear Bank's creditors where bankruptcy proceedings (faillissement/faillite) would be commenced before the Belgian courts in respect of Euroclear Bank or where resolution measures affecting Euroclear Bank would be taken.
Securities held with Euroclear Bank would be recoverable in kind by the EB Participants in the event of bankruptcy proceedings (faillissement/faillite) or resolution measures affecting Euroclear Bank. As noted above, EB Participants have a right of recovery (terugvorderingsrecht/droit de revendication), i.e. a proprietary right to receive back the relevant quantity of securities in the event of bankruptcy proceedings (faillissement/faillite) or any other procedure where the rule of equal treatment of creditors applies (geval van samenloop/situation de concours). This recovery right must be brought collectively in respect of the pool of securities of the same issue held by EB Participants with Euroclear Bank.
Article 12 of Royal Decree No. 62 provides that where the pool of securities is insufficient (i.e. if there is a securities loss) to allow complete restitution of all due securities of a specific issue held on account with Euroclear Bank by all EB Participants, the pool must be allocated among the EB Participants/owners in proportion to their rights. If Euroclear Bank itself is the owner of a number of securities of the same issue, it will only be entitled to the number of securities remaining after the total number of securities of the same issue which it held for third parties has been returned.
In order for an EB Participant to be entitled to the recovery of securities held in the Euroclear System in the case of a bankruptcy (faillissement/faillite) of Euroclear Bank, the EB Participant must file a claim for recovery with the clerk's office of the Brussels business court before the submission of the first report of verification of claims (neerlegging van het eerste proces-verbaal van verificatie/dépôt du premier procès-verbal de vérification des créances) (Section XX.194 of the Belgian Code of Economic Law). The judgment pursuant to which the bankruptcy has been declared would contain the date by which the first report of verification of claims must be submitted (generally between thirty (30) and forty five (45) days after the bankruptcy declaration). Any claim for recovery submitted after that date would be inadmissible. The administrator of the bankruptcy would then allocate the securities of each issue between those EB Participants having filed a claim for recovery in accordance with the rules set out in this Part 5.
Pursuant to Article 11 of Royal Decree No. 62, attachments (derden-beslag/saisie-arrêt) of Securities Clearance Accounts opened with Euroclear Bank are prohibited. The prohibition prevents Euroclear Bank, third parties (such as creditors of the account holder), depositaries or service providers from being able to attach (in beslag nemen/saisir) securities recorded in a Securities Clearance Account. Article 11 of Royal Decree No. 62 also stipulates that no attachment of securities deposited by Euroclear Bank with depositaries is permissible. Further, Article 14 of Royal Decree No. 62 provides that the dividend, interest and principal amount cash payments relating to fungible securities paid to Euroclear Bank by issuers of securities held in the Euroclear System may not be attached by the creditors of Euroclear Bank.
Pursuant to section 31, §2 of the Act of 2 August 2002 on the supervision of the financial sector and financial services ("Act of 2 August 2002"), Euroclear Bank has:
from loans or advances, which are carried out on behalf of the EB Participant's underlying clients.
In addition to the section 31 statutory lien referred to above, Belgian law provides for:
Section 14(e) (limb (i) and (ii)) of the Euroclear Terms and Conditions provides, therefore, for a contractual right of set-off and retention in favour of Euroclear Bank pursuant to which Euroclear Bank may (upon the effectiveness of any termination or resignation of an EB Participant):
Belgian law provides that holders of interests through the Euroclear Bank CSD have the right to exercise other "associative rights" directly against the Company under Article 13 of the Royal Decree No. 62. These associative rights would include, for example, the right to attend and vote at a general meeting, the right to subscribe in rights issues or the right to commence derivative claims against the directors. Holders would request evidence of their shareholding from Euroclear Bank CSD in connection with the exercise of such associative rights.
Pursuant to section 3.5.2 of the EB Operating Procedures in order to secure any claim Euroclear Bank may have against an EB Participant in connection with the use of the Euroclear System (in particular any claim resulting from any extension of credit or conditional credit made in connection with the clearance or settlement of transactions or custody services), each EB Participant agrees to pledge to Euroclear Bank:
(ii) receipt instructions that Euroclear Bank sends to the local market on such EB Participant's behalf.
Unless otherwise agreed in writing, this general pledge concerns both the EB Participant's proprietary securities as well as those securities the EB Participant holds on behalf of its clients. The EB Participant represents and warrants having obtained the necessary consent from its clients to that effect. This general pledge is without prejudice to (i) any collateral arrangements that Euroclear Bank may enter into with the EB Participant and (ii) the section 31 statutory lien referred to in section 13 above.
Pursuant to section 3.5.1(b) of the EB Operating Procedures, Euroclear Bank waives the statutory lien provided by section 31, §2 of the Act of 2 August 2002 with respect to all securities held by the EB Participant on behalf of clients, provided such securities are credited to a Securities Clearance Account separately and specifically identified in writing by the EB Participant as an account to which only client securities are credited.
Section 17 of the Euroclear Terms and Conditions contains a general loss-sharing rule which is without prejudice to the rules contained in section 12 of Royal Decree No. 62. The rules set out in section 17 are also without prejudice to any liability that Euroclear Bank may have to compensate EB Participants for negligence or wilful misconduct on its part.
Where all or a portion of the securities of a particular issue held in the Euroclear System is lost or otherwise becomes unavailable for delivery (such loss or unavailability being referred to as a "Securities Loss"), then the reduction in the amount of securities of such issue (i.e. the same ISIN) held in the Euroclear System arising therefrom will be borne by those EB Participants holding securities of such issue in the Euroclear System at the opening of the business day on which Euroclear Bank makes a determination that a Securities Loss has occurred (or if such day is not a business day, at the opening of business on the immediately preceding business day).
The loss sharing is to be pro rata with the amount of securities of such issue so held by each EB Participant at the time of such determination and is effected by means of debits to the Securities Clearance Accounts on which securities of such issue are credited. This is subject to appropriate adjustment in the event that any portion of the securities of such issue held in the Euroclear System is for any reason not credited to Securities Clearance Accounts. Any reduction in the amount of securities available for delivery which arises from a Securities Loss with respect to securities held with any depository or other CSD shall be shared at the time as of which such reduction is attributed to Euroclear Bank.
In the case of any Securities Loss with respect to any issue of securities which arises under circumstances in which any depository, any EB Participant, any other CSD, any sub-custodian, or any other person is or may be legally liable (or if any other remedy may be available for making good the Securities Loss), Euroclear Bank may take such steps to recover the securities which are the subject of such Securities Loss or damages (or to obtain the benefits of any such other remedy) as Euroclear Bank reasonably deems appropriate under all the circumstances (including without limitation the bringing and settling of legal proceedings).
Unless Euroclear Bank is liable for such Securities Loss due to its negligence or wilful misconduct, Euroclear Bank will charge those sharing the reduction in securities arising out of such Securities Loss (proportionately in accordance with the amount of such sharing) the amount of any cost or expense incurred in connection with any action taken referred to in the preceding paragraph.
Any cash amounts or securities which Euroclear Bank recovers in respect of a Securities Loss relating to a particular issue of securities or for which Euroclear Bank is liable in connection with a Securities Loss will be credited to the appropriate cash accounts or Securities Clearance Accounts of those sharing the reduction in the amount of securities of such issue arising from such Securities Loss.
The practical result of the Migration taking effect will be that all Migrating Shareholders will receive one (1) CDI for each Migrating Share held at the Migration Record Date. Migrating Shareholders may then choose whether (1) to continue to hold via CDI, or (2) to cancel their CDIs and instead to hold and exercise the Belgian Law Rights in such Migrating Shares as an EB Participant (subject to such Migrating Shareholder being or becoming an EB Participant, or appointing, a custodian, broker or other nominee which is an EB Participant to hold the Migrating Shares on its behalf).
Following the Migration, Migrating Shares will likely be represented by a combination of book entries within the Euroclear System and CDIs in the CREST System. It should be noted that transactions in the Shares resulting from trades on Euronext Dublin will settle via the Euroclear System and transactions in the Shares resulting from trades on the London Stock Exchange will settle via CDIs in the CREST System. Transactions in the Shares resulting from trades on other trading venues which are not cleared through a central counterparty can settle either in the Euroclear System or in the CREST System as agreed by the counterparties.
With respect to CDIs, the CREST Nominee (CIN (Belgium) Limited) will be an EB Participant and will hold rights to Shares held within Euroclear Bank on behalf of the CREST Depository for the account of CDI holding CREST members.
Following the Migration, holders of CDIs will not be the registered holders of Shares to which they are entitled. Rather, immediately following the Migration, their interests in the Migrating Shares will be held through an intermediated chain of holdings, whereby Euroclear Nominees will hold the legal interest in the Shares transferred to it, on trust for Euroclear Bank, and will be the registered holder of such Shares entered on the Register of Members. Euroclear Bank will credit its interest in such Shares to the account of the CREST Nominee and the CREST Nominee will hold its interest in such Shares (i.e. the Belgian Law Rights) as nominee and for the benefit of the CREST Depository. The CREST Depository will, in turn, hold its interest in such Shares on trust and for the benefit of the holders of the CDIs.
The terms and conditions upon which CDIs are issued and held in CREST are set out in the CREST Deed Poll and the CREST International Manual.
An international custody fee and a transaction fee, as determined by EUI from time to time, is charged at user level for the use of CDIs and or transactions.
The rights of prospective holders of CDIs in relation to EUI and its subsidiaries in respect of CDIs held through CREST are set out in the CREST Deed Poll.
The holders of CDIs will have an indirect entitlement to shares but will not be the registered holders thereof. Accordingly, the holders of CDIs will be able to enforce and exercise the rights relating to the Shares through and in accordance with the arrangements described below. As a result of certain aspects of Irish law which govern the Shares, the holders of CDIs will not be able directly to enforce or exercise certain rights, including voting and pre-emption rights but, instead, will be entitled to enforce them indirectly via Euroclear Nominees as further explained below. Holders of CDIs will, at their option, be able to effect the cancellation of their CDIs in CREST and receive a transfer of the underlying shares to which they are entitled in the manner set out in section 6 of Part 4 of this Circular by appointing an agent or custodian which is an EB Participant to receive the relevant Belgian Law Rights and arranging for that agent or custodian to take the necessary steps to effect the transfer of the relevant Shares from the Nominee. Such holders may also choose to receive the benefit of the Belgian Law Rights either directly (if they are an EB Participant) or via a shareholding account with a depository financial institution which is an EB Participant.
The CDIs will be created and issued pursuant to the terms of the CREST Deed Poll and as described in the CREST International Manual.
The CDIs will have the same security code (ISIN) as the underlying Shares and will not be separately listed on the official list or separately traded on the London Stock Exchange.
CDIs are capable of being credited to the same member account as all other CREST securities of any particular investor. This means that, from a practical point of view, CDIs representing Shares will be held and transferred in the same way that Participating Securities are held and transferred in CREST today.
Holders of CDIs will only be able to exercise their rights attached to CDIs by instructing the CREST Depository to exercise these rights on their behalf, and, therefore, the process for exercising rights (including the right to vote at general meetings and the right to subscribe for new shares on a preemptive basis) will take longer for holders of CDIs than for holders of Shares or Belgian Law Rights. Consequently, it is expected that the CREST Depository shall set a deadline for receiving instructions from all CDI holders regarding any corporate event. The holders of CDIs may be granted shorter periods in which to exercise the rights carried by the CDIs than the Shareholders have in which to exercise rights carried by Shares or EB Participants have in which to exercise rights carried by Belgian Law Rights. The CREST Depository will not exercise voting rights in respect of CDIs for which it has not received voting instructions within the established term.
EUI provides a service similar to that set out in SRD II, in respect of Irish Securities held as CDIs in the CREST System (which will include CDIs arising consequent to the Migration). However, the manner (where the holder does not hold Shares through a custodian/nominee) and time period within which any such voting rights may be exercised by CDI holders will differ from arrangements which would currently apply in respect of direct holdings in the CREST System. Voting confirmations may not be provided by Euroclear Bank to EB Participants or to underlying CDI holders.
EUI has arranged for voting instructions relating to Shares to be received via a third party service provider, currently Broadridge. Any CREST member who has a holding in the CDI up to the Broadridge voting deadline will be notified through Broadridge upon Broadridge's receipt of such notification from Euroclear Bank.
The notification will be made available to all CREST members (those either having or receiving a position in that CDI) within forty eight (48) hours of receipt by Broadridge of complete information.
The relevant record date is determined by the issuer and is a market-wide applicable date.
CREST members can complete and submit proxy appointments (including voting instructions) electronically through Broadridge. The same voting options as in Euroclear Bank will be available (i.e. electronic votes by means of chairman proxy appointments or appointing a third party proxy).
The voting service will process and deliver proxy voting instructions received from CREST members on the Broadridge voting deadline date to Euroclear Bank, by their cut-off and to agreed market requirements. Voting instructions cannot be changed or cancelled after Broadridge's voting deadline.
There is no facility to appoint a corporate representative.
Holders of CDIs wishing to use the voting rights attached to the Shares represented by their CDIs personally in their capacity as a Shareholder (and not as proxy), by attending a shareholders' meeting of the Company, will first have to effect the cancellation of their CDIs by receiving the relevant Belgian Law Rights (via an EB Participant if they are not an EB Participant) and then effecting a transfer of their underlying Shares so that such Shares are held by such holder as described above in time for the record date of the relevant shareholders' meeting. On so doing, they will, subject to and in accordance with the Articles of Association, be able to attend and vote in person or appoint a corporate representative at the relevant shareholders' meeting.
The entitlement of CREST members holding CDIs to a dividend will be based on their holdings in the CREST System on the relevant record date. Upon receipt of funds and successful reconciliation by CREST, CREST members will be credited an amount based on their record date holdings.
Holders of CDIs held in the CREST System, whilst Euroclear Bank continues to provide such service, will be able, if they wish, to have amounts in respect of dividends paid on Shares in euro by the Company converted into, and paid to them in, Sterling, or any other CREST currency, if desired by the CREST Depository.
EUI notifies CREST members of an event as soon as possible after receipt of complete notification of the corporate action from Euroclear Bank (normally shortly after the announcement by the issuer).
The notification will inform the CREST member of the relevant deadlines (EUI deadline, record date, election date etc.) as well as the actions the CREST member needs to undertake (i.e. is it a mandatory event, elective event, is there a default action or not).
Upon receipt by CREST of the corporate action, instructions from the CDI holders by the CREST deadline, CREST will send the instructions to Euroclear Bank who in turn will include these instructions in the aggregated instructions Euroclear Bank sends to the issuer/agents.
The issuer/agents in turn credit the relevant proceeds to Euroclear Bank and upon receipt of the proceeds, Euroclear Bank credits the entitled EB Participants (including CREST as a Participant of Euroclear Bank) with their respective entitlement.
The relevant EUI deadline for elections will be earlier than the Euroclear Bank deadline, as CREST needs to ensure it sends its instructions to Euroclear Bank within the Euroclear Bank deadline.
Upon receipt of the relevant proceeds, CREST will credit the CREST members with their entitlement based on either their elections or the holdings they had on the relevant record date.
CREST members' remedies are set out in the English law contract entered into with EUI.
Given that Euroclear Bank will not credit fractions of securities proceeds, CREST members will not be credited with fractional entitlements.
Holders of CDIs will, at their option, be able to effect the cancellation of their CDIs in the CREST System and receive the Belgian Law Rights to which they are entitled into a shareholding account with a depository financial institution which is an EB Participant and to be registered as holder of the underlying Shares by arranging for that EB Participant to take the necessary steps to effect the transfer of the relevant Shares from Euroclear Nominees. It is envisaged that receipt of Belgian Law Rights on cancellation of CDIs can be accomplished within the same business day, and that entry on the Register of Members as holder of the underlying Shares can be accomplished within one (1) business day. It may take up to ten (10) business days for a transferee to receive the relevant share certificate, however entry on the Register of Members is prima facie evidence of a shareholding under Irish law. Certain transfer fees will generally be payable by a holder of CDIs who makes such a transfer.
The following is a general summary of the material Irish tax considerations applicable to Shareholders who are the beneficial owners of Migrating Shares and references to "Shareholders" in this summary should be read accordingly. The summary contained in this Part 7 is based on existing Irish tax law, our understanding of the practices of the Irish Revenue Commissioners ("Irish Revenue") as of the Latest Practicable Date. It assumes that the Finance Bill 2020, as initiated on 20 October 2020 and as proposed to be amended by the Committee Stage amendments proposed by the Minister for Finance on 13 November 2020, are enacted into law without change. Legislative, administrative or judicial changes may modify the tax consequences described in this Part 7, possibly with retroactive effect. Furthermore, we can provide no assurances that the tax consequences contained in this summary will not be challenged by the Irish Revenue or will be sustained by an Irish court if they were to be challenged.
The summary below does not constitute tax advice and is intended only as a general guide. The following summary is not exhaustive and Shareholders should consult their own tax advisers about the Irish tax consequences (and the tax consequences under the laws of other relevant jurisdictions), which may arise as a result of being Migrating Shareholders and the acquisition, ownership and disposition of Shares in the future. Furthermore, the following summary applies only to Shareholders who currently hold their Shares as capital assets and does not apply to all categories of Shareholders, such as dealers in securities, trustees, insurance companies, collective investment schemes, pension funds or shareholders who have, or who are deemed to have, acquired their Shares by virtue of an office or employment.
The Finance Bill includes a number of proposed amendments to the Irish tax legislation that seek to ensure that the migration of securities in Irish registered companies from the CREST System to the Euroclear System is tax neutral and to maintain the status quo post-migration. The Finance Bill will be subject to a number of stages in the legislative process before being signed into law in December 2020. Also the relevant provisions will only come into force when a ministerial commencement order is made. The Irish Revenue have proposed addressing some matters by way of published practice, but this has not been published yet. It is possible changes may be made to the Finance Bill before it is signed into law and/or that the law or practice of the Irish Revenue could change, either prospectively or retroactively, and such change could increase, reduce or mitigate possible tax consequences for Shareholders. Also, the assumed practices may not be issued by the Irish Revenue. The position under current Irish law is uncertain and the Company makes no assurances on the tax position for Shareholders.
The following summary is drafted on the basis that the Finance Bill 2020, as initiated on 20 October 2020 and as proposed to be amended by the Committee Stage amendments proposed by the Minister for Finance on 13 November 2020, are enacted into law without change, and the amendments are commenced by way of ministerial order prior to any action or transaction being undertaken in relation to the Migration.
Shareholders should not be liable to Irish capital gains tax ("CGT") as a result of the Migration on the basis that the Migration should not be treated as giving rise to a disposal of Shares for CGT purposes.
Shareholders who are not resident or ordinarily resident in Ireland for Irish tax purposes should not be liable to CGT to the extent a gain is realised on a disposal of Shares (including CDIs and ADRs) (or an interest in Shares) unless such Shares (or interest in Shares) are used, held or acquired for the purpose of a trade or business carried on by such Shareholder in Ireland through a branch or an agency.
Following the Migration, a disposal by an Irish resident or ordinarily resident Shareholder of its Shares may, depending on the circumstances (including the availability of exemptions and reliefs), give rise to a chargeable gain or allowable loss for that Shareholder. The rate of CGT is currently 33%.
Irish dividend withholding tax ("DWT") should not arise as a result of the Migration.
Following the Migration, unless exempted, a withholding at the standard rate of income tax (currently 25%) will apply to dividends or other relevant distributions paid by the Company. The withholding tax requirement will not apply to distributions paid to certain categories of Irish resident Shareholders or to distributions paid to certain categories of non-Irish resident Shareholders.
The following Irish resident Shareholders, inter-alia, are exempt from withholding if they make to the Company, in advance of payment of any relevant distribution, an appropriate declaration of entitlement to exemption:
The following non-resident stockholders are exempt from withholding if they make to the Company, in advance of payment of any dividend, an appropriate declaration of entitlement to exemption:
In the case of an individual non-Irish resident Shareholder resident in an EU member state or tax treaty country, the declaration must be accompanied by a current certificate of tax residence from the tax authorities in the Shareholder's country of residence. In the case of both an individual and corporate non-Irish resident Shareholder resident in an EU member state or tax treaty country, the declaration must also contain an undertaking that he, she or it will advise the Company accordingly if he, she or it ceases to meet the conditions to be entitled to the DWT exemption. No declaration is required if the Shareholder is a 5% parent company in another EU member state in accordance with section 831 TCA 1997. Neither is a declaration required on the payment by a company resident in Ireland to another company so resident if the Company making the dividend is a 51% subsidiary of that other company.
The DWT position in respect of dividends or distributions in respect of Shares represented by ADSs should not change as a result of the Migration.
Irish income tax may arise for certain Shareholders in respect of any dividends received from the Company.
Except in certain circumstances, a person who is neither resident nor ordinarily resident in Ireland and is entitled to receive dividends without deductions is not liable for Irish tax on the dividends. Where a person who is neither resident nor ordinarily resident in Ireland is subject to withholding tax on the dividend received due to not benefiting from any exemption from such withholding, the amount of that withholding will generally satisfy such person's liability for Irish tax, however individual Shareholders should confirm this with their own tax adviser.
Companies resident in Ireland other than those taxable on receipt of dividends as trading income are exempt from corporation tax on distributions received on the Shares. Shareholders that are "close" companies for Irish taxation purposes may, however, be subject to a 20% corporation tax surcharge on undistributed investment income.
Individual Shareholders who are resident or ordinarily resident in Ireland are subject to income tax on the gross dividend at their marginal tax rate, but are entitled to a credit for the tax withheld by the Company. The dividend will also be subject to the universal social charge. An individual Shareholder who is not liable or not fully liable for income tax by reason of exemption or otherwise may be entitled to receive an appropriate refund of tax withheld. A charge to Irish social security taxes can also arise for such individuals on the amount of any dividend received from the Company.
Irish capital acquisitions tax ("CAT") should not arise simply by virtue of the Migration. Following the Migration, a gift or inheritance of Shares (including CDIs and ADRs) (or an interest in Shares) will be within the charge to CAT notwithstanding that the donor or the donee/successor in relation to such gift or inheritance is domiciled and resident outside Ireland. CAT is charged at a rate of 33% above a taxfree threshold. This tax-free threshold is determined by the amount of the current benefit and of previous benefits taken since December 5, 1991, as relevant, within the charge to CAT and the relationship between the donor and the donee/successor. Gifts and inheritances between spouses (and in certain cases former spouses) are not subject to CAT.
In a case where an inheritance or gift of Shares is subject to both Irish CAT and foreign tax of a similar character, the foreign tax paid may in certain circumstances be credited in whole or in part against the Irish tax. Shareholders should consult their own tax advisers as to whether CAT is creditable or deductible in computing any domestic tax liabilities.
Where there is no transfer of beneficial ownership of Shares no stamp duty should arise in connection with the Migration.
Following the Migration, transfers of equitable or beneficial interests in Shares (or an interest in Shares), including transfers of CDIs within the CREST System and transfers of an interest in Shares, or such CDIs effected by a transfer order relating to a single netted settlement of two or more contracts for the transfer of interests in Shares, will be subject to stamp duty at a rate of 1% of the consideration or the market value of the Shares, if greater. The person accountable for payment of stamp duty is the transferee or, in the case of a transfer by way of a gift or for a consideration less than the market value, all parties to the transfer. The Irish stamp duty position in respect of ADRs should not change as a result of the Migration.
The following is a general summary of the material United Kingdom tax considerations applicable to Shareholders who are resident (and, in the case of individuals, domiciled) in the United Kingdom for United Kingdom tax purposes and who are the beneficial owners of Migrating Shares and who have neither lent nor borrowed their shares ("UK Shareholders"). The summary contained in this section 2 of Part 7 is based on our understanding of existing United Kingdom tax law and of the published practice of Her Majesty's Revenue and Customs ("HMRC") as of the Latest Practicable Date. Legislative, administrative or judicial changes may modify the tax consequences described in this section 2 of Part 7, possibly with retroactive effect. Furthermore, we can provide no assurances that the tax consequences contained in this summary will not be challenged by HMRC or will be sustained by a United Kingdom court if they were to be challenged.
The following summary does not constitute tax advice and is intended only as a general guide. It relates only to certain limited aspects of the United Kingdom taxation treatment of UK Shareholders. It may not apply to certain UK Shareholders, such as traders, broker-dealers, dealers in securities, intermediaries, insurance companies and collective investment schemes, shareholders who have (or are deemed to have) acquired their Migrating Shares by virtue of an office or employment or who are officers or employees or individual shareholders who own 10% or more of the issued share capital of the Company (including in certain circumstances, shares comprised in a settlement of which the shareholder is a settlor and shares held by a connected person as well as shares transferred by a shareholder pursuant to a repurchase or stock lending arrangement). Such persons may be subject to special rules. The following statements may not apply where the Company offers scrip dividends in lieu of cash. Shareholders should consult their own tax advisers about the United Kingdom tax consequences (and the tax consequences under the laws of other relevant jurisdictions), which may arise as a result of being Migrating Shareholders and the acquisition, ownership and disposition of Shares in the future.
UK Shareholders are not expected to be liable to United Kingdom capital gains tax or corporation tax on chargeable gains as a result of the Migration, either on the basis that the Migration does not give rise (or should not be treated as giving rise) to a disposal of Shares, or on the basis that under the securities identification rules any disposal should be treated as being of the interest in Shares acquired in the Migration (whether held as a CDI or as Belgian Law Rights by an EB Participant or through a broker or other nominee which is an EB Participant) and therefore at no gain and no loss. There is therefore expected to be no effect on the base cost available to be taken into account by UK Shareholders in computing the gain on any subsequent disposals.
No United Kingdom stamp duty or stamp duty reserve tax ("SDRT") is expected to be required to be paid in respect of the Migration.
Following the Migration, if a UK Shareholder holding CDIs effects the cancellation of those CDIs in the CREST System and receives the underlying Shares (held as Belgian Law Rights as described in section 4 of Part 6 of this Circular): (i) the UK Shareholder is not expected to be liable to United Kingdom capital gains tax or corporation tax on chargeable gains as a result of the cancellation; (ii) the base cost in the Shares is expected to be the same as the base cost in the CDIs; and (iii) no United Kingdom stamp duty or SDRT is expected to be required to be paid as a result of the cancellation. HMRC considers that there will have been a disposal of the CDIs for the purposes of United Kingdom capital gains tax or corporation tax on chargeable gains and that the usual computational rules will apply; but as it is not expected that any consideration (beyond the receipt of the Shares themselves) would be received by a UK Shareholder for the disposal of the CDIs, no chargeable gains should arise. If a UK Shareholder holding Belgian Law Rights in respect of Shares subsequently takes steps (whether immediately after the cancellation of that UK Shareholder's CDIs or at a later time) to become registered directly as the holder of the Shares (again as described in section 4 of Part 6 of this Circular) those steps are not expected to give rise to any further UK tax consequences for a UK Shareholder.
Following the Migration, a beneficial owner of CDIs in respect of Shares is expected to be treated for UK tax purposes as the beneficial owner of the corresponding number of Shares held through the Euroclear System for the benefit of the CREST Depository. On that basis, if a UK Shareholder receives a dividend on his or her Shares (including Shares represented by CDIs) and Irish tax is withheld from the payment of the dividend (see Irish tax considerations in section 1 above for comments on the withholding tax position), credit for the Irish tax may be available for set-off against any liability to UK corporation tax or UK income tax on the dividend. The amount of the credit will normally be equal to the lesser of: (i) the amount withheld once appropriate double tax treaty claims have been made by the UK Shareholder to mitigate Irish withholding tax suffered; and (ii) the liability to UK tax on the dividend. The credit will not normally be available for set-off against a UK Shareholder's liability to UK tax other than on the dividend and, to the extent that the credit is not set off against UK tax on the dividend, the credit will be lost.
UK Shareholders who are within the charge to UK income tax will pay no tax on their cumulative dividend income in a tax year up to an annual dividend allowance (£2,000, for the 2020/21 tax year). The rates of income tax on dividends received above the annual dividend allowance are currently (i) 7.5% for basic rate taxpayers; (ii) 32.5% for higher rate taxpayers; and (iii) 38.1% for additional rate taxpayers. Dividend income that is within the dividend allowance counts towards an individual's basic or higher rate limits and will therefore affect the rate of tax that is due on any dividend income in excess of the annual dividend allowance. In calculating into which tax band any dividend income over the £2,000 allowance falls, savings and dividend income are treated as the highest part of an individual's income. Where an individual has both savings and dividend income, the dividend income is treated as the top slice.
UK Shareholders who are within the charge to UK corporation tax will be subject to UK corporation tax on any dividends on the Shares unless certain conditions for exemption are satisfied. The exemption is of wide application and such UK Shareholders will therefore ordinarily not be subject to UK corporation tax on the dividends received on the Shares.
A disposal or deemed disposal of Shares (including the CDIs and Shares represented by them) by a UK Shareholder may, depending on the UK Shareholder's particular circumstances and subject to any available exemption or relief, give rise to a chargeable gain or allowable loss for the purposes of capital gains tax or corporation tax on chargeable gains.
Individuals who are temporarily non-resident in the UK may, in certain circumstances, be subject to capital gains tax in respect of gains realised on a disposal of Shares during their period of non-residence.
No UK stamp duty will be payable in respect of a paperless transfer of Shares for which no written instrument of transfer is used.
No UK stamp duty will be payable on a written instrument of transfer of Shares if that transfer instrument is executed and retained outside the UK and does not relate to any property situated in the UK or to any other matter or thing done or to be done in the UK (which may include, without limitation, the involvement of UK bank accounts in payment mechanics).
No UK SDRT will arise in respect of an agreement to transfer Shares, provided that the Shares are not at any time registered in a register that is kept in the UK.
No UK stamp duty will arise on transfers of CDIs within the CREST System, on the assumption that no written instrument of transfer is used to effect such a transfer.
No UK SDRT will arise on transfers of CDIs within the CREST System, provided that (i) the Shares represented by the CDIs are of the same class as shares in the Company that are listed on a 'recognised stock exchange' for UK tax purposes, (ii) the Shares are not at any time registered in a register that is kept in the UK, and (iii) the Company (as a non-UK incorporated company) remains centrally managed and controlled outside the UK. Shares that are included in the UK official list and admitted to trading on the main market of the London Stock Exchange, and/or officially listed in Ireland and admitted to trading on the main market of Euronext Dublin, are regarded as listed on a recognised stock exchange for UK tax purposes.
The following is a summary of certain U.S. federal income tax considerations relating to the purchase, ownership and disposition of Migrating Shares or ADRs by a beneficial owner of the Migrating Shares or ADRs who is a citizen or resident of the United States, a U.S. domestic corporation or otherwise subject to U.S. federal income tax on a net income basis in respect of the Migrating Shares or the ADRs ("U.S. Holders"). This summary does not purport to be tax advice or a comprehensive description of all of the tax considerations that may be relevant to a decision to purchase the Migrating Shares or the ADRs, including the alternative minimum tax and Medicare tax on net investment income. In particular, the summary deals only with U.S. Holders that will hold Migrating Shares or ADRs as capital assets and generally does not address the tax treatment of U.S. Holders that may be subject to special tax rules such as banks, regulated investment companies, insurance companies, tax-exempt organisations dealers in securities or currencies, partnerships or partners therein, entities subject to the branch profits tax, traders in securities electing to mark to market, persons that own 10% or more of the stock of the Company (measured by vote or value), U.S. Holders whose "functional currency" is not U.S. dollars or persons that hold the Migrating Shares or the ADRs as a synthetic security or as part of an integrated investment (including a "straddle" or hedge) consisting of the Migrating Shares or the ADRs and one or more other positions.
This summary is based on the Internal Revenue Code of 1986, as amended ("Code"), its legislative history, existing and proposed regulations promulgated thereunder, published rulings and court decisions, all as currently in effect. These authorities are subject to change, possibly on a retroactive basis. In addition, this summary assumes the Deposit Agreement, and all other related agreements, will be performed in accordance with their terms.
Holders of the Migrating Shares or the ADRs should consult their own tax advisors as to the U.S. or other tax consequences of the purchase, ownership, and disposition of the Migrating Shares or the ADRs in light of their particular circumstances, including, in particular, the effect of any foreign, state or local tax laws.
For U.S. federal income tax purposes, holders of the ADRs generally will be treated as the beneficial owners of the Migrating Shares represented by those ADRs.
U.S. Holders are not expected to recognise any gain or loss for U.S. federal income tax purposes as a consequence of the Migration.
The gross amount of any dividends (including any amount withheld in respect of Irish taxes) paid with respect to the Migrating Shares, including Migrating Shares represented by ADRs, will generally be includible in the taxable income of a U.S. Holder when the dividends are received by the holder, in the case of Migrating Shares, or when received by the Depositary, in the case of ADRs. Such dividends will not be eligible for the "dividends received" deduction allowed to U.S. corporations in respect of dividends from a domestic corporation. Dividends paid in euro generally should be included in the income of a U.S. Holder in a U.S. dollar amount calculated by reference to the exchange rate in effect on the day they are received by the holder, in the case of Migrating Shares, or the Depositary, in the case of ADRs. U.S. Holders generally should not be required to recognise any foreign currency gain or loss to the extent such dividends paid in euro are converted into U.S. dollars immediately upon receipt.
Subject to certain exceptions for short-term and hedged positions, the U.S. dollar amount of dividends received by an individual with respect to the Migrating Shares or ADRs will be taxable at the preferential rates for "qualified dividends" if (i) the Company is eligible for the benefits of a comprehensive income tax treaty with the United States that the Internal Revenue Service ("IRS") has approved for the purposes of the qualified dividend rules; and (ii) the Company was not, in the year prior to the year in which the dividend is paid, and is not, in the year in which the dividend is paid, a passive foreign investment company ("PFIC"). The Convention between the Government of the United States of America and the Government of Ireland for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and Capital Gains, dated as of July 28, 1999 ("U.S.-Ireland Income Tax Treaty") has been approved for the purposes of the qualified dividend rules. Based on the Company's audited financial statements and relevant market data, the Company believes that it was not treated as a PFIC for U.S. federal income tax purposes with respect to its fiscal 2019 taxable year. In addition, based on the Company's audited financial statements and its current expectations regarding the value and nature of its assets, the sources and nature of its income, and relevant market data, the Company does not anticipate becoming a PFIC for its fiscal 2020 taxable year.
Dividends received by U.S. Holders generally will constitute foreign source and "passive category" income for U.S. foreign tax credit purposes. Subject to limitations under U.S. federal income tax law concerning credits or deductions for foreign taxes, any Irish taxes withheld at the appropriate rate from cash dividends on the Migrating Shares or ADRs may be treated as a foreign income tax eligible for credit against a U.S. Holder's U.S. federal income tax liability (or at a U.S. Holder's election, may be deducted in computing taxable income if the U.S. Holder has elected to deduct all foreign income taxes for the taxable year). The rules with respect to foreign tax credits are complex and U.S. Holders should consult their own tax advisors concerning the implications of these rules in light of their particular circumstances.
Distributions of Migrating Shares that are made as part of a pro rata distribution to all stockholders generally should not be subject to U.S. federal income tax, unless the U.S. Holder has the right to receive cash or property, in which case the U.S. Holder will be treated as if it received cash equal to the fair market value of the distribution.
Upon a sale or other disposition of the Migrating Shares or ADRs, U.S. Holders will recognise gain or loss for U.S. federal income tax purposes in an amount equal to the difference between the U.S. dollar value of the amount realised on the disposition and the U.S. Holder's tax basis, determined in U.S. dollars, in the Migrating Shares or ADRs. Generally, such gains or losses will be capital gains or losses, and will be long-term capital gains or losses if the Migrating Shares or ADRs have been held for more than one year. Short-term capital gains are subject to U.S. federal income taxation at ordinary income rates. Gains realised by a U.S. Holder generally should constitute income from sources within the United States for foreign tax credit purposes and generally should constitute "passive category" income
for such purposes. The deductibility of capital losses, in excess of capital gains, is subject to limitations. Deposits and withdrawals of Migrating Shares by U.S. Holders in exchange for ADRs should not result in the realisation of gain or loss for U.S. federal income tax purposes.
Certain U.S. Holders that own "specified foreign financial assets" with an aggregate value in excess of U.S. \$50,000 on the last day of the taxable year or U.S. \$75,000 at any time during the taxable year are generally required to file an information statement along with their tax returns, currently on IRS Form 8938, with respect to such assets. "Specified foreign financial assets" include any financial accounts held at a non-U.S. financial institution, as well as securities issued by a non-U.S. issuer that are not held in accounts maintained by financial institutions. The understatement of income attributable to "specified foreign financial assets" in excess of U.S. \$5,000 extends the statute of limitations with respect to the tax return to six (6) years after the return was filed. U.S. Holders who fail to report the required information could be subject to substantial penalties. Prospective investors are encouraged to consult with their own tax advisors regarding the possible application of these rules, including the application of the rules to their particular circumstances.
Dividends paid on, and proceeds from, the sale or other disposition of the Migrating Shares or ADRs that are made within the United States or through certain U.S. related financial intermediaries generally will be subject to information reporting and may also be subject to backup withholding unless the holder (i) provides a correct taxpayer identification number and certifies that it is not subject to backup withholding or (ii) otherwise establish an exemption from backup withholding. Backup withholding is not an additional tax. Any amounts withheld may be allowed as a refund or credit against a U.S. Holder's U.S. federal income tax liability, provided the required information is timely furnished to the IRS.
The following is a general summary of the material Belgian tax considerations applicable to Shareholders who are the beneficial owners of Migrating Shares, who have neither lent nor borrowed their shares and who are (i) Belgian resident individuals or companies ("Belgian Resident Shareholders") or (ii) Belgian non-resident individuals or companies ("Belgian Non-Resident Shareholders"). It has been assumed that Belgian Non-Resident Shareholders are Shareholders that have no connection with Belgium other than the mere fact that their Shares (including Shares represented by CDIs) are held through the Euroclear System. The summary is based on our understanding of existing Belgian tax laws, treaties and regulatory interpretations by the Belgian Tax Authorities in effect in Belgium as of the Latest Practicable Date. Legislative, administrative or judicial changes may modify the tax consequences described in the paragraphs below, possibly with retroactive effect. Furthermore, we can provide no assurances that the tax consequences contained in this summary will not be challenged by the Belgian Tax Authorities or will be sustained by a Belgian court if they were to be so challenged, unless a specific tax ruling were to be obtained beforehand from the Belgian Ruling Commission.
The below summary does not constitute tax advice and is intended only as a general guide. The following summary is not exhaustive and does not purport to address all tax consequences of the ownership and disposal of Shares, nor does it take into account (i) the specific circumstances of particular Shareholders, some of which may be subject to special rules, or (ii) the tax laws of any country other than Belgium. This summary does not describe the tax treatment of Shareholders that may be subject to special rules, such as banks, insurance companies, pension funds, trustees, collective investment undertakings, dealers in securities or currencies, persons that hold, or will hold, Migrating Shares as a position in a straddle, share-repurchase transaction, conversion transaction, synthetic security or other integrated financial transactions. This summary does not address the local taxes applicable to Belgian resident individuals.
For purposes of this summary, a Belgian resident individual is an individual subject to Belgian personal income tax (i.e. an individual domiciled in Belgium or having his seat of fortune in Belgium or a person assimilated to a resident for purposes of Belgian tax law). A Belgian resident company is a company subject to the ordinary Belgian corporate income tax (i.e. a corporate entity that has its main establishment, its administrative seat or seat of management in Belgium and that is not excluded from the scope of the Belgian corporate income tax). The fact that a company has its statutory seat in Belgium leads to a rebuttable presumption that its main establishment, its administrative seat or seat of management is located in Belgium. A Belgian non-resident is an individual or company that is not a Belgian resident. As mentioned above, it has been assumed that Belgian Non-Resident Shareholders are Shareholders that have no connection with Belgium other than the mere fact that their Shares (including Shares represented by CDIs) are held through the Euroclear System.
Shareholders should consult their own tax advisors about the Belgian tax consequences which may arise as a result of being Migrating Shareholders and the acquisition, ownership and disposal of Migrating Shares in the future (including the effect of any regional or local laws).
Belgian Resident and Non-Resident Shareholders are not expected to be subject to Belgian income tax on capital gains as a consequence of the Migration on the basis that the Migration should normally not give rise (or should not be treated as giving rise) to a definitive disposal of the Shares.
Following the Migration, a beneficial owner of CDIs in respect of Shares may normally be expected to be treated for Belgian tax purposes as the beneficial owner of the corresponding number of Shares held through the Euroclear System for the benefit of the CREST Depository.
For Belgian income tax purposes, the gross amount of all benefits paid on or attributed to Shares (including Shares represented by CDIs) is expected to be treated as a dividend distribution. By way of exception, the repayment of capital may not be treated as a dividend distribution to the extent that such repayment is imputed to the fiscal capital. Note that any reduction of fiscal capital is deemed to be paid out on a pro rata basis of the fiscal capital and certain reserves. The part of the capital reduction deemed to be paid out of the fiscal capital may, subject to certain conditions, for Belgian income tax purposes, be considered as a reimbursement of capital and not be considered as a dividend distribution.
Non-Belgian dividend withholding tax, if any, will neither be creditable against any Belgian income tax due nor reimbursable to the extent that it exceeds Belgian income tax due.
Dividends distributed to Belgian Resident Shareholders holding the Shares (including Shares represented by CDIs) in the framework of the normal management of their private estate, are in principle expected to be subject to Belgian withholding tax of 30% if an intermediary established in Belgium was in any way involved in the processing of the payment of the dividends. The Belgian withholding tax of 30% fully discharges their personal income tax liability.
The intermediary established in Belgium, as referred to in the above paragraph, will not qualify as the debtor of the Belgian withholding tax and hence should not withhold the Belgian withholding tax if (a) it is proven to him that another intermediary has withheld the withholding tax, (b) he can demonstrate that the dividends have been paid to an in Belgium established credit institution, stock market company or recognised clearing or settlement institution which has explicitly, unequivocally and verifiably accepted to comply with the obligations "as intermediary" in respect of withholding tax, or (c) the intermediary qualifies as an in Belgium established credit institution, stock market company or recognised clearing or settlement institution which has paid the dividends to (i) credit institutions established abroad, (ii) financial intermediaries, established abroad, as defined in Article 2, 9° of the Act of 2 August 2002, (iii) clearing institutions and settlement institutions, established abroad, as defined in Article 2, 16° and 17°, respectively, of the Act of 2 August 2002, and (iv) undertakings, established abroad, whose principal activity is the management of assets, the provision of advice in connection with the management of assets or the custody and management of financial instruments as well as undertakings, established abroad, which are authorised to carry on one of those activities under the law to which they are subject to (together (i) to (iv), the "Specific Foreign Intermediaries").
Belgian individuals may nevertheless opt to report the dividends in their personal income tax return or may even need to report them if (i) an intermediary established in Belgium was involved in the processing of the payment of the dividends but such intermediary did not withhold the Belgian dividend withholding tax due, or (ii) no intermediary established in Belgium was in any way involved in the processing of the payment of the non-Belgian sourced dividends.
Belgian resident individuals who report the dividends in their personal income tax return will normally be taxable at the lower of the generally applicable 30% Belgian withholding tax rate on dividends or at the progressive personal income tax rates applicable to their overall declared income. In addition, if the dividends are reported, the Belgian dividend withholding tax may be credited against the personal income tax due and is reimbursable to the extent that it exceeds the personal income tax due provided that the dividend distribution does not result in a reduction in value of or a capital loss on the Shares (including Shares represented by CDIs) of the Company. The latter condition is not applicable if the individual can demonstrate that he/she has held the Shares (including Shares represented by CDIs) in full legal ownership for an uninterrupted period of twelve (12) months prior to the payment or attribution of the dividends. An exemption from personal income tax could in principle be claimed by Belgian resident individuals in their personal income tax return for a first tranche of dividend income up to the amount of EUR 812 (as of income year 2020), subject to certain formalities. All reported dividends are taken into account to assess whether said maximum amount is reached.
For Belgian Resident Shareholders holding Shares (including Shares represented by CDIs) for professional purposes, the Belgian withholding tax will not fully discharge their Belgian income tax liability. Dividends received should be reported by the Shareholder and will, in such a case, be taxable as professional income at the Shareholder's personal income tax rate increased with local surcharges. Belgian withholding tax levied could then be credited against the personal income tax due and would be reimbursable to the extent that it exceeds the income tax due, subject to two conditions: (i) the taxpayer must own the Shares (including Shares represented by CDIs) in full legal ownership on the day the beneficiary of the dividend is identified and (ii) the dividend distribution may not result in a reduction in value of or a capital loss on Shares (including Shares represented by CDIs). The latter condition is not applicable if the Shareholder can demonstrate that he has held the full legal ownership of Shares (including Shares represented by CDIs) for an uninterrupted period of twelve (12) months immediately prior to the payment or attribution of the dividends.
Dividends distributed by the Company to Belgian Resident Shareholders are in principle expected to be subject to Belgian withholding tax of 30% if an intermediary established in Belgium was in any way involved in the processing of the payment of the dividends.
The intermediary established in Belgium, as referred to in the above paragraph, will not qualify as the debtor of the Belgian withholding tax and hence should not withhold the Belgian withholding tax if (a) it is proven to him that another intermediary has withheld the withholding tax, or (b) he can demonstrate that the dividends have been paid to an in Belgium established credit institution, stock market company or recognised clearing or settlement institution which has explicitly, unequivocally and verifiably accepted to comply with the obligations "as intermediary" in respect of withholding tax; or (c) the intermediary qualifies as an in Belgium established credit institution, stock market company or recognised clearing or settlement institution which has paid the dividends to Specific Foreign Intermediaries.
For Belgian Resident Shareholders, the dividend income (after deduction of any non-Belgian withholding tax but including any Belgian withholding tax) must be declared in the corporate income tax return and will be subject to the standard corporate income tax rate of 25% (for financial years starting on or after 1 January 2020). Subject to certain conditions, a reduced corporate income tax rate of 20% applies for financial years starting on or after 1 January 2020 (for so-called small and medium sized enterprises) on the first EUR 100,000 of taxable profits. Belgian resident companies may under certain conditions deduct 100% of the gross dividend received from their taxable income ("Dividend Received Deduction"). Such Shareholders should consult their own tax advisor in this respect.
Belgian dividend withholding tax levied at source could be credited against the Belgian corporate income tax due and would be reimbursable to the extent it exceeds such corporate income tax, subject to two conditions: (i) the taxpayer must own the Shares (including Shares represented by CDIs) in full legal ownership on the day the beneficiary of the dividend is identified and (ii) the dividend distribution does not result in a reduction in value of or a capital loss on the Shares (including Shares represented by CDIs). The latter condition is expected not to be applicable: (i) if the taxpayer can demonstrate that it has held the Shares (including Shares represented by CDIs) in full legal ownership for an uninterrupted period of twelve (12) months immediately prior to the payment or attribution of the dividends or (ii) if, during that period, the Shares (including Shares represented by CDIs) never belonged in full legal ownership to a taxpayer other than a Belgian resident company or a non-resident company that has, in an uninterrupted manner, invested the Shares (including Shares represented by CDIs) in a Belgian permanent establishment.
Dividends received by Belgian Resident Shareholders on the Shares (including Shares represented by CDIs) are exempt from Belgian withholding tax provided that the investor satisfies the identification requirements in Article 117, §11 of the Royal Decree implementing the Belgian Income Tax Code 1992.
Dividends distributed by the Company to Belgian Non-Resident Shareholders are in principle expected to be subject to Belgian withholding tax of 30% if an intermediary established in Belgium was in any way involved in the processing of the payment of the dividends.
The intermediary established in Belgium, as referred to in the above paragraph, will not qualify as the debtor of the Belgian withholding tax and hence should not withhold the Belgian withholding tax if (a) it is proven to him that another intermediary has withheld the withholding tax; (b) he can demonstrate that the dividends have been paid to an in Belgium established credit institution, stock market company or recognised clearing or settlement institution which has explicitly, unequivocally and verifiably accepted to comply with the obligations "as intermediary" in respect of withholding tax; or (c) the intermediary qualifies as an in Belgium established credit institution, stock market company or recognised clearing or settlement institution which has paid the dividends to Specific Foreign Intermediaries.
Dividends paid by the Company through a Belgian credit institution, stock market company or recognised clearing or settlement institution to Belgian Non-Resident Shareholders should be exempt from Belgian dividend withholding tax with respect to dividends of which the debtor (i.e. the Company) is subject to the Belgian non-resident income tax and has not allocated said income to his Belgian establishment provided that the Belgian Non-Resident Shareholders deliver an affidavit confirming that (i) they are non-residents in the meaning of Article 227 of the Belgian Income Tax Code, (ii) they have not allocated the Shares (including Shares represented by CDIs) to business activities in Belgium, and (iii) they are the full owners or usufructors of the Shares (including Shares represented by CDIs).
No Belgian dividend withholding tax should be due with respect to dividends, as referred to in the above paragraph, paid by an in Belgium established credit institution, stock market company or recognised clearing or settlement institution to intermediaries other than Specific Foreign Intermediaries provided that such other intermediaries deliver an affidavit confirming that the beneficiaries of the dividends (i) are non-residents in the sense of Article 227 of the Belgian Income Tax Code, (ii) have not allocated the Shares (including Shares represented by CDIs) to business activities in Belgium, and (iii) are the full owners or usufructors of the Shares (including shares represented by CDIs).
If Shares (including Shares represented by CDIs) are acquired and held by a Belgian Non-Resident Shareholder in connection with a business in Belgium, the Shareholder must report the dividends received and such dividends will then be taxable at the applicable Belgian non-resident individual or corporate income tax rate, as appropriate. Any Belgian withholding tax levied at source may be credited against the Belgian non-resident individual or corporate income tax and is reimbursable to the extent it exceeds the income tax due, subject to two conditions: (i) the taxpayer must own the Shares (including Shares represented by CDIs) in full legal ownership on the day the beneficiary of the dividends is identified and (ii) the dividend distribution does not result in a reduction in value of or a capital loss on the Shares (including Shares represented by CDIs). The latter condition is not applicable if (i) the nonresident Shareholder can demonstrate that the Shares (including Shares represented by CDIs) were held in full legal ownership for an uninterrupted period of twelve (12) months immediately prior to the payment or attribution of the dividends or (ii) with regard to non-resident companies only, if, during the said period, the Shares (including Shares represented by CDIs) have not belonged in full legal ownership to a taxpayer other than a resident company or a non-resident company which has, in an uninterrupted manner, invested the Shares (including Shares represented by CDIs) in a Belgian permanent establishment.
Dividends paid or attributed to Belgian non-resident individuals who do not use the Shares (including Shares represented by CDIs) in the exercise of a professional activity, may be exempt from Belgian non-resident individual income tax up to the amount of EUR 812 (for income year 2020). Consequently, if Belgian withholding tax has been levied on dividends paid or attributed to the Shares (including Shares represented by CDIs), such Belgian non-resident individual may request in his or her Belgian non-resident income tax return that any Belgian withholding tax levied on dividends up to the amount of EUR 812 (for income year 2020) be credited and, as the case may be, reimbursed. However, if no such Belgian income tax return has to be filed by the Belgian non-resident individual Shareholder, Belgian withholding tax levied on such an amount could in principle be reclaimed by filing a request thereto addressed to the tax official to be appointed in a Royal Decree, subject to formalities.
Belgian Resident Shareholders holding Shares (including Shares represented by CDIs) in the Company would as a matter of principle not be subject to Belgian income tax on capital gains realised upon the disposal of the Shares provided that such capital gains are realised within the scope of normal management of the individual's private estate; capital losses would in such case not be tax deductible. Capital gains realised by a private individual may however be considered as miscellaneous income taxable at 33% (plus local surcharges) if the capital gains are realised outside the scope of normal management of the individual's private estate. Capital losses would in such case not be tax deductible.
Belgian Resident Shareholders holding Shares (including Shares represented by CDIs) for professional purposes may be taxable at the ordinary progressive personal income tax rates (plus local surcharges) on capital gains realised upon the disposal of the Shares (including Shares represented by CDIs) or, except for Shares held for more than five (5) years, which may under certain circumstances be taxable at a separate rate of 10% (in the framework of cessation of activities under certain circumstances) or 16.5% (plus local surcharges). Capital losses on the Shares (including Shares represented by CDIs)
incurred by Belgian resident individuals holding the Shares for professional purposes may be tax deductible. Capital gains realised by Belgian resident individuals upon the redemption of Shares (including Shares represented by CDIs) of the Company or upon the liquidation of the Company would be taxable as a dividend (see above).
Following the Migration, a disposal by a Belgian Resident Shareholder of its Shares (including Shares represented by CDIs) may be exempt from Belgian corporate income tax provided that any potential income distributed in respect of the Shares (or interest in Shares) would be deductible pursuant to the conditions for the application of the Dividend Received Deduction regime. Application of the Dividend Received Deduction regime depends, however, on a factual analysis to be made upon each distribution and its availability should be verified upon each distribution. Shareholders should consult their own tax advisor in this respect.
If one or more of these conditions for the application of the Dividend Received Deduction regime are not met, then any capital gain realised on Shares (including Shares represented by CDIs) will be taxable at the standard corporate income tax rate of 25%, unless the reduced corporate income tax rate of 20% applies. Capital losses on the Shares incurred by Belgian resident companies are as a general rule not tax deductible.
Capital gains realised by Belgian resident companies upon redemption of the Shares (including Shares represented by CDIs) or upon liquidation of the Company would in principle be subject to the same taxation regime as dividends (see above).
Belgian Non-Resident Shareholders should in principle not be subject to Belgian income tax on capital gains realised on Shares (including Shares represented by CDIs) unless the Shares (including Shares represented by CDIs) are held as part of a business in Belgium through a fixed base in Belgium or a Belgian permanent establishment. In such case, the same principles apply as described above with regard to Belgian Resident Shareholders - Individuals (holding the Shares for professional purposes) or Belgian Resident Shareholders - Companies.
Shareholders who (i) are not Belgian Resident Shareholders - Individuals, (ii) do not use the Shares (including Shares represented by CDIs) for professional purposes and (iii) have their fiscal residence in a country with which Belgium has not concluded a tax treaty or with which Belgium has concluded a tax treaty that confers the authority to tax capital gains on the Shares to Belgium, could be subject to tax in Belgium if the capital gains are obtained or received in Belgium and arise from transactions that are considered as speculative or as being outside the scope of normal management of the individual's private estate. In such a case the gain is subject to a final professional withholding tax of 30.28% (to the extent that Articles 90.1 and 248 of the Belgian Income Tax Code 1992 are applicable). Belgium has however concluded tax treaties with more than ninety five (95) countries which would generally provide for a full exemption from Belgian capital gains taxation on such gains realised by residents of those countries. Capital losses are generally not deductible in Belgium.
The purchase and the sale and any other acquisition or transfer for consideration of existing Shares (including Shares represented by CDIs) (secondary market transactions) in Belgium through a professional intermediary is expected to be subject to the tax on stock exchange transactions (taks op de beursverrichtingen/taxe sur les opérations de bourse) if it is (i) entered into or carried out in Belgium through a professional intermediary, i.e. credit institutions, stock market companies, trade platforms and any other intermediary that habitually acts as an intermediary in securities transactions, or (ii) deemed to be entered into or carried out in Belgium, which is the case if the order is directly or indirectly made to a professional intermediary established outside of Belgium, either by private individuals with
habitual residence in Belgium, or legal entities for the account of their seat of establishment in Belgium (both referred to as "Belgian Investor"). The tax on stock exchange transactions is not due upon the issuance of Shares (primary market transactions).
The tax on stock exchange transactions is expected to be levied at a rate of 0.35% of the purchase price, capped at EUR 1,600 per transaction and per party.
Such tax is separately due by each party to the transaction, and each of those is collected by the professional intermediary. However, if the transaction is in scope of the tax and the order is, directly or indirectly, made to a professional intermediary established outside of Belgium, the tax is then in principle due by the Belgian Investor, unless that Belgian Investor could demonstrate that the tax has already been paid. In the latter case, the foreign professional intermediary would also need to provide each client (which gives such intermediary an order) with a qualifying order statement (bordereau/borderel), at the latest on the business day after the day the transaction concerned was realised. Alternatively, professional intermediaries established outside of Belgium could appoint a stock exchange tax representative in Belgium, subject to certain conditions and formalities ("Stock Exchange Tax Representative"). Such Stock Exchange Tax Representative will then be liable towards the Belgian Treasury in respect of the transactions executed through the professional intermediary and for complying with the reporting obligations and the obligations relating to the order statement in that respect. If such a Stock Exchange Tax Representative has paid the tax on stock exchange transactions due, the Belgian Investor will, as per the above, no longer be the debtor of the tax on stock exchange transactions.
No tax on stock exchange transactions should be due on transactions entered into by the following parties, provided they are acting for their own account: (i) professional intermediaries described in Article 2, 9° and 10° of the Act of 2 August 2002 on the supervision of the financial sector and financial services; (ii) insurance companies described in Article 2, § 1 of the Belgian Law of July 9, 1975 on the supervision of insurance companies; (iii) pension institutions referred to in Article 2,1° of the Belgian Law of October 27, 2006 concerning the supervision of pension institutions; (iv) collective investment institutions; (v) regulated real estate companies; and (vi) Belgian non-residents provided they deliver a certificate to their financial intermediary in Belgium confirming their non-resident status.
On February 14, 2013 the EU Commission adopted the Draft Directive on a Financial Transaction Tax ("FTT"). The Draft Directive currently stipulates that once the FTT enters into effect, the participating Member States shall not maintain or introduce any taxes on financial transactions other than the FTT (or VAT as provided in the Council Directive 2006/112/EC of November 28, 2006 on the common system of value added tax). For Belgium, the tax on stock exchange transactions should thus be abolished once the FTT enters into effect. The Draft Directive is still subject to negotiation between the participating Member States and may, therefore, never be passed into law and may be further amended at any time.
On 4 November 2020, the Belgian tax authorities published a notice in the Belgian State Gazette indicating that the Council of Ministers has approved on 2 November 2020 a preliminary draft law ("Draft Law") aimed at introducing (a renewed version of) an annual tax on securities accounts ("Draft TSA"). The Draft Law has been submitted for advice to the Belgian Council of State.
The Draft TSA would apply to securities accounts as such and would therefore, in principle, cover all securities accounts held by (i) individuals, including those subject to the Belgian non-resident income tax, and (ii) legal persons subject to the Belgian corporate income tax, the Belgian legal entity tax or Belgian non-resident tax. It would entail an annual tax on the holding of a securities account. The applicable tax base would be the average value of qualifying financial instruments held on a securities account provided said average value exceeds EUR 1,000,000. The applicable tax rate of the Draft TSA is 0.15% and, where applicable, the amount of the tax shall be limited to 10 % of the difference between the tax base and EUR 1,000,000. The Draft Law also contains a general anti-abuse provision, which would retroactively apply as from 30 October 2020 preventing, inter alia, (i) the splitting of a securities account where securities are transferred to one or more accounts with the same financial intermediary or to accounts with another financial intermediary with the aim of avoiding that the total value of the securities in one account exceeds EUR 1,000,000, (ii) the opening of securities accounts where securities are spread between accounts with the same financial intermediary or with another financial intermediary with the aim of avoiding that the total value of the securities on one account exceeds EUR 1,000,000, (iii) the conversion of registered shares, bonds and other taxable financial instruments so that they are no longer held in a securities account, with the aim of escaping the tax, (iv) the placing of a securities account subject to the tax in a foreign legal entity that transfers the securities to a foreign securities account, with the intention of avoiding the tax, and (v) placing a securities account subject to the tax in a fund whose parts are placed in registered form, with a view to avoiding the tax. In the above situations, there is a rebuttable presumption of tax avoidance whereby the taxpayer can provide proof to the contrary.
Shareholders are strongly advised to seek their own professional advice in relation to this potential new version of the tax on securities accounts.
Set out below is an explanation for the amendments to the Articles of Association proposed to be made pursuant to Resolution 2 set out in the Notice.
In addition to the changes relating to Migration, the Company is proposing some further minor updates to its Articles of Association. An explanation of each proposed change is set out below.
Shareholders are encouraged to review the proposed amendments to the Articles of Association in their entirety which are available for inspection as set out in section 6 of Part 1B of this Circular.
| Article | Explanation for the amendments to the Articles of Association |
|---|---|
| 1 | New definitions have been inserted in Article 1 for the reason that these expressions are used elsewhere in the amended Articles of Association. The Company has also taken the opportunity to update some other definitions. |
| 3(b), (f), (g) and (h) |
A new Article 3(b) has been inserted in order to allow the Board, in its absolute discretion, to confer on the owner of a Share (where such Share is registered in the name of a nominee of a CSD acting in its capacity as operator of a Securities Settlement System), which is recorded in book-entry form in a CSD, the benefit of all of the rights conferred on a member with respect to those Shares by Articles 52, 53(a), (b) and (f), 71 and 90 and sections 37(1), 105(8), 112(2), 146(6), 178(2), 178(3), 180(1) and 1104 of the Companies Act provided that such owner has notified the Company in writing that it is the owner of such Share and that the notification is accompanied by such other information and other evidence as the Directors may reasonably require to confirm such ownership of that Share (which may include the nationality of the owner of such Share and any person who has an Interest in any such Share and the nature and extent of the Interest of each such person). |
| The new Article 3(f) provides that where two or more persons are the owner of a Share, the rights conferred by this Article shall not be exercisable unless all such persons have satisfied the requirements in subparagraph 3(b) above with respect to that Share. |
|
| The new Article 3(g) provides that in the case of the death of an owner of a Share, the survivor or survivors where the deceased was a joint owner of the Share, and the personal representatives of the deceased where he or she was a sole holder, shall be the only persons recognised by the Company as the persons entitled to exercise any rights conferred by Article 3(b) in respect of that Share provided that they or the deceased owner have satisfied the requirements in Article 3(b) above with respect to that Share. |
|
| The new Article 3(h) provides that any notice or other information to be given, served or delivered by the Company pursuant to Article 3 shall be in writing (whether in electronic form or otherwise) and served or delivered in any manner determined by the Directors (in their absolute discretion) in accordance with the provisions of Article 126. The Company shall not be obliged to give, serve or deliver any notice or other information to any person pursuant to this Article 3 where the Company is not in possession of the information necessary for such information to be given, served or delivered in the manner determined by the Directors in accordance with the preceding sentence. |
| Article | Explanation for the amendments to the Articles of Association | ||||
|---|---|---|---|---|---|
| This amendment is subject to the Migration becoming effective, and the exercise of any rights thereunder are subject to any restrictions which may be imposed pursuant to the Articles of Association or otherwise. |
|||||
| 3(c) | A new Article 3(c) has been inserted in order to provide that the references to a member, a holder of a share or a shareholder in Articles 8(a), 49, 53(b) and (f), 54(b), 121, 126, 128 and 131 and sections 89(1), 111(2), 180, 228(3), 228(4), 251(2), 252(2), 339 (1) – (7), 374(3), 392(6), 427, 457, 459, 460(4), 1137(4), 1147 and 1159(4) of the Companies Act may be deemed by the Board to include a reference to an owner of a Share who has satisfied the requirements in Article 3(b) above with respect to that Share. |
||||
| This amendment is subject to the Migration becoming effective, and the exercise of any rights thereunder are subject to any restrictions which may be imposed pursuant to the Articles of Association or otherwise. |
|||||
| 3(d) and (e) | A new Article 3(d) has been inserted in order to provide that all persons who the Directors deem to be eligible to receive notice of a meeting by virtue of subparagraph 3(b) above at the date the notice was given, served or delivered, may also be deemed eligible by the Directors to attend at the meeting in respect of which the notice has been given and to speak at such meeting, provided that such person remains an owner of a Share at the relevant record date for such meeting. |
||||
| The new Article 3(e) provides that neither Article 3(d) above nor the reference to Article 71 in Article 3(b) above, shall entitle the person to vote at a meeting of the Company or exercise any other right conferred by membership in relation to meetings of the Company. |
|||||
| The amendments to Articles 3(b) to (h) are subject to the Migration becoming effective, and the exercise of any rights thereunder are subject to any restrictions which may be imposed pursuant to the Articles of Association or otherwise. |
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| 6 | Inclusion of new provision to account for the fact that all Participating Securities will be registered in the name of Euroclear Nominees which is acting as the nominee for Euroclear Bank upon Migration. This new provision recognises the fact that Euroclear Nominees shall have no beneficial interest in such Shares and all rights attaching to such Shares may be exercised on the instructions of Euroclear Bank and the Company shall have no liability to Euroclear Nominees where it acts in response to such instruction. |
||||
| 7 | A new Article 7(bb) sets out the obligations of an intermediary (as defined in section 1110A of the Companies Act) which receives a disclosure notice pursuant to section 1110B of the Companies Act from the Company. This is in addition to the similar provision in section 1062 of the Companies Act and references to section 1110B of the Companies Act have been added to the Articles of Association wherever section 1062 of the Companies Act is currently referenced. A new Article 7(ee) has been inserted in order to make it clear what are the obligations of Euroclear Bank when enquiries are made of it by the Company in accordance with Article 7. |
||||
| 11 | This article has been amended to take account of Article 3(1) of CSDR, which requires the Company to arrange for all of its shares which are admitted to trading or traded on trading venues to be represented in book-entry form as immobilisation or subsequent to a direct issuance in dematerialised form. Article 3(1) of CSDR shall apply to new |
| Article | Explanation for the amendments to the Articles of Association | ||||
|---|---|---|---|---|---|
| Shares issued after 1 January 2023 and from 1 January 2025, it will apply to all Shares in the Company which are admitted to trading or traded on trading venues. |
|||||
| 13A | Article 13A is an entirely new Article which is intended to facilitate the transfer of Participating Securities to Euroclear Bank in accordance with the Migration. Pursuant to this Article, holders of the Migrating Shares will be deemed to have consented and agreed to, inter alia: |
||||
| • the Company appointing attorneys or agents of such holders to do everything necessary to complete the transfer of the Migrating Shares to Euroclear Nominees (or such other nominee(s) of Euroclear Bank as it may notify the Company in writing) and do all such other things and execute and deliver all such documents and electronic communications as may be required by Euroclear Bank or as may, in the opinion of such attorney or agent, be necessary or desirable to vest the Migrating Shares in Euroclear Nominee (or such other nominee(s) of Euroclear Bank as it may notify the Company in writing) and, pending such vesting, to exercise all such rights attaching to the Migrating Shares as Euroclear Bank and/or Euroclear Nominees may direct; |
|||||
| • the Company's Registrar and/or the Company's secretary completing the registration of the transfer of the Migrating Shares by registering such Migrating Shares in the name of Euroclear Nominees (or such other nominee(s) of Euroclear Bank as it may notify to the Company in writing) without having to further the Former Holder with any evidence of transfer or receipt; |
|||||
| • Euroclear Bank and Euroclear Nominees being authorised to take any action necessary or desirable to enable the issuance of CDIs by the CREST Depository to the relevant Holders of the Migrating Shares, including any action necessary or desirable in order to authorise Euroclear Bank, Euroclear Nominees, the CREST Nominee and/or any other relevant entity to instruct the CREST Depository and/or EUI to issue the CDIs to the relevant Holders of the Migrating Shares pursuant to the terms of the CREST Deed Poll or otherwise; |
|||||
| • the attorney or agent appointed pursuant to Article 13A being empowered to procure the issue by the Company's Registrar of such instructions in the Euroclear System or otherwise as are necessary or desirable to give effect to the Migration and the related admission of the Migrating Shares to the Euroclear System, withdraw any Participating Securities from the CREST System, execute and deliver (i) any forms, instruments or instructions of transfer on behalf of the Holders of the Migrating Shares in favour of Euroclear Nominees (or such other nominee(s) of Euroclear Bank as it may notify the Company in writing), and (ii) such agreements or other documentation, electronic communications or instructions as may be required in connection with the admission of the Migrating Shares and any interest in them to the Euroclear System; and |
|||||
| • the Company's Registrar, the Company's Secretary and/or EUI releasing such personal data of the Holder of the Migrating Shares to the extent required by Euroclear Bank, the CREST Depository and/or EUI to effect the Migration and the issue of the CDIs. |
| Article | Explanation for the amendments to the Articles of Association |
|---|---|
| Pursuant to Article 13A(d) the Holders of the Migrating Shares agree that none of the Company, Directors, the Company's Registrar or the Company's Secretary will be liable in any way in connection with any of the actions taken in respect of the Migrating Shares in connection with the Migration and/or any failures/errors in the systems, processes or procedures of Euroclear Bank and/or EUI which adversely impacts the implementation of the Migration. |
|
| 33 | Article 33 deals with the requirement for a written instrument of transfer in order to transfer an interest in the Shares in the Company. An additional sentence has been added to make it clear that the Company can allow Shares to be transferred without a written instrument as permitted by the Companies Act. |
| 34 | Article 34 is being amended to further facilitate the transfer of Participating Securities as part of the Migration and also for any subsequent transfers in or out of the CSD. As the payment mechanism for Irish stamp duty has yet to be fully clarified, this is the reason for the other amendment in Article 34(c). |
| 35 | Article 35 is being updated to: (i) confirm that section 95(1) of the Companies Act shall not apply; (ii) provide that the Directors may decline to register any renunciation of a renounceable letter of allotment; (iii) confirm that nationality declarations required by Art 35(b) may be provided through such medium (including electronically) as the Directors may deem acceptable; and (iv) to provide that the requirements in relation to a nationality declaration shall not apply to the registration of Euroclear Nominees as the registered holder of the Migrating Shares pursuant to the Migration. |
| 41 | A limited number of amendments are being made to the provisions in Article 41 which deals with limitations on Share ownership to take account of the Migration and the fact that Participating Securities will be held in a CSD after the Migration. For example: Article 41(I) is being updated to provide that where a Restricted Share Notice is served on a CSD or its nominee (acting as the operator of a Securities Settlement System), the Restricted Share Notice shall be treated as applying only to such number of Shares as is equal to the number of Restricted Shares held by the CSD or its nominee. |
| In addition the definition of "a member state of the European Union" is being included to reflect all of the jurisdictions which are deemed to be member states for the purposes of Regulation (EC) no 1008/2008 of the European Parliament and of the Council of 24 September 2008, on common rules for the operation of air services in the Community (as amended or readopted). |
|
| 54 | In Article 54 the quorum for Shareholder meetings is reduced from 3 Members, present in person or by proxy to 2 such Members present in person or by proxy. If at an adjourned meeting such a quorum is not present within half an hour from the time appointed for the meeting, the meeting, if convened otherwise than by resolution of the Directors, shall be dissolved, but if the meeting shall have been convened by resolution of the Directors, a proxy appointed by a central securities depository entitled to be counted in a quorum present at the meeting shall be a quorum. |
| 66, and 72 | The reference to the forty eight (48) hour deadline for the submission of proxies in these Articles has been deleted or amended to the latest time which may be specified by the Directors subject to the requirements of the Acts. |
| Article | Explanation for the amendments to the Articles of Association |
|---|---|
| 68(gg) | A new Article 69(gg) has been inserted in order to make it clear what the obligations of Euroclear Bank are when a Restriction Notice (as defined in Article 68) is served on it by the Company in accordance with Article 68. |
| 70 | Article 70 is being amended to allow Shareholders to appoint multiple proxies provided that where a Shareholder appoints more than one proxy in relation to a general meeting, each proxy must be appointed to exercise the rights attached to a different Share or Shares held by that Shareholders. |
| In addition, Article 70 is being updated to allow the Board to require that an appointment of proxy include the name and/or nationality of any person who has an Interest in the Share(s) to which the proxy relates and all other information as the Board may from time to time determine. In addition, the Board shall be entitled to treat an appointment of proxy which does not include such information as being invalid. This change is to bring Article 70 in line with service offering from Euroclear Bank and EUI in respect of nationality declarations for certain corporate actions, including voting (as set out in Part 4 of this Circular). |
|
| 71(a) | As Euroclear Bank is a body corporate, its ability to appoint representatives at meetings of the Company is being further facilitated by the amendment in Article 71(a) which allows for the appointment of multiple corporate representatives. |
| 71(b) | Article 71(b) has been amended so that any body corporate which is an owner of a Share may by resolution of its directors or other governing body authorise such person or persons as it thinks fit to act as its representative or representatives at any meeting of the Company, or of any class of Shareholders of the Company, and the person so authorised shall be entitled to exercise the same powers on behalf of the body corporate which he/she represents as that body corporate could exercise in accordance with Article 3. |
| 72 | Additional provisions are being included in Article 72 in order to make it clear that proxies can be appointed using Euroclear Bank's system for electronic communications. |
| 116 | Article 116 is being amended in order to make it clear that dividends and all monies can be paid in accordance with such arrangements as the Company may agree with Euroclear Bank. |
| 126 | Article 126 is being amended in order to allow for the serving of notices on Euroclear Bank via its messaging system. |
The following definitions apply in this Circular unless the context otherwise clearly requires:
| ADR | American Depositary Receipts registered and delivered by the ADS Depositary pursuant to the terms and conditions set out in the Deposit Agreement, each evidencing one (1) ADS; |
|---|---|
| ADS | American Depositary Shares, each representing five (5) Shares issued by the Company pursuant to the terms and conditions set out in the Deposit Agreement; |
| ADS Depositary | Bank of New York Mellon; |
| Articles of Association or Articles | the articles of association of the Company as filed with the Registrar of Companies; |
| Belgian Law Rights | the fungible co-ownership rights governed by Belgian law over a pool of book-entry interests in securities of the same issue (i.e. ISIN) which the EB Participants will receive upon the Migration, further summary details of which are set out in Part 5 of this Circular; |
| Belgium | the Kingdom of Belgium and the word 'Belgian' shall be construed accordingly; |
| Broadridge | Broadridge Proxy Voting Service; |
| Brexit | the United Kingdom's withdrawal from the European Union; |
| Brexit Date | means 31 December 2020; |
| Brexit Omnibus Bill |
the Withdrawal of the United Kingdom from the European Union (Consequential Provisions) Bill 2020; |
| business day | means a day, other than a Saturday, Sunday or public holiday in Dublin and London unless the context otherwise requires; |
| CAT | Irish capital acquisitions tax; |
| CCSS | CREST Courier and Sorting Service; |
| CDI | CREST Depository Interest; |
| certificated form or in certificated form | a share being the subject of a certificate as referred to in section 99(1) of the Companies Act; |
| CGT | Irish capital gains tax; |
|---|---|
| Circular | 17 November 2020; this Circular dated |
| Companies Act | the Companies Act 2014 (No. 38 of 2014), as amended; |
| Company or Ryanair | Ryanair Holdings plc; |
| Company's Registrar |
the registrar to the Company, being Link Registrars Limited; |
| Constitution | the constitution of the Company as in effect from time to time, consisting of the Memorandum of Association and the Articles of Association; |
| CREST or CREST System | the relevant settlement system operated by EUI and constituting a relevant system for the purposes of the Irish CREST Regulation; |
| CREST ADS Nominee | a nominee of the CREST ADS Depositary; |
| CREST Deed Poll | the global deed poll made on 25 June 2001 by CREST Depository, a copy of which is set out in the CREST International Manual; |
| CREST Depository | CREST Depository Limited, a subsidiary of EUI; |
| CREST Depository Interest or CDI |
an English law security issued by the CREST Depository that represents a CREST member's interest in the underlying share; |
| CREST International Manual | the CREST manual for the Investor CSD service offered by EUI entitled 'CREST International Manual' dated September 2020, as may be amended, varied, replaced or superseded from time to time; |
| CREST Manual | the documents issued by Euroclear Bank governing the operation of CREST, as may be amended, varied, replaced or superseded from time to time consisting of the CREST Reference Manual, CREST International Manual, CREST Central Counterparty Service Manual, CREST Rules, CREST CCSS Operations Manual, CREST Application Procedure and CREST Glossary of Terms (all as defined in the CREST Glossary of Terms); |
| CREST members | has the meaning given to it in the CREST Manual; |
| CREST Nominee | CIN (Belgium) Limited, a subsidiary of CREST Depository, or any other body appointed to act as |
| a nominee on behalf of the CREST Depository, including the CREST Depository itself; |
|
|---|---|
| CREST Proxy Instruction | the appropriate CREST message to be completed with respect to a proxy appointment or instruction, as outlined in the CREST Manual; |
| CREST Terms and Conditions | the document issued by Euroclear Bank entitled 'CREST Terms and Conditions' dated August 2020, as may be amended, varied, replaced or superseded from time to time; |
| CSD | a central securities depository, including EUI and Euroclear Bank; |
| CSDR | Regulation (EU) No. 909/2014 of the European Parliament and of the Council of 23 July, 2014 on improving securities settlement in the European Union and on central securities depositaries and amending Directives 98/26/EC and 2014/65/EU and Regulation (EU) No 236/2012; |
| Deposit Agreement | deposit agreement, dated 29 May 1997, as amended and restated on 12 February 2007, entered into among the Company, the ADS Depositary and all holders from time to time of ADSs issued thereunder; |
| Directors or Board | the board of directors of the Company, details of which are set out on page 7 of this Circular; |
| DWT | Irish dividend withholding tax; |
| EB Migration Guide |
the document issued by Euroclear Bank entitled 'Euroclear Bank as Issuer CSD for Irish corporate securities; Migration Guide' dated October 2020, as may be amended, varied, replaced or superseded from time to time; |
| EB Operating Procedures | the document issued by Euroclear Bank entitled 'The Operating Procedures of the Euroclear System' dated October 2020, as may be amended, varied, replaced or superseded from time to time; |
| EB Participants | participants in Euroclear Bank, each of which has entered into an agreement to participate in the Euroclear System subject to the Euroclear Terms and Conditions; |
| EB Rights of Participants Document | the document issued by Euroclear Bank entitled 'Rights of Participants to Securities deposited in the Euroclear System' dated July 2017; |
| EB Services Description | the document issued by Euroclear Bank entitled 'Euroclear Bank as Issuer CSD for Irish corporate securities' Services Description dated October 2020, as may be amended, varied, replaced or superseded from time to time; |
|---|---|
| ESMA | the European Securities and Markets Authority; |
| EU | the European Union; |
| EUI | Euroclear UK & Ireland Limited, the operator of the CREST System; |
| EU National | means a national of any jurisdiction which is considered to be a "Member State" for the purposes of Article 4 of EU Regulation 1008/2008 (as amended from time to time), including the member states of the European Union, Switzerland, Norway, Iceland and Liechtenstein; |
| Euro or EUR or € |
euro, the lawful currency of Ireland; |
| Euroclear Bank or EB | Euroclear Bank SA/NV, an international CSD based in Belgium and part of the Euroclear Group; |
| Euroclear Group | the group of Euroclear companies, including Euroclear Bank and EUI; |
| Euroclear Nominees | Euroclear Nominees Limited, a wholly owned subsidiary of Euroclear Bank, established under the laws of England and Wales with registration number 02369969; |
| Euroclear System | the securities settlement system operated by Euroclear Bank and governed by Belgian law; |
| Euroclear Terms and Conditions | the document issued by Euroclear Bank entitled 'Terms and Conditions governing use of Euroclear dated April 2019, as may be amended, varied, replaced or superseded from time to time; |
| Euronext Dublin | The Irish Stock Exchange plc, trading as Euronext Dublin; |
| Euronext Dublin Listing Rules | the Euronext Dublin Listing Rules for companies published by Euronext Dublin; |
| Euronext Dublin Trading Rules | the Euronext Dublin Trading Rules for companies published by Euronext Dublin; |
| Extraordinary General Meeting or EGM |
the extraordinary general meeting of the Company convened to be held at 9.00 a.m. on 17 December 2020 at Ryanair Dublin Office, |
| Airside Business Park, Swords, Co. Dublin, Ireland; |
|
|---|---|
| FCA | the Financial Conduct Authority of the United Kingdom; |
| Finance Bill | the Finance Bill 2020; |
| Form of Proxy | the form of proxy in respect of voting at the EGM; |
| Former Holders | the former registered holders of Participating Securities at the Migration Record Date who, following Migration, hold, either directly or indirectly, Belgian Law Rights in such Participating Securities as EB Participants; |
| GBP or £ or sterling |
pounds sterling, the lawful currency of the United Kingdom; |
| Holders of Participating Securities | registered holders of Participating Securities and/or (as the context requires) persons holding their interests in Shares through such registered holders; |
| Ireland | the island of Ireland, excluding Northern Ireland and the word 'Irish' shall be construed accordingly; |
| Irish CREST Regulations | the Companies Act 1990 (Uncertificated Securities) Regulations 1996 (as amended); |
| Interest | means any interest whatsoever in Shares (of any size) which would be taken into account in deciding whether a notification to the Company would be required under Chapter 4 of Part 17 of the Companies Act and "interested" shall be construed accordingly; |
| Investor CSD | has the meaning given to it in Article 1(f) of Commission Delegated Regulation (EU) 2017/392 of 11 November 2016 supplementing CSDR; |
| Issuer CSD | has the meaning given to it in Article 1(e) of Commission Delegated Regulation (EU) 2017/392 of 11 November 2016 supplementing CSDR; |
| Latest Practicable Date | 13 November 2020, being the latest practicable date prior to the date of this Circular; |
| Listing Rules | the Euronext Dublin Listing Rules and/or the UK Listing Rules, as applicable; |
| Live Date | the date appointed by Euronext Dublin pursuant to the Migration Act to be the effective date in respect of Market Migration; |
|---|---|
| London Stock Exchange | London Stock Exchange plc; |
| London Stock Exchange Trading Rules | the trading rules of the London Stock Exchange as set out in the Rules of the London Stock Exchange Effective Date 1 July, 2019; |
| Market Migration | the migration to Euroclear Bank of the Participating Securities of all Relevant Issuers; |
| Memorandum of Association | the memorandum of association of the Company as filed with the Registrar of Companies; |
| Migrating Shareholders | the registered holders of Migrating Shares as at the Migration Record Date; |
| Migrating Shares | if the Resolutions are passed, and the Company satisfies the other requirements applicable to the Migration becoming effective, the Participating Securities in the Company on the Migration Record Date; |
| Migration or Migrate | the transfer of title to uncertificated securities of the Company, which are at the Live Date Participating Securities, to Euroclear Nominees holding on trust for Euroclear Bank with effect from the Live Date as described in this Circular and including, where the context requires, migration as described in and as envisaged by the EB Migration Guide; |
| Migration Act | the Migration of Participating Securities Act 2019; |
| Migration Record Date | 7.00 p.m. on Friday, 12 March 2021 or such other date and time as may be announced by EUI and / or Euroclear Bank to determine the holders of Participating Securities to be subject to the Migration; |
| NASDAQ | the NASDAQ Stock Market LLC; |
| NBB | means the National Bank of Belgium; |
| Notice | the notice of Extraordinary General Meeting which is contained at Appendix I of this Circular; |
| Notification to Euroclear | Letter from the Company to Euroclear Bank dated 4 November 2020, notifying the Company's intention to seek shareholder consent in order for Participating Securities in the |
| Company to be the subject of the Migration in accordance with the Migration Act; |
|
|---|---|
| Online Market Guide(s) | a Euroclear Bank web based resource providing specific legal and operational information for individual domestic markets; |
| Participating Issuer(s) | has the meaning given in the Migration Act; |
| Participating Securities | has the meaning given to the term "relevant participating securities" in the Migration Act which have been issued by the Company (where applicable); |
| Register or Register of Members |
the register of members of the Company, maintained pursuant to section 169 of the Companies Act; |
| Relevant Issuers | Participating Issuers that have complied with the necessary formalities for the Migration to occur under the Migration Act; |
| Resolutions | the resolutions proposed for consideration at the EGM as set out in the Notice; |
| Restricted Share | has the meaning given to it in the Articles of Association; |
| Restriction Notice |
has the meaning given to it in Article 68 of the Articles of Association; |
| Royal Decree No. 62 | Belgian Royal Decree No. 62 of 10 November 1967, on the deposit of fungible financial instruments and the settlement of transactions involving such instruments; |
| Section 6(4) Notice | the notice published by the Company in accordance with section 6(4) of the Migration Act; |
| Securities Clearance Account | an account in the name of an EB Participant with the Euroclear System; |
| Shares | ordinary shares of €0.006 each in the capital of the Company; |
| Shareholder(s) | holders of Shares; |
| SRD II | Directive (EU) 2017/828 of the European Parliament and of the Council of 17 May 2017 amending Directive 2007/36/EC as regards the encouragement of long-term shareholder engagement; |
| TCA | the Taxes Consolidation Act 1997 (as amended); |
| UK Listing Rules | the Listing Rules made by the FCA under Part VI of the UK Financial Services and Markets Act 2000 (as amended); |
|---|---|
| uncertificated or in uncertificated form |
a share recorded on the relevant register of the share or security concerned as being held in uncertificated form in a relevant system (within the meaning of the Irish CREST Regulations) or a CSD, and title to which may be transferred by means of a relevant system or a securities settlement system (as defined in the CSDR) operated by a CSD; |
| United Kingdom or UK |
the United Kingdom of Great Britain and Northern Ireland; |
| United States or US | the United States of America, its territories and possessions, any state of the United States of America and the District of Columbia and all other areas subject to its jurisdiction; and |
| U.S. dollar or USD or \$ |
US dollars, the lawful currency of the United States. |
Any reference to any provision of any legislation shall include any amendment, modification, reenactment or extension thereof. Any reference to any legislation is to Irish legislation unless specified otherwise.
Words importing the singular shall include the plural and vice versa and words importing the masculine gender shall include the feminine or neutral gender.
Unless otherwise stated, all reference to time in this Circular are to Irish time.
NOTICE is hereby given that an Extraordinary General Meeting ("EGM") of the Company will be held at Ryanair Dublin Office, Airside Business Park, Swords, Co. Dublin, K67 NY94, Ireland, on Thursday, 17 December 2020 at 9.00 a.m. for the following purposes:
To consider and, if thought fit, to pass the following resolutions:
Euroclear Bank is satisfied that the relevant Participating Securities in the Company meet the criteria stipulated by Euroclear Bank for the entry of the Participating Securities into the settlement system operated by Euroclear Bank;
IT IS HEREBY RESOLVED that this meeting approves of the Company giving its consent to the Migration of the Migrating Shares to Euroclear Bank's central securities depository (which is authorised in Belgium for the purposes of CSDR) on the basis that the implementation of the Migration shall be determined by and take effect subject to a resolution of the board of directors of the Company (or a committee thereof) at its discretion and provided that as part of the Migration the title to the Migrating Shares will become and be vested in Euroclear Nominees Limited, being a company incorporated under the laws of England and Wales with registration number 02369969 ("Euroclear Nominees"), as part of the Migration and acting in its capacity as the trustee for and/or nominee of Euroclear Bank for the purposes of the Migrating Shares being admitted to the Euroclear System. It being understood that:
"Circular" means the circular issued by the Company to its shareholders on 24 November 2020 and dated 17 November 2020;
"Euroclear System" has the same meaning as defined in the Circular;
"Live Date" has the same meaning as defined in the Circular;
"Migration" has the same meaning as defined in the Circular;
"Migrating Shares" has the same meaning as defined in the Circular;
"Participating Securities" has the same meaning as defined in the Circular; and
"relevant Participating Securities" means all Participating Securities recorded in the register of members of the Company on the Live Date."
"THAT, subject to the adoption of Resolution 1 in the Notice of this EGM, the Articles of Association of the Company, which have been signed by the Chairman of the EGM for identification purposes and which have been available for inspection at the registered office of the Company since the date of the Notice of this EGM, be approved and adopted as the new Articles of Association of the Company on and with immediate effect from the passing of this Resolution and to the exclusion of, the existing Articles of Association of the Company."
"THAT, subject to the adoption of Resolutions 1 and 2 in the Notice of this EGM, the Company be and is hereby authorised and instructed to:
(ii) any action necessary or desirable to enable the CREST Depository to hold the interests in the Migrating Shares referred to in sub-paragraph (i) above on trust pursuant to the terms of the CREST Deed Poll or otherwise and for the benefit of the holders of the CREST Depository Interests ("CDIs") (being the relevant holders of the Migrating Shares);
(iii) any action necessary or desirable to enable the issuance of CDIs by the CREST Depository to the relevant holders of the Migrating Shares, including any action deemed necessary or desirable in order to authorise Euroclear Bank, the CREST Nominee and/or any other relevant entity to instruct the CREST Depository and/or EUI to issue the CDIs to the relevant holders of the Migrating Shares pursuant to the terms of the CREST Deed Poll or otherwise; and
It being understood that capitalised terms used in this Resolution shall have the meaning given to them in the circular issued by the Company to its shareholders on 24 November 2020 and dated 17 November 2020."
By order of the Board
Juliusz Komorek Secretary
Registered Office: Ryanair Dublin Office Airside Business Park Swords Co. Dublin K67 NY94 Ireland
17 November 2020
such authority certified notarially must be submitted by post to the offices of Link Registrars Limited, PO Box 1110, Maynooth, Co. Kildare, W23 F854, Ireland (the "Company's Registrar") or by hand to Link Registrars Limited, Level 2, Block C, Maynooth Business Campus, Maynooth, Co Kildare, W23 F854, Ireland, in either case not less than forty eight (48) hours before the time appointed for the EGM or any adjournment thereof.
In order to exercise the rights listed in Appendix II, a Former Holder must withdraw Participating Securities from Euroclear Bank, resulting in a certificated (i.e. paper) holding, in order to exercise them directly. The process for such a withdrawal (whether as an EB Participant or as a CDI holder) is set out in Part 1B of this Circular.
| No. | Irish legal right | Section of the Companies Act |
Person(s) entitled to exercise |
New provisions to be inserted in Articles |
|---|---|---|---|---|
| 1. | To have a copy of the constitution sent to the member |
37(1) | "any member" | 3(b) |
| 2. | To object to the conversion of his shares |
83(4) | "the holder" | Owners will get notice of the conversion via the Euroclear System. If an owner does not want its Share converted, it should withdraw the Shares from the Euroclear System. |
| 3. | To apply to Court to have a variation of share rights cancelled |
89(1) | "not less than 10 per cent of the issued shares of that class, being members who did not consent to or vote in favour of the resolution for the variation" |
Direct exercise following re materialisation. |
| 4. | To apply to Court to have overdue share certificates issued |
99(4) | "the person entitled to have the certificates" |
Direct exercise following re materialisation. |
| 5. | To apply to Court to have an invalid creation, allotment, acquisition or cancellation of shares reviewed |
100(2) | "any member or former member" |
Direct exercise following re materialisation. |
| 6. | To inspect a contract of purchase of the company's own shares |
105(8); 112(2) | "the members" | 3(b) |
| No. | Irish legal right | Section of the Companies Act |
Person(s) entitled to exercise |
New provisions to be inserted in Articles |
|---|---|---|---|---|
| 7. | To be sent copies of representations from directors the subject of a resolution to be removed |
146(6) | "every member of the company to whom notice of the meeting is sent" |
3(b) |
| 8. | To apply to Court to rectify the register of members |
173(1) | "any member" | Direct exercise following re materialisation. |
| 9. | To object to the holding of a general meeting outside the State |
176(2) | "unless all of the members entitled to attend and vote at such meeting consent in writing" |
Direct exercise following re materialisation. |
| 10. | To convene an EGM | 178(2) | "not less than 50 per cent (or such other percentage as may be specified in the constitution) of the paid up share capital of the company as, at that time, carries the right of voting at general meetings of the company" |
3(b) |
| 11. | To require the directors to convene an EGM |
178(3) (as modified by 1101 in the case of a regulated market PLC) |
"on the requisition of members holding not less than 5 per cent of the paid up share capital of the company, as at the date of the deposit of the requisition of EGM carries the right of voting at general meetings of the company" |
3(b) |
| 12. | To apply to court for an order requiring a general meeting to be called |
179(1) | "a member of the company who would be entitled to vote at a general meeting of it" |
Direct exercise following re materialisation. |
| 13. | To receive notice of every general meeting(1) |
180(1) | "every member" | 3(d) |
| 14. | To object to the holding of a meeting on short notice |
181(2) | "if it is so agreed by all the members entitled |
Direct exercise following re materialisation. |
| No. | Irish legal right | Section of the Companies Act |
Person(s) entitled to exercise |
New provisions to be inserted in Articles |
|---|---|---|---|---|
| to attend and vote at the meeting" |
||||
| 15. | Ability of a body corporate to appoint a corporate representative to represent it at shareholder meetings |
185(1) | "if it is a member…" | 71(b) |
| 16. | To vote at general meetings(1) |
188(2) | "every member" |
While section 188(2) has been disapplied by the Articles of Association, the subject matter of section 188(2) is dealt with by Article 63. The rights under the Articles of Association in relation to voting, and including proxy appointment instructions, must be received via the Euroclear System or may be exercised directly following re materialisation. It is noted that the EB Participant or CDI holder may also appoint itself or another person as a third party proxy in accordance with the EB Services Description. |
| 17. | To demand a poll at a general meeting |
189(2) | "(c) any member or members present in person or by proxy and representing not less than 10 per cent of the total voting rights of all the members of the |
Direct exercise following re materialisation. It is noted that the EB Participant or CDI holder may |
| No. | Irish legal right | Section of the Companies Act |
Person(s) entitled to exercise |
New provisions to be inserted in Articles |
|---|---|---|---|---|
| company concerned having the right to vote at the meeting; or (d) a member or members holding shares in the company concerned conferring the right to vote at the meeting, being shares on which an aggregate sum has been paid up equal to not less than 10 per cent of the total sum paid up on all the shares conferring that right" |
also appoint itself or another person as a third party proxy in accordance with the EB Services Description. |
|||
| 18. | To apply to court for a declaration that a director is personally responsible for the company's liabilities where a solvency declaration is given without reasonable grounds |
210(1) | "a member" | Direct exercise following re materialisation. |
| 19. | To apply to court to cancel certain special resolutions |
211(3) | "one or more members who held, or together held, not less than 10 per cent in nominal value of the company's issued share capital, or any class thereof, at the date of the passing of the special resolution and hold, or together hold, not less than that percentage in nominal value of the foregoing on the date of the making of the application" |
Direct exercise following re materialisation. |
| 20. | To apply to the court for an order where there is an instance of minority oppression |
212(1) | "any member" | Direct exercise following re materialisation. |
| No. | Irish legal right | Section of the Companies Act |
Person(s) entitled to exercise |
New provisions to be inserted in Articles |
|---|---|---|---|---|
| 21. | To apply to the court for an order permitting a dissenting shareholder to retain his or her shares or varying the terms of the scheme, contract or offer as they apply to that shareholder, or in a case where the offeror is bound to acquire his or her shares by virtue of section 457(7)(a) , apply to the court for an order varying the terms of the scheme, contract or offer as they apply to that dissenting shareholder |
459 (5) to (8) | "dissenting shareholder" |
Direct exercise following re materialisation. |
| 22. | To apply to the court for the appointment of one or more competent inspectors to investigate the affairs of a company in order to enquire into matters specified by the court and to report on those matters in such manner as the court directs |
747(2) | "not less than 10 members of the company or a member or members holding one-tenth or more of the paid up share capital of the company" |
Direct exercise following re materialisation. |
| 23. | To apply to the court for an order that the company or officer in default to remedy the default within such time as the court specifies. |
797(3)(a) | "any member" | Direct exercise following re materialisation. |
| 24. | Ability to put item on the agenda at an annual general meeting |
1104(1) | "One or more members …subject to the member or members concerned holding 3 per cent of the issued share capital of the PLC, representing at least 3 per cent of the total voting rights of all the members" |
3(b) |
| No. | Irish legal right | Section of the Companies Act |
Person(s) entitled to exercise |
New provisions to be inserted in Articles |
|---|---|---|---|---|
| 25. | Ability to request the company to acquire his shareholding for cash |
1140(1) | A "shareholder" | Direct exercise following re materialisation. |
(1) Rights in respect of general meetings may be exercised via the Euroclear System, subject to the terms and restrictions set out in the EB Services Description.
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