Сообщение о существенном факте
Уведомление о созыве Внеочередного общего собрания Компании
1. Общие сведения
1.1. Полное фирменное наименование эмитента (для некоммерческой организации – наименование): FinEx Physically Backed Funds plc
1.2. Сокращенное фирменное наименование эмитента: ФинЭкс Физикли Бэкт Фандз (FinEx Physically Backed Funds plc)
1.3. Место нахождения эмитента: Ирландия, Дублин 2, улица Мерсер, дом Беюкс лэйн, 2 этаж (2nd Floor, Beaux Lane House, Mercer Street Lower, Dublin 2, Ireland)
1.4. ОГРН: эмитента нет
1.5. ИНН: эмитента нет
1.6. Уникальный код эмитента, присвоенный регистрирующим органом: нет
1.7. Адрес страницы в сети Интернет, используемой эмитентом для раскрытия информации: http://www.finexetf.com
Прилагаемое объявление опубликовано на сайте Ирландской фондовой биржи:
2. Содержание сообщения
RNS Number : 7975N
FinEx Physically Backed Funds plc
22 May 2020
CIRCULAR AND NOTICE OF
EXTRAORDINARY GENERAL MEETING TO THE SHAREHOLDERS OF
FINEX PHYSICALLY BACKED FUNDS PLC
THIS CIRCULAR AND NOTICE (THE CIRCULAR) IS SENT TO YOU AS A SHAREHOLDER IN FINEX PHYSICALLY BACKED FUNDS PLC. IT IS IMPORTANT AND REQUIRES YOUR IMMEDIATE ATTENTION. IF YOU ARE IN ANY DOUBT AS TO THE ACTION TO BE TAKEN, YOU SHOULD IMMEDIATELY CONSULT YOUR STOCKBROKER, BANK MANAGER, SOLICITOR OR ATTORNEY OR OTHER PROFESSIONAL ADVISOR.
If you have transferred your holding in the Company, please send this document and the accompanying proxy form to the stockbroker, bank manager, or other agent through whom the transfer was effected for transmission to the transferee.
Unless otherwise indicated, all defined terms in this Circular shall have the same meaning as described in the prospectus for the Company dated 3 December 2019 (the Prospectus).
Dated 21 May 2020
To: All shareholders in the Company
Proposed Conversion of the Company to an Irish Collective Asset-management Vehicle
We are writing to you as a Shareholder in the Company to inform you that the Directors of the Company have resolved to convene an Extraordinary General Meeting (EGM) of the Shareholders in the Company to be held on 15 June 2020 at 9.30a.m. at the Company's registered office, 5 George's Dock, International Financial Service Centre, Dublin 1, Ireland.
The purpose of this Circular is to notify you of the following proposals of the Directors of the Company:
(1) to convert the Company from a public limited company to an Irish collective asset-management vehicle (ICAV) pursuant to the Irish Collective Asset-management Vehicle Act 2015 (the ICAV Act). Details of this proposal are set out below; and
(2) to adopt the instrument of incorporation of the ICAV (the Instrument) which will replace the current memorandum and articles of association of the Company (the Constitution); and
(3) to describe certain amendments to be included within the Instrument. These updates are being proposed to facilitate the transition (the Transition) of the settlement of Shares in the ICAV from central securities depositaries (CSDs) to the International Central Securities Depositary (ICSD) structure (the ICSD Settlement Model). Details of this proposal are set out below.
For the conversion to an ICAV and the Transition to be effective, the Shareholders are required to pass the special resolutions as set out in the notice of EGM in Appendix I attached hereto.
1. Proposed Conversion of the Company to an ICAV
The ICAV Act which was enacted in 2015 allows for the establishment of, or conversion of an existing corporate fund to a new Irish corporate investment fund structure known as the ICAV that is specifically tailored to the needs of the funds industry. The Directors of the Company consider that conversion of the Company to an ICAV would have a number of benefits which would not be available to the Company in its existing form:
(1) The ICAV has been designed specifically for use by the funds industry. It is also a corporate vehicle which is regulated like an existing investment company and much of the ICAV Act is derived from existing law. Many of the provisions of Irish company law and European company law which are not relevant or appropriate to an investment fund do not apply to an ICAV. This should reduce the administrative burden and costs associated with compliance with rules and regulations which are more appropriate for trading companies both now, and in the future, should such rules change.
(2) It is possible for an ICAV to publish accounts on a Fund by Fund basis. It is not necessary for an ICAV to produce consolidated accounts which the Company is currently obliged to do.
(3) The Constitution will be replaced by the Instrument if the Company converts to an ICAV. At present, any amendment to the Constitution of the Company may only be made with the approval of a special resolution of the Shareholders. This can make the implementation of any proposed amendments time consuming and also has a cost implication. The ICAV Act provides that where the depositary is prepared to certify in writing that an amendment to the Instrument does not prejudice the interests of the members of an ICAV, such certification enables amendments to be made without seeking a resolution of the Shareholders. This is similar to the manner in which funds structured as unit trusts have been permitted by the Central Bank to amend their trust deeds without prejudicing the interests of investors. As such, this is another example of the greater flexibility offered by the ICAV structure.
(4) An ICAV may elect its classification under the US "check-the-box" taxation rules. This allows an ICAV to be treated as a partnership for US tax purposes which is generally preferable from the perspective of US taxable investors. This is in contrast to the status of the Company as it is currently constituted as a result of which it is not able to "check-the-box" for US tax purposes giving rise to potential treatment as a passive foreign investment company which, depending on the precise status of any US investor and the elections it makes, can give rise to a greater tax and administrative burden than if the Company, or the relevant Fund, is able to "check-the-box". Conversion to an ICAV would accordingly afford the directors greater flexibility, subject to applicable laws and regulations, to establish additional sub-funds which could be made available to such investors as well as existing Shareholders. All Shareholders in the Company should benefit from the economies of scale which should result from the development of the range of products offered by the Company.
If the proposed conversion, as described above, is approved by the Shareholders, the Company will make an application to the Central Bank to convert from an investment company to an ICAV. From the date of authorisation of the Central Bank, the Company will be deemed to be an ICAV formed and registered under the ICAV Act and will be subject to the provisions of the ICAV Act. Under the terms of the ICAV Act such a conversion does not operate to:
(1) prejudice or affect the identity or continuity of the ICAV as previously established and registered for the period for which it was established and registered in Ireland as a public limited company;
(2) affect any resolution passed or any other act or thing done in relation to the ICAV during the period that it was so established and registered as a public limited company; or
(3) affect the rights, authorities, functions and liabilities or obligations of the ICAV or any other person.
As the conversion does not entail a change in the legal entity, Shareholders will continue to hold shares in the same entity. Accordingly:
(1) the Funds of the Company can continue their respective track records; and
(2) the conversion should not be a chargeable event for tax purposes for Shareholders.
The directors of the Company do not consider there to be any significant disadvantages to the proposed conversion, apart from the costs related thereto which are not anticipated to be material and will be borne by the distributor of the Company, FinEx ETF Limited .
The proposed conversion would of course also be subject to the final approval by the Central Bank.
2. ICSD Settlement Model
The key feature of the ICSD Settlement Model is that it provides centralised settlement in Euroclear Bank S.A./N.V. (Euroclear) and Clearstream Banking S.A., Luxembourg (Clearstream and, together with Euroclear, the International Central Securities Depositaries) for shares traded across multiple stock exchanges. It is expected that this will result in better liquidity for investors in the Funds and less liquidity fragmentation. It is also expected that the ICSD Settlement Model will improve settlement times due to exchange traded fund (ETF) inventory being pooled in the ICSD structure, which offers a longer window for settlement of transactions and minimisation of the need to manually move Participating Shares between multiple local central securities depositaries (CSDs).
The Directors are proposing to adopt the ICSD Settlement Model by way of conversion of the Company to an ICAV and the subsequent adoption of an ICAV's Instrumentation. However, the Transition to the ICSD Settlement Model will only come into effect on the Effective Date.
Background of the ICSD Settlement Model
The Funds currently established by the Company are ETFs and their Participating Shares are listed on multiple stock exchanges across Europe and globally (please see Appendix III for details). The existing settlement model of the Funds involves settlement on multiple local CSDs (where the Funds are listed and traded on multiple stock exchanges) (the Current Settlement Model); these local CSDs may include (but this list is not limited to) the CREST system, Euroclear Netherlands, Clearstream Banking AG, National Settlement Depository of Russia.
Each exchange typically operates its own CSD for settlement functions. Trading and settling Participating Shares in the Funds under this structure involves having to move the Participating Shares between various CSDs, which is complex, costly and inefficient.
The Directors are of the view that the ICSD Settlement Model provides a more streamlined centralised settlement structure, which they expect will result in improved liquidity and spreads for investors and reduce risk in the settlement process.
Differences between the ICSD Settlement Model and the Current Settlement Model
Under the Current Settlement Model, only investors with accounts in the CREST system operated by Euroclear UK & Ireland Limited and certain CSDs (e.g., Clearstream Banking AG) or their nominees are registered as Shareholders in the Company's Register of Members. As a result, the Register of Members of the Company consists of a mix of nominees of Authorised Participants and other account holders in the CREST system operated by Euroclear UK & Ireland Limited (which in the case of the Company are mostly nominee companies and custodian banks and a limited number of individuals), as well as CSDs themselves or their nominees.
The majority of investors, therefore, who do not have accounts in the CREST system and who are not CSDs, hold their interests in Participating Shares in the Funds through nominees and other intermediaries, which means that most investors are beneficial owners who do not hold legal title to their Participating Shares.
Under the ICSD Settlement Model (if adopted), the legal interest in all Participating Shares in the Company will be evidenced by a Global Share Certificate issued by the Company and registered in the Company's Register of Members in the name of a single Shareholder, namely Citivic Nominees Limited (being the Common Depositary's Nominee). Upon the Effective Date, the Common Depositary's Nominee, together with the Common Depositary and the ICSDs, will be subject to contractual obligations to pass beneficial interest and all associated rights of the registered Shareholder (i.e. the Common Depositary's Nominee) in all Shares in each of the Funds to participants (i.e., the underlying investors in the Funds).
In particular, the Common Depositary's Nominee will be subject to a contractual obligation to relay any notices of Shareholder meetings of the Company (or any of its Funds) and associated documentation issued by the Company to the Common Depositary, which will further be obliged to pass on such notices and documentation to the ICSDs. The applicable ICSD will in turn relay notices and associated documentation received from the Common Depositary to its participants in accordance with its rules and procedures. Similarly, each ICSD will be contractually bound to collate and transfer all votes received from its participants to the Common Depositary and the Common Depositary will in turn be contractually bound to collate and transfer all votes received from the applicable ICSDs to the Common Depositary's Nominee, which will be contractually obliged to vote in accordance with such instructions.
The Common Depositary's Nominee, the Common Depositary and the ICSDs will also be contractually bound to pass any distributions received from the Company downstream to participants and/or their relevant nominees. In particular, upon instruction of the Common Depositary's Nominee, any redemption proceeds and any dividends declared that are payable by the Company to the Common Depositary's Nominee as Shareholder may be paid by the Company or its authorised agent directly to the applicable ICSD. If the Common Depositary's Nominee receives any redemption proceeds or dividends from the Company or its authorised agent, the Common Depositary's Nominee will arrange for such payments to be passed on to the relevant ICSD. The relevant ICSD will in turn pay any redemption proceeds and dividends received to the relevant participants of the ICSD.
Under the ICSD Settlement Model, investors who are not participants in the ICSD will need to use a broker, nominee, custodian bank or other intermediary which is a participant in the ICSD to trade and settle Participating Shares, similar to the way investors under the Current Settlement Model use a broker or other intermediary which is a participant in the CSD for the market in which the investor intends to trade and settle. The chain of beneficial ownership in the ICSD Settlement Model will therefore be similar to existing nominee arrangements under the Current Settlement Model.
For Shareholders who are registered on the Company's Register of Members immediately before the EGM (e.g. a CSD or its nominee), their ownership of Shares will change from legal ownership to ownership of a beneficial entitlement through the nominee of the Common Depositary, as explained above, however, you will continue to hold a beneficial interest in the same number of Participating Shares in the same Fund(s) as you hold under the Current Settlement Model immediately before the EGM. If you wish, you may move your Participating Shares held in the CREST system to the ICSD, i.e. Euroclear or Clearstream, if you hold or open an account with either of them. Alternatively, you may continue holding a beneficial entitlement to the Participating Shares in the CREST system through Euroclear UK & Ireland Limited (by means of CREST Depositary Interests) as Euroclear UK & Ireland Limited currently has an account in the ICSD.
Investors who are not currently registered as Shareholders on the Company's Register of Members but have a beneficial entitlement to Participating Shares will continue to hold a beneficial interest in the same number of Participating Shares in the same Fund(s) as they currently hold under the Current Settlement Model upon the adoption of the ICSD Settlement Model.
Under the ICSD Settlement Model, Authorised Participants will continue to generate and instruct trades directly with the Company (as is the case under the Current Settlement Model).
For the Company, the main difference between the Current Settlement Model and the ICSD Settlement Model relates to the Shareholders of record registered on the Register of Members. Under the Current Settlement Model, a number of nominees of Authorised Participants and other account holders in the CREST system as well as CSDs or their nominees are registered as Shareholders on the Company's Register of Members. Under the ICSD Settlement Model, all investors will be represented through the Common Depositary and the sole registered holder of all Participating Shares in each Fund will be the Common Depositary's Nominee. The Common Depositary has been appointed by the ICSD and its holding will represent the aggregate holdings of the investors through the ICSD.
Benefits of the ICSD Settlement Model
The key benefits of the adoption of the ICSD Settlement Model are expected to be:
(1) enhanced liquidity for investors and less liquidity fragmentation;
(2) improved settlement performance, due to inventory in each Fund being pooled in the ICSD structure;
(3) enhancement of settlement process efficiency through longer operating hours of the ICSD, thus increasing the time in which trades can match and settle, and by minimising the operational complexity in the Current Settlement Model of having to arrange for Participating Shares to be re-aligned between CSDs, which is complex, costly and time-consuming;
(4) reduction in inventory requirements and lower capital charges and overheads for market makers and broker dealers, which could ultimately support reduced trading costs for end investors;
(5) alignment of record date methodologies across Europe;
(6) improved foreign exchange functionality on dividend payments; and
(7) assisting in the creation of a more efficient securities lending market for Participating Shares.
3. Updating the Prospectus, Supplements to the Prospectus and adoption of an Instrument of Incorporation
Subject to the approval by the Shareholders of the proposal described at 1 above and approval of the Central Bank, the Company will be required to amend and update its prospectus (the Prospectus), the supplements to the Prospectus in respect of each of the Funds (the Supplements) and certain material contracts with service providers to reflect, inter alia, the conversion to an ICAV.
The Transition and Conversion will apply to all of the Funds, which are listed in Appendix III.
The Company will also, subject to the approval of Shareholders, adopt the Instrument which will replace the current Constitution. The provisions of the Instrument will be materially similar to those of the current Constitution.
Drafts of the revised Prospectus, the Supplements and the Instrument are available for inspection by the Shareholders of the Company at any time from the date hereof at the registered office of the Company, 5 George's Dock, International Financial Service Centre, Dublin 1, Ireland.
4. Shareholders' Approval - Action to be taken
The conversion of the Company to an ICAV may not be made without the approval of a special resolution of the Shareholders of the Company and is required to be effected by way of extraordinary general meeting (EGM) of the Shareholders.
The quorum for the EGM is two Shareholders present (in person or by proxy) entitled to vote upon the business to be transacted.
If such a quorum is not present within half an hour from the time appointed for the meeting, or if during a meeting a quorum ceases to be present, the meeting shall stand adjourned to the same day in the next week at the same time and place, or to such other day and at such other time and place as the Directors may determine. If at such adjourned meeting such a quorum is not present within half an hour from the time appointed for holding the meeting, then 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, any Shareholder or Shareholders present at the meeting shall be a quorum.
To be effective, the proposals require a majority of 75% or more of the total number of votes cast for and against such resolution by Shareholders of the Company to pass set out in the notice of EGM contained in Appendix I attached to this Circular approving the proposed amendments. A form to enable you to vote by proxy at the EGM is included at Appendix II and you are urged to complete and return it as soon as possible and, in any event, proxies must be received not less than 48 hours before the time appointed for the EGM.
Subject to receipt of the approval of the Shareholders and the Central Bank, it is expected that:
(1) the conversion of the Company to an ICAV will take place on or about 13 July 2020; and
(2) the Transition will take place on or about 2 October 2020.
The costs associated with the implementation of the changes described above, if approved by shareholders and the Central Bank, including all costs associated with the preparation and issue of this circular will be borne by the distributor of the Company, FinEx ETF Limited.
6. Attendance at the EGM
The Company considers the health and wellbeing of its shareholders, service providers and other attendees at the EGM to be a top priority and is closely monitoring the COVID-19 situation.
Based on the latest available guidance issued by the Irish Government, the Company expects EGM to proceed on 15 June 2020, but under very constrained circumstances, given the current restrictions on travel and public gatherings. In particular:
· The Company will ensure that the meeting adheres to the Irish Government's advice around social distancing. To support these efforts, the EGM will be conducted in as briefly a manner as is reasonably practicable with only limited representatives of the Company and its service providers physically present.
· Shareholders will be able to listen to the proceedings of the EGM over a live teleconference in order to limit the number of physical attendees to the minimum possible. Shareholders wishing to do so are advised to contact the Company Secretary at firstname.lastname@example.org for details on accessing the teleconference.
· Based on the latest available guidance issued by the Irish Government, we cannot guarantee that shareholders of the Company shall be granted physical access to the EGM. The Company therefore advises that shareholders should refrain from travelling to the EGM. Shareholders can instead join the proceedings using the teleconference facility.
· In order to ensure that their vote counts, shareholders should submit proxies electronically in advance of the EGM, which should eliminate the need for shareholders to attend in person.
· To be considered valid, all proxies must be submitted electronically in accordance with the instructions set out in the Form of Proxy at Appendix II of this Circular. Any proxies submitted by any other means whatsoever, including by delivery to the Company's registered office, or delivered by fax, shall not be considered valid and any votes pursuant to such proxies shall not be counted. Proxies must be received not less than 48 hours before the time appointed for the EGM.
In light of the uncertainty created by the current COVID-19 situation, the Company acknowledges that it may be required to put in place additional measures to safeguard attendees. The Company will publish any relevant updates regarding the EGM on http://www.finexetf.com/
7. Recommendation and action to be taken
The directors of the Company are of the opinion that the proposed conversion of the Company to an ICAV and the inclusion of the ICSD Settlement Model within the Instrument, as described above, is in the best interests of Shareholders as a whole and accordingly recommend that you vote in favour of the resolutions set out in the attached notice of the EGM. We would be grateful of your support for the resolutions either in presence at the EGM or by proxy. If you do not wish to attend the EGM, please complete the enclosed proxy and return it to the email address as detailed in Note 1 to the proxy form.
Should you have any questions in relation to the above, please do not hesitate to contact FinEx Investment Management LLP contact at Martin.Bednall@finxcapital.com.
The Directors of the Company accept responsibility for the information contained in this circular.
We thank you for your continuing support of the Company.
For and on behalf of
FinEx Physically Backed Funds plc
Key Dates for the EGM
Last date for receipt of proxies in relation to the EGM: 13 June 2020 at 9.30a.m.
Date of EGM: 15 June 2020 at 9.30a.m.
Last date for receipt of proxies in relation to an adjourned EGM: 20 June 2020 at 9.30a.m.
Date of Adjourned EGM: 22 June 2020 at 9.30a.m.
Results of EGM: The results of the EGM or any adjourned EGM will be published on the business day following the EGM or any adjourned EGM.
Publication of Results of EGM: 16 June 2020
Publication of Results of Adjourned EGM: 23 June 2020
Effective Date of the conversion to an ICAV: 13 July 2020 or other such later date as the relevant amendments outlined herein are approved by the Central Bank.
Effective Date of the Transition: 2 October 2020 or other such later date as may be determined by the Directors and notified in advance to the Shareholders.
FinEx Physically Backed Funds plc. Саймон Лур (Simon Luhr)
3.2. Дата 22 мая 2020 г.
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