PREM14A
Table of Contents

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

 

 

SCHEDULE 14A

(RULE 14a-101)

INFORMATION REQUIRED IN PROXY STATEMENT

SCHEDULE 14A INFORMATION

PROXY STATEMENT PURSUANT TO SECTION 14(a) OF THE

SECURITIES EXCHANGE ACT OF 1934

 

 

Filed by the Registrant  ☒                            Filed by a Party other than the Registrant  ☐

Check the appropriate box:

 

  Preliminary Proxy Statement
  Confidential, For Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
  Definitive Proxy Statement
  Definitive Additional Materials
  Soliciting Material Pursuant to Section 240.14a-12

CIMPRESS N.V.

(Name of Registrant as Specified In Its Charter)

(Name of Person(s) Filing Proxy Statement, if other than the Registrant)

Payment of Filing Fee (Check the appropriate box):

  No fee required.
  Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
  1)  

Title of each class of securities to which transaction applies:

 

     

  2)  

Aggregate number of securities to which transaction applies:

 

     

  3)  

Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing fee is calculated and state how it was determined):

 

     

  4)  

Proposed maximum aggregate value of transaction:

 

     

  5)  

Total fee paid:

 

     

  Fee paid previously with preliminary materials:
  Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the form or schedule and the date of its filing.
  1)  

Amount previously paid:

 

     

  2)  

Form, Schedule or Registration Statement No.:

 

     

  3)  

Filing Party:

 

     

  4)  

Date Filed:

 

     

 

 

 


Table of Contents

PRELIMINARY PROXY STATEMENT—SUBJECT TO COMPLETION DATED AUGUST 21, 2019

CIMPRESS N.V.

Building D, Xerox Technology Park, Dundalk, County Louth

Ireland

[●], 2019

Dear Shareholder:

On [●], 2019, at 7:00 p.m. Central European Time, we will hold an extraordinary general meeting of our shareholders at the offices of Stibbe, Beethovenplein 10, 1077 WM Amsterdam, The Netherlands.

Our board of directors has unanimously approved, and is submitting to our shareholders for approval, a proposal for a cross-border merger that would result in you holding shares in an Irish public limited company rather than a Dutch public limited liability company. The proposed transaction will result in a change of our place of incorporation from The Netherlands to Ireland. The number of shares you will own in Cimpress plc, a public limited company incorporated under the laws of Ireland that is a party to the merger, will be the same as the number of shares you held in Cimpress N.V., the Dutch company that is a party to the merger, immediately prior to the completion of the transaction (unless you vote against the merger and elect for the compensation payable in such circumstances).

After the completion of the merger, the Cimpress group, with Cimpress plc as the parent company, will continue to conduct the same business operations as were conducted when Cimpress N.V. was the parent company. We expect the ordinary shares of Cimpress plc to be listed on Nasdaq under the symbol “CMPR,” the same symbol under which your shares in Cimpress N.V. are currently listed. After completion of the transaction, we will remain subject to the U.S. Securities and Exchange Commission reporting requirements and the applicable corporate governance rules of Nasdaq, and we will continue to report our financial results in U.S. dollars and under U.S. generally accepted accounting principles.

We are also asking our shareholders to approve two additional proposals. The first proposal is an amendment to our articles of association setting forth the formula for calculating the compensation payable to shareholders who vote against the merger and apply to have their shares cancelled instead of receiving ordinary shares of Cimpress plc. The other proposal is the creation of distributable profits of Cimpress plc under Irish law by reducing the entire share premium of Cimpress plc (or such lesser amount as may be approved by the board of directors of Cimpress plc) resulting from the allotment and issue of ordinary shares of Cimpress plc pursuant to the merger. Cimpress plc will not be able to pay dividends, make other distributions, or repurchase shares unless distributable profits are created as described in the distributable profits proposal.

The board of directors unanimously recommends that you vote to approve the merger and the other proposals described in the accompanying proxy statement. Please mark, date, sign and return the enclosed proxy card in the envelope that we or your bank or brokerage firm have provided. Many banks and brokerage firms also offer the option of voting by mail, over the Internet, or by telephone, which will be explained in the voting instruction form you receive from your bank or brokerage firm. You can change your vote and revoke your proxy by following the procedures described in the accompanying proxy statement.

The accompanying notice of meeting and proxy statement provides you with detailed information regarding the extraordinary general meeting and proposals submitted for shareholder approval. We encourage you to read this entire document carefully. You should carefully consider “Risk Factors” beginning on page [●] for a discussion of risks related to the merger before voting.

Thank you for your cooperation and support.

 

Sincerely,
Robert S. Keane
Chairman, Founder and Chief Executive Officer


Table of Contents

CIMPRESS N.V.

Building D, Xerox Technology Park, Dundalk, County Louth

Ireland

NOTICE OF EXTRAORDINARY GENERAL MEETING OF SHAREHOLDERS

Cimpress N.V. will hold an Extraordinary General Meeting of Shareholders:

on [●], [●], 2019

at 7:00 p.m. Central European Time

at the offices of Stibbe N.V.

Beethovenplein 10

1077 WM Amsterdam

The Netherlands

MATTERS TO BE ACTED UPON AT THE EXTRAORDINARY GENERAL MEETING:

 

(1)

Adopt the resolution to amend our articles of association;

 

(2)

Subject to the amendment of our articles of association per proposal number One, adopt the resolution to enter into the proposed cross-border merger (by acquisition) (the “Merger”) between Cimpress plc as successor company and Cimpress N.V. as disappearing company, pursuant to regulation 2(1) of the Irish Regulations and section 2:309 and section 2:333c DCC, whereby Cimpress plc acquires all assets and liabilities of Cimpress N.V. under universal succession of title (onder algemene titel) and Cimpress N.V. ceases to exist in accordance with the joint merger proposal (gezamenlijk voorstel tot fusie) pursuant to section 2:312, section 3:26 and section 2:333d DCC (the “Common Draft Terms of Merger”), providing for Cimpress N.V. to change its jurisdiction of incorporation from The Netherlands to Ireland through the Merger;

 

(3)

Approve, subject to the effectiveness of the Merger, the creation of distributable profits of Cimpress plc under Irish law by reducing the entire share premium of Cimpress plc (or such lesser amount as may be approved by the board of directors of Cimpress plc) resulting from the allotment and issue of ordinary shares of Cimpress plc pursuant to the Merger; and

 

(4)

Transact such other business, if any, that may properly come before the extraordinary general meeting or any adjournment thereof.

Shareholders of record at the close of business on [●], 2019, the record date for the extraordinary general meeting are entitled to vote at the extraordinary general meeting. Your vote is important regardless of the number of ordinary shares of Cimpress N.V. you own. Whether or not you expect to attend the extraordinary general meeting, please complete, sign, date, and promptly return the enclosed proxy card in the envelope that we or your bank or brokerage firm have provided. Your prompt response will ensure that your ordinary shares of Cimpress N.V. are represented at the extraordinary general meeting. You can change your vote and revoke your proxy by following the procedures described in this proxy statement for the extraordinary general meeting.

All shareholders of Cimpress N.V. are cordially invited to attend the extraordinary general meeting.

 

By order of the Board of Directors,
/s/ Robert S. Keane
Chairman, Founder, and Chief Executive Officer
[●], 2019

Dated: [●], 2019


Table of Contents

TABLE OF CONTENTS

 

     Page  

CERTAIN TERMS

     iii  

QUESTIONS AND ANSWERS ABOUT THE MERGER

     2  

SUMMARY

     9  

Summary of Proposal Number One: Amend Articles of Association

     9  

Recommendation of the Board

     9  

Summary of Proposal Number Two: The Merger

     9  

Parties to the Merger

     9  

The Merger

     10  

Reasons for the Merger

     12  

Tax Considerations of the Merger

     13  

Comparison of Rights of Shareholders and Governance

     13  

Stock Exchange Listing

     13  

Market Price

     14  

Accounting Treatment of the Merger

     14  

Recommendation of the Board

     14  

Summary of Proposal Number Three: The Distributable Profits Proposal

     14  

Recommendation of the Board

     14  

SELECTED HISTORICAL CONSOLIDATED FINANCIAL DATA

     15  

RISK FACTORS

     19  

PROPOSAL NUMBER ONE: AMEND ARTICLES OF ASSOCIATION

     23  

Required Vote

     23  

Recommendation of the Board

     23  

PROPOSAL NUMBER TWO: THE MERGER

     24  

Compensation Mechanism

     26  

Expert Reports

     26  

Reasons for the Merger

     26  

Amendment, Termination or Delay

     28  

Conditions to the Consummation of the Merger

     28  

U.S. Federal Securities Law Consequences

     29  

Effective Date and Time of the Merger

     29  

Management of Cimpress plc

     30  

Interests of Certain Persons in the Merger

     30  

Regulatory Matters

     30  

No Action Required to Cancel Cimpress N.V. Shares and Receive Cimpress plc Shares

     30  

Accounting Treatment of the Merger

     30  

Effect of the Merger on SEC Filing Obligations and SEC Registrant Status

     30  

Required Vote

     30  

Recommendation of the Board

     30  

PROPOSAL NUMBER THREE: DISTRIBUTABLE PROFITS PROPOSAL

     31  

Required Vote

     31  

Recommendation of the Board

     32  

MATERIAL TAX CONSIDERATIONS RELATING TO THE MERGER

     33  

Material U.S. Federal Income Tax Considerations

     33  

Material Irish Tax Considerations

     37  

Material Dutch Tax Considerations

     42  

DESCRIPTION OF CIMPRESS PLC SHARES

     44  

COMPARISON OF RIGHTS OF SHAREHOLDERS AND GOVERNANCE

     60  

BENEFICIAL OWNERSHIP

     85  

MARKET PRICE AND DIVIDEND INFORMATION

     87  

 

- i -


Table of Contents

TABLE OF CONTENTS

(continued)

 

     Page  

EXPENSE OF PROXY STATEMENT

     88  

HOUSEHOLDING OF MEETING MATERIALS

     88  

WHERE YOU CAN FIND MORE INFORMATION

     88  

CERTAIN ITEMS

     88  

ANNEX A COMMON DRAFT TERMS OF MERGER

     A-1  

ANNEX B CONSTITUTION OF CIMPRESS plc

     B-1  

ANNEX C DEED OF AMENDMENT

     C-1  

ANNEX D RELEVANT TERRITORIES

     D-1  

ANNEX E MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

     E-1  

ANNEX F CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE

     F-1  

ANNEX G QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK

     G-1  

 

- ii -


Table of Contents

CERTAIN TERMS

Unless otherwise specified or the context requires otherwise, as used in this Proxy Statement, the following terms have the meanings ascribed to them below:

 

   

“Cimpress N.V.” means Cimpress N.V., a public limited company incorporated under the laws of The Netherlands.

 

   

“Cimpress N.V. Board” means the board of directors of Cimpress N.V.

 

   

“Cimpress N.V. Shares” means the ordinary shares of Cimpress N.V.

 

   

“Cimpress N.V. Shareholders” means holders of Cimpress N.V. Shares.

 

   

“Cimpress N.V. Shareholder of Record” means a Cimpress N.V. Shareholder who is a holder of record with Cimpress N.V.’s transfer agent at the Record Date.

 

   

“Cimpress plc” means Cimpress Limited, a private limited company incorporated under the laws of Ireland, with company number 607465 having its registered office at Building D, Xerox Technology Park, Dundalk, County Louth, Ireland, which will be re-registered as an Irish public limited company and renamed “Cimpress public limited company” prior to the Effective Date.

 

   

“Cimpress plc Board” means the board of directors of Cimpress plc.

 

   

“Cimpress plc’s Constitution” means the memorandum and articles of association of Cimpress plc at the Effective Date, which will be substantially in the form attached as Annex B to this proxy statement.

 

   

“Cimpress plc Shares” means ordinary shares of €0.01 each in the capital of Cimpress plc.

 

   

“Cimpress plc Shareholders” means holders of Cimpress plc Shares.

 

   

“Code” means the United States Internal Revenue Code of 1986, as amended.

 

   

“Common Draft Terms of Merger” means the Common Draft Terms of Merger, meaning the joint merger proposal (gezamenlijk voorstel tot fusie) pursuant to section 2:312, section 3:26 and section 2:333d DCC, in the form attached as Annex A to this Proxy Statement.

 

   

“CRO Gazette” means the Irish Companies Registration Office Gazette.

 

   

“DCC” means the Dutch Civil Code.

 

   

“Directive” means Directive 2005/56/EC of the European Parliament and of the Council of October 26, 2005 on Cross-Border Mergers of Limited Liability Companies as repealed and codified by Chapter II, Title II of Directive 2017/1132/EU.

 

   

“Director” means an executive or a non-executive member of the Cimpress N.V. Board or the Cimpress plc Board, as the context requires.

 

   

“Distributable Profits Proposal” means the proposal to approve, subject to the effectiveness of the Merger, the creation of distributable profits of Cimpress plc under Irish law by reducing the entire share premium of Cimpress plc (or such lesser amount as may be approved by the Cimpress plc Board) resulting from the allotment and issue of Cimpress plc Shares pursuant to the Merger, set out as Proposal Number Three in the Notice of General Meeting and further described under “Proposal Number Three: The Distributable Profits Proposal.”

 

   

“DTC” means The Depository Trust Company.

 

   

“Effective Date” means the effective date of the Merger prescribed in the Order of the Irish High Court.

 

   

“Effective Time” means the effective time of the Merger on the Effective Date prescribed in the Order of the Irish High Court.

 

- iii -


Table of Contents
   

“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended.

 

   

“Extraordinary General Meeting” means the extraordinary general meeting of Cimpress N.V. Shareholders to be held on [●], 2019.

 

   

“Group” means Cimpress N.V. and its affiliates before the Merger and Cimpress plc and its affiliates after the Merger.

 

   

“Irish Companies Act” means the Companies Act 2014 of Ireland (including any statutory modification or re-enactment of it for the time being in force).

 

   

“Irish Companies Registration Office” means the Irish Companies Registration Office.

 

   

“Irish High Court” means the High Court of Ireland.

 

   

“Irish Regulations” means the European Communities (Cross-Border Mergers) Regulations 2008 (S.I. No. 157 of 2008) of Ireland (including any statutory modification or re-enactment of it for the time being in force).

 

   

“Irish Takeover Rules” means the Irish Takeover Panel Act 1997, Takeover Rules 2013.

 

   

“Merger” means the proposed cross-border merger (by acquisition) between Cimpress plc as successor company and Cimpress N.V. as disappearing company, pursuant to regulation 2(1) of the Irish Regulations and section 2:309 and section 2:333c DCC, whereby Cimpress plc acquires all assets and liabilities of Cimpress N.V. under universal succession of title (onder algemene titel) and Cimpress N.V. ceases to exist.

 

   

“Nasdaq” means the Nasdaq Global Select Market.

 

   

“Order” means the order made by the Irish High Court under Regulation 14 of the Irish Regulations pursuant to which the Irish High Court approves the completion of the Merger, confirms that the terms and conditions of the Merger are fair (both procedurally and substantively) to Cimpress N.V. Shareholders, and fixes the Effective Date and the Effective Time.

 

   

“Record Date” means the close of business on [●], 2019.

 

   

“SEC” means the United States Securities and Exchange Commission.

 

   

“Securities Act” means the Securities Act of 1933, as amended.

 

   

“we,” “our company,” “our” and “us” mean Cimpress N.V. and its subsidiaries before the Merger and Cimpress plc and its subsidiaries after the Merger.

 

- iv -


Table of Contents

CIMPRESS N.V.

Building D, Xerox Technology Park,

Dundalk, County Louth,

Ireland

PROXY STATEMENT FOR THE EXTRAORDINARY GENERAL MEETING OF SHAREHOLDERS

to be held on [], 2019

This Proxy Statement contains information about the Extraordinary General Meeting. We will hold the meeting on [●], [●], 2019 at the offices of Stibbe, Beethovenplein 10, 1077 WM Amsterdam, The Netherlands. The meeting will begin at 7:00 p.m. Central European Time.

We are furnishing this Proxy Statement to you in connection with the solicitation of proxies by our Board for use at the Extraordinary General Meeting and at any adjournment of the Extraordinary General Meeting.

We are first mailing the Notice of Extraordinary General Meeting and this Proxy Statement on or about [●], 2019.

Important Notice Regarding the Availability of Proxy Materials for the Extraordinary General Meeting of Shareholders:

This Proxy Statement is available for viewing, printing and downloading at http://proxy.ir.cimpress.com. In addition, the draft deed of amendment with respect to the proposed amendment to our articles of association is available at our offices at the address above, is attached to this Proxy Statement as Annex C, and is available for viewing, printing, and downloading at http://proxy.ir.cimpress.com.

We will furnish without charge a copy of this Proxy Statement, as filed with the SEC, and the deed of amendment described above to any Cimpress N.V. Shareholder or person with meeting rights who requests it by emailing ir@cimpress.com or writing to Cimpress N.V., c/o Cimpress USA Incorporated, Attention: Investor Relations, 275 Wyman Street, Waltham, MA 02451, USA. This Proxy Statement is also available on the SEC’s web site at www.sec.gov.

 

1


Table of Contents

QUESTIONS AND ANSWERS ABOUT THE MERGER

The following questions and answers are intended to briefly address some commonly asked questions regarding the proposed Extraordinary General Meeting. These questions and answers only highlight some of the information contained in this Proxy Statement. They may not contain all of the information that is important to you. You should carefully read this entire Proxy Statement, including the annexes.

GENERAL

 

1.

Q: Why am I receiving this Proxy Statement?

 

  A:

We are providing Cimpress N.V. Shareholders with this Proxy Statement in connection with the proposed Merger and related matters that will be acted upon at the upcoming Extraordinary General Meeting. The Extraordinary General Meeting will be held on [●], 2019 at the offices of Stibbe, Beethovenplein 10, 1077 WM Amsterdam, The Netherlands. The meeting will begin at 7:00 p.m. Central European Time. We are first mailing the Notice of the Extraordinary General Meeting and this Proxy Statement on or about [●], 2019.

 

2.

Q: What proposals are being voted on at the Extraordinary General Meeting?

 

  A:

The following proposals are being voted on at the Extraordinary General Meeting:

 

  (1)

Adopt the resolution to amend our articles of association;

 

  (2)

Subject to the amendment of our articles of association per proposal number one, adopt the resolution to enter into the Merger in accordance with the Common Draft Terms of Merger;

 

  (3)

Approve, subject to the effectiveness of the Merger, the creation of distributable profits of Cimpress plc under Irish law by reducing the entire share premium of Cimpress plc (or such lesser amount as may be approved by the Cimpress plc Board) resulting from the allotment and issue of Cimpress plc Shares pursuant to the Merger; and

 

  (4)

Transact such other business, if any, that may properly come before the Extraordinary General Meeting or any adjournment thereof.

 

3.

Q: Who can vote at the Extraordinary General Meeting?

 

  A:

To be able to vote on the matters listed above, you must have held Cimpress N.V. Shares on the Record Date. Each Cimpress N.V. Share that you held on the Record Date entitles you to one vote. The number of outstanding Cimpress N.V. Shares entitled to vote on each proposal at the Extraordinary General Meeting is [●]. Currently, there are no outstanding preferred shares of Cimpress N.V.

 

4.

Q: Why do you want to merge Cimpress N.V. with and into Cimpress plc?

 

  A.

Our Board believes that giving effect to the Merger will be in the best interests of Cimpress N.V. and Cimpress N.V. Shareholders. In arriving at this determination, our Board consulted with Cimpress N.V.’s management along with its legal and tax advisors and considered various factors in its deliberations. Our Board concluded that the Merger is likely to result in benefits to Cimpress N.V. and Cimpress N.V. Shareholders, including, among other benefits, maintaining our flexibility on capital allocation strategies, such as the repurchase of Cimpress N.V. Shares at times when we need to cover obligations under our equity compensation plans, for acquisitions or similar transactions or more generally at times when we believe Cimpress N.V. Shares represent an attractive investment for Cimpress N.V. and Cimpress N.V. Shareholders. If Cimpress N.V. Shareholders approve this proposal, the Merger will change Cimpress N.V.’s legal domicile from The Netherlands to Ireland and will result in other changes of a legal nature, the most significant of which are described below under the caption “Comparison of Rights of Shareholders and Governance. For further detail, see “Proposal Number Two: The Merger—Reasons for the Merger” and “Risk Factors.”

 

2


Table of Contents
5.

Q: When is the Merger expected to be completed?

 

  A:

We currently expect to complete the Merger on or about [●], 2019. However, until the issuance of the Order of the Irish High Court, which we need in order to complete the Merger, the Merger may be abandoned or delayed by Cimpress N.V., even if the Merger has been approved by Cimpress N.V. Shareholders and all other conditions to the Merger (other than the approval of the Irish High Court) have been satisfied or waived. For further detail, see “Proposal Number Two: The Merger—Amendment, Termination or Delay.”

 

6.

Q: Do I have appraisal or redemption rights with respect to the Cimpress N.V. Shares I own?

 

  A:

There are no applicable appraisal rights, and the Cimpress N.V. Shares are not redeemable. However, if the Extraordinary General Meeting resolves to enter into the Merger, any Cimpress N.V. Shareholder that voted against the Merger (the “Electing Shareholder”) is entitled to claim a cash compensation in lieu of Cimpress plc Shares, in accordance with section 2:333h(1) of the DCC (the “Cash Compensation Right”), within one month after the Extraordinary General Meeting. Upon the Effective Date, such Electing Shareholder will not receive Cimpress plc Shares but instead will receive a compensation in cash (the “Cash Compensation”) for the Cimpress N.V. Shares for which such Electing Shareholder duly exercised his, her or its Cash Compensation Right.

 

      

A Cimpress N.V. Shareholder who voted in favor of the proposal to enter into the Merger at the Extraordinary General Meeting, abstained from voting or was not present or represented at the Extraordinary General Meeting does not have any Cash Compensation Right.

 

7.

Q: How will Cimpress plc Shares differ from Cimpress N.V. Shares?

 

  A:

Your rights as a Cimpress N.V. Shareholder are currently governed by Dutch law and Cimpress N.V.’s articles of association. Following the Merger, you will become a Cimpress plc Shareholder and your rights as a Cimpress plc Shareholder will be governed by Irish law and Cimpress plc’s Constitution. The legal system governing companies organized under Irish law differs from the legal system governing companies organized under Dutch law. As a result, while many of the principal attributes of Cimpress N.V. Shares and Cimpress plc Shares will be similar under Dutch and Irish law, differences will exist. We summarize your rights as a Cimpress plc Shareholder under “Description of Cimpress plc Shares” and provide a summary comparison of your rights as a Cimpress N.V. Shareholder and Cimpress plc Shareholder under the heading “Comparison of Rights of Shareholders and Governance”. A copy of Cimpress plc’s Constitution is attached as Annex B to this Proxy Statement.

TAX MATTERS RELATED TO CIMPRESS N.V. SHAREHOLDERS

Please refer to “Material Tax Considerations Relating to the Merger” for a description of the material U.S. federal income tax, Irish tax and Dutch tax consequences of the Merger to Cimpress N.V. Shareholders and Cimpress plc Shareholders. Determining the actual tax consequences of the Merger to you may be complex and will depend on your specific situation. We urge you to consult your personal tax advisors.

 

8.

Q: Is the Merger taxable to me?

 

  A:

U.S. Federal Income Tax

 

      

The Merger is intended to qualify as a “reorganization” within the meaning of Section 368(a) of the Code. If the Merger is so treated as a “reorganization”, (i) a U.S. Holder will not recognize any gain or loss as a result of the Merger, (ii) a U.S. Holder’s adjusted tax basis in the Cimpress plc Shares received will be equal to the adjusted tax basis of the Cimpress N.V. Shares exchanged therefor and (iii) the holding period of the Cimpress plc Shares received as a result of the exchange will include the holding period of Cimpress N.V. Shares surrendered in the Merger. For further detail, see “Material Tax Considerations Relating to the Merger—Material U.S. Tax Considerations.”

 

3


Table of Contents
      

Irish Tax

 

      

It is anticipated that the Merger will not be a taxable event from an Irish tax perspective. As a result, it is anticipated that the Merger will not give rise to any Irish capital gains tax consequences for Cimpress N.V. Shareholders. For further detail, see “Material Tax Considerations Relating to the Merger—Material Irish Tax Considerations.”

 

      

Dutch Tax

 

      

We believe that (i) Cimpress N.V. Shareholders who are not resident in The Netherlands will generally not be subject to Dutch (corporate) income tax in respect of the Merger, subject to certain exceptions, and (ii) Cimpress N.V. Shareholders who are resident in The Netherlands may be subject to Dutch (corporate) income tax in respect of the Merger, depending on the tax regime applicable to such holder. For further detail, see “Material Tax Considerations Relating to the Merger—Material Dutch Tax Considerations.”

 

9. Q:

Will there be Irish stamp duty on the Merger or on the transfer of Cimpress plc Shares after the Merger?

 

  A:

It is expected that for the majority of transfers of Cimpress plc Shares, there should not be any stamp duty. Transfers of Cimpress plc Shares effected by means of the transfer of book-entry interests in DTC should not be subject to Irish stamp duty, subject to confirmation by the Irish Revenue Commissioners in advance of the Merger. However, if you hold your Cimpress plc Shares directly rather than beneficially through DTC, any transfer of your Cimpress plc Shares could be subject to Irish stamp duty (currently at the rate of 1% of the higher of the price paid or the market value of the Cimpress plc Shares acquired). For further detail, see “Material Tax Considerations Relating to the Merger—Material Irish Tax Considerations.”

OTHER MATTERS RELATED TO CIMPRESS N.V. SHAREHOLDERS

 

10. Q:

Will the Merger dilute my economic interest?

 

  A:

No. Cimpress N.V. Shareholders will receive a Cimpress plc Share for every Cimpress N.V. Share owned on a one-for-one basis, subject to the Cash Compensation Right.

 

      

For further detail, see “Proposal Number Two: The Merger—Compensation Mechanism.”

 

11. Q:

If the Merger is approved, do I have to take any action to participate in the Merger?

 

  A:

No. At the Effective Date, you will receive, through the transfer agent, a Cimpress plc Share for every Cimpress N.V. Share that you then hold on a one-for-one basis, without any further action on your part. For further detail, see “Proposal Number Two: The Merger—No Action Required to Cancel Cimpress N.V. Shares and Receive Cimpress plc Shares.”

 

12. Q:

Whom should I contact if I have questions about the Extraordinary General Meeting or the Merger?

 

  A:

If you have any questions concerning the information contained in this Proxy Statement or require assistance completing the proxy card, you may contact Cimpress N.V.’s Investor Relations by email at ir@cimpress.com or by telephone at +1 781-652-6480.

IMPACT ON CIMPRESS N.V.

 

13.

Q: Will the Merger affect Cimpress N.V.’s operations?

 

  A:

No. The Merger will not change how Cimpress N.V. goes to market, how we manage our business or how we serve our customers.

 

4


Table of Contents
14.

Q: How will the Merger affect Cimpress N.V.’s financial reporting?

 

  A:

The Merger will not affect Cimpress N.V.’s current reporting obligations in the United States. After the Merger, Cimpress plc will continue to prepare financial statements in accordance with U.S. generally accepted accounting principles (“U.S. GAAP”), which are reported in U.S. dollars, and will file reports on Forms 10-K, 10-Q and 8-K with the SEC. We will also prepare and make available to you financial statements prepared in accordance with Irish law. We will no longer file our financial statements with the Dutch Chamber of Commerce (Kamer van Koophandel).

 

15.

Q: Will the Merger have any impact on Cimpress plc’s ability to pay dividends or repurchase shares?

 

  A:

Under Irish law, Cimpress plc may only pay dividends, make other distributions and, generally, effect share repurchases and redemptions from “distributable profits” shown in Cimpress plc’s unconsolidated financial statements prepared in accordance with the Irish Companies Act and filed with the Irish Companies Registration Office.

 

      

Immediately following the Merger, Cimpress plc will not have any distributable profits of its own. Accordingly, you are being asked to approve the Distributable Profits Proposal, to enable, subject to the effectiveness of the Merger, the creation of distributable profits of Cimpress plc under Irish law by reducing the entire share premium of Cimpress plc (or such lesser amount as may be approved by the Cimpress plc Board) resulting from the allotment and issue of Cimpress plc Shares pursuant to the Merger, such that the reserve resulting from the cancellation of such share premium will be treated as distributable profits. Cimpress N.V. Shareholders are being asked to vote to approve the Distributable Profits Proposal in satisfaction of certain equitable requirements of the Irish High Court.

 

      

In addition to the approval of Cimpress N.V. Shareholders, the Distributable Profits Proposal also requires the passing of a special resolution of Cimpress plc, which will be undertaken by Cimpress plc Shareholders prior to the Effective Date and the approval of the Irish High Court. If the Distributable Profits Proposal is approved by Cimpress N.V. Shareholders and Cimpress plc Shareholders prior to the Effective Date and the Merger becomes effective, Cimpress plc intends to seek the approval of the Irish High Court for the Distributable Profits Proposal as soon as practicable following the Effective Date. Although Cimpress N.V. is not aware of any reason why the Irish High Court would not approve the Distributable Profits Proposal, such approval is a matter of judicial discretion and there is no guarantee that such approval will be forthcoming.

 

      

While the Cimpress N.V. Board recommends that Cimpress N.V. Shareholders vote for the Distributable Profits Proposal, the passing of the Distributable Profits Proposal is not a condition to the Merger. If the Distributable Profits Proposal is not approved by Cimpress N.V. Shareholders and the Irish High Court, Cimpress plc will not be able to pay dividends, make other distributions and, generally, effect share repurchases and redemptions until such time as it has otherwise generated sufficient distributable profits from its operational activities following the Merger.

 

      

For further detail, see “Risk Factors” and “Proposal Number Three: The Distributable Profits Proposal.”

 

16.

Q: Is the Merger a taxable transaction for Cimpress N.V.?

 

  A:

The Merger is in principle a taxable transaction for Cimpress N.V. pursuant to which gains and or losses may be recognized for Dutch corporate income tax purposes. However, Cimpress N.V. expects that no Dutch corporate income tax will be due as a result of the Merger, due to a combination of (i) the application of the double taxation treaty between The Netherlands and Ireland (for further detail, see “Proposal Number Two: The Merger”), (ii) the application of the Dutch “participation exemption” in respect of gains derived from certain qualifying participations in subsidiaries, and (iii) the availability of tax loss carry forwards.

 

5


Table of Contents
      

Cimpress N.V. does not believe that the Merger will be a taxable event from an Irish tax perspective. As a result, it is anticipated that the Merger will not give rise to any Irish capital gains tax consequences for Cimpress N.V.

 

17.

Q: What effect would a failure to complete the Merger have on Cimpress N.V.?

 

  A:

If the Merger is not completed, Cimpress N.V. will continue to exist as a Dutch entity. We may consider other alternatives if the Merger is not completed.

EXTRAORDINARY GENERAL MEETING VOTING AND MECHANICS

 

18.

Q: How do I vote?

 

  A:

If you are a Cimpress N.V. Shareholder of Record and your Cimpress N.V. Shares are not held in “street name” by a bank or brokerage firm, you may vote by completing and signing the proxy card that accompanies this Proxy Statement and promptly mailing it in the enclosed postage-prepaid envelope. For your vote to be counted at the Extraordinary General Meeting, our transfer agent, Computershare Trust Company, Inc., must receive your proxy no later than 4:00 p.m. Eastern Standard Time on the last business day before the Extraordinary General Meeting.

 

      

If the Cimpress N.V. Shares you own are held in street name by a bank or brokerage firm, then your bank or brokerage firm, as the record holder of your Cimpress N.V. Shares, is required to vote your Cimpress N.V. Shares according to your instructions. In order to vote your Cimpress N.V. Shares, you will need to follow the directions your bank or brokerage firm provides to you. Many banks and brokerage firms offer the option of voting by mail, over the Internet, or by telephone, which will be explained in the voting instruction form you receive from your bank or brokerage firm.

 

      

The Cimpress N.V. Shares you own will be voted according to the instructions you return to the Transfer Agent or your bank or brokerage firm. If you are a Cimpress N.V. Shareholder of Record and sign and return the proxy card, but do not give any instructions on a particular matter to be voted on as described in this Proxy Statement, then the Cimpress N.V. Shares you own will be voted in accordance with the recommendations of the Cimpress N.V. Board. If your Cimpress N.V. Shares are held in street name at a broker and you do not timely provide voting instructions in accordance with the instructions provided by your broker, then a “broker non-vote” will occur because the proposals described in this Proxy Statement are “non-routine,” meaning that brokers do not have discretionary authority to vote on your behalf. “Broker non-votes” are shares that are held in street name by a bank or brokerage firm that indicates on its proxy that it does not have discretionary authority to vote such shares on a particular matter.

 

      

If you are a Cimpress N.V. Shareholder of Record and attend the Extraordinary General Meeting in person, then you may also vote in person. If you hold your Cimpress N.V. Shares in street name and wish to attend the meeting or vote in person, then you must follow the instructions immediately below under “How do I attend the Extraordinary General Meeting?”

 

19.

Q: How do I attend the Extraordinary General Meeting?

 

  A:

If you wish to attend the Extraordinary General Meeting in Amsterdam, The Netherlands in person, please send our Senior Securities Counsel written notice at the offices of our subsidiary, Cimpress USA Incorporated, 275 Wyman Street, Waltham, MA 02451 USA no later than [●], 2019. If you need directions to the meeting, please call Investor Relations at +1 781-652-6480.

 

   

If you wish to attend the Extraordinary General Meeting and your Cimpress N.V. Shares are held in street name by a bank or brokerage firm, then you must provide the written notice referenced above and also bring with you to the Extraordinary General Meeting an account statement or letter from your bank or brokerage firm showing that you are the beneficial owner of the Cimpress N.V. Shares as of the Record Date in order to be admitted to the Extraordinary General Meeting. To be able to vote your Cimpress N.V. Shares held in

 

6


Table of Contents
  street name at the meeting, you will need to obtain a legal proxy from the Cimpress N.V. Shareholder of Record, i.e., your bank or brokerage firm.

 

20. Q:

What quorum is required for action at the Extraordinary General Meeting, and what vote is required to approve the proposals?

 

  A:

Under Cimpress N.V.’s articles of association, holders of at least one third of outstanding Cimpress N.V. Shares must be represented at the Extraordinary General Meeting to constitute a quorum.

 

      

The first proposal to amend Cimpress N.V.’s articles of association requires a simple majority of votes cast at a meeting at which at least one third of the outstanding Cimpress N.V. Shares are represented.

 

      

The second proposal to adopt the resolution to enter into the Merger requires a simple majority of votes cast at a meeting at which at least one third of the outstanding shares are represented, unless less than half of the issued capital is represented at the Extraordinary General Meeting, in which case this resolution requires a majority of at least two-thirds of the votes cast at the Extraordinary General Meeting.

 

      

The third proposal (i.e., the Distributable Profits Proposal) requires the approval of a majority of votes cast at a meeting at which a quorum is present. In addition, while approval of the Distributable Profits Proposal by a majority of votes cast at the meeting is sufficient for approval of the proposal under Dutch law (which governs the Extraordinary General Meeting at which the vote will take place), we are seeking the approval of at least 75% of the votes cast at the meeting to increase the likelihood of obtaining Irish High Court approval of the Distributable Profits Proposal, as such higher approval threshold would be required if the vote on the Distributable Profits Proposal was being conducted under Irish law.

 

      

For all three proposals, Dutch law and Cimpress N.V.’s articles of association provide that Cimpress N.V. Shares represented at the Extraordinary General Meeting and abstaining from voting will count as Cimpress N.V. Shares present at the Extraordinary General Meeting but will not count for the purpose of determining the number of votes cast. Broker non-votes will not count as Cimpress N.V. Shares present at the Extraordinary General Meeting or for the purpose of determining the number of votes cast. “Broker non-votes” are shares that are held in street name by a bank or brokerage firm that indicates on its proxy that it does not have discretionary authority to vote on a particular matter.

 

21

Q Can I change my mind after I vote?

 

  A

If you are a registered Cimpress N.V. Shareholder and your Cimpress N.V. Shares are not held in street name, then you can revoke your proxy and change your vote by doing any one of the following things:

 

   

signing another proxy card with a later date and delivering the new proxy card to our Senior Securities Counsel at the offices of our subsidiary, Cimpress USA Incorporated, at 275 Wyman Street, Waltham, MA 02451 USA no later than 4:00 p.m. Eastern Standard Time on the last business day before the Extraordinary General Meeting;

 

   

delivering to our Senior Securities Counsel written notice no later than 4:00 p.m. Eastern Standard Time on the last business day before the Extraordinary General Meeting that you want to revoke your proxy; or

 

   

voting in person at the Extraordinary General Meeting.

 

      

Your attendance at the meeting alone will not revoke your proxy. If you hold Cimpress N.V. Shares through a broker, bank or other nominee, you must follow the voting instructions provided by such broker, bank or other nominee if you wish to change your vote.

 

7


Table of Contents
22. Q:

How and when may I submit a shareholder proposal for consideration at the 2020 annual general meeting of shareholders?

 

  A:

Following the Effective Date, we will be an Irish public limited company whose shares are traded on a U.S. securities exchange and U.S. and Irish rules and timeframes as well as Cimpress plc’s Constitution will apply if you wish to submit a proposal, including a director nomination for consideration by shareholders at our 2020 annual general meeting.

 

      

Under Cimpress plc’s Constitution, if you are interested in submitting a proposal, you must fulfill the requirements set forth therein.

 

      

Under Cimpress plc’s Constitution, shareholders have notification requirements in addition to what is required under Irish law in order to bring a resolution before a meeting of shareholders. For notices relating to the nomination of directors, shareholders must provide all information required to be disclosed in a proxy statement and a description of all direct and indirect compensation and other material monetary agreements during the past three years, and any other material relationships, between the nominee and the shareholders and any associated persons of the nominee and the shareholders, respectively.

 

      

For notices relating to any other business, further information including a comprehensive description of the business desired to be brought before the meeting, the complete text of any proposed resolution and a declaration of any material interest in such business by shareholders and any associated persons are required.

 

      

To be timely, in the case of a resolution to be moved at an annual general meeting, a shareholder’s notice must be delivered to the secretary of Cimpress plc not earlier than the close of business on the 120th day and not later than the close of business on the 90th day prior to the first anniversary of the preceding year’s annual general meeting, provided, however, that in the event that the date of the annual general meeting is more than 30 days before or more than 60 days after such anniversary date, notice by the shareholder to be timely must be so delivered not earlier than the close of business on the 120th day prior to the date of such annual general meeting and not later than the close of business on the later of (i) the 90th day prior to the date of such annual general meeting and (ii) the 5th day following the day on which public announcement of the date of such meeting is first made by Cimpress plc.

 

      

Under U.S. securities laws, if you wish to have a proposal included in our proxy statement for the 2020 annual general meeting, then in addition to the above requirements, you also need to follow the procedures outlined in Rule 14a-8 of the Exchange Act. In order for your proposal to be eligible for inclusion in our proxy statement for our 2020 annual general meeting, we must receive your proposal addressed to our Senior Securities Counsel at the offices of Cimpress USA Incorporated, 275 Wyman Street, Waltham, MA 02451 USA no later than June 27, 2020.

 

      

For proposals made outside the processes of Rule 14a-8 of the Exchange Act to be included in our proxy statement for our 2020 annual general meeting, we must receive such proposals addressed to our Senior Securities Counsel at the offices of Cimpress USA Incorporated, 275 Wyman Street, Waltham, MA 02451 USA no later than September 10, 2020.

 

8


Table of Contents

SUMMARY

This summary highlights selected information from this Proxy Statement. It does not contain all of the information that is important to you. To understand the Merger more fully, and for a more complete legal description of the Merger, you should carefully read the entire Proxy Statement, including the Annexes. The Common Draft Terms of Merger, in the form attached as Annex A to this Proxy Statement, is the legal document that governs the Merger. Cimpress plc’s Constitution substantially in the form attached to this Proxy Statement as Annex B, will govern Cimpress plc upon completion of the Merger. We encourage you to read those documents carefully.

Summary of Proposal Number One: Amend Articles of Association (See page [])

By proposal of our Board, we propose to amend our articles of association by adding a new article 29, in order to include a formula, as referred to in section 2:333h(2), last sentence DCC, on the basis of which the Cash Compensation payable to Electing Shareholders can be determined (the “Cash Compensation Amendment”).

The formula is that the Cash Compensation for each Cimpress N.V. Share which may be requested by each Cimpress N.V. Shareholder who votes against the Merger in the Extraordinary General Meeting is equal to the closing price of a Cimpress N.V. Share on Nasdaq on the first trading date immediately after the expiration of a one-month period, which period starts the day after the date of the Extraordinary General Meeting.

The text of the deed of amendment effecting the Cash Compensation Amendment is attached as Annex C to the electronic copy of this Proxy Statement filed with the SEC and is also available for inspection by Cimpress N.V. Shareholders at Cimpress N.V.’s offices and on our website (http://proxy.ir.cimpress.com) from the date of notice convening the Extraordinary General Meeting.

Recommendation of the Board

Our Board recommends that Cimpress N.V. Shareholders vote “FOR” the proposal.

Summary of Proposal Number Two: The Merger (See page [])

This proposal will only be put to a vote if Proposal Number One has been adopted by Cimpress N.V. Shareholders at the Extraordinary General Meeting and the articles of association have been amended accordingly.

Parties to the Merger

Cimpress N.V. Cimpress N.V. (Nasdaq: CMPR) is a strategically focused group of more than a dozen businesses that specialize in mass customization, via which we deliver large volumes of individually small-sized customized orders for a broad spectrum of print, signage, photo merchandise, invitations and announcements, writing instruments, packaging, apparel and other categories. We invest in and build customer-focused, entrepreneurial mass customization businesses for the long term, which we manage in a decentralized, autonomous manner. Mass customization is a core element of the business model of each Cimpress N.V. business. We drive competitive advantage across Cimpress N.V. through a select few shared strategic capabilities that have the greatest potential to create Cimpress-wide value. We limit all other central activities to only those which absolutely must be performed centrally. To learn more, visit http://www.cimpress.com. The registered office of Cimpress N.V. is located at, Building D, Xerox Technology Park, Dundalk, County Louth, Ireland, and Cimpress N.V.’s telephone number is +353 42-938-8500.

Cimpress plc. Cimpress Limited was incorporated as a private limited company under the laws of Ireland on July 5, 2017 as “Strawpoint Limited” and renamed “Cimpress Limited” on August 13, 2019. Prior to the Effective Date, Cimpress Limited will



 

9


Table of Contents

be re-registered as an Irish public limited company and renamed “Cimpress public limited company”. As a result of the Merger, Cimpress plc will become our new public holding company with a Nasdaq trading symbol of “CMPR” and the parent of our Group. To date, Cimpress Limited has not engaged in any business or conducted any activities other than in connection with its formation and the Merger. The registered office of Cimpress plc will be Building D, Xerox Technology Park, Dundalk, County Louth, Ireland, and Cimpress plc’s telephone number will be +353 42-938-8500.

The Merger (See page [])

Cimpress N.V. Shareholders are being asked to adopt the resolution to enter into the Merger in accordance with the Common Draft Terms of Merger at the Extraordinary General Meeting. Contingent on the approval of the Common Draft Terms of Merger, and assuming the other conditions to the Merger in the Common Draft Terms of Merger are satisfied or waived, Cimpress N.V. Shareholders will receive, on a one-for-one basis, Cimpress plc Shares, unless such Cimpress N.V. Shareholder is an Electing Shareholder.

Steps Required to Effect the Merger

Extraordinary General Meeting. On [●], 2019, we will hold the Extraordinary General Meeting to adopt the proposals, including the adoption of the resolution to enter into the Merger in accordance with the Common Draft Terms of Merger. Cimpress N.V. Shareholders of Record will be asked to vote in favor of the Merger.

The Netherlands.

In connection with the Merger, the following steps will occur:

 

   

The Common Draft Terms of Merger, as well as all other documents required by the DCC will be filed with the Dutch trade register and will be made available at the offices of Cimpress N.V. in Ireland;

 

   

Such filing and publication will be announced in a Dutch national daily newspaper and the Dutch Gazette;

 

   

After one month following the publication in a Dutch national newspaper, a declaration must be received from the district court in Roermond, The Netherlands, that no creditor opposed the Merger pursuant to section 2:316 DCC or, in case of any opposition pursuant to section 2:316 DCC, a declaration that such opposition was withdrawn or discharged; and

 

   

The resolution to enter into the Merger can only be adopted after such declaration.

After the resolution to enter into the Merger has been adopted by Cimpress N.V. Shareholders at the Extraordinary General Meeting, the following steps must be taken in The Netherlands in order to effect the Merger:

 

   

The issuance of the pre-merger certificate by a Dutch civil law notary selected by Cimpress and delivery thereof to Cimpress, in accordance with section 2:333i DCC. Such pre-merger certificate can only be issued after the lapse of the Election Period and provided that Cimpress plc and Cimpress will agree that any Cash Compensation will be paid by Cimpress plc.

 

   

Stichting Continuïteit Cimpress N.V., a foundation incorporated under the laws of The Netherlands, having its seat in Venlo, The Netherlands (the “Foundation”), was granted the right to acquire preferred shares in the capital of Cimpress N.V. as a protective measure (the “Call Option”). The Foundation may only exercise this Call Option in accordance with its objects and the intention of the Foundation set out in its articles of association and set out in the option agreement entered into by the Foundation and Cimpress N.V. The board of the Foundation will irrevocably and unconditionally waive any and all rights under the Call Option in relation to the Merger, as a result of which the Foundation will not have any rights to receive any option rights of Cimpress plc Shares on the occasion of the Merger.



 

10


Table of Contents

Ireland.

In connection with the Merger, the following steps will occur:

 

   

The Common Draft Terms of Merger, as well as all other documents required by the Irish Regulations, will be notified to and filed with the Irish Companies Registration Office and will be made available at the registered office of Cimpress plc in Ireland;

 

   

Such notice and filing will be published in two Irish national daily newspapers and the CRO Gazette;

 

   

Cimpress plc Shareholders will pass a resolution to approve the Common Draft Terms of Merger by special resolution under Irish law;

 

   

Application will be made to the Irish High Court for a pre-merger certificate; and

 

   

Subject to issuance of a pre-merger certificate by the Irish High Court and the issuance of a pre-merger certificate by a Dutch civil law notary, an application will be made to the Irish High Court for an order to confirm legal scrutiny of the Merger and to set the Effective Date and the Effective Time. The hearing of this application will be advertised in the CRO Gazette, the international editions of The Financial Times and The Wall Street Journal and/or such other publications as the Irish High Court may prescribe. Cimpress N.V. Shareholders may attend the approval hearing and make representations at such meeting.

Effectiveness. If all of the conditions are satisfied or waived (and we do not abandon the Merger before obtaining the Irish High Court’s Order), the Merger will take effect at the Effective Time on the Effective Date. We currently anticipate the Effective Date to be on or about [●], 2019. Once the Merger takes effect as provided for in the Irish Regulations, it may not be declared null and void and the Order made by the Irish High Court, specifying the Effective Date, shall constitute conclusive evidence of the effectiveness of the Merger.

In connection with the Merger, the following steps will occur by operation of law on the Effective Date:

 

  1.

Cimpress N.V. will be merged with and into Cimpress plc, with Cimpress plc as the surviving entity and Cimpress N.V. will disappear and cease to exist upon consummation of the Merger;

 

  2.

all of the assets and liabilities of Cimpress N.V. will be transferred by universal succession of title (onder algemene titel) to Cimpress plc;

 

  3.

each Cimpress N.V. Shareholder (other than Cimpress N.V.) will receive one Cimpress plc Share for every Cimpress N.V. Share held by such Cimpress N.V. Shareholder unless such Cimpress N.V. Shareholder is an Electing Shareholder;

 

  4.

all legal proceedings pending by or against Cimpress N.V. will be continued with the substitution, for Cimpress N.V., of Cimpress plc as a party; and

 

  5.

contracts, agreements or instruments to which Cimpress N.V. is a party will be construed and have effect as if Cimpress plc had been a party thereto instead of Cimpress N.V., and Cimpress plc will have the same rights and be subject to the same obligations to which Cimpress N.V. is subject to under such contracts, agreements or instruments.

As a result of the Merger, Cimpress N.V. Shareholders will become Cimpress plc Shareholders, and Cimpress N.V. will cease to exist.

After the Merger, you will own an interest in a company that will continue to conduct the same functions as conducted by Cimpress N.V. before the Merger. The number of Cimpress plc Shares you will own will be the same as the number of Cimpress N.V. Shares you owned immediately before the Merger (unless you vote against the Merger and elect for the Cash Compensation).



 

11


Table of Contents

Cimpress N.V. Shareholders who vote against the Merger and do not wish to become Cimpress plc Shareholders can make use of their Dutch statutory right to elect not to become a Cimpress plc Shareholder and receive Cash Compensation instead, as provided for in section 2:333h, subsection (1) DCC (the “Compensation Mechanism”).

Upon completion of the Merger, we will remain subject to SEC reporting requirements and will continue to report our consolidated financial results in U.S. dollars and in accordance with U.S. GAAP. As required by Irish law, in connection with annual general meetings of Cimpress plc commencing with its 2020 annual general meeting, the Cimpress plc Irish statutory accounts will also be made available to Cimpress plc Shareholders.

Reasons for the Merger (See page [])

Our Board believes that giving effect to the Merger will be in the best interests of Cimpress N.V. and Cimpress N.V. Shareholders. In arriving at this determination, our Board consulted with Cimpress N.V.’s management along with its legal and tax advisors and considered various factors in its deliberations. Our Board concluded that the Merger is likely to result in benefits to Cimpress N.V. and Cimpress N.V. Shareholders, including, among other benefits, maintaining our flexibility on capital allocation strategies, such as the repurchase of Cimpress N.V. Shares at times when we need to cover obligations under our equity compensation plans, for acquisitions or similar transactions or more generally at times when we believe Cimpress N.V. Shares represent an attractive investment for Cimpress N.V. and Cimpress N.V. Shareholders. If Cimpress N.V. Shareholders approve this proposal, the Merger will change Cimpress N.V.’s legal domicile from The Netherlands to Ireland and will result in other changes of a legal nature, the most significant of which are described below under the caption “Comparison of Rights of Shareholders and Governance.”

For further detail, see “Proposal Number Two: The Merger—Reasons for the Merger” and “Risk Factors.”

We cannot assure you that the anticipated benefits of the Merger will be realized. In addition to the potential benefits described above, the Merger will expose us and you to some risks. These risks include the following:

 

   

your rights as a Cimpress N.V. Shareholder will change as a result of the Merger due to differences between Irish law and Dutch law and certain differences between the organizational documents of Cimpress plc and Cimpress N.V.;

 

   

we may choose to abandon or delay the Merger, which may create uncertainty with respect to the tax residency of Cimpress N.V. under the new double taxation treaty between Ireland and The Netherlands;

 

   

the transfer of Cimpress plc Shares after the Merger may be subject to Irish stamp duty, subject to any exemptions and reliefs (for further detail, see “Material Tax Considerations Relating to the Merger—Material Irish Tax Considerations”);

 

   

dividends paid after the Merger may be subject to a dividend withholding tax (“DWT”) in Ireland, subject to exemptions for tax residents of the United States, any European Union member state (excluding Ireland) or a country that has signed a tax treaty with Ireland provided that, in each case, they file a valid Irish Revenue Commissioners DWT form (“DWT Form”) (for further detail, see “Material Tax Considerations Relating to the Merger—Material Irish Tax Considerations”); and

 

   

Irish capital acquisitions tax may apply to a gift or inheritance of Cimpress plc Shares after the Merger, subject to any exemptions and reliefs (for further detail, see “Material Tax Considerations Relating to the Merger—Material Irish Tax Considerations.”).

For further detail, see “Risk Factors” for more information.



 

12


Table of Contents

Tax Considerations of the Merger (See page [])

U.S. Federal Income Tax. The Merger is intended to qualify as a “reorganization” within the meaning of Section 368(a) of the Code. If the Merger is so treated as a “reorganization”, (i) a U.S. Holder will not recognize any gain or loss as a result of the Merger, (ii) a U.S. Holder’s adjusted tax basis in the Cimpress plc Shares received will be equal to the adjusted tax basis of the Cimpress N.V. Shares exchanged therefor and (iii) the holding period of the Cimpress plc Shares received as a result of the exchange will include the holding period of Cimpress N.V. Shares surrendered in the Merger.

Irish Tax. It is anticipated that the Merger will not be a taxable event from an Irish tax perspective. As a result, it is anticipated that the Merger will not give rise to any Irish capital gains tax consequences for Cimpress N.V. Shareholders. It is expected that for the majority of transfers of Cimpress plc Shares, there should not be any stamp duty. Transfers of Cimpress plc Shares effected by means of the transfer of book-entry interests in DTC should not be subject to Irish stamp duty, subject to confirmation by the Irish Revenue Commissioners in advance of the Merger. However, if you hold your Cimpress plc Shares directly rather than beneficially through DTC, any transfer of your Cimpress plc Shares could be subject to Irish stamp duty (currently at the rate of 1% of the higher of the price paid or the market value of the shares acquired). For further detail, see “Material Tax Considerations Relating to the Merger—Material Irish Tax Considerations.”

Dutch Tax. We believe that (i) Cimpress N.V. Shareholders who are not resident in The Netherlands will generally not be subject to Dutch (corporate) income tax in respect of the Merger, subject to certain exceptions, and (ii) Cimpress N.V. Shareholders who are resident in The Netherlands may be subject to Dutch (corporate) income tax in respect of the Merger, depending on the tax regime applicable to such holder. For further detail, see “Material Tax Considerations Relating to the Merger—Material Dutch Tax Considerations.”

You should consult your personal tax advisors concerning the tax consequences of receiving, holding, disposing of, and receiving dividends on, Cimpress plc Shares received pursuant to the Merger.

Comparison of Rights of Shareholders and Governance (See page [])

Your rights as a Cimpress N.V. Shareholder are currently governed by Dutch law and Cimpress N.V.’s articles of association. Following the Merger, you will become a Cimpress plc Shareholder and your rights as a Cimpress plc Shareholder will be governed by Irish law and Cimpress plc’s Constitution. The legal system governing companies organized under Irish law differs from the legal system governing companies organized under Dutch law. As a result, while many of the principal attributes of Cimpress N.V. Shares and Cimpress plc Shares will be similar under Dutch and Irish law, differences will exist.

We summarize your rights as a Cimpress plc Shareholder under “Description of Cimpress plc Shares” and provide a summary comparing your rights as a Cimpress N.V. Shareholder and a Cimpress plc Shareholder under the heading “Comparison of Rights of Shareholders and Governance”. A copy of Cimpress plc’s Constitution is attached as Annex B to this proxy statement.

Stock Exchange Listing (See page [])

The Merger is not expected to affect our stock exchange listing on Nasdaq. Cimpress N.V. Shares are expected to continue to trade on Nasdaq until the Effective Date. Immediately following the Effective Date, Cimpress plc Shares will be listed on Nasdaq under the symbol “CMPR,” the same symbol under which Cimpress N.V. Shares are currently listed.

Upon completion of the Merger, we will remain subject to SEC reporting requirements, the mandates of the Sarbanes-Oxley Act of 2002 and the applicable corporate governance rules of Nasdaq, and we will continue to report our consolidated financial results in U.S. dollars and in accordance with U.S. GAAP.



 

13


Table of Contents

Market Price (See page [])

On [●], 2019 the closing price of Cimpress N.V. Shares was $[●] per share.

Accounting Treatment of the Merger (See page [])

Under U.S. GAAP, the Merger represents a transaction between entities under common control. Assets and liabilities transferred between entities under common control are accounted for at historical cost. Accordingly, the assets and liabilities of Cimpress plc will be reflected at their carrying amounts in the accounts of Cimpress N.V. at the time of the Merger.

Recommendation of the Board

Our Board recommends that Cimpress N.V. Shareholders vote “FOR” the proposal.

Summary of Proposal Number Three: The Distributable Profits Proposal (See page [])

Under Irish law, Cimpress plc may only pay dividends, make other distributions and, generally, effect share repurchases and redemptions from “distributable profits” shown in Cimpress plc’s unconsolidated financial statements prepared in accordance with the Irish Companies Act and filed with the Irish Companies Registration Office.

Immediately following the Merger, Cimpress plc will not have any distributable profits of its own. Accordingly, you are being asked to approve the Distributable Profits Proposal, to enable, subject to the effectiveness of the Merger, the creation of distributable profits of Cimpress plc under Irish law by reducing the entire share premium of Cimpress plc (or such lesser amount as may be approved by the Cimpress plc Board) resulting from the allotment and issuance of Cimpress plc Shares pursuant to the Merger, such that the reserve resulting from the cancellation of such share premium will be treated as distributable profits. Cimpress N.V. Shareholders are being asked to vote to approve the Distributable Profits Proposal in satisfaction of certain equitable requirements of the Irish High Court.

In addition to the approval of Cimpress N.V. Shareholders, the Distributable Profits Proposal also requires the passing of a special resolution of Cimpress plc, which will be undertaken by Cimpress plc Shareholders prior to the Effective Date and the approval of the Irish High Court. If the Distributable Profits Proposal is approved by Cimpress N.V. Shareholders and Cimpress plc Shareholders prior to the Effective Date and the Effective Time, Cimpress plc intends to seek the approval of the Irish High Court for the Distributable Profits Proposal as soon as practicable following the Effective Date. Although Cimpress N.V. is not aware of any reason why the Irish High Court would not approve the Distributable Profits Proposal, such approval is a matter of judicial discretion and there is no guarantee that such approval will be forthcoming.

While the Cimpress N.V. Board recommends that Cimpress N.V. Shareholders vote for the Distributable Profits Proposal, the passing of the Distributable Profits Proposal is not a condition to the Merger. If the Distributable Profits Proposal is not approved by Cimpress N.V. Shareholders and the Irish High Court, Cimpress plc will not be able to pay dividends, make other distributions and, generally, effect share repurchases and redemptions until such time as it has otherwise generated sufficient distributable profits from its operational activities following the Merger.

Recommendation of the Board

Our Board recommends that Cimpress N.V. Shareholders vote “FOR” the proposal.



 

14


Table of Contents

SELECTED HISTORICAL CONSOLIDATED FINANCIAL DATA

The following table presents selected historical consolidated financial data for Cimpress N.V. as of and for the fiscal years ended June 30, 2019, 2018, 2017, 2016 and 2015. We derived the income statement data for the fiscal years ended June 30, 2019, 2018, 2017, 2016 and 2015. The consolidated financial statements for interim periods reflect all adjustments of a normal, recurring nature that are, in the opinion of management, necessary for a fair presentation of results for interim periods. Historical financial information may not be indicative of Cimpress plc’s future performance.

The selected historical financial data presented below should be read in conjunction with the “Management’s Discussion and Analysis of Financial Condition and Results of Operations” attached as Annex E to this Proxy Statement and in our Annual Report on Form 10-K for the year ended June 30, 2019 (our “Form 10-K”) and other financial information which is included below in this Proxy Statement.

 

    Year Ended June 30,  
    2019 (a)     2018 (b)     2017 (c)     2016 (d)     2015 (e)  
    (In thousands, except share and per share data)  

Consolidated Statements of Operations Data:

         

Revenue

  $ 2,751,076     $ 2,592,541     $ 2,135,405     $ 1,788,044     $ 1,494,206  

Net income (loss) attributable to Cimpress N.V.

    95,052       43,733       (71,711     54,349       92,212  

Net income (loss) per share attributable to Cimpress N.V.:

         

Basic

  $ 3.09     $ 1.41     $ (2.29   $ 1.72     $ 2.82  

Diluted (f)

  $ 3.00     $ 1.36     $ (2.29   $ 1.64     $ 2.73  

Shares used in computing net income (loss) per share attributable to Cimpress N.V.:

         

Basic

    30,786,349       30,948,081       31,291,581       31,656,234       32,644,870  

Diluted (f)

    31,662,705       32,220,401       31,291,581       33,049,454       33,816,498  

 

     Year Ended June 30,  
     2019 (a)     2018 (b)     2017 (c)     2016 (d)     2015 (e)  
     (In thousands)  

Consolidated Statements of Cash Flows Data:

          

Net cash provided by operating activities

   $ 331,095     $ 192,332     $ 156,736     $ 247,358     $ 242,022  

Purchases of property, plant and equipment

     (70,563     (60,930     (74,157     (80,435     (75,813

Purchases of ordinary shares

     (55,567     (94,710     (50,008     (153,467     —    

Business acquisitions, net of cash acquired

     (289,920     (110     (204,875     (164,412     (123,804

Proceeds from the sale of subsidiaries, net of transaction costs and cash divested

     —         93,779       —         —         —    

Net proceeds (payments) of debt and debt issuance costs

     190,182       (54,415     196,933       167,316       54,207  


 

15


Table of Contents
     Year Ended June 30,  
     2019 (a)     2018 (b)     2017 (c)     2016 (d)     2015 (e)  
     (In thousands)  

Consolidated Balance Sheet Data:

          

Cash, cash equivalents and marketable securities

   $ 35,279     $ 44,227     $ 25,697     $ 85,319     $ 110,494  

Net current liabilities (g)

     (280,449     (241,728     (203,482     (135,095     (89,580

Total assets

     1,868,376       1,652,217       1,679,869       1,463,869       1,299,794  

Total long-term debt, excluding current portion (h)

     942,290       767,585       847,730       656,794       493,039  

Total shareholders’ equity

     131,812       93,947       75,212       166,076       249,419  

 

(a)

Includes the impact of our acquisitions of VIDA on July 2, 2018 and BuildASign on October 1, 2018. See Note 7 in our accompanying financial statements in our Form 10-K for a discussion of these acquisitions.

(b)

Includes the Albumprinter results through the divestiture date of August 31, 2017. See Note 7 in our accompanying financial statements in our Form 10-K for a discussion of this divestiture.

(c)

Includes the impact of the acquisition of National Pen on December 30, 2016. See Note 7 in our accompanying financial statements in our Form 10-K for a discussion of this acquisition. During December 2016, we purchased the remaining noncontrolling interest of our Japan business from our joint business partner, Plaza Create Co. Ltd.

(d)

Includes the impact of the acquisitions of Litotipografia Alcione S.r.l. on July 29, 2015, Tradeprint Distribution Limited on July 31, 2015, and WIRmachenDRUCK GmbH on February 1, 2016.

 

 

During fiscal 2016, we adopted Accounting Standards Update (ASU) 2016-09 requiring the recognition of excess tax benefits as a component of income tax expense; these benefits were historically recognized in equity. As the standard required a prospective method of adoption, our fiscal 2019, 2018, 2017 and 2016 net income includes $1.5 million, $12.8 million, $8.0 million and $3.5 million of income tax benefits, respectively, due to the adoption that did not occur in the prior comparable periods presented above.

 

(e)

Includes the impact of the acquisitions of FotoKnudsen AS on July 1, 2014, FL Print SAS on April 9, 2015, Exagroup SAS on April 15, 2015 and druck.at Druck-und Handelsgesellschäft mbH on April 17, 2015, as well as our investment in Printi LLC on August 7, 2014.

(f)

In the periods we report a net loss, the impact of share options, RSUs, and RSAs is not included as they are anti-diluve.

(g)

Many of our businesses have a cash conversion cycle that results in current liabilities being higher than current assets. Our net current liabilities (current assets minus current liabilities) have expanded over recent years as we have increased focus on net working capital improvements.

(h)

On June 15, 2018, we completed a private placement of $400.0 million of 7.0% senior unsecured notes due 2026. The proceeds from the sale of the notes were used to repay our existing $275.0 million senior unsecured notes that were due 2022, a portion of our indebtedness outstanding under our senior secured credit facility and other related transaction fees. See Note 10 in the accompanying financial statements in our Form 10-K for additional discussion. Increases in long-term debt during the periods presented have largely been driven by the funding of acquisitions including those outlined in Note 7 in the accompanying financial statements in our Form 10-K and share repurchases.



 

16


Table of Contents

The following table presents selected historical consolidated financial data for Cimpress as of and for the fiscal years ended June 30, 2019 and 2018. We derived the income statement data for the fiscal years ended June 30, 2019 and 2018. The consolidated financial statements for interim periods reflect all adjustments of a normal, recurring nature that are, in the opinion of management, necessary for a fair presentation of results for interim periods. Historical financial information may not be indicative of Cimpress plc’s future performance.

 

Year Ended June 30, 2019

   First
Quarter
     Second
Quarter
     Third
Quarter
     Fourth
Quarter
 

Revenue

   $ 588,981      $ 825,567      $ 661,814      $ 674,714  

Cost of revenue

     302,471        411,496        342,700        344,677  

Net income (loss)

     (14,994      69,037        6,242        33,195  

Net income (loss) attributable to Cimpress

     (14,639      69,014        6,530        34,147  

Net income (loss) per share attributable to Cimpress:

           

Basic

   $ (0.47    $ 2.24      $ 0.21      $ 1.11  

Diluted

   $ (0.47    $ 2.17      $ 0.21      $ 1.09  

 

Year Ended June 30, 2018

   First
Quarter
     Second
Quarter
     Third
Quarter
     Fourth
Quarter
 

Revenue

   $ 563,284      $ 762,054      $ 636,069      $ 631,134  

Cost of revenue

     283,755        360,285        319,209        316,550  

Net income (loss)

     23,406        30,623        (1,602      (5,639

Net income (loss) attributable to Cimpress

     23,363        29,935        (2,265      (7,300

Net income (loss) per share attributable to Cimpress:

           

Basic

   $ 0.75      $ 0.96      $ (0.07    $ (0.24

Diluted

   $ 0.72      $ 0.93      $ (0.07    $ (0.24

Basic and diluted net income (loss) per share attributable to Cimpress are computed independently for each of the quarters presented. Therefore, the sum of quarterly basic and diluted per share information may not equal annual basic and diluted net income per share.

Unaudited Summary Pro Forma Financial Information

Pro forma financial statements for Cimpress plc are not presented in this Proxy Statement because no significant pro forma adjustments giving effect to the Merger are required to be made to Cimpress N.V.’s historical income statement for the fiscal year ended June 30, 2019 or Cimpress N.V.’s historical balance sheet as of June 30, 2019. Those historical financial statements are included in Cimpress N.V.’s Annual Report on Form 10-K for the year ended June 30, 2019 and Quarterly Report on Form 10-Q for the period ended March 31, 2019.

Unaudited Financial Statements of Cimpress Plc

Cimpress Limited was incorporated under the laws of Ireland as a private limited company on July 5, 2017 with the name “Strawpoint Limited”. On August 13, 2019, Strawpoint Limited was renamed as “Cimpress Limited”. Cimpress Limited was incorporated with two shareholders contributing total initial share capital of €100 in exchange for 100 ordinary shares of €1.00 par value. These shares were subsequently transferred to its current sole shareholder on December 6, 2017.



 

17


Table of Contents

Cimpress Limited

Balance Sheet (Unaudited)

(Euro in actuals)

 

     June 30,
2019
     June 30,
2018
 

Assets

     

Cash and cash equivalents

   100      100  
  

 

 

    

 

 

 

Total assets

   100      100  
  

 

 

    

 

 

 

Shareholders’ equity:

     

Ordinary shares, par value €1.00 per share, 100 shares issued and outstanding

   100      100  
  

 

 

    

 

 

 

Total shareholders’ equity

   100      100  
  

 

 

    

 

 

 


 

18


Table of Contents

RISK FACTORS

Before you decide how to vote, you should carefully consider the following risk factors related to the Merger, in addition to the other information contained in this Proxy Statement, including, without limitation, our Form 10-K, and subsequent filings with the SEC.

Your rights as a Cimpress N.V. Shareholder will change as a result of the Merger due to differences between Irish law and Dutch law.

Your rights as a Cimpress N.V. Shareholder are currently governed by Dutch law and Cimpress N.V.’s articles of association. Following the Merger, you will become a Cimpress plc Shareholder and your rights as a Cimpress plc Shareholder will be governed by Irish law and Cimpress plc’s Constitution. The legal system governing companies organized under Irish law differs from the legal system governing companies organized under Dutch law. As a result, while many of the principal attributes of Cimpress N.V. Shares and Cimpress plc Shares will be similar under Dutch and Irish law, differences will exist, which, in some cases, may provide fewer protections for Cimpress plc Shareholders. We summarize your rights as a Cimpress plc Shareholder under “Description of Cimpress plc Shares” and provide a summary comparing your rights as a Cimpress N.V. Shareholder and a Cimpress plc Shareholder under the heading “Comparison of Rights of Shareholders and Governance”.

The operation of the Irish Takeover Rules may affect the ability of certain parties to acquire Cimpress plc Shares.

Following the completion of the Merger, Cimpress plc will be subject to the Irish Takeover Panel Act 1997, as amended, and the Irish Takeover Rules promulgated thereunder, which regulate the conduct of takeovers of, and certain other relevant transactions affecting, Irish public limited companies listed on certain stock exchanges, including Nasdaq.

Under the Irish Takeover Rules, if an acquisition of Cimpress plc Shares were to increase the aggregate holding of the acquirer and its concert parties to a level that represents 30% or more of the voting rights of Cimpress plc, the acquirer and, in certain circumstances, its concert parties would be required (except with the consent of the Irish Takeover Panel) to make an offer for the outstanding Cimpress plc Shares at a price not less than the highest price paid by the acquirer or its concert parties for Cimpress plc Shares during the previous 12 months. This requirement would also be triggered by an acquisition of Cimpress plc Shares by a person holding (together with its concert parties) Cimpress plc Shares that represent between 30% and 50% of the voting rights in the company if the effect of such acquisition were to increase that person’s percentage of the voting rights by 0.05% within a 12-month period. Following the authorization for trading of Cimpress plc Shares on Nasdaq, under the Irish Takeover Rules, certain persons will be presumed to be acting in concert. The Cimpress plc Board and their relevant family shareholders, related trusts and “controlled companies” are presumed to be acting in concert with any corporate shareholder who holds 20% or more of the voting Cimpress plc Shares. The application of these presumptions may result in restrictions upon the ability of any of the concert parties and/or shareholders or the Cimpress plc Board to acquire more of our securities, including under the terms of any executive incentive arrangements. Following the listing of Cimpress plc Shares on Nasdaq, we may consult with the Irish Takeover Panel with respect to the application of this presumption and the restrictions on the ability to acquire further securities, although we are unable to provide any assurance as to whether the Irish Takeover Panel will overrule this presumption. For a description of certain takeover provisions applicable to Cimpress plc, see “Description of Cimpress plc Shares – Irish Takeover Rules” beginning on page [●]. Accordingly, the application of the Irish Takeover Rules may restrict the ability of certain of our shareholders and directors to acquire our ordinary shares.

 

19


Table of Contents

Anti-takeover provisions in Cimpress plc’s Constitution could make an acquisition of Cimpress plc more difficult, limit attempts by Cimpress plc shareholders to replace or remove our directors and management team and limit the market price of Cimpress plc Shares.

Cimpress plc’s Constitution will contain provisions that may delay or prevent a change of control, discourage bids at a premium over the market price of Cimpress plc Shares and adversely affect the market price of Cimpress plc Shares and the voting and other rights of Cimpress plc Shareholders. These provisions include: (1) permitting the Cimpress plc Board to issue preference shares without shareholder approval, with such rights, preferences and privileges as they may designate; (2) allowing the Cimpress plc Board to adopt a shareholder rights plan upon such terms and conditions as it deems expedient; (3) establishing an advance notice procedure for shareholder proposals to be brought before the annual general meeting, including proposed nominations of persons for election to the Cimpress plc Board; (4) permitting the Cimpress plc Board to fill vacancies on the Cimpress plc Board in certain circumstances; and (5) imposing particular approvals and other requirements in relation to certain business combinations.

These provisions do not make Cimpress plc immune from takeovers. However, these provisions may frustrate or prevent any attempts by shareholders to replace or remove the management team by making it more difficult for shareholders to replace members of the Cimpress plc Board.

If the Distributable Profits Proposal is not approved by Cimpress N.V. Shareholders and the Irish High Court, Cimpress plc will not be able to pay dividends, make other distributions and, generally, effect share repurchases and redemptions until such time as it has otherwise generated sufficient distributable profits from its operational activities following the Merger.

Under Irish law, Cimpress plc may only pay dividends, make other distributions and, generally, effect share repurchases and redemptions from “distributable profits” shown in Cimpress plc’s unconsolidated financial statements prepared in accordance with the Irish Companies Act and filed with the Irish Companies Registration Office.

Immediately following the Merger, Cimpress plc will not have any distributable profits. Accordingly, you are being asked to approve the Distributable Profits Proposal, to enable, subject to the effectiveness of the Merger, the creation of distributable profits of Cimpress plc under Irish law by reducing the entire share premium of Cimpress plc (or such lesser amount as may be approved by the Cimpress plc Board) resulting from the allotment and issuance of Cimpress plc Shares pursuant to the Merger, such that the reserve resulting from the cancellation of such share premium will be treated as distributable profits. Cimpress N.V. Shareholders are being asked to vote to approve the Distributable Profits Proposal in satisfaction of certain equitable requirements of the Irish High Court.

In addition to the approval of Cimpress N.V. Shareholders, the Distributable Profits Proposal also requires the passing of a special resolution of Cimpress plc, which will be undertaken by Cimpress plc Shareholders prior to the Effective Date and the approval of the Irish High Court. If the Distributable Profits Proposal is approved by Cimpress N.V. Shareholders and Cimpress plc Shareholders prior to the Effective Date and the Merger becomes effective, Cimpress plc intends to seek the approval of the Irish High Court for the Distributable Profits Proposal as soon as practicable following the Effective Date. Although Cimpress N.V. is not aware of any reason why the Irish High Court would not approve the Distributable Profits Proposal, such approval is a matter of judicial discretion and there is no guarantee that such approval will be forthcoming.

If the Distributable Profits Proposal is not approved by Cimpress N.V. Shareholders and the Irish High Court, Cimpress plc will not be able to pay dividends, make other distributions and, generally, effect share repurchases and redemptions until such time as it has otherwise generated sufficient distributable profits from its operational activities following the Merger.

 

20


Table of Contents

We may choose to abandon or delay the Merger. In addition, we may not be able to receive the requisite governmental approvals to consummate the Merger.

We currently expect to complete the Merger on or about [●], 2019. However, our Board may delay the Merger for a significant time or may abandon the Merger after the Extraordinary General Meeting and before the issuance of the Order of the Irish High Court because, among other reasons, of a determination by our Board that completing the Merger is no longer in our best interest or the best interests of Cimpress N.V. Shareholders or may not result in the benefits we expect. Additionally, we may not be able to obtain the requisite court or other approvals. For further detail, see “Proposal Number Two: The Merger—Conditions to the Consummation of the Merger” and “Proposal Number Two: The Merger—Amendment, Termination or Delay.”

If Cimpress plc Shares are not eligible for deposit and clearing within the facilities of DTC, then transactions in Cimpress plc Shares may be disrupted.

The facilities of DTC are a widely used mechanism that allow for rapid electronic transfers of securities between the participants in the DTC system, which include many large banks and brokerage firms.

Upon the completion of the Merger, Cimpress plc Shares will be eligible for deposit and clearing within the DTC system. We expect to enter into arrangements with DTC whereby Cimpress plc will agree to indemnify DTC for any Irish stamp duty that may be assessed upon it as a result of its service as a depositary and clearing agency for Cimpress plc Shares. We expect that these actions, among others, will result in DTC agreeing to accept the shares for deposit and clearing within its facilities upon completion of the Merger.

DTC is not obligated to accept Cimpress plc Shares for deposit and clearing within its facilities at the closing of the Merger and, even if DTC does initially accept the Cimpress plc Shares, it will generally have discretion, as it currently has with regard to Cimpress N.V. Shares, to cease to act as a depositary and clearing agency for the shares. If DTC determined prior to the completion of the Merger that Cimpress plc Shares are not eligible for clearance within the DTC system, then we would not expect to complete the transactions contemplated by this Proxy Statement in their current form. However, if DTC determined at any time after the completion of the Merger that Cimpress plc Shares were not eligible for continued deposit and clearance within its facilities, then we believe Cimpress plc Shares would not be eligible for continued listing on a U.S. securities exchange and trading in Cimpress plc Shares would be disrupted. Although we expect Cimpress plc would pursue alternative arrangements to preserve its listing and maintain trading, any such disruption could have a material adverse effect on the trading price of Cimpress plc Shares.

Transfers of Cimpress plc Shares, other than by means of the transfer of book-entry interests in the DTC, may be subject to Irish stamp duty.

It is expected that for the majority of transfers of Cimpress plc Shares, there should not be any stamp duty. Transfers of Cimpress plc Shares effected by means of the transfer of book-entry interests in DTC should not be subject to Irish stamp duty, subject to confirmation by the Irish Revenue Commissioners in advance of the Merger. However, if you hold your Cimpress plc Shares directly rather than beneficially through DTC, any transfer of your Cimpress plc Shares could be subject to Irish stamp duty (currently at the rate of 1% of the higher of the price paid or the market value of the shares acquired).

A Cimpress plc Shareholder who directly holds Cimpress plc Shares of record may transfer those shares into his or her own broker account to be held through DTC (or vice versa) and this should not give rise to Irish stamp duty provided that there is no change in the beneficial ownership of the shares as a result of the transfer and the transfer is not in contemplation of a sale of the shares by a beneficial owner to a third party.

Due to the potential Irish stamp duty charge on transfers of Cimpress plc Shares held outside DTC, those Cimpress N.V. Shareholders who do not hold their Cimpress N.V. Shares through DTC (or through a broker who in turn holds such shares through DTC) should, upon completion of the Merger, consider holding Cimpress plc Shares received by them through DTC.

 

21


Table of Contents

For further detail, see “Material Tax Considerations Relating to the Merger—Material Irish Tax Considerations.”

You should consult your personal tax advisors as to the tax consequences of disposing of Cimpress plc Shares received pursuant to the Merger.

Dividends you receive after the Merger may be subject to DWT, subject to exemptions.

As an Irish tax resident company, we will be required to deduct DWT (currently at the rate of 20%) from dividends paid on Cimpress plc Shares unless Cimpress plc Shareholders qualify for an exemption. Cimpress plc Shareholders resident in the EU, and other countries with which Ireland has a tax treaty (which includes the United States) will generally not be subject to DWT, provided that, in each case, they file a valid DWT Form. However, Cimpress plc Shareholders residing in other countries will generally be subject to DWT. For further detail, see “Material Tax Considerations Relating to the Merger—Material Irish Tax Considerations.”

You should consult your personal tax advisors as to the tax consequences of receiving dividends on Cimpress plc Shares.

Cimpress plc Shares received by means of a gift or inheritance may be subject to Irish capital acquisitions tax, subject to any exemptions and reliefs.

For further detail, see “Material Tax Considerations Relating to the Merger—Material Irish Tax Considerations.”

We recommend that you consult your personal advisors to consider your estate planning needs, including transfers of Cimpress plc Shares to family members and charitable organizations.

 

22


Table of Contents

PROPOSAL NUMBER ONE: AMEND ARTICLES OF ASSOCIATION

By proposal of our Board, we propose to amend our articles of association by adding a new article 29, in order to include the Cash Compensation Amendment.

The new article 29 reads as follows:

If the company enters into a merger with Cimpress plc, a public limited company incorporated under the laws of Ireland (“Cimpress plc”) in accordance with the joint merger proposal dated [●], 2019 prepared by the Board of Directors of the company and the board of directors of Cimpress plc, which merger proposal includes an exchange ratio of one share in the share capital of Cimpress plc in exchange for one (1) share in the share capital of the company (the “Exchange Ratio”), the cash compensation for each share which may be requested by each shareholder who votes against the intended merger in the general meeting (the “General Meeting”) due to article 2:333h Dutch Civil Code, is equal to the price of the shares on the Nasdaq Global Stock Market on the first trading date immediately after the expiration of a one month period, which period starts the day after the date of the General Meeting.

If Cimpress N.V. shareholders adopt this Proposal Number One, then the Cash Compensation Amendment will be effected immediately by the execution of the notarial deed of amendment to our articles of association. By voting in favor of this Proposal Number One, Cimpress N.V. Shareholders designate each member of the Cimpress N.V. Board and each civil-law notary (notaris), prospective civil-law notary (kandidaat-notaris) and notarial paralegal of Stibbe N.V. in Amsterdam, our Dutch law firm, to make any adjustments that are necessary as well as to sign and execute the notarial deed of amendment to our articles of association to effectuate the Cash Compensation Amendment and to undertake all other activities as the authorized person deems necessary or useful. The text of this deed of amendment effecting the Cash Compensation Amendment is attached as Annex C to the electronic copy of this Proxy Statement filed with the SEC and is also available for inspection by Cimpress N.V. Shareholders at Cimpress N.V.’s offices and on our website [●] from the date of notice convening the Extraordinary General Meeting.

Required Vote

Adoption of the proposal to amend Cimpress N.V.’s articles of association requires the approval of a majority of votes cast at a meeting at which a quorum is present. Pursuant to the articles of association, a quorum is present when one-third of the outstanding Cimpress N.V. Shares are represented at the Extraordinary General Meeting.

Recommendation of the Board

Our Board recommends that Cimpress N.V. Shareholders vote “FOR” the proposal.

 

23


Table of Contents

PROPOSAL NUMBER TWO: THE MERGER

Cimpress N.V. Shareholders are being asked to adopt the resolution to enter into the Merger in accordance with the Common Draft Terms of Merger at the Extraordinary General Meeting. Upon the approval thereof, and assuming the other conditions to the Merger are satisfied or waived, Cimpress N.V. Shareholders will receive, on a one-for-one basis, Cimpress plc Shares.

A cross-border merger of companies from different states within the European Economic Area (“EEA”) is governed by the Directive, which provides a set of procedures for the merger of companies from different states within the EEA. Because the Merger comes within the scope of the Directive, it must comply with both the Irish Regulations and the relevant provisions of the DCC, which implemented the Directive in Ireland and The Netherlands, respectively. Although the Directive is binding with respect to the ends it must achieve, each EEA state has a degree of autonomy regarding the means with which it will implement the Directive domestically. Some differences therefore arise between the measures implementing the Directive across EEA jurisdictions, including between Ireland and the Netherlands.

The Merger is to be structured as a “merger by acquisition” under the Irish Regulations and section 2:309 and section 2:333c DCC, the result of which is that all the assets of Cimpress N.V. will be acquired by Cimpress plc by operation of law and all of the liabilities of Cimpress N.V. will be assumed by Cimpress plc by operation of law, and Cimpress N.V. will be dissolved without going into liquidation.

Steps Required to Effect the Merger

Extraordinary General Meeting. On [●], 2019, we will hold the Extraordinary General Meeting to adopt the proposals, including the adoption of the resolution to enter into the Merger in accordance with the Common Draft Terms of Merger. Cimpress N.V. Shareholders of Record will be asked to vote in favor of the Merger. As a condition to the Merger, Cimpress plc Shareholders are also required to approve the Merger.

The Netherlands.

In connection with the Merger, the following steps will occur:

 

   

The Common Draft Terms of Merger, as well as all other documents required by the DCC will be filed with the Dutch trade register and will be made available at the offices of Cimpress N.V. in Ireland;

 

   

Such filing and publication will be announced in a Dutch national daily newspaper and the Dutch Gazette;

 

   

After one month after the publication in a Dutch national newspaper, a declaration must be received from the district court in Roermond, The Netherlands, that no creditor opposed the Merger pursuant to section 2:316 DCC or, in case of any opposition pursuant to section 2:316 DCC, a declaration that such opposition was withdrawn or discharged; and

 

   

The resolution to enter into the Merger can only be adopted after such declaration.

After the resolution to enter into the Merger has been adopted by Cimpress N.V. Shareholders at the Extraordinary General Meeting, once Cimpress N.V. Shareholders have adopted the resolution to enter into the Merger at the Extraordinary General Meeting, the following steps must be taken in the Netherlands in order to effect the Merger:

 

   

The issuance by a Dutch civil law notary selected by Cimpress N.V. of the pre-merger certificate and delivery thereto to Cimpress N.V., in accordance with section 2:333i DCC. Such pre-merger certificate can only be issued after the lapse of the Election Period and taking into account that Cimpress plc and Cimpress N.V. will agree that any Cash Compensation will be paid by Cimpress plc.

 

   

The Foundation was granted a Call Option. The Foundation may only exercise this Call Option taking into account its objectives and the intention of the Foundation set out in its articles of association and

 

24


Table of Contents
 

set out in the option agreement entered into by the Foundation and Cimpress N.V. The board of the Foundation will irrevocably and unconditionally waive any and all rights under the Call Option in relation to the Merger, as a result of which the Foundation will not have any rights to receive any option rights of Cimpress plc Shares after the Merger.

Ireland.

In connection with the Merger, the following steps will occur:

 

   

The Common Draft Terms of Merger, as well as all other documents required by the Irish Regulations, will be notified to and filed with the Irish Companies Registration Office and will be made available at the registered office of Cimpress plc in Ireland;

 

   

Such notice and filing will be published in two Irish national daily newspapers and the CRO Gazette;

 

   

Cimpress plc Shareholders will pass a resolution to approve the Common Draft Terms of Merger by special resolution under Irish law;

 

   

Application will be made to the Irish High Court for a pre-merger certificate; and

 

   

Subject to issuance of a pre-merger certificate by the Irish High Court and the issuance of a pre-merger certificate by a Dutch civil law notary, an application will be made to the Irish High Court for an order to confirm legal scrutiny of the Merger and to set the Effective Date and the Effective Time. The hearing of this application will be advertised in the CRO Gazette, the international editions of the Financial Times and the Wall Street Journal and/or such other publications as the Irish High Court may prescribe. Cimpress N.V. Shareholders may attend the approval hearing and make representations at such meeting.

Effectiveness. If all of the conditions are satisfied or waived (and we do not abandon the Merger before obtaining the Irish High Court’s Order), the Merger will take effect at the Effective Time on the Effective Date. We currently anticipate the Effective Date to be on or about [●], 2019. Once the Merger takes effect as provided for in the Irish Regulations, it may not be declared null and void and the Order made by the Irish High Court, specifying the Effective Date, shall constitute conclusive evidence of the effectiveness of the Merger.

In connection with the Merger, the following steps will occur by operation of law on the Effective Date:

 

  1.

Cimpress N.V. will be merged with and into Cimpress plc, with Cimpress plc as the surviving entity and Cimpress N.V. will disappear and cease to exist upon consummation of the Merger;

 

  2.

all of the assets and liabilities of Cimpress N.V. will be transferred by universal succession of title (onder algemene titel) to Cimpress plc;

 

  3.

each Cimpress N.V. Shareholder (other than Cimpress N.V.) will receive one Cimpress plc Share for every Cimpress N.V. Share held by such Cimpress N.V. Shareholder, unless such Cimpress N.V. Shareholder is an Electing Shareholder;

 

  4.

all legal proceedings pending by or against Cimpress N.V. will be continued with the substitution, for Cimpress N.V., of Cimpress plc as a party; and

 

  5.

contracts, agreements or instruments to which Cimpress N.V. is a party will be construed and have effect as if Cimpress plc had been a party thereto instead of Cimpress N.V., and Cimpress plc will have the same rights and be subject to the same obligations to which Cimpress N.V. is subject to under such contracts, agreements or instruments.

As a result of the Merger, Cimpress N.V. Shareholders will become Cimpress plc Shareholders, and Cimpress N.V. will cease to exist.

After the Merger, you will own an interest in a company that will continue to conduct the same functions as conducted by Cimpress N.V. before the Merger. The number of Cimpress plc Shares you will own will be the same as the number of Cimpress N.V. Shares you owned immediately before the Merger.

 

25


Table of Contents

The completion of the Merger will change the form of our company and the governing companies law that applies to us from Dutch law to Irish law. Although many of the principal attributes of the Cimpress N.V. Shares and Cimpress plc Shares will be similar, there are differences between what your rights will be as a shareholder under Irish law and what they currently are as a shareholder under Dutch law. In addition, there are differences between the organizational documents of Cimpress plc and Cimpress N.V. We discuss these differences in detail under “Description of Cimpress plc Shares” and “Comparison of Rights of Shareholders and Governance.”

Compensation Mechanism

General

If the resolution to enter into the Merger is adopted by Cimpress N.V. Shareholders at the Extraordinary General Meeting, a Compensation Mechanism will be provided for those Cimpress N.V. Shareholders who have voted against the Merger and who do not wish to become Cimpress plc Shareholders. Such Electing Shareholder may file a request for compensation with Cimpress N.V. (the “Compensation Request “) in accordance with the DCC within a period of one month beginning on the day after the Extraordinary General Meeting (the “Election Period”).

A Cimpress N.V. Shareholder who has voted in favor of the Merger at the Extraordinary General Meeting, abstained from voting, or was not present or represented at the Extraordinary General Meeting, does not have any rights under the Cash Compensation Mechanism. An Electing Shareholder can make use of the Cash Compensation Mechanism only in respect of the Cimpress N.V. Shares that such Electing Shareholder: (i) held at the Record Date, (ii) voted against the Merger; and (iii) still holds at the time of the Compensation Request.

Cimpress N.V. Shareholders should note that: (i) once the Election Period has ended, any Compensation Request will be irrevocable; and (ii) following the submission of a Compensation Request, the Electing Shareholders will not be allowed to transfer or dispose of the Cimpress N.V. Shares for which they have duly exercised their rights under the Compensation Mechanism (the “Cimpress N.V. Exit Shares”) in any manner.

Upon the Effective Date, an Electing Shareholder will not receive Cimpress plc Shares but instead will receive Cash Compensation for the Cimpress N.V. Exit Shares. The Cimpress N.V. Exit Shares will be cancelled at the Effective Time of the Merger. The Cash Compensation for each Cimpress N.V. Exit Share is equal to the closing price of a Cimpress N.V. Share on Nasdaq on the first trading date immediately after the expiration of the Election Period. Cimpress N.V. and Cimpress plc will agree that any Cash Compensation will be paid by Cimpress plc within 60 calendar days following the Effective Date, net of any tax that is required to be withheld by law.

Expert Reports

As required by the Directive, Cimpress N.V. and Cimpress plc have each obtained a report from a local independent expert addressing certain matters as required by the Directive, including the experts’ views as to whether the securities exchange ratio in the Merger is fair and reasonable. Each merging company will make its expert’s report available to their respective shareholders at least one month before the meeting at which they will vote upon the Merger. For this purpose, as permitted by the Directive, Cimpress N.V. has retained Ernst & Young (Netherlands) as its independent expert and Cimpress plc has retained Ernst & Young (Ireland) as its independent expert. A copy of the experts’ reports are available on Cimpress N.V.’s website at [●], and were filed with the SEC by Cimpress N.V. on [●], 2019 as Exhibit 99.1 to a current report on Form 8-K.

Reasons for the Merger

Our Board believes that giving effect to the Merger will be in the best interests of Cimpress N.V. and Cimpress N.V. Shareholders. In arriving at this determination, our Board consulted with Cimpress N.V.’s management

 

26


Table of Contents

along with its legal and tax advisors and considered various factors in its deliberations. Our Board concluded that the Merger is likely to result in benefits to Cimpress N.V. and Cimpress N.V. Shareholders, including, among other benefits, maintaining our flexibility on capital allocation strategies, such as the repurchase of Cimpress N.V. Shares at times when we need to cover obligations under our equity compensation plans, for acquisitions or similar transactions or more generally at times when we believe Cimpress N.V. Shares represent an attractive investment for Cimpress N.V. and Cimpress N.V. Shareholders. If Cimpress N.V. Shareholders approve this proposal, the Merger will change Cimpress N.V.’s legal domicile from The Netherlands to Ireland and will result in other changes of a legal nature, the most significant of which are described below under the caption “Comparison of Rights of Shareholders and Governance.”

Below is a brief description of the principal factors our Board considered in determining to pursue the Merger.

Align our corporate legal structure with our tax and management structure

On February 12, 2019, Cimpress N.V. migrated its place of effective management, and consequently its tax residence, from The Netherlands to Ireland while retaining its legal domicile in The Netherlands. We believe that the Irish regime represents a more flexible and favorable environment for multinational groups with a profile like Cimpress N.V. and that Irish tax residency aligns better with Cimpress N.V.’s current international footprint and profile.

On June 13, 2019, Ireland and The Netherlands signed a new double taxation treaty (the “New Treaty”). Parliamentary procedures are underway in Ireland and The Netherlands to ratify the New Treaty, but the effective date for its entry into effect remains uncertain at this time. Depending on the amount of time required to complete the parliamentary procedures in Ireland and The Netherlands, the New Treaty might enter into effect as early as January 1, 2020.

The New Treaty will replace the existing double taxation treaty between Ireland and The Netherlands. A key provision of the New Treaty is a new tie-breaker test to be used to determine the tax residency of dual resident companies, like Cimpress N.V., for treaty purposes. The new tie-breaker test provides that tax residence of a dual resident company, such as Cimpress N.V., shall be determined by mutual agreement between the competent authorities of Ireland and The Netherlands, having regard to the place of effective management of the company, the place where the company is incorporated or otherwise constituted and other relevant factors. The specific factors which would form the basis of agreement between competent authorities under the tie-breaker test have not yet been determined and it is uncertain how long it would take the competent authorities to complete a mutual agreement procedure to determine the tax residence status. If the New Treaty becomes effective and no mutual agreement has been reached between the competent authorities of Ireland and The Netherlands, there is a risk that Cimpress N.V., as a dual resident company, could be subject to double taxation in Ireland and The Netherlands without the protection of any double taxation treaty.

Accordingly, we believe that it is in the best interests of Cimpress N.V. and its shareholders to effectuate the Merger under the terms of the existing double taxation treaty between Ireland and The Netherlands. Once the Merger has taken effect, Cimpress plc’s legal domicile will be in Ireland, aligned with its tax and management structure. As an Irish plc, it is expected that Cimpress plc will be an Irish tax resident Company which is subject to comprehensive taxation in Ireland only. Uncertainty with respect to the tax residency of Cimpress N.V. under the New Treaty will therefore be eliminated, and Cimpress plc will continue to have flexibility on capital redeployment strategies, including but not limited to share repurchases.

We cannot assure you that the anticipated benefits of the Merger will be realized. In addition to the potential benefits described above, the Merger will expose us and you to some risks. These risks include the following:

 

   

your rights as a Cimpress N.V. Shareholder will change as a result of the Merger due to differences between Irish law and Dutch law and certain differences between the organizational documents of Cimpress plc and Cimpress N.V.;

 

27


Table of Contents
   

we may choose to abandon or delay the Merger, which may create uncertainty with respect to the tax residency of Cimpress N.V. under the New Treaty;

 

   

the transfer of Cimpress plc Shares after the Merger may be subject to Irish stamp duty, subject to any exemptions and reliefs (for further detail, see “Material Tax Considerations Relating to the Merger—Material Irish Tax Considerations”);

 

   

dividends paid after the Merger may be subject to DWT in Ireland, subject to exemptions for tax residents of the United States, any European Union member state (excluding Ireland) or a country that has signed a tax treaty with Ireland provided that, in each case, they file a valid DWT Form. (for further detail, see “Material Tax Considerations Relating to the Merger—Material Irish Tax Considerations”); and

 

   

Irish capital acquisitions tax may apply to a gift or inheritance of Cimpress plc Shares after the Merger, subject to any exemptions and reliefs. (for further detail, see “Material Tax Considerations Relating to the Merger—Material Irish Tax Considerations”).

For further detail, see “Risk Factors.”

Amendment, Termination or Delay

Subject to U.S. securities law, Irish law and Dutch law constraints, the Common Draft Terms of Merger may be amended, modified or supplemented at any time before or after its approval by Cimpress N.V. Shareholders at the Extraordinary General Meeting. However, after approval of the Common Draft Terms of Merger by Cimpress N.V. Shareholders or Cimpress plc Shareholders, no amendment, modification or supplement to the Merger may be made or effected that legally requires further approval by shareholders without obtaining such approval.

Our Board may terminate, abandon or delay the Merger, at any time before the issuance of the Order of the Irish High Court, without obtaining the approval of Cimpress N.V. Shareholders, even though the Merger may have been approved by such Cimpress N.V. Shareholders and all other conditions to the Merger may have been satisfied or waived.

Conditions to the Consummation of the Merger

The Merger will not be completed unless, among other things, the following conditions are satisfied or, if allowed by law, waived:

 

   

the Merger is approved by Cimpress N.V. Shareholders and Cimpress plc Shareholders;

 

   

the Extraordinary General Meeting of Cimpress N.V. has adopted the resolution for the Cash Compensation Amendment and the articles of association of Cimpress N.V. have been amended accordingly;

 

   

the Extraordinary General Meeting has adopted the resolution to enter into the Merger;

 

   

a declaration has been received from the district court in Roermond, The Netherlands, that no creditor opposed the Merger pursuant to section 2:316 DCC or, in case of any opposition pursuant to section 2:316 DCC, a declaration that such opposition was withdrawn or discharged;

 

   

a Dutch civil law notary selected by Cimpress N.V. has issued the pre-merger certificate and delivery thereto to Cimpress N.V., in accordance with section 2:333i DCC;

 

   

the aggregate amount of the Cash Compensation for all Cimpress N.V. Exit Shares on the basis of the received Compensation Requests, does not exceed $100,000,000;

 

   

Cimpress plc Shareholders have approved the Revised Constitution (as defined in the Common Draft Terms of Merger);

 

28


Table of Contents
   

Cimpress plc Shareholders have given effect to the Legal Capital Changes (as defined in the Common Draft Terms of Merger);

 

   

Cimpress N.V. has submitted the Proxy Statement to the Irish High Court;

 

   

Cimpress plc has advised the Irish High Court that, based on the Order, Cimpress plc will rely upon the exemption from U.S. securities law registration available under Section 3(a)(10) of the Securities Act and it will not register Cimpress plc Shares under the Securities Act;

 

   

by placing advertisements in the CRO gazette and/or such other publications as the Irish High Court orders, Cimpress N.V. has given Cimpress N.V. Shareholders and its creditors prior notice of the hearing of the Irish High Court at which such court will consider the Merger for purposes of approval thereof; and

 

   

the Irish High Court has issued the Order.

U.S. Federal Securities Law Consequences

The issuance of Cimpress plc Shares to Cimpress N.V. Shareholders in connection with the Merger will not be registered under the Securities Act. Section 3(a)(10) of the Securities Act exempts securities issued in exchange for one or more outstanding securities from the general requirement of registration where the terms and conditions of the issuance and exchange of such securities have been approved by any court of competent jurisdiction, after a hearing upon the fairness of the terms and conditions of the issuance and exchange at which all persons to whom such securities will be issued have a right to appear and to whom adequate notice of the hearing has been given. In determining whether it is appropriate to grant the Order confirming scrutiny of the legality of the Merger and setting the Merger Effective Date and Effective Time, the Irish High Court will consider the fairness of the terms and conditions of the Merger to Cimpress N.V. Shareholders, such that Cimpress plc Shares issued pursuant to the Merger will constitute an exempt issuance within the meaning of Section 3(a)(10) of the Securities Act.

Upon consummation of the Merger, Cimpress plc Shares will be deemed to be registered under Section 12(g) of the Exchange Act, by virtue of Rule 12g-3 under the Exchange Act, without the filing of any Exchange Act registration statement.

Effective Date and Time of the Merger

The Merger will take effect on the date and time prescribed in the Order of the Irish High Court confirming the scrutiny of the legality of the Merger and determining the fairness of the terms and conditions of the Merger to Cimpress N.V. Shareholders and setting the Merger Effective Date. The Order of the Irish High Court specifying the date of effectiveness of the Merger is conclusive evidence of the effectiveness of the Merger.

We intend to propose to the Irish High Court that the Merger take effect on [●], 2019. The determination of the Effective Date is entirely within the Irish High Court’s discretion; however, we are not aware of any reason why it would not grant the requested date.

In the event the conditions to the Merger are not satisfied, the Merger may be abandoned or delayed, even after approval by Cimpress N.V. Shareholders. In addition, until the issuance of the Order of the Irish High Court, the Merger may be abandoned or delayed by the Cimpress N.V. Board without obtaining the approval of Cimpress N.V. Shareholders, even though the Merger may have been approved by such Cimpress N.V. Shareholders and all other conditions to the Merger may have been satisfied or waived. For further detail, see “—Amendment, Termination or Delay.”

Management of Cimpress plc

When the Merger is completed, the executives and directors of Cimpress N.V. immediately prior to completion of the Merger are expected to be the executives and directors of Cimpress plc.

 

29


Table of Contents

Interests of Certain Persons in the Merger

No person who has been a director or executive officer of Cimpress N.V., at any time since the beginning of the last fiscal year, or any associate of any such person, has any substantial interest in the Merger, except for any interest arising from his or her ownership of securities of Cimpress N.V., as the case may be. No such person is receiving any extra or special benefit not shared on a pro rata basis by all other Cimpress N.V. Shareholders.

Regulatory Matters

Other than as disclosed in this Proxy Statement and the compliance with U.S. Federal and state securities laws and Dutch and Irish corporate law, we are not aware of any further governmental approvals or actions that are required to complete the Merger. We do not believe that any significant regulatory approvals will be required to effect the Merger.

No Action Required to Cancel Cimpress N.V. Shares and Receive Cimpress plc Shares

Assuming the Merger becomes effective, Cimpress N.V. will cease to exist and fully paid-up, non-assessable Cimpress plc Shares will be issued to you without any further action on your part. All Cimpress plc Shares will be issued in uncertificated form. Our transfer agent, if you are a registered holder, or your bank or brokerage firm, if you hold your shares in “street name,” will make an electronic entry in your name and your ownership of Cimpress plc Shares will be reflected in your account, which you will be able to access in the same way as today.

Accounting Treatment of the Merger

Under U.S. GAAP, the Merger represents a transaction between entities under common control. Assets and liabilities transferred between entities under common control are accounted for at historical cost. Accordingly, the assets and liabilities of Cimpress plc will be reflected at their carrying amounts in the accounts of Cimpress N.V. at the time of the Merger.

Effect of the Merger on SEC Filing Obligations and SEC Registrant Status

Under SEC rules, companies organized outside of the United States that qualify as “foreign private issuers” remain subject to SEC regulation but are exempt from certain requirements that apply to U.S. reporting companies. Cimpress N.V. is not a “foreign private issuer,” and we do not expect that Cimpress plc will be a “foreign private issuer” following the Merger.

Upon completion of the Merger, we will remain subject to SEC reporting requirements and the mandates of the Sarbanes-Oxley Act of 2002, and we will continue to report our consolidated financial results in U.S. dollars and in accordance with U.S. GAAP. As required by Irish law, in connection with annual general meetings of Cimpress plc commencing with the 2020 annual general meeting, the Cimpress plc Irish statutory accounts will also be made available to Cimpress plc Shareholders.

Required Vote

Approval of the proposal requires a simple majority of the votes cast at a meeting at which at least one third of the outstanding shares are represented, unless less than half of the issued capital is represented at the meeting, in which case this resolution requires a majority of at least two-thirds of the votes cast at the Extraordinary General Meeting.

Recommendation of the Board

Our Board recommends that Cimpress N.V. Shareholders vote “FOR” the proposal.

 

30


Table of Contents

PROPOSAL NUMBER THREE: DISTRIBUTABLE PROFITS PROPOSAL

Under Irish law, Cimpress plc may only pay dividends, make other distributions and, generally, effect share repurchases and redemptions from “distributable profits” shown in Cimpress plc’s unconsolidated financial statements prepared in accordance with the Irish Companies Act and filed with the Irish Companies Registration Office.

“Distributable profits” are the accumulated realized profits of Cimpress plc that have not previously been utilized in a distribution or capitalization less its accumulated realized losses that have not previously been written off in a reduction or reorganization of capital, and include reserves created by way of a reduction of capital.

In addition, under Irish law, no dividend, distribution or share repurchase, or redemption may be paid, made or effected by Cimpress plc unless the net assets of Cimpress plc are equal to, or exceed, the aggregate of Cimpress plc’s called-up share capital plus its undistributable reserves and the relevant transaction does not reduce Cimpress plc’s net assets below such aggregate. “Undistributable reserves” include the undenominated capital, the capital redemption reserve fund and the amount by which Cimpress plc’s accumulated unrealized profits that have not previously been utilized by any capitalization exceed Cimpress plc’s accumulated unrealized losses that have not previously been written off in a reduction or reorganization of capital.

Immediately following the Merger, the unconsolidated balance sheet of Cimpress plc will not contain any distributable profits and “shareholders’ equity” on such balance sheet will be comprised entirely of “share capital” (equal to the aggregate nominal value of Cimpress plc Shares allotted and issued pursuant to the Merger) and “share premium” (equal to the amount paid-up on such Cimpress plc Shares in excess of the nominal value). You are being asked to approve the Distributable Profits Proposal, to enable, subject to the effectiveness of the Merger, the creation of distributable profits of Cimpress plc under Irish law by reducing the entire share premium of Cimpress plc (or such lesser amount as may be approved by the Cimpress plc Board) resulting from the allotment and issue of Cimpress plc Shares pursuant to the Merger, such that the reserve resulting from the cancellation of such share premium will be treated as distributable profits. Cimpress N.V. Shareholders are being asked to vote to approve the Distributable Profits Proposal in satisfaction of certain equitable requirements of the Irish High Court.

In addition to the approval of Cimpress N.V. Shareholders, the Distributable Profits Proposal also requires the passing of a special resolution of Cimpress plc, which will be undertaken by Cimpress plc Shareholders prior to the Effective Date and the approval of the Irish High Court. If the Distributable Profits Proposal is approved by Cimpress N.V. Shareholders and Cimpress plc Shareholders prior to the Effective Date and the Effective Time, Cimpress plc intends to seek the approval of the Irish High Court for the Distributable Profits Proposal as soon as practicable following the Effective Date. Although Cimpress N.V. is not aware of any reason why the Irish High Court would not approve the Distributable Profits Proposal, such approval is a matter of judicial discretion and there is no guarantee that such approval will be forthcoming.

While the Cimpress N.V. Board recommends that Cimpress N.V. Shareholders vote for the Distributable Profits Proposal, the passing of the Distributable Profits Proposal is not a condition to the Merger. If the Distributable Profits Proposal is not approved by Cimpress N.V. Shareholders and the Irish High Court, Cimpress plc will not be able to pay dividends, make other distributions and, generally, effect share repurchases and redemptions until such time as it has otherwise generated sufficient distributable profits from its operational activities following the Merger.

Required Vote

While the Distributable Profits Proposal requires the approval of a majority of votes cast at a meeting at which a quorum is present. In addition, while approval of the Distributable Profits Proposal by a majority of votes cast at the meeting is sufficient for approval of the proposal under Dutch law (which governs the Extraordinary General Meeting at which the vote will take place), we are seeking the approval of not less than 75% of the votes cast at

 

31


Table of Contents

the meeting to increase the likelihood of obtaining Irish High Court approval of the Distributable Profits Proposal, as such higher approval threshold would be required if the vote on the Distributable Profits Proposal were being conducted under Irish law.

Recommendation of the Board

Our Board recommends that Cimpress N.V. Shareholders vote “FOR” the proposal.

 

32


Table of Contents

MATERIAL TAX CONSIDERATIONS RELATING TO THE MERGER

Material U.S. Federal Income Tax Considerations

The following is a general discussion of the material U.S. federal income tax consequences of the Merger to U.S. Holders (as defined below) of Cimpress N.V. Shares, and of the subsequent ownership and disposition of Cimpress plc Shares received by such U.S. Holders in the Merger. This discussion does not address any U.S. federal income tax consequences of the Merger to non-U.S. Holders, except to the limited extent discussed below under “U.S. Federal Income Tax Consequences of the Merger to Cimpress N.V. Shareholders—Material Tax Consequences to Non-U.S. Holders”.

This discussion is based on provisions of the Internal Revenue Code of 1986, as amended, the Treasury Regulations promulgated thereunder (whether final, temporary, or proposed), administrative rulings of the U.S. Internal Revenue Service (the “IRS”), and judicial decisions all as in effect on the date hereof, and all of which are subject to differing interpretations or change, possibly with retroactive effect. This discussion does not purport to be a complete analysis or listing of all potential U.S. federal income tax considerations that may apply to a U.S. Holder as a result of the Merger or as a result of the ownership and disposition of Cimpress plc Shares. In addition, this discussion does not address all aspects of U.S. federal income taxation that may be relevant to a particular U.S. Holders nor does it take into account the individual facts and circumstances of any particular U.S. Holders that may affect the U.S. federal income tax consequences to such U.S. Holder, and accordingly, is not intended to be, and should not be construed as, tax advice. This discussion does not address the U.S. federal 3.8% Medicare tax imposed on certain net investment income or any aspects of U.S. federal taxation other than those pertaining to the income tax (including any gift, estate or alternative minimum tax), nor does it address any tax consequences arising under any U.S. state and local tax laws. In addition, this discussion does not address any U.S. federal income or any other tax considerations to any Cimpress N.V. Shareholder that is an Electing Shareholder who receives Cash Compensation in lieu of Cimpress plc Shares pursuant to such Electing Shareholder’s Cash Compensation Right. U.S. Holders should consult their own tax advisors regarding such tax consequences in light of their particular circumstances.

No ruling has been requested or will be obtained from the IRS regarding the U.S. federal income tax consequences of the Merger or any other related matter; thus, there can be no assurance that the IRS will not challenge the U.S. federal income tax treatment described below or that, if challenged, such treatment will be sustained by a court.

This summary is limited to considerations relevant to U.S. Holders that hold Cimpress N.V. Shares, and, following consummation of the Merger, Cimpress plc Shares, as “capital assets” within the meaning of section 1221 of the Code (generally, property held for investment). This discussion does not address all aspects of U.S. federal income taxation that may be important to U.S. Holders in light of their individual circumstances, including U.S. Holders subject to special treatment under the U.S. tax laws, such as, for example:

 

   

banks or other financial institutions, underwriters, or insurance companies;

 

   

traders in securities who elect to apply a mark-to-market method of accounting;

 

   

real estate investment trusts and regulated investment companies;

 

   

tax-exempt organizations, qualified retirement plans, individual retirement accounts, or other tax-deferred accounts;

 

   

expatriates or former long-term residents of the United States;

 

   

partnerships or other pass-through entities or investors in such entities;

 

   

dealers or traders in securities, commodities or currencies;

 

   

grantor trusts;

 

33


Table of Contents
   

U.S. Holders whose “functional currency” is not the U.S. dollar;

 

   

persons who received Cimpress N.V. Shares or Cimpress plc Shares through the issuance of restricted stock under an equity incentive plan or through a tax-qualified retirement plan or otherwise as compensation;

 

   

persons who own (directly or through attribution) 10% or more (by vote or value) of the outstanding Cimpress N.V. Shares, or, after the Merger, the outstanding Cimpress plc Shares; or

 

   

U.S. Holders holding Cimpress N.V. Shares, or, after the Merger, Cimpress plc Shares, as a position in a “straddle,” as part of a “synthetic security” or “hedge,” as part of a “conversion transaction,” or other integrated investment or risk reduction transaction.

As used in this Proxy Statement, the term “U.S. Holder” means a beneficial owner of Cimpress N.V. Shares, and, after the Merger, Cimpress plc Shares received in the Merger, that is, for U.S. federal income tax purposes:

 

   

an individual who is a citizen or resident of the United States;

 

   

a corporation or other entity taxable as a corporation created or organized in or under the laws of the United States or any State thereof or the District of Columbia;

 

   

an estate the income of which is subject to U.S. federal income tax regardless of its source; or

 

   

a trust (i) if a court within the United States is able to exercise primary supervision over the administration of the trust and one or more U.S. persons have the authority to control all substantial decisions of the trust, or (ii) that has a valid election in effect under applicable Treasury Regulations to be treated as a U.S. person for U.S. federal income tax purposes.

As used in this Proxy Statement, the term “non-U.S. Holder” means a beneficial owner of Cimpress N.V. Shares, and, after the Merger, Cimpress plc Shares received in the Merger, other than a U.S. holder or an entity or arrangement treated as a partnership for U.S. federal income tax purposes.

If a partnership, including for this purpose any entity or arrangement that is treated as a partnership for U.S. federal income tax purposes, is a beneficial owner of Cimpress N.V. Shares, and, following consummation of the Merger, Cimpress plc Shares received in the Merger, the U.S. federal income tax treatment of a partner in such partnership generally will depend on the status of the partner and the activities of the partnership. A U.S. Holder that is a partnership and the partners in such partnership should consult their own tax advisors with regard to the U.S. federal income tax consequences of the Merger and the subsequent ownership and disposition of Cimpress plc Shares received in the Merger.

THIS SUMMARY DOES NOT PURPORT TO BE A COMPREHENSIVE ANALYSIS OR DESCRIPTION OF ALL POTENTIAL U.S. FEDERAL INCOME TAX CONSEQUENCES OF THE MERGER. CIMPRESS N.V. SHAREHOLDERS AND CIMPRESS PLC SHAREHOLDERS SHOULD CONSULT WITH THEIR TAX ADVISORS REGARDING THE PARTICULAR TAX CONSEQUENCES TO THEM OF THE MERGER AND OF THE OWNERSHIP AND DISPOSITION OF CIMPRESS PLC SHARES AFTER THE MERGER, INCLUDING THE APPLICABILITY AND EFFECTS OF U.S. FEDERAL, STATE, LOCAL, AND OTHER TAX LAWS.

U.S. Federal Income Tax Consequences of the Merger to Cimpress N.V. and Cimpress plc

For U.S. federal income tax purposes, the Merger is intended to qualify as a “reorganization” within the meaning of Section 368(a)(1)(F) of the Code, i.e. a “mere change in identity, form, or place of organization of one corporation.” Assuming that the Merger is treated as a reorganization under Section 368(a)(1)(F), neither Cimpress N.V. nor Cimpress plc are expected to recognize any gain or loss for U.S. federal income tax purposes as a result of the Merger.

 

34


Table of Contents

U.S. Federal Income Tax Consequences of the Merger to Cimpress N.V. Shareholders

Material Tax Consequences to U.S. Holders

Assuming that the Merger is treated as a reorganization under Section 368(a)(1)(F), (i) a U.S. Holder will not recognize any gain or loss as a result of the Merger, (ii) a U.S. Holder’s adjusted tax basis in the Cimpress plc Shares received will be equal to the adjusted tax basis of the Cimpress N.V. Shares exchanged therefor and (iii) the holding period of the Cimpress plc Shares received as a result of the exchange will include the holding period of Cimpress N.V. Shares surrendered in the Merger. Cimpress N.V. has not sought and will not obtain an opinion of U.S. tax counsel regarding the treatment of the Merger as a reorganization for U.S. federal income tax purposes.

Material Tax Consequences to Non-U.S. Holders

A non-U.S. holder generally will not be subject to U.S. federal income or withholding tax on gain realized, if any, on the exchange of Cimpress N.V. shares for Cimpress plc shares in the Merger.

U.S. Federal Income Tax Consequences to U.S. Holders of the Ownership and Disposition of Cimpress plc Shares

The following discussion is a summary of certain material U.S. federal income tax consequences of the ownership and disposition of Cimpress plc shares to U.S. Holders who receive such Cimpress plc shares pursuant to the Merger.

Distributions on Cimpress plc Shares

The gross amount of any distribution on Cimpress plc shares that is made out of Cimpress plc’s current or accumulated earnings and profits (as determined for U.S. federal income tax purposes) generally will be included in the gross income of a U.S. Holder as ordinary dividend income on the date such distribution is actually or constructively received by such U.S. Holder. Any such dividends paid to corporate U.S. Holders generally will not qualify for the dividends-received deduction that may otherwise be allowed under the Code. In general, the dividend income would be treated as foreign source, passive income for U.S. federal foreign tax credit limitation purposes.

Dividends received by non-corporate U.S. Holders (including individuals), subject to the discussion below under “—Passive Foreign Investment Company Status,” from a “qualified foreign corporation” may be eligible for reduced rates of taxation, provided that certain holding period requirements and other conditions are satisfied. For these purposes, a non-U.S. corporation will be treated as a qualified foreign corporation with respect to dividends paid by that corporation on shares that are readily tradable on an established securities market in the United States. U.S. Treasury guidance indicates that shares listed on the Nasdaq (which the Cimpress plc shares are expected to be) will be considered readily tradable on an established securities market in the United States. There can be no assurance that Cimpress plc shares will be considered readily tradable on an established securities market in future years. Cimpress plc will not constitute a qualified foreign corporation for purposes of these rules if it is a passive foreign investment company, or “PFIC,” for the taxable year in which it pays a dividend or for the preceding taxable year. For further detail, see the discussion below under “—Passive Foreign Investment Company Status.”

The amount of any dividend paid in foreign currency will be the U.S. dollar value of the foreign currency distributed by Cimpress plc, calculated by reference to the exchange rate in effect on the date the dividend is includible in the U.S. Holder’s income, regardless of whether the payment is in fact converted into U.S. dollars on the date of receipt. Generally, a U.S. Holder should not recognize any foreign currency gain or loss if the foreign currency is converted into U.S. dollars on the date the payment is received. However, any gain or loss

 

35


Table of Contents

resulting from currency exchange fluctuations during the period from the date the U.S. Holder includes the dividend payment in income to the date such U.S. Holder actually converts the payment into U.S. dollars will be treated as ordinary income or loss. That currency exchange income or loss (if any) generally will be income or loss from U.S. sources for foreign tax credit limitation purposes.

To the extent that the amount of any distribution made by Cimpress plc on Cimpress plc Shares exceeds Cimpress plc’s current and accumulated earnings and profits for a taxable year (as determined under U.S. federal income tax principles), the distribution will first be treated as a tax-free return of capital, causing a reduction in the adjusted basis of the U.S. Holder’s Cimpress plc shares, and to the extent the amount of the distribution exceeds the U.S. Holder’s tax basis, the excess will be taxed as capital gain recognized on a sale or exchange as described below under “—Sale, Exchange, Redemption or Other Taxable Disposition of Cimpress plc Shares.”

It is possible that Cimpress plc is, or at some future time will be, at least 50% owned by U.S. persons. Dividends paid by a foreign corporation that is at least 50% owned by U.S. persons may be treated as U.S. source income (rather than foreign source income) for foreign tax credit purposes to the extent the foreign corporation has more than an insignificant amount of U.S. source income. The effect of this rule may be to treat a portion of any dividends paid by Cimpress plc as U.S. source income. Treatment of the dividends as U.S. source income in whole or in part may limit a U.S. holder’s ability to claim a foreign tax credit with respect to foreign taxes payable or deemed payable in respect of the dividends paid by Cimpress plc or on other items of foreign source, passive income for U.S. federal foreign tax credit limitation purposes.

Sale, Exchange, Redemption or Other Taxable Disposition of Cimpress plc Shares

Subject to the discussion below under “—Passive Foreign Investment Company Status,” a U.S. Holder generally will recognize gain or loss on any sale, exchange, redemption, or other taxable disposition of Cimpress plc Shares in an amount equal to the difference between the amount realized on the disposition and such U.S. Holder’s adjusted tax basis in such Cimpress plc Shares. Any gain or loss recognized by a U.S. Holder on a taxable disposition of Cimpress plc Shares generally will be capital gain or loss and will be long-term capital gain or loss if the Cimpress plc Shareholder’s holding period in such Cimpress plc Shares exceeds one year at the time of the disposition. Preferential tax rates may apply to long-term capital gains of non-corporate U.S. Holders (including individuals). The deductibility of capital losses is subject to limitations. Any gain or loss recognized by a U.S. Holder on the sale or exchange of Cimpress plc Shares generally will be treated as a U.S. source gain or loss.

Passive Foreign Investment Company Status (“PFIC”)

Notwithstanding the foregoing, certain adverse U.S. federal income tax consequences could apply to a U.S. Holder if Cimpress plc is treated as a PFIC for any taxable year during which such U.S. Holder holds Cimpress plc Shares. A non-U.S. corporation, such as Cimpress plc, will be classified as a PFIC for U.S. federal income tax purposes for any taxable year in which, after the application of certain look-through rules, either (i) 75% or more of its gross income for such year is “passive income” (as defined in the relevant provisions of the Code) or (ii) 50% or more of the value of its assets (determined on the basis of a quarterly average) during such year produce or are held for the production of passive income. Passive income generally includes dividends, interest, royalties, rents, annuities, net gains from the sale or exchange of property producing such income and net foreign currency gains.

Cimpress plc is not currently expected to be treated as a PFIC for U.S. federal income tax purposes, but this conclusion is a factual determination made annually and, thus, is subject to change. With certain exceptions, Cimpress plc Shares would be treated as stock in a PFIC if Cimpress plc were a PFIC at any time during a U.S. Holder’s holding period in such U.S. Holder’s Cimpress plc Shares. There can be no assurance that Cimpress plc will not be treated as a PFIC for any taxable year or at any time during a U.S. Holder’s holding period.

 

36


Table of Contents

If Cimpress plc were to be treated as a PFIC, unless a U.S. Holder elects to be taxed annually on a mark-to-market basis with respect to its Cimpress plc Shares or the U.S. Holder makes an effective qualified electing fund election, gain realized on any sale or exchange of such Cimpress plc Shares and certain distributions received with respect to such Cimpress plc Shares could be subject to additional U.S. federal income taxes, plus an interest charge on certain taxes treated as having been deferred under the PFIC rules. In addition, dividends received with respect to Cimpress plc Shares would not constitute qualified dividend income eligible for preferential tax rates if Cimpress plc is treated as a PFIC for the taxable year of the distribution or for its preceding taxable year. If a U.S. Holder makes an effective qualified electing fund election, or QEF Election, the U.S. Holder will be required to include in gross income each year, whether or not we make distributions, as capital gains, such U.S. Holder’s pro rata share of Cimpress plc’s net capital gains and, as ordinary income, such U.S. Holder’s pro rata share of our earnings in excess of Cimpress plc’s net capital gains. We do not currently intend to provide the information necessary for U.S. holders to make QEF Elections if we are treated as a PFIC for any taxable year. U.S. Holders should consult their own tax advisors regarding the application of the PFIC rules to their investment in Cimpress plc Shares.

Information Reporting and Backup Withholding

U.S. holders that own at least five percent of the Cimpress N.V. Shares (by vote or value) or Cimpress N.V. Shares with a tax basis of $1,000,000 or more immediately before the Merger will be required to file certain Section 368(a) reorganization statements. Cimpress N.V. Shareholders should consult their tax advisors about the other information reporting requirements that could be applicable to the exchange of Cimpress N.V. Shares for Cimpress plc Shares in the Merger.

In general, information reporting requirements will apply to dividends received by U.S. Holders of Cimpress plc Shares, and the proceeds received on the disposition of Cimpress plc Shares effected within the United States (and, in certain cases, outside the United States), in each case, other than U.S. Holders that are exempt recipients (such as corporations). Backup withholding (currently at a rate of 24%) may apply to such amounts if the U.S. Holder fails to provide an accurate taxpayer identification number (generally on an IRS Form W-9 provided to the paying agent or the U.S. Holder’s broker) or is otherwise subject to backup withholding.

Certain U.S. Holders holding specified foreign financial assets with an aggregate value in excess of the applicable dollar threshold are required to report information to the IRS relating to Cimpress plc Shares, subject to certain exceptions (including an exception for Cimpress plc Shares held in accounts maintained by U.S. financial institutions), by attaching a complete IRS Form 8938, Statement of Specified Foreign Financial Assets, with their tax return, for each year in which they hold Cimpress plc Shares. Such U.S. Holders should consult their own tax advisors regarding information reporting requirements relating to their ownership of Cimpress plc Shares.

Backup withholding is not an additional tax. Any amounts withheld under the backup withholding rules may be allowed as a refund or credit against a holder’s U.S. federal income tax liability, if any, provided the required information is timely furnished to the IRS.

Material Irish Tax Considerations

Irish Tax Considerations

The following is a summary of the material Irish tax consequences of the Merger for certain beneficial owners of Cimpress N.V. Shares in connection with the Merger, including the ownership and disposal of Cimpress plc Shares received by such holders pursuant to the Merger. This discussion is based on Irish tax laws and the practice of the Irish Revenue Commissioners in effect on the date of this Proxy Statement, all of which are subject to differing interpretations or change, possibly with retroactive effect. This summary does not purport to be a complete analysis or listing of all potential Irish tax considerations that may apply to a holder as a result of the Merger or as a result of the ownership and disposition of Cimpress plc Shares by a holder. In addition, this

 

37


Table of Contents

discussion does not address all aspects of Irish taxation that may be relevant to particular holders nor does it take into account the individual facts and circumstances of any particular holder that may affect the Irish tax consequences to such holder. Accordingly, this summary is not intended to be, and should not be construed as, tax advice. This discussion does not address Irish pay related social insurance, nor does it address any tax consequences specific to stock options, free shares or warrants. The summary is not exhaustive, and Cimpress N.V. Shareholders should consult their tax advisors about the Irish tax consequences (and tax consequences under the laws of other relevant jurisdictions) of the transactions and of the acquisition, ownership and disposal of Cimpress plc Shares.

There can be no assurance that the Irish tax authorities will not challenge the Irish tax treatment described below or that, if challenged, such treatment will be sustained by a court.

The summary applies only to Cimpress N.V. Shareholders who will own Cimpress plc Shares as capital assets and does not apply to other categories of Cimpress N.V. Shareholders, such as dealers in securities, trustees, insurance companies, collective investment schemes, pension funds and Cimpress N.V. Shareholders who have, or who are deemed to have, acquired their Cimpress plc Shares by virtue of an Irish office or employment (performed or carried on in Ireland).

Irish Capital Gains Tax (“CGT”)

The rate of tax on chargeable gains (where applicable) in Ireland is 33%.

Non-resident Cimpress plc Shareholders

Cimpress plc Shareholders who are neither resident nor ordinarily resident in Ireland for Irish tax purposes and do not hold their Cimpress plc Shares in connection with a trade carried on by such Cimpress plc Shareholders through an Irish branch or agency will not be liable for Irish tax on chargeable gains realized on a subsequent disposal of their Cimpress plc Shares.

Cimpress N.V. Shareholders who are neither resident nor ordinarily resident in Ireland for Irish tax purposes and do not hold their Cimpress N.V. Shares in connection with a trade carried on by such Cimpress N.V. Shareholders through an Irish branch or agency will not be liable for Irish tax on chargeable gains on the cancellation of their Cimpress N.V. Shares, or on receipt of Cimpress plc Shares pursuant to the Merger.

Irish resident Cimpress plc Shareholders

The receipt by a Cimpress N.V. Shareholder who is either resident or ordinarily resident in Ireland for Irish tax purposes or who holds their Cimpress N.V. Shares in connection with a trade carried on in Ireland through a branch or agency of Cimpress plc Shares pursuant to the Merger will generally have the following consequences for such Cimpress N.V. Shareholders.

The receipt of Cimpress plc Shares should be treated as a reconstruction for the purposes of Irish CGT. Accordingly, such Cimpress N.V. Shareholders should not be treated as having made a disposal of their Cimpress N.V. Shares for the purposes of Irish CGT to the extent that they receive Cimpress plc Shares. Instead, Cimpress plc Shares should be treated as the same asset as Cimpress N.V. Shares in respect of which they are issued and treated as acquired at the same time and for the same acquisition cost as those Cimpress N.V. Shares for Irish tax purposes. A chargeable gain or allowable loss should therefore only arise on a subsequent disposal of Cimpress plc Shares.

A subsequent disposal of Cimpress plc Shares by a Cimpress plc Shareholder who is resident or ordinarily resident in Ireland for Irish tax purposes or who holds his, her or its Cimpress plc Shares in connection with a trade carried on by such person through an Irish branch or agency will, subject to the availability of any exemptions and reliefs, generally be within the charge to Irish CGT.

 

38


Table of Contents

A Cimpress plc Shareholder who is an individual and who is temporarily not resident in Ireland may, under Irish anti-avoidance legislation, still be liable to Irish tax on any chargeable gain realized upon a subsequent disposal of Cimpress plc Shares during the period in which such individual is a non-resident.

Stamp Duty

The rate of stamp duty (where applicable) on transfers of shares of Irish incorporated companies is 1% of the price paid or the market value of the shares acquired, whichever is greater. Where Irish stamp duty arises, it is generally a liability of the transferee.

No stamp duty will be payable on the Merger. Irish stamp duty may, depending upon the manner in which Cimpress plc Shares are held, be payable in respect of transfers of Cimpress plc Shares after the Merger.

Shares held through DTC

A transfer of Cimpress plc Shares effected by means of a transfer of book-entry interests in Cimpress plc Shares within the facilities of DTC will not be subject to Irish stamp duty, subject to confirmation from the Irish Revenue Commissioners in advance of the Merger.

Shares Held Directly and Shares Held Outside of DTC or Transferred Into or Out of DTC

A transfer of Cimpress plc Shares where any party to the transfer holds such shares directly (i.e., outside of DTC) may be subject to Irish stamp duty. Shareholders wishing to transfer their shares into (or out of) DTC may do so provided that:

 

   

there is no change in the beneficial ownership of such shares as a result of the transfer; and

 

   

the transfer into (or out of) DTC is not effected in contemplation of a sale of such shares by a beneficial owner to a third party.

Due to the potential Irish stamp charge on transfers of Cimpress plc Shares, it is strongly recommended that those Cimpress N.V. Shareholders who do not hold their Cimpress N.V. Shares through DTC should arrange for the transfer of their Cimpress N.V. Shares into DTC as soon as possible and before the Merger is effected. It is also strongly recommended that any person who wishes to acquire Cimpress plc Shares after the Effective Time of the Merger acquires such Cimpress plc Shares through DTC.

Withholding Tax on Dividends

Distributions made by Cimpress plc will, in the absence of one of many exemptions, be subject to Irish dividend withholding tax (“DWT”) currently at a rate of 20%.

For DWT purposes, a distribution includes any distribution that may be made by Cimpress plc to Cimpress plc Shareholders, including cash dividends, non-cash dividends and additional stock taken in lieu of a cash dividend. Where an exemption does not apply in respect of a distribution made to a particular Cimpress plc Shareholder, Cimpress plc is responsible for withholding DWT prior to making such distribution.

General Exemptions

Irish domestic law provides that a non-Irish resident Cimpress plc Shareholder is not subject to DWT on dividends received from Cimpress plc if such Cimpress plc Shareholder is beneficially entitled to the dividend and is either:

 

   

a person (not being a company) resident for tax purposes in a “relevant territory” (including the U.S.) and is neither resident nor ordinarily resident in Ireland (for a list of “relevant territories” for DWT purposes, please see Annex D to this Proxy Statement);

 

39


Table of Contents
   

a company resident for tax purposes in a “relevant territory,” provided such company is not under the control, whether directly or indirectly, of a person or persons who is or are resident in Ireland;

 

   

a company, wherever resident, that is controlled, directly or indirectly, by persons resident in a “relevant territory” and who is or are (as the case may be) not controlled by, directly or indirectly, persons who are not resident in a “relevant territory”;

 

   

a company, wherever resident, whose principal class of shares (or those of its 75% direct or indirect parent) is substantially and regularly traded on a stock exchange in Ireland, on a recognized stock exchange in a “relevant territory” or on such other stock exchange approved by the Irish Minister for Finance; or

 

   

a company, wherever resident, that is wholly owned, directly or indirectly, by two or more companies where the principal class of shares of each of such companies is substantially and regularly traded on a stock exchange in Ireland, on a recognized stock exchange in a “relevant territory” or on such other stock exchange approved by the Irish Minister for Finance;

and provided, in all cases noted above Cimpress plc or, in respect of Cimpress plc Shares held through DTC, any qualifying intermediary appointed by Cimpress plc, has received from the Cimpress plc Shareholder, where required, the relevant Irish Revenue Commissioners DWT forms (the “DWT Forms”) prior to the payment of the dividend. In practice, in order to ensure sufficient time to process the receipt of relevant DWT Forms, the Cimpress plc Shareholder where required should furnish the relevant DWT Forms to:

 

   

its broker (and the relevant information is further transmitted to any qualifying intermediary appointed by Cimpress plc) before the record date for the dividend (or such later date before the dividend payment date as may be notified to the shareholder by the broker) if the Cimpress plc Shareholder holds Cimpress plc Shares through DTC; or

 

   

Cimpress plc transfer agent at least seven business days before the record date for the dividend if Cimpress plc Shares are held directly.

Links to the various DWT Forms are available at: http://www.revenue.ie/en/tax/dwt/forms/index.html

The information on such website does not constitute a part of, and is not incorporated by reference into, this Proxy Statement.

Such forms are generally valid, subject to a change in circumstances, until December 31 of the fifth year after the year in which such forms were completed.

For non-Irish resident Cimpress plc Shareholders who cannot avail themselves of one of Ireland’s domestic law exemptions from DWT, it may be possible for such Cimpress plc Shareholders to rely on the provisions of a double tax treaty to which Ireland is party to reduce the rate of DWT.

Cimpress plc Shares Held by Residents of “Relevant Territories”

Cimpress plc Shareholders who are residents of “relevant territories,” must satisfy the conditions of one of the exemptions referred to above under the heading “—General Exemptions”, including the requirement to furnish valid DWT forms, in order to receive dividends without suffering DWT. If such Cimpress plc Shareholders hold their Cimpress plc Shares through DTC, they must provide the appropriate DWT forms to their brokers (so that such brokers can further transmit the relevant information to a qualifying intermediary appointed by Cimpress plc) before the record date for the dividend (or such later date before the dividend payment date as may be notified to the Cimpress plc Shareholder by the broker). If such Cimpress plc Shareholders hold their Cimpress plc Shares directly, they must provide the appropriate DWT forms to Cimpress plc’s transfer agent at least seven business days before the record date for the dividend. It is strongly recommended that such Cimpress plc Shareholders complete the appropriate DWT Forms and provide them to their brokers or Cimpress plc’s transfer agent, as the case may be, as soon as possible after receiving their Cimpress plc Shares.

 

40


Table of Contents

If any Cimpress plc Shareholder who is resident in a “relevant territory” receives a dividend from which DWT has been withheld, the Cimpress plc Shareholder may be entitled to a refund of DWT from the Irish Revenue Commissioners provided the Cimpress plc Shareholder is beneficially entitled to the dividend.

Cimpress plc Shares Held by Residents of Ireland

Most Irish tax resident or ordinarily resident Cimpress plc Shareholders (other than Irish resident companies that have completed the appropriate DWT forms) will be subject to DWT in respect of dividends paid on their Cimpress plc Shares.

Shareholders that are residents of Ireland, but are entitled to receive dividends without DWT, must complete the appropriate DWT Forms and provide them to their brokers (so that such brokers can further transmit the relevant information to a qualifying intermediary appointed by Cimpress plc) before the record date for the dividend (or such later date before the dividend payment date as may be notified to the Cimpress plc Shareholder by the broker) (in the case of Cimpress plc Shares held through DTC), or to Cimpress plc’s transfer agent at least seven business days before the record date for the dividend (in the case of Cimpress plc Shares held directly).

Cimpress plc Shares Held by Other Persons

Cimpress plc Shareholders that do not fall within any of the categories specifically referred to above may nonetheless fall within other exemptions from DWT. If any Cimpress plc Shareholders are exempt from DWT, but receive dividends subject to DWT, such Cimpress plc Shareholders may apply for refunds of such DWT from the Irish Revenue Commissioners.

Cimpress plc will rely on information received directly or indirectly from brokers and its transfer agent in determining where Cimpress plc Shareholders reside, whether they have provided the required DWT Forms.

Income Tax on Dividends Paid on Cimpress plc Shares

Irish income tax may arise for certain persons in respect of dividends received from Irish resident companies.

A Cimpress plc Shareholder that is not resident or ordinarily resident in Ireland and that is entitled to an exemption from DWT generally has no liability to Irish Income Tax or the universal social charge on a dividend from Cimpress plc. An exception to this position may apply where such Cimpress plc Shareholder holds Cimpress plc Shares through a branch or agency in Ireland through which a trade is carried on.

A Cimpress plc Shareholder that is not resident or ordinarily resident in Ireland and that is not entitled to an exemption from DWT generally has no additional liability to Irish income tax or the universal social charge. An exception to this position may apply where the Cimpress plc Shareholder holds Cimpress plc Shares through a branch or agency in Ireland through which a trade is carried. The DWT deducted by Cimpress plc discharges the liability to Irish income tax.

Irish resident or ordinarily resident Cimpress plc Shareholders may be subject to Irish tax and/or the universal social charge on dividends received from Cimpress plc. Credit should be available against this Irish tax for any DWT declared by Cimpress plc. Such Cimpress plc Shareholders should consult their own tax advisors.

Withholding Tax on Share Repurchases

It is anticipated that Irish DWT should not generally apply to payments made by Cimpress plc on the redemption, repayment or purchase of its own shares. This is because an Irish tax resident company that is a quoted company is not treated as making a distribution for Irish tax purposes on making payments to redeem, repay or repurchase its own shares, provided the redemption, repayment or purchase does not form part of a scheme or arrangement the main purpose (or one of the main purposes of which) is to enable shareholders to participate in the profits of the company without receiving a dividend.

 

41


Table of Contents

Capital Acquisitions Tax

Irish capital acquisitions tax (“CAT”) is comprised of principally gift tax and inheritance tax. CAT could apply to a gift or inheritance of Cimpress plc Shares irrespective of the place of residence, ordinary residence or domicile of the parties. This is because Cimpress plc Shares are regarded as property situated in Ireland as the share register of Cimpress plc must be held in Ireland. The person who receives the gift or inheritance has primary liability for CAT.

CAT is currently levied at a rate of 33% above certain tax-free thresholds. The appropriate tax-free threshold is dependent upon (i) the relationship between the donor and the donee and (ii) the aggregation of the values of previous gifts and inheritances received by the donee from persons within the same group threshold. Gifts and inheritances passing between spouses are exempt from CAT. Cimpress plc Shareholders should consult their own tax advisors as to whether CAT is creditable or deductible in computing any domestic tax liabilities.

Material Dutch Tax Considerations

The information set out below is a general summary of certain material Dutch tax consequences in connection with the Merger. This summary is not a comprehensive or complete description of all the Dutch tax considerations that may be relevant for a particular Cimpress N.V. Shareholder and it does not address the tax consequences that may arise in any jurisdiction other than The Netherlands in connection with the Merger. For Dutch tax purposes, a Cimpress N.V. Shareholder may include an individual who or an entity that does not have the legal title to the Cimpress N.V. Shares, but to whom nevertheless Cimpress N.V. Shares, or the income thereof, are attributed based either on such individual or entity holding a beneficial interest in Cimpress N.V. Shares or based on specific statutory provisions.

This summary is based on the tax laws of The Netherlands as in effect on the date of this Proxy Statement, including regulations, rulings and decisions of The Netherlands and its taxing and other authorities available in printed form on or before this date and now in effect, and as applied and interpreted by Dutch courts, without prejudice to any developments or amendments introduced at a later date and implemented with or without retroactive effect.

Any reference in this summary to The Netherlands and to Netherlands or Dutch tax law are to the European part of the Kingdom of The Netherlands and its law, respectively, only.

As this summary is intended as general information only, Cimpress N.V. Shareholders should consult their own tax advisors as to the Dutch or other tax consequences of the Merger, including the application to their particular situations of the tax considerations discussed below.

This summary does not address the tax consequences for any Cimpress N.V. Shareholder:

 

   

who is an individual and for whom the income or capital gains derived from Cimpress N.V. Shares are attributable to employment activities, the income from which is taxable in The Netherlands;

 

   

who has, or that has, a substantial interest or a deemed substantial interest in Cimpress N.V. (within the meaning of Chapter 4 (Hoofdstuk 4) of The Netherlands Income Tax Act 2001 (Wet inkomstenbelasting 2001));

 

   

that is an entity that is resident or deemed to be resident in The Netherlands and that is, in whole or in part, not subject to or exempt from Dutch corporate income tax (such as qualifying pension funds);

 

   

that is an entity for which the income and/or capital gains derived from the Cimpress N.V. Shares are exempt under the participation exemption (deelnemingsvrijstelling) or are subject to the participation credit (deelnemingsverrekening) as set out in The Netherlands Corporate Income Tax Act 1969 (Wet op de vennootschapsbelasting 1969, “CITA”);

 

42


Table of Contents
   

that is an exempt investment institution (vrijgestelde beleggingsinstelling) or a fiscal investment institution (fiscale beleggingsinstelling) as meant in Articles 6a and 28 of the CITA, respectively;

 

   

who is, or that is, not considered the beneficial owner of Cimpress N.V. Shares and/or the income and/or capital gains derived from Cimpress N.V. Shares.

Taxation of Exchange of Cimpress N.V. Shares for Cimpress plc Shares pursuant to the Merger

Dutch Resident Cimpress N.V. Shareholders

A Cimpress N.V. Shareholder who is resident or deemed to be resident in The Netherlands for purposes of Dutch taxation (a “Dutch Resident”), may be subject to Dutch income tax or Dutch corporate income tax (as applicable) in respect of the exchange of Cimpress N.V. Shares for Cimpress plc Shares pursuant to the Merger, depending on the tax regime applicable to such holder.

Non-Dutch Resident Cimpress N.V. Shareholders

A Cimpress N.V. Shareholder who is not, nor deemed to be, a Dutch Resident, (a “Non-Dutch Resident”) is generally not subject to Dutch income tax or Dutch corporate income tax (as applicable) in respect of the exchange of Cimpress N.V. Shares for Cimpress plc Shares pursuant to the Merger, provided that:

 

   

such Non-Dutch Resident does not derive profits from an enterprise or deemed enterprise, whether as an entrepreneur or pursuant to a co-entitlement to the net worth of such enterprise (other than as an entrepreneur or a shareholder) which enterprise is, in whole or in part, carried on through a permanent establishment (vaste inrichting) or a permanent representative (vaste vertegenwoordiger) in The Netherlands and to which enterprise or part of an enterprise, as the case may be, the Cimpress N.V. Shares are attributable or deemed attributable;

 

   

in case of a Non-Dutch Resident who is an individual, such individual does not derive income or capital gains from Cimpress N.V. Shares, as the case may be, that are taxable as benefits from ‘miscellaneous activities performed in The Netherlands’, which include the performance of activities in respect of Cimpress N.V. Shares, that exceed regular, active portfolio management and also includes benefits resulting from a lucrative interest;

 

   

in case of a Non-Dutch Resident who is an individual, such individual is not entitled to a share in the profits of an enterprise effectively managed in The Netherlands, other than by way of the holding of securities or through an employment relationship, to which enterprise Cimpress N.V. Shares or payments in respect of Cimpress N.V. Shares are attributable; and

 

   

in case of a Non-Dutch Resident that is an entity, such entity is neither entitled to a share in the profits of an enterprise nor co-entitled to the net worth of an enterprise effectively managed in The Netherlands, other than by way of the holding of securities, to which enterprise Cimpress N.V. Shares or payments in respect of Cimpress N.V. Shares are attributable.

 

43


Table of Contents

DESCRIPTION OF CIMPRESS PLC SHARES

The following description of Cimpress plc Shares is a summary. This summary does not purport to be complete and, along with the other statements in this section, is qualified in its entirety by reference to, and is subject to, the complete text of Cimpress plc’s Constitution that will be in effect immediately following the completion of the Merger, which will be substantially in the form filed as Annex B to this Proxy Statement. You are urged to read Cimpress plc’s Constitution and relevant provisions of the Irish Companies Act for a more complete understanding of the rights conferred by Cimpress plc Shares. The following summary is not a description of Cimpress plc’s Constitution currently in effect.

There are differences between Cimpress N.V.’s current articles of association and Cimpress plc’s Constitution as they will be in effect after the Merger becomes effective. Certain provisions of Cimpress N.V.’s current articles of association will not be replicated in Cimpress plc’s Constitution, and certain provisions that will be included in Cimpress plc’s Constitution are not in Cimpress N.V.’s current articles of association. For further detail, see the section captioned “Comparison of the Rights of Cimpress N.V. Shareholders and Cimpress plc Shareholders” beginning on page [●].

Except where otherwise indicated, the description below reflects Cimpress plc’s Constitution as such document will be in effect as of the Effective Date.

Capital Structure

The rights of and restrictions applicable to Cimpress plc Shares are prescribed in Cimpress plc’s Constitution, subject to the Irish Companies Act.

Authorized Share Capital

Cimpress plc has an authorized share capital of €2,025,000 comprising 100,000,000 ordinary shares of €0.01 each, 100,000,000 preferred shares of €0.01 each, and 25,000 deferred ordinary shares of €1.00 each.

The authorized share capital includes 25,000 deferred ordinary shares of €1.00 each in order to satisfy minimum statutory capital requirements for all Irish public limited companies. The holders of the deferred ordinary shares are not entitled to receive any dividend or distribution, to attend, speak or vote at any general meeting, and has no effective rights to participate in the assets of Cimpress plc.

Under Cimpress plc’s Constitution, Cimpress plc may issue Cimpress plc Shares up to its maximum authorized share capital. The authorized share capital may be increased or reduced by a resolution approved by a simple majority of the votes cast at a general meeting of Cimpress plc Shareholders, referred to under Irish law as an “ordinary resolution”.

Under Irish law, the directors of a company may issue new ordinary or preferred shares without shareholder approval once authorized to do so by the constitution or by an ordinary resolution adopted by the shareholders at a general meeting. The authorization may be granted for a maximum period of five years, at which point it must be renewed by the shareholders by an ordinary resolution. Cimpress plc’s Constitution authorizes the Cimpress plc Board to allot Cimpress plc Shares with an aggregate par value amount up to the maximum of its authorized but unissued share capital without approval from Cimpress plc Shareholder for a period of five years from the date of adoption of Cimpress plc’s Constitution. The authority to issue preferred shares provides us with the flexibility to consider and respond to future business needs and opportunities as they arise from time to time, including in connection with capital raising, financing and acquisition transactions or opportunities.

 

44


Table of Contents

Under Cimpress plc’s Constitution, the Cimpress plc Board will be authorized to issue preferred shares on a non-pre-emptive basis, with discretion as to the terms attaching to the preferred shares, including as to voting, dividend and conversion rights and priority relative to other classes of shares with respect to dividends and upon a liquidation. As described in the preceding paragraph, this authority extends until five years from the date of the adoption of Cimpress plc’s Constitution, at which time it will expire unless renewed by Cimpress plc Shareholders.

Notwithstanding this authority, under the Irish Takeover Rules (as defined below) the Cimpress plc Board would not be permitted to issue any of the Cimpress plc Shares, including preferred shares, during a period when an offer has been made for Cimpress plc or is believed to be imminent unless the issue is (i) approved by Cimpress plc Shareholders at a general meeting; (ii) consented to by the Irish Takeover Panel on the basis it would not constitute action frustrating the offer; (iii) consented to by the Irish Takeover Panel and approved by ordinary resolutions of shareholders; (iv) consented to by the Irish Takeover Panel in circumstances where a contract for the issue of Cimpress plc Shares had been entered into prior to that period; or (v) consented to by the Irish Takeover Panel in circumstances where the issue of Cimpress plc Shares was decided by our directors prior to that period and either action has been taken to implement the issuance (whether in part or in full) prior to such period or the issuance was otherwise in the ordinary course of business.

While Cimpress plc does not have any current specific plans, arrangements or understandings, written or oral, to issue any preferred shares for any purpose, we are continually evaluating our financial position and analyzing the possible benefits of issuing additional debt securities, equity securities, convertible securities or a combination thereof in connection with, among other things: (i) repaying indebtedness; (ii) financing acquisitions; or (iii) strengthening our balance sheet. The availability of preferred shares gives us flexibility to respond to future capital raising, financing and acquisition needs and opportunities without the delay and expense associated with holding an extraordinary general meeting of Cimpress plc Shareholders to obtain further approval.

Cimpress plc’s Constitution will permit the Cimpress plc Board, without approval from Cimpress plc Shareholders, to determine the terms of any preferred shares that we may issue.

Irish law does not recognize fractional shares held of record. Accordingly, Cimpress plc’s Constitution does not provide for the issuance of fractional ordinary shares, and our official Irish share register will not reflect any fractional shares.

Issued Share Capital

The Merger will result in each Cimpress Share being cancelled and an equivalent number of Cimpress plc Shares being issued to the former Cimpress N.V. Shareholders on a one-for-one basis (other than in the case of Cimpress N.V. Shareholders who vote against the Merger and elect for Cash Compensation).

An additional 25,000 Cimpress plc deferred ordinary shares will be held by Matsack Nominees Limited and Cimpress Holding Unlimited Company (“New ULC”) to meet the Irish statutory minimum capital requirements of an Irish public limited company. The deferred ordinary shares will remain outstanding following the completion of the Merger and will continue to be held thereafter by Matsack Nominees Limited and New ULC until redeemed or surrendered. These Cimpress plc deferred shares (i) will not have any voting rights; (ii) will not entitle the holders thereof to any dividends or other distributions of Cimpress plc; and (iii) will not entitle the holders thereof to participate in the surplus assets of Cimpress plc on a winding-up beyond, in total, the nominal value of such Cimpress plc deferred shares held (subject to the prior repayment of the amount paid-up on each of the Cimpress plc Shares plus an additional amount of $5,000,000 in cash per ordinary share). Accordingly, these Cimpress plc deferred shares will not dilute the economic ownership of Cimpress plc Shareholders.

Under Cimpress plc’s Constitution, subject to the Irish Companies Act, the Cimpress plc Board (or an authorized committee of the Cimpress plc Board) is authorized to approve the allotment, issue, grant and disposal of, or

 

45


Table of Contents

otherwise deal with, shares, options, equity awards, rights over shares, warrants, other securities and derivatives (including unissued shares) in or of Cimpress plc to such persons, at such times and on such terms as it thinks fit (including specifying the conditions of allotment of shares for the purposes of the Irish Companies Act).

Preemptive Rights

Under Irish law, certain statutory preemption rights apply automatically in favor of shareholders where shares are to be issued for cash. However, Cimpress plc has opted to disapply these preemption rights in Cimpress plc’s Constitution in respect of Cimpress plc Shares with an aggregate par value amount up to the maximum of its authorized but unissued share capital.

Irish law requires this disapplication to be renewed at least every five years by 75% of the votes cast at a general meeting of shareholders, referred to under Irish law as a “special resolution”. If the disapplication is not renewed, Cimpress plc Shares issued for cash must be offered to existing Cimpress plc Shareholders on a pro rata basis to their existing shareholdings before the Cimpress plc Shares may be issued to any new Cimpress plc Shareholders.

Statutory preemption rights do not apply (i) where shares are issued for non-cash consideration (such as in a stock-for-stock acquisition); (ii) to the issue of non-equity shares (that is, shares that have the right to participate only up to a specified amount in any income or capital distribution); or (iii) where shares are issued pursuant to an employee stock option or similar equity plan.

Dividends

Under Irish law, Cimpress plc will be able to declare dividends and make distributions only out of “distributable profits”. Distributable profits are the accumulated realized profits of Cimpress plc that have not previously been utilized in a distribution or capitalization less accumulated realized losses that have not previously been written off in a reduction or reorganization of capital, and include reserves created by way of a reduction of capital. In addition, no distribution or dividend may be paid or made by Cimpress plc unless the net assets of Cimpress plc are equal to, or exceed, the aggregate of Cimpress plc’s called-up share capital plus its undistributable reserves and the distribution does not reduce Cimpress plc’s net assets below such aggregate. Undistributable reserves include the undenominated capital, the capital redemption reserve fund and the amount by which Cimpress plc’s accumulated unrealized profits that have not previously been utilized by any capitalization exceed Cimpress plc’s accumulated unrealized losses that have not previously been written off in a reduction or reorganization of capital.

The determination as to whether Cimpress plc has sufficient distributable profits to fund a dividend must be made by reference to its “relevant financial statements”. The “relevant financial statements” will be either the last set of unconsolidated annual audited financial statements or other financial statements properly prepared in accordance with the Irish Companies Act, which give a “true and fair view” of Cimpress plc’s unconsolidated financial position and accord with accepted accounting practice and have been filed with the Irish Companies Registration Office.

The mechanism as to who declares a dividend and when a dividend becomes payable is governed by Cimpress plc’s Constitution. Cimpress plc’s Constitution authorizes the Cimpress plc Board to declare interim dividends without approval from Cimpress plc Shareholders if it considers that the financial position of Cimpress plc justifies such payment. The Cimpress plc Board may also recommend a dividend to be approved and declared by Cimpress plc Shareholders at a general meeting. No dividend issued may exceed the amount recommended by the Cimpress plc Board. Cimpress plc’s Constitution provides that dividends may be paid in cash, property or paid-up shares.

Except as otherwise provided by the rights attached to Cimpress plc Shares, all Cimpress plc Shares will carry a pro rata entitlement to the receipt of dividends. Unless provided for by the rights attached to a Cimpress plc Share, no dividend or other monies payable by Cimpress plc in respect of a Cimpress plc Share shall bear interest.

 

46


Table of Contents

If a dividend cannot be paid to a Cimpress plc Shareholder or otherwise remains unclaimed, the Cimpress plc Board may pay it into a separate Cimpress plc account and Cimpress plc will not be a trustee in respect thereof. A dividend that remains unclaimed for a period of twelve years after the payment date will be forfeited and will revert to Cimpress plc.

Share Repurchases, Redemptions and Conversions

Repurchases and Redemptions

Cimpress plc’s Constitution provides that Cimpress plc may purchase its own shares and redeem outstanding redeemable shares. Under the Irish law, shares can only be purchased or redeemed out of: (i) distributable reserves; or (ii) the proceeds of a new issue of shares made for the purpose of the purchase or redemption.

Under the Irish Companies Act, a company may purchase its own shares either (i) “on-market” on a recognized stock exchange, which includes Nasdaq; or (ii) “off-market” (i.e., otherwise than on a recognized stock exchange).

For Cimpress plc to make “on-market” purchases of Cimpress plc Shares, Cimpress plc Shareholders must provide general authorization to Cimpress plc to do so by way of an ordinary resolution. For so long as a general authority is in force, no additional shareholder authority for a particular “on-market” purchase is required. Such authority can be given for a maximum period of five years before it is required to be renewed and must specify: (i) the maximum number of shares that may be purchased; and (ii) the maximum and minimum prices that may be paid for the shares by specifying particular sums or providing a formula.

For an “off-market” purchase, the proposed purchase contract must be authorized by special resolution of the shareholders before the contract is entered into.

Separately, Cimpress plc can redeem (as opposed to purchase) its redeemable shares once permitted to do so by Cimpress plc’s Constitution (without the requirement for additional shareholder authority). Cimpress plc’s Constitution provides that, unless the Cimpress plc Board determines otherwise, any Cimpress plc Share that Cimpress plc has agreed to acquire shall be automatically converted into a redeemable Cimpress plc Share. Accordingly, for purposes of the Irish Companies Act, unless the Cimpress plc Board determines otherwise, the acquisition of Cimpress plc Shares by Cimpress plc will technically be effected as a redemption of those Cimpress plc Shares. If Cimpress plc’s Constitution did not contain such provision, acquisitions of Cimpress plc Shares by Cimpress plc would require to be effected as “on-market” or “off-market” purchases, as described above.

Repurchased and redeemed shares may be cancelled or held as treasury shares, provided that the par value of treasury shares held by Cimpress plc at any time must not exceed 10% of the par value of Cimpress plc’s company capital (comprising the aggregate of all amounts of par value plus share premium paid for Cimpress plc’s shares plus certain other sums, which may be credited as such).

Purchases by Subsidiaries

Under Irish law, a subsidiary of Cimpress plc may purchase Cimpress plc Shares either “on-market” or “off-market,” provided such purchases are authorized by Cimpress plc Shareholders as outlined above. The redemption option is not available to a subsidiary of Cimpress plc.

The number of Cimpress plc Shares held by Cimpress plc’s subsidiaries at any time will count as treasury shares and will be included in any calculation of the 10% permitted treasury share threshold, as described above. While a subsidiary holds any of our shares, it cannot exercise voting rights in respect of those shares. The acquisition of Cimpress plc Shares by a subsidiary must be funded out of distributable profits of the subsidiary.

 

47


Table of Contents

Cimpress plc cannot exercise any rights in respect of any treasury shares. Treasury shares can either be held in treasury, re-issued “on-market” or “off-market” or cancelled. Depending on the circumstances of their acquisition, treasury shares may be held indefinitely or require to be cancelled after one or three years. The re-issue of treasury shares requires to be made pursuant to a valid and subsisting shareholder authority given by way of a special resolution.

Consolidation and Division; Subdivision

Under the Irish Companies Act, Cimpress plc may, by ordinary resolution, consolidate and divide all or any of its share capital into shares of larger par value than its existing shares, or subdivide its shares into smaller amounts.

Reduction of Share Capital

Cimpress plc may reduce its share capital by way of a court approved procedure that also requires approval by special resolution of Cimpress plc Shareholders at a general meeting.

Lien on Cimpress plc Shares, Calls on Cimpress plc Shares and Forfeiture of Cimpress plc Shares

Cimpress plc’s Constitution provides that Cimpress plc will have a first and paramount lien on every share that is not a fully paid-up share for an amount equal to the unpaid portion of such share. Subject to the terms of their allotment, directors may call for any unpaid amounts in respect of any Cimpress plc Shares to be paid, and if payment is not made, the Cimpress plc Shares may be forfeited. Cimpress plc will not have a lien on any fully paid Cimpress plc Shares.

These provisions are customary in the constitution of an Irish public company limited by shares.

General Meetings of Cimpress plc Shareholders

Cimpress plc must hold its annual general meeting within the nine-month period beginning with the day following its accounting reference date (which is its accounting year end of June 30).

In addition to any SEC mandated resolutions, the business of Cimpress plc’s annual general meeting is required to include: (a) the consideration of Cimpress plc’s statutory financial statements; (b) the review by Cimpress plc Shareholders of Cimpress plc’s affairs; (c) the election and reelection of directors in accordance with Cimpress plc’s Constitution; (d) the appointment or reappointment of the Irish statutory auditors; (e) the authorization of the directors to approve the remuneration of the statutory auditors; and (f) the declaration of dividends (other than interim dividends).

Cimpress plc’s Constitution provides that the Cimpress plc Board may convene general meetings of the Cimpress plc Shareholders at any place they so designate. All general meetings, other than annual general meetings, are referred to as “extraordinary general meetings” at law.

If a general meeting is held outside Ireland, Cimpress plc has a duty, at its expense, to make all necessary arrangements to ensure that Cimpress plc Shareholders can by technological means participate in any such meeting without leaving Ireland.

Cimpress plc’s Constitution requires that notice of an annual general meeting of Cimpress plc Shareholders must be delivered to the shareholders at least 21 clear days and no more than 60 clear days before the meeting. Cimpress plc Shareholders must be notified of all general meetings (other than annual general meetings) at least 14 clear days and no more than 60 clear days prior to the meeting (provided that, in the case of an extraordinary general meeting for the passing of a special resolution, at least 21 clear days’ notice is required).

 

48


Table of Contents

“Clear days” means calendar days and excludes (1) the date on which a notice is given, or a request received; and (2) the date of the meeting itself.

Calling Special Meetings of Cimpress plc Shareholders

Cimpress plc’s Constitution provides that general meetings of shareholders may be called on the order of the Cimpress plc Board. Under Irish law, one or more shareholders representing at least 10% of the paid-up share capital of Cimpress plc carrying voting rights have the right to requisition the holding of an extraordinary general meeting.

Serious Loss of Capital

If the directors of Cimpress plc become aware that the assets of Cimpress plc are half or less of the amount of Cimpress plc’s called-up share capital, the directors must convene an extraordinary general meeting of Cimpress plc no later than 28 days after the earliest day on which that fact is known to a director (and the general meeting must be convened for a date not later than 56 days from that day). The meeting must be convened for the purpose of considering whether any, and if so what, measures should be taken to address the situation.

Quorum for Meetings of Cimpress plc Shareholders

Under Cimpress plc’s Constitution, holders of at least a simple majority of the shares issued and entitled to vote at a general meeting constitute a quorum.

The necessary quorum at a separate general meeting of the holders of any class of shares is be holders of at least a simple majority of that class of shares issued and entitled to vote.

Voting Rights

Under Cimpress plc’s Constitution, each Cimpress plc Shareholder is entitled to one vote for each ordinary share that they hold as of the record date for the meeting. The holder of the deferred ordinary shares is not entitled to a vote. No voting rights can be exercised in respect of any shares held as treasury shares, including shares held by subsidiaries (which count as treasury shares for this purpose).

All resolutions at an annual general meeting or other general meeting will be decided on a poll.

On a poll every Cimpress plc Shareholder who is present, in person or by proxy, at the general meeting, is entitled to one vote for every Cimpress plc Share held by such Cimpress plc Shareholder.

On a separate general meeting of the holders of any class of shares, all votes will be taken on a poll and each holder of shares of the class will, on a poll, have one vote in respect of every share of that class held by such shareholder.

Under the Irish Companies Act and Cimpress plc’s Constitution, certain matters require “ordinary resolutions”, which must be approved by at least a majority of the votes cast, in person or by proxy, by shareholders at a general meeting, and certain other matters require “special resolutions”, which require the affirmative vote of at least 75% of the votes cast, in person or by proxy, by shareholders at a general meeting.

An ordinary resolution is needed (among other matters) to: remove a director; provide, vary or renew the directors’ authority to allot shares and to appoint directors (where appointment is by shareholders).

A special resolution is needed (among other matters) to: alter a company’s constitution, exclude statutory preemptive rights on allotment of securities for cash (up to five years); reduce a company’s share capital; re-register a public company as a private company (or vice versa); and approve a scheme of arrangement.

 

49


Table of Contents

The chairman at a general meeting has a casting vote if equal votes are cast for and against a resolution on a poll.

Cumulative voting is not recognized under Irish law.

Variation of Rights Attaching to a Class of Shares

Under Cimpress plc’s Constitution and the Irish Companies Act, any variation of class rights attaching to our issued shares must be approved by a special resolution of our shareholders of the affected class or with the consent in writing of the holders of 75% of all the votes of that class of shares.

Inspection of Books and Records

Generally, the register of Cimpress plc Shareholders may be inspected during business hours (1) for free, by Cimpress plc Shareholders; and (2) for a fee by any other person.

Documents may be copied for a fee.

The service contracts, if any, of Cimpress plc’s directors can be inspected by Cimpress plc Shareholders without charge and during business hours. A “service contract” includes any contract under which such a director undertakes personally to provide services to the company or a subsidiary company, whether in that person’s capacity as a director, an executive officer or otherwise. Service contracts with an unexpired term of less than three years are not required to be kept for inspection.

Cimpress plc Shareholders have the right to receive a copy of Cimpress plc’s Constitution.

Cimpress plc Shareholders may also inspect, without charge and during business hours, the minutes of meetings of the shareholders and obtain copies of the minutes for a fee.

In addition, the published annual statutory financial statements of Cimpress plc are required to be available for Cimpress plc Shareholders at a general meeting and a Cimpress plc Shareholder is entitled to a copy of these financial statements. The Cimpress plc Shareholders have a right to receive financial statements of subsidiaries that have previously been sent to Cimpress plc Shareholders prior to an annual general meeting for the preceding ten years. The auditors’ report must be circulated to the Cimpress plc Shareholders with the financial statements prepared in accordance with Irish law at least 21 days before the annual general meeting.

Under Irish law, the shareholders of a company do not have the right to inspect the corporate books of a subsidiary of that company.

Acquisitions

Shareholder Approval of Merger or Consolidation

Irish law recognizes the concept of a statutory merger in three situations: (1) a domestic merger where an Irish private limited company merges with another Irish company (not being a public limited company) under Part 9 of the Irish Companies Act; (2) a domestic merger where an Irish public limited company merges with another Irish company under Part 17 of the Irish Companies Act; and (3) a cross-border merger, where an Irish company merges with another company based in the European Economic Area under the European Communities (Cross-border Merger) Regulations 2008 of Ireland.

Under Irish law and subject to applicable U.S. securities laws and Nasdaq’s rules and regulations, where Cimpress plc proposes to acquire another company, approval of Cimpress plc Shareholders is not required, unless effected as a direct domestic merger or direct cross-border merger as referred to above.

 

50


Table of Contents

Under Irish law, where another company proposes to acquire Cimpress plc, the requirement for the approval of Cimpress plc Shareholders depends on the method of acquisition.

Schemes of Arrangement

Under Irish law, schemes of arrangement are arrangements or compromises between a company and any class of shareholders or creditors, and are used in certain types of reconstructions, amalgamations, capital reorganizations or takeovers (similar to a merger in the United States). Such arrangements require the approval of: (i) a majority in number of shareholders or creditors (as the case may be) representing 75% in value of the creditors or class of creditors or shareholders or class of shareholders present and voting either in person or by proxy at a special meeting convened by order of the court; and (ii) the Irish High Court.

Once approved by the requisite shareholder and creditor majority, sanctioned by the Irish High Court and becoming effective, all shareholders and/or, as the case may be, creditors of the relevant class are bound by the terms of the scheme. Dissenting shareholders have the right to appear at the Irish High Court hearing and make representations in objection to the scheme.

Takeover Offer

The Irish Companies Act also provides that where (i) a takeover offer is made for shares, and (ii) following the offer, the offeror has acquired or contracted to acquire not less than 80% of the shares to which the offer relates, the offeror may require the other shareholders who did not accept the offer to transfer their shares on the terms of the offer.

A dissenting shareholder may object to the transfer on the basis that the offeror is not entitled to acquire its shares or to specify terms of acquisition different from those in the offer by applying to the court within 30 days of the date on which notice of the transfer was given. In the absence of fraud or oppression, and subject to strict compliance with the terms of the statute, the court is unlikely to order that the acquisition shall not take effect, but it may specify terms of the transfer that it finds appropriate.

A minority shareholder is also entitled in similar circumstances to require the offeror to acquire his or her shares on the terms of the offer.

Statutory Mergers

It is also possible for Cimpress plc to be acquired by way of a domestic or cross-border statutory merger, as described above. Such mergers must be approved by a special resolution of shareholders. If the consideration being paid to shareholders is not all in the form of cash, dissenting shareholders may be entitled to require that their shares be acquired for cash.

Related-Party Transactions

Cimpress plc will be subject to the rules of Nasdaq regarding related-party transactions.

Under Irish law, certain transactions between Cimpress plc and any director of Cimpress plc are prohibited unless approved by Cimpress plc Shareholders, such as loans, credit transactions and substantial property transactions. This prohibition extends to transactions with close personal relations and companies controlled by any such director.

Shareholder Suits

Under Irish law, the power to initiate a lawsuit on behalf of the company is generally a matter for the Board, and shareholders’ rights to initiate a derivative lawsuit on behalf of the company are limited.

 

51


Table of Contents

The central question at issue in deciding whether a shareholder may be entitled to bring a derivative action is whether, unless the action is brought, a wrong committed against the company would go unredressed.

The principal case law in Ireland indicates that to bring a derivative action, a person must first establish a prima facie case: (a) that the company is entitled to the relief claimed; and (b) that the action falls within one of the five exceptions derived from case law, as follows: (1) where an ultra vires or illegal act is perpetrated; (2) where more than a bare majority is required to ratify the “wrong” complained of; (3) where the shareholders’ personal rights are infringed; (4) where a fraud has been perpetrated upon a minority by those in control; or (5) where the justice of the case requires.

While Irish law only permits a shareholder to bring a derivative action and initiate a lawsuit on behalf of the company in limited circumstances, it does permit a shareholder whose name is on the register of shareholders of a company to apply for a court order where the company’s affairs are being conducted or the powers of the company’s directors are being exercised: (1) in a manner oppressive to him or her or any of the shareholders; or (2) in disregard of his or her or their interests as shareholders.

Oppression connotes conduct that is burdensome, harsh and wrongful. Furthermore, the oppression or the disregard of interests must result from either the conduct of the affairs of the company or the exercise of the powers of the directors.

This is a statutory remedy and an Irish court has wide discretion to make such order as it sees fit.

Lawsuits brought by a shareholder on behalf of the company must be brought exclusively in the courts of Ireland when they are related to or in connection with a derivative claim, an alleged breach of fiduciary or other duty by a director, officer or employee of Cimpress plc or any other claim against Cimpress plc or its directors, officers and employees under Irish law or pursuant to the constitution.

Disclosure of Interests in Shares

The Schedule 13D and Schedule 13G reporting regime will continue to apply to Cimpress plc as it will have its shares registered under Section 12 of the Exchange Act.

Under the Irish Companies Act, a person must notify us if, as a result of a transaction, the person will become interested in three percent or more of our voting shares, or if as a result of a transaction a person who was interested in three percent or more of our voting shares ceases to be so interested. Under the Irish Companies Act, an “interest” is broadly defined and includes direct and indirect holdings, beneficial interests and, in some cases, derivative interests. Furthermore, a person’s interests are aggregated with the interests of related persons and entities (including controlled companies). Where a person is interested in three percent or more of our voting shares, the person must notify us of any alteration of his or her interest that brings his or her total holding through the nearest whole percentage number, whether an increase or a reduction. The relevant percentage figure is calculated by reference to the aggregate nominal value of the voting shares in which the shareholder is interested as a proportion of the entire nominal value of our issued share capital (or any such class of share capital in issue). Where the percentage level of the person’s interest does not amount to a whole percentage, this figure may be rounded down to the next whole number. We must be notified within five business days of the transaction or alteration of the shareholder’s interests that gave rise to the notification requirement. If a person fails to comply with these notification requirements, the person’s rights in respect of any of our shares it holds will not be enforceable, either directly or indirectly. However, such person may apply to the court to have the rights attaching to such shares reinstated.

In addition, Irish law provides that a company may, by notice in writing, require a person whom the company knows or reasonably believes to be or to have been within the three preceding years, interested in its issued voting share capital to: (1) confirm whether this is or is not the case; and (2) if this is the case, to give further information that it requires relating to his or her interest and any other interest in the company’s shares of which he or she is aware.

 

52


Table of Contents

The disclosure must be made within a reasonable period as specified in the relevant notice which may be as short as one or two days. If the recipient of the notice fails to respond within the reasonable time period specified in the notice, we may apply to the Irish High Court for an order directing that the affected shares be subject to certain restrictions, as prescribed by the Irish Companies Act, as follows: (1) any transfer of those shares or, in the case of unissued shares, any transfer of the right to be issued with shares and any issue of shares, shall be void; (2) no voting rights shall be exercisable in respect of those shares; (3) no further shares shall be issued in right of those shares or in pursuance of any offer made to the holder of those shares; and (4) no payment shall be made of any sums due from us on those shares, whether in respect of capital or otherwise.

The court may also order that shares subject to any of these restrictions be sold with the restrictions terminating upon the completion of the sale.

In the event we are in an offer period pursuant to the Irish Takeover Rules, accelerated disclosure provisions apply for persons holding an interest in our securities of one percent or more.

Irish Takeover Rules

Following the completion of the Merger, Cimpress plc will be subject to the Irish Takeover Panel Act 1997, as amended, and the Irish Takeover Rules promulgated thereunder, which regulate the conduct of takeovers of, and certain other relevant transactions affecting, Irish public limited companies listed on certain stock exchanges, including Nasdaq. The Irish Takeover Rules are administered by the Irish Takeover Panel, which has supervisory jurisdiction over such transactions. Among other matters, the Irish Takeover Rules operate to ensure that no offer is frustrated or unfairly prejudiced and, in the case of multiple bidders, that there is a level playing field. For example, pursuant to the Irish Takeover Rules, the Cimpress plc Board will not be permitted, without approval from Cimpress plc Shareholders, to take certain actions that might frustrate an offer for Cimpress plc once the Cimpress plc Board has received an approach that may lead to an offer or has reason to believe an offer is, or may be, imminent.

A transaction in which a third party seeks to acquire 30% or more of our voting rights and any other acquisitions of our securities will be governed by the Irish Takeover Panel Act 1997, as amended, and the Irish Takeover Rules made thereunder, or the Irish Takeover Rules, and will be regulated by the Irish Takeover Panel. The “General Principles” of the Irish Takeover Rules and certain important aspects of the Irish Takeover Rules are described below.

General Principles

The Irish Takeover Rules are built on the following General Principles which will apply to any transaction regulated by the Irish Takeover Panel: (1) in the event of an offer, all holders of securities of the target company must be afforded equivalent treatment and, if a person acquires control of a company, the other holders of securities must be protected; (2) the holders of securities in the target company must have sufficient time and information to enable them to reach a properly informed decision on the offer; where it advises the holders of securities, the board of directors of the target company must give its views on the effects of the implementation of the offer on employment, employment conditions and the locations of the target company’s place of business; (3) a target company’s board of directors must act in the interests of that company as a whole and must not deny the holders of securities the opportunity to decide on the merits of the offer; (4) false markets must not be created in the securities of the target company, the bidder or any other company concerned by the offer in such a way that the rise or fall of the prices of the securities becomes artificial and the normal functioning of the markets is distorted; (5) a bidder can only announce an offer after ensuring that he or she can fulfill in full the consideration offered, if such is offered, and after taking all reasonable measures to secure the implementation of any other type of consideration; (6) a target company may not be hindered in the conduct of its affairs longer than is reasonable by an offer for its securities; and (7) a “substantial acquisition” of securities, whether such acquisition is to be effected by one transaction or a series of transactions, shall take place only at an acceptable speed and shall be subject to adequate and timely disclosure.

 

53


Table of Contents

Mandatory Bid

Under certain circumstances, a person who acquires shares, or other voting securities, of a company may be required under the Irish Takeover Rules to make a mandatory cash offer for the remaining outstanding voting securities in that company at a price not less than the highest price paid for the securities by the acquirer, or any parties acting in concert with the acquirer, during the previous 12 months. This mandatory bid requirement is triggered if an acquisition of securities would increase the aggregate holding of an acquirer, including the holdings of any parties acting in concert with the acquirer, to securities representing 30% or more of the voting rights in a company, unless the Irish Takeover Panel otherwise consents. An acquisition of securities by a person holding, together with its concert parties, securities representing between 30% and 50% of the voting rights in a company would also trigger the mandatory bid requirement if, after giving effect to the acquisition, the percentage of the voting rights held by that person, together with its concert parties, would increase by 0.05% within a 12-month period. Any person, excluding any parties acting in concert with the holder, holding securities representing more than 50% of the voting rights of a company is not subject to these mandatory offer requirements in purchasing additional securities.

Voluntary Bid; Requirements to Make a Cash Offer and Minimum Price Requirements

If a person makes a voluntary offer to acquire outstanding Cimpress plc Shares, the offer price must not be less than the highest price paid for Cimpress plc Shares by the bidder or its concert parties during the three-month period prior to the commencement of the offer period. The Irish Takeover Panel has the power to extend the “look back” period to 12 months if the Irish Takeover Panel, taking into account the General Principles, believes it is appropriate to do so.

If the bidder or any of its concert parties has acquired Cimpress plc Shares (1) during the 12-month period prior to the commencement of the offer period that represent more than 10% of the total Cimpress plc Shares or (2) at any time after the commencement of the offer period, the offer must be in cash or accompanied by a full cash alternative and the price per Cimpress plc Share must not be less than the highest price paid by the bidder or its concert parties during, in the case of clause (1), the 12-month period prior to the commencement of the offer period or, in the case of (2), the offer period. The Irish Takeover Panel may apply this Rule to a bidder who, together with its concert parties, has acquired less than 10% of the total Cimpress plc Shares in the 12-month period prior to the commencement of the offer period if the Irish Takeover Panel, taking into account the General Principles, considers it just and proper to do so.

An offer period will generally commence from the date of the first announcement of the offer or proposed offer.

Substantial Acquisition Rules

The Irish Takeover Rules also contain rules governing substantial acquisitions of shares and other voting securities which restrict the speed at which a person may increase his or her holding of shares and rights over shares to an aggregate of between 15% and 30% of the voting rights of the company. Except in certain circumstances, an acquisition or series of acquisitions of shares or rights over shares representing 10% or more of the voting rights of the company is prohibited, if such acquisition(s), when aggregated with shares or rights already held, would result in the acquirer holding 15% or more but less than 30% of the voting rights of the company and such acquisitions are made within a period of seven days. These rules also require accelerated disclosure of acquisitions of shares or rights over shares relating to such holdings.

Rights of Dissenting Shareholders

Irish law does not generally provide for appraisal rights. However Irish law provides for dissenters’ rights in certain situations, as described below: (1) under a takeover offer, an offeror which has acquired or contracted to acquire not less than 80% of the shares to which the offer relates may require the other shareholders who did not

 

54


Table of Contents

accept the offer to transfer their shares on the terms of the offer. Dissenting shareholders have the right to apply to the High Court of Ireland for relief; (2) a takeover scheme of arrangement which has been approved by the requisite shareholder majority and sanctioned by the High Court of Ireland will be binding on all shareholders. Dissenting shareholders have the right to appear at the High Court hearing and make representations in objection to the scheme; and (3) in the case of a domestic or cross-border statutory merger, if the consideration being paid to shareholders is not all in the form of cash, dissenting shareholders may be entitled to require that their shares be acquired for cash.

Anti-Takeover Measures

Frustrating Action

Under the Irish Takeover Rules, the Cimpress plc Board is not permitted to take any action that might frustrate an offer for our shares once the Cimpress plc Board has received an approach that may lead to an offer or has reason to believe that such an offer is or may be imminent, subject to certain exceptions. Potentially frustrating actions such as (1) the issue of shares, options, restricted share units or convertible securities; (2) material acquisitions or disposals; (3) entering into contracts other than in the ordinary course of business; or (4) any action, other than seeking alternative offers, which may result in frustration of an offer, are prohibited during the course of an offer or at any earlier time during which the Cimpress plc Board has reason to believe an offer is or may be imminent. Exceptions to this prohibition are available where: (a) the action is approved by our shareholders at a general meeting; or (b) the Irish Takeover Panel has given its consent, where: (i) it is satisfied the action would not constitute frustrating action; (ii) our shareholders holding more than 50% of the voting rights state in writing that they approve the proposed action and would vote in favor of it at a general meeting; (iii) the action is taken in accordance with a contract entered into prior to the announcement of the offer, or any earlier time at which the Board considered the offer to be imminent; or (iv) the decision to take such action was made before the announcement of the offer and either has been at least partially implemented or is in the ordinary course of business.

Shareholder Rights Plan

Although Cimpress plc’s Constitution allows the Cimpress plc Board to adopt a shareholder rights plan and to grant rights to subscribe for Cimpress plc Shares or preferred shares thereunder, Cimpress N.V. currently has no intention of adopting a shareholder rights plan or issuing share purchase rights. Irish law does not expressly authorize or prohibit companies from issuing share purchase rights or adopting a shareholder rights plan as an anti-takeover measure. However, there is no directly relevant case law on the validity of such plans under Irish law. In addition, such a plan would be subject to the Irish Takeover Rules and the General Principles underlying the Irish Takeover Rules. For further detail, see the section captioned “Comparison of the rights of Shareholders and Governance – Anti-takeover measures”, for more information, beginning on page 65.

Subject to the Irish Takeover Rules, the Cimpress plc Board also has power to issue any of our authorized and unissued shares on such terms and conditions as it may determine, and any such action should be taken in Cimpress plc’s best interests. It is possible, however, that the terms and conditions of any issue of preference shares could discourage a takeover or other transaction that holders of some or a majority of the Cimpress plc Shares believe to be in their best interests or in which holders might receive a premium for their shares over the then-market price of the shares.

Insider Dealing

The Irish Takeover Rules also provide that no person, other than the bidder, who is privy to confidential price-sensitive information concerning an offer made in respect of the acquisition of a company (or a class of securities) or a contemplated offer shall deal in relevant securities of the target during the period from the time at which such person first has reason to suppose that such an offer, or an approach with a view to such an offer being made, is contemplated to the time of (i) the announcement of such offer or approach; or (ii) the termination of discussions relating to such offer, whichever is earlier.

 

55


Table of Contents

Corporate Governance

Under Irish law and Cimpress plc’s Constitution, the authority for the overall management of Cimpress plc is vested in the Cimpress plc Board. The Cimpress plc Board may delegate any of its powers on such terms as it thinks fit in accordance with Cimpress plc’s Constitution and Irish law, although, the Cimpress plc Board will remain responsible, as a matter of Irish law, for the proper management of the affairs of Cimpress plc. The directors must ensure that any delegation is and remains appropriate and that an adequate system of control and supervision is in place.

The Cimpress plc Board will have a standing audit committee, compensation committee, and nominating and governance committee. It is also the intention of Cimpress plc to assume Cimpress N.V.’s existing code of business conduct and insider trading policy and to adopt governance guidelines in accordance with Irish law.

Directors

Number of Directors

Cimpress plc’s Constitution provides that the number of directors will be as the Cimpress plc board may determine from time to time and at the date of adoption of Cimpress plc’s Constitution will be not more than 15 and not fewer than two in number. Immediately following the completion of the Merger there will be five directors on the Cimpress plc Board.

Appointment of Directors

Both Cimpress plc shareholders and the Cimpress plc Board have the power to appoint a person as a director by simple majority resolution, either to fill a vacancy or as an additional position.

Under Cimpress plc’s Constitution, shareholders have further notification requirements in addition to what is required under Irish law in order to bring a resolution before a meeting of shareholders. For further detail, see the section captioned “Comparison of the rights of Shareholders and Governance—Director Nominations; Proposals of Shareholders”, beginning on page 65.

Election of Directors

Under Cimpress plc’s Constitution, starting with the annual general meeting to be held in 2020, any Director whose term expires at an annual general meeting shall stand for re-election at the annual general meeting. Notwithstanding that a Director might not be re-elected at an annual general meeting, such Director shall nevertheless hold office until his or her successor is elected or is appointed by the Cimpress plc Board, or until his or her earlier resignation or removal in accordance with Cimpress plc’s Constitution or the Irish Companies Act.

Removal of Directors and Vacancies

Under Irish law and Cimpress plc’s Constitution, both Cimpress plc shareholders and the Cimpress plc Board have the power to remove a director without cause by simple majority resolution. In the case of shareholders

removing a director, at least 28 clear days’ notice of the resolution is given to Cimpress plc and the shareholder(s) comply with the relevant procedural requirements.

The power of removal is without prejudice to any claim for damages for breach of contract (e.g., employment contract) which the director may have against Cimpress plc in respect of his or her removal.

Under Irish law, one or more shareholders representing at least 10% of the paid-up share capital of Cimpress plc carrying voting rights have the right to requisition the holding of an extraordinary general meeting at which such a resolution to remove a director (and appoint a replacement) may be proposed.

 

56


Table of Contents

Under Cimpress plc’s Constitution, a Director may also be removed from office by notice in writing addressed to him or her at his or her address as shown in the company’s register of directors and signed by not less than a majority in number of all the Directors (rounded down to the nearest whole number and excluding the Director in question).

Cimpress plc’s Constitution provides that vacancies in the board of directors may be filled by the Cimpress plc Board.

Duration; Dissolution; Rights upon Liquidation

The duration of Cimpress plc will be unlimited. Cimpress plc may be dissolved and wound up at any time by way of a shareholders’ voluntary winding up or a creditors’ winding up. In the case of a shareholders’ voluntary winding up, a special resolution of shareholders is required. Cimpress plc may also be dissolved by way of court order on the application of a creditor, or by the Companies Registration Office as an enforcement measure if it has failed to file certain returns. Cimpress plc may also be dissolved by the Director of Corporate Enforcement in Ireland where our affairs have been investigated by an inspector and it appears from the report or any information obtained by the Director of Corporate Enforcement that Cimpress plc should be wound up.

If Cimpress plc’s Constitution contains no specific provisions in respect of a dissolution or winding up, then, subject to the priorities of any creditors, the assets will be distributed to our shareholders in proportion to the paid-up nominal value of the shares held. Cimpress plc’s Constitution contains specific provisions in respect of a winding up and the rights of the shareholders may be subject to the rights of any preference shareholders to participate under the terms of any series or class of preferred shares.

No Liability for Further Calls or Assessments

The shares to be issued in connection with the Merger will be duly and validly issued and fully paid and non-assessable.

Transfer and Registration of Shares

Cimpress plc will maintain a share register or otherwise cause a share register to be maintained. The registration in that register will be used to determine which Cimpress plc shareholders are entitled to vote at meetings of Cimpress plc shareholders. A Cimpress plc shareholder who holds shares beneficially will not be the holder of record of such shares. Instead, the depository or other nominee will be the holder of record of those shares.

Accordingly, a transfer of shares from a person who holds such shares beneficially to a person who also holds such shares beneficially through a depository or other nominee will not be registered in Cimpress plc’s official share register, as the depository or other nominee will remain the record holder of any such shares.

Under Cimpress plc’s Constitution, subject to the Irish Companies Act, certificated shares may be transferred upon surrender for cancellation of the share certificate(s) for the shares in question along with an instrument of transfer, duly executed, with such proof of authenticity of the signature as Cimpress plc or its agents may reasonably require.

A written instrument of transfer is required under Irish law in order to register on Cimpress plc’s official share register any transfer of shares (i) from a person who holds such shares directly to any other person; (ii) from a person who holds such shares beneficially to a person who holds such shares directly; or (iii) from a person who holds such shares beneficially to another person who holds such shares beneficially where the transfer involves a change in the depository or other nominee that is the record owner of the transferred shares. An instrument of transfer is also required for a shareholder who directly holds shares to transfer those shares into his or her own broker account (or vice versa). Such instruments of transfer may give rise to Irish stamp duty, which must be

 

57


Table of Contents

paid prior to registration of the transfer on Cimpress plc’s official Irish share register. However, a shareholder who directly holds shares may transfer those shares into his or her own broker account (or vice versa) and this should not give rise to Irish stamp duty provided there is no change in the ultimate beneficial ownership of the shares as a result of the transfer and the transfer is not made in contemplation of a sale of the shares.

Any transfer of Cimpress plc Shares that is subject to Irish stamp duty will not be registered in the name of the transferee unless an instrument of transfer is duly stamped and provided to the Cimpress plc transfer agent. Cimpress plc, in its absolute discretion and insofar as the Irish Companies Act or any other applicable law permits, may, or may provide that a subsidiary of Cimpress plc will, pay Irish stamp duty arising on a transfer of Cimpress plc Shares on behalf of the transferee of such Cimpress plc Shares. If stamp duty resulting from the transfer of Cimpress plc Shares which would otherwise be payable by the transferee is paid by Cimpress plc or any of its subsidiaries on behalf of the transferee, then in those circumstances, Cimpress plc will, on its behalf or on behalf of its subsidiary (as the case may be), be entitled to (i) seek reimbursement of the stamp duty from the transferee or the transferor (at its discretion); (ii) set-off the stamp duty against any dividends payable to the transferee of those Cimpress plc Shares; and (iii) claim a first and permanent lien on the Cimpress plc Shares on which stamp duty has been paid by Cimpress plc or its subsidiary for the amount of stamp duty paid. Cimpress plc’s lien shall extend to all dividends paid on those Cimpress plc Shares. Parties to a share transfer may assume that any Irish stamp duty arising in respect of a transaction in Cimpress plc Shares has been paid unless one or both of such parties is otherwise notified by Cimpress plc.

Cimpress plc’s Constitution delegates to Cimpress plc’s secretary, any assistant secretary or a relevant authorized delegate the authority to execute an instrument of transfer on behalf of a transferor.

To help ensure that our official share register is regularly updated to reflect trading of Cimpress plc shares occurring through electronic systems, Cimpress plc intends to regularly produce such instruments of transfer as may be required to effect any transfers of registered interests in shares. These may involve transactions for which it pays stamp duty, subject to the reimbursement and set-off rights described above. In the event that Cimpress plc notifies one or both of the parties to a share transfer that it believes stamp duty is required to be paid in connection with such transfer and that it will not pay such stamp duty, the parties may either themselves arrange for the execution of the required instrument of transfer (and may request a form of instrument of transfer from Cimpress plc for this purpose) or request that Cimpress plc execute an instrument of transfer on behalf of the transferring party in a form determined by Cimpress plc. In either event, if the parties to the share transfer have the instrument of transfer duly stamped (to the extent required) and then provide it to Cimpress plc’s transfer agent, the transferee named therein will be registered as the registered holder of the relevant shares on Cimpress plc’s official share register (subject to the matters described below).

The registration of transfers may be suspended by our directors at such times and for such period, not exceeding in the whole 30 days in each year, as our directors may from time to time determine.

Indemnification of Directors and Officers

Subject to exceptions, Irish law does not permit a company to exempt a director or certain officers from, or indemnify a director against, liability in connection with any negligence, default, breach of duty or breach of trust by a director in relation to the company.

The exceptions allow a company to: (a) purchase and maintain directors and officers insurance against any liability attaching in connection with any negligence, default, breach of duty or breach of trust owed to the company; and (b) indemnify a director or such other officer against any liability incurred in defending proceedings, whether civil or criminal: (i) in which judgment is given in his or her favor or in which he or she is acquitted; or (ii) in respect of which an Irish court grants him or her relief from any such liability on the grounds that he or she acted honestly and reasonably and that, having regard to all the circumstances of the case, he or she ought fairly to be excused for the wrong concerned.

 

58


Table of Contents

Cimpress plc’s Constitution includes a provision which entitles every director to be indemnified by Cimpress plc to the fullest extent permitted by law (including by funding any expenditure incurred or to be incurred by him or her) against any loss or liability incurred in his or her capacity as a director. Cimpress plc’s Constitution provides that where a person is so indemnified, such indemnity may extend to all costs, losses, expenses and liabilities incurred by him or her. Any funds provided to a director to meet any expenditure incurred by him or her in connection with defending himself or in an investigation of any negligence, default, breach of duty or breach of trust by him or her or otherwise, must be repaid if he or she is convicted, or judgment is given against him or her.

Cimpress plc’s Constitution also provides the Cimpress plc Board with authority to purchase and maintain insurance at the expense of Cimpress plc for the benefit of any person who is, or was at any time, a director or other officer or employee of the company or any associated company.

In addition to the provisions of Cimpress plc’s Constitution, it is common for a public limited company to enter into separate a deed of indemnity with a director or officer which essentially indemnifies the director or officer against claims brought by third parties to the fullest extent permitted under Irish law. Cimpress plc intends to enter into such deeds of indemnity with each of its directors and officers.

Limitation on Director Liability

Subject to exceptions, as described above, Irish law does not permit a company to exempt any director or certain officers from any liability arising from negligence, default, breach of duty or breach of trust against the company. One of the exceptions is that an Irish company is permitted to purchase and maintain insurance for a director or executive officer of the company against any such liability.

Cimpress plc’s Constitution provides the Cimpress plc Board with authority to purchase and maintain insurance at the expense of Cimpress plc for the benefit of any person who is or was at any time a director or other officer or employee of the company or any associated company.

Separately, in proceedings where negligence, default, breach of duty or breach of trust against a director has or may be established (or in anticipation of any such proceedings), an Irish court has the power to grant a director or other officer relief from liability on the grounds that he or she acted honestly and reasonably and that, having regard to all the circumstances of the case, he or she ought fairly to be excused for the wrong concerned.

 

59


Table of Contents

COMPARISON OF RIGHTS OF SHAREHOLDERS AND GOVERNANCE

Your rights as a Cimpress N.V. Shareholder are governed by the DCC and Cimpress N.V.’s articles of association. As a result of the Merger, Cimpress N.V. will be dissolved without going into liquidation, and Cimpress N.V. Shareholders will become Cimpress plc Shareholders. The rights of Cimpress plc Shareholders will be governed by applicable Irish law, including the Irish Companies Act, and by Cimpress plc’s Constitution.

Many of the principal attributes of Cimpress N.V. Shares and Cimpress plc Shares will be similar. However, there are differences between the rights of Cimpress N.V. Shareholders under Dutch law and the rights of Cimpress plc Shareholders under Irish law following the Merger. In addition, there are differences between Cimpress N.V.’s articles of association and Cimpress plc’s Constitution as they will be in effect after the completion of the Merger. These differences are more particularly described below, but the material differences are generally characterized as follows:

Cimpress N.V. is a Dutch public limited liability company, whereas Cimpress plc will be an Irish public limited company.

Certain mandatory provisions under Dutch law that are not mandatory provisions of Irish law have not been included in the rights attaching to Cimpress plc Shares and Cimpress plc’s Constitution, and certain mandatory provisions under Irish law that are not mandatory provisions of Dutch law have been included in the rights attaching to Cimpress plc Shares and Cimpress plc’s Constitution.

Certain standard provisions under Irish law customarily applied to the rights attaching to shares and the constitutions of Irish companies have been included in the rights attaching to Cimpress plc Shares and Cimpress plc’s Constitution even if there is no Dutch law equivalent.

The following is a summary comparison of the rights of Cimpress N.V. Shareholders under applicable Dutch law and Cimpress N.V.’s articles of association and the rights such Cimpress N.V. Shareholders will have as Cimpress plc Shareholders under the Irish Companies Act and Cimpress plc’s Constitution effective immediately following the Merger. The statements in this section are qualified in their entirety by reference to, and are subject to, the detailed provisions of Cimpress N.V.’s articles of association and Cimpress plc’s Constitution as will be in effect after the Effective Date, substantially in the form attached as Annex B to this Proxy Statement. The deed of amendment to Cimpress N.V.’s articles of association is attached as Annex C to this Proxy Statement. For further detail, see “Where You Can Find More Information.” We encourage you to read those documents carefully. You are also urged to carefully read the relevant provisions of the DCC and the Irish Companies Act for a more complete understanding of the differences between being a Cimpress N.V. Shareholder and a Cimpress plc Shareholder. The Irish Companies Act can be accessed online for free at http://www.irishstatutebook.ie or can be purchased in hardcopy format from the Irish Government Publications Office by calling +353 1 076 1106 834 or by e-mailing publications@opw.ie.

 

   

Cimpress N.V.

 

Cimpress plc

Issued and Authorized Share Capital  

The authorized share capital of Cimpress N.V. is set at €2,000,000 and is divided in 100,000,000 ordinary shares and 100,000,000 preference shares, each with a par value of €0.01.

 

As of June 30, 2019, Cimpress N.V. had an issued nominal share capital of €440,806.27, 30,445,669 ordinary shares outstanding, and no preference shares outstanding.

 

Cimpress plc has an authorized share capital of €2,025,000 divided into 100,000,000 ordinary shares of €0.01 each, 100,000,000 preferred shares of €0.01 each and 25,000 deferred ordinary shares of €1.00 each.

 

Immediately prior to completion of the Merger, Cimpress plc will have an issued share capital of 25,000 deferred ordinary shares of €1.00 each.

 

60


Table of Contents
Board Remuneration  

Under Dutch law, Cimpress N.V. is required to have a have a policy governing the remuneration of the Board. The remuneration policy will be adopted by the general meeting pursuant to and in accordance with a proposal thereto by the Board.

 

The remuneration of each individual executive director and non-executive director will be determined by the Board with due observance of the remuneration policy.

 

An executive director may not participate in the deliberation and the decision-making process of the Board if it concerns the remuneration of an executive director

 

Notwithstanding that Cimpress plc will remain subject to SEC reporting requirements for director and executive officer compensation and shareholder non-binding advisory votes to approve named officer compensation, under Irish law, Cimpress plc is not required to prepare and submit to shareholders a directors’ remuneration report or policy for a vote.

 

Irish law requires, in the case of officers who are also considered directors under Irish law, that employment agreements with a guaranteed term of more than five years be subject to a prior approval of shareholders at a general meeting.

Consolidation and Division   N/A  

Cimpress plc may, by ordinary resolution, consolidate and divide all or any of its share capital into shares of larger par value than its existing shares, or subdivide its shares into smaller amounts.

 

Pre-emption Rights, Share Warrants and Share Options  

Each Cimpress N.V. Shareholder has a pre-emptive right with respect to any further ordinary share issuance based on the proportionate ownership of the ordinary shares outstanding immediately prior to such issuance; Cimpress N.V. Shareholders have no pre-emptive rights with respect to ordinary shares issued for non-cash consideration or ordinary shares issued to employees of the Cimpress N.V. group pursuant to a compensation scheme applicable to such employees.

 

Cimpress N.V. Shareholders have no pre-emptive rights on preference shares that are issued, and holders of preference shares will have no pre-emptive rights on ordinary shares or preference shares that are issued.

 

Under Irish law, certain statutory pre-emption rights apply automatically in favor of shareholders where shares are to be issued for cash. However, Cimpress plc has opted to disapply these pre-emption rights in Cimpress plc’s Constitution in respect of Cimpress plc Shares with an aggregate par value amount up to the maximum of its authorized but unissued share capital.

 

Irish law requires this disapplication to be renewed at least every five years by special resolution. If the disapplication is not renewed, shares issued for cash must be offered to existing Cimpress plc Shareholders on a pro rata basis to their existing shareholdings before the shares may be issued to any new shareholders.

 

61


Table of Contents
 

 

Prior to each single issuance of ordinary shares, pre-emptive rights may be restricted or excluded by a resolution of the general meeting.

 

Pre-emptive rights may be excluded or restricted by the Board, if the Board has been authorized by a resolution of the general meeting for a fixed period, not exceeding five years, to restrict or exclude such pre-emptive rights. Any such authorizing resolution may be extended, from time to time, for a period not exceeding five years. Unless any such authorizing resolution provides otherwise, it may not be withdrawn.

 

The Board may not restrict or exclude pre-emptive rights unless at the time of such restriction or exclusion, the Board has been also authorized to issue shares.

 

Cimpress N.V. Shareholders will have no pre-emptive rights in respect to Cimpress N.V. Shares issued to a person who exercises a right to acquire shares which has been lawfully granted to that person at an earlier date.

 

 

Statutory pre-emption rights do not apply: (i) where shares are issued for non-cash consideration (such as in a stock-for-stock acquisition); (ii) to the issue of non-equity shares (that is, shares that have the right to participate only up to a specified amount in any income or capital distribution); or (iii) where shares are issued pursuant to an employee stock option or similar equity plan.

Distributions and Dividends  

Distributions of profits may only be made to the extent our equity exceeds the aggregate of the issued and paid-up capital and the reserves that must be maintained pursuant to Dutch law. The dividend is paid after the adoption of the annual accounts evidencing that the payment is allowed.

 

Subject to an interim balance sheet showing that our equity is sufficient, the Board may resolve to issue an interim dividend to the shareholders. Cimpress N.V. Shareholders will be notified by Cimpress N.V. of the decision to issue the interim dividend.

 

From the profits as they appear from the annual accounts: (i) first of all,

 

Source of Dividends

 

Under Irish law, dividends and other distributions may only be made from “distributable profits.” Accordingly, Cimpress plc may only pay dividends on its ordinary shares only out of its “distributable profits,” defined as accumulated realized profits less accumulated, realized losses, and not out of share capital, which includes share premiums (which are equal to the excess of the consideration for the issuance of shares over the aggregate par amount of such shares).

 

In addition, under Irish law, Cimpress plc is not permitted to make a distribution if, at the time,

 

62


Table of Contents
 

on the preferred shares a dividend will be distributed to the amount of a percentage on the amount paid on those shares, which equals twelve months ‘EURIBOR’, as published by De Nederlandsche Bank N.V. - calculated according to the number of days the rate applied - during the financial year to which the distribution relates, increased by a premium to be determined by the Board in line with market conditions per the date of the first issue of the preferred shares with a maximum of five hundred basis points.

 

If and to the extent that the profit is not sufficient to fully make a distribution meant afore in this paragraph, the deficit shall be paid from the reserves.

 

In case of cancellation with repayment of preferred shares, on the day of repayment a distribution shall be made on the cancelled preferred shares, which distribution shall be calculated to the extent possible in accordance with the provision referred to above and with regard to the current financial year to be calculated time wise over the period from the first day of the current financial year, or if the preferred shares have been issued after such day, as from the day of issue, until the day of repayment without prejudice to the provisions of article 2:105 paragraph 4 DCC. In the event that in a financial year the profit or the distributable reserves (as the case may be) are not sufficient to make the distributions, the provisions above shall apply over the following financial years until the deficit has been cleared; (ii) secondly, the Board shall determine which part of the profits remaining after application of the first bullet shall be reserved.

 

the amount of its net assets is less than the aggregate of its issued and paid-up share capital plus undistributable reserves or to the extent that the distribution will reduce the net assets below such amount.

 

Declaration of Dividends

 

A declaration of dividends to be paid to shareholders may be made by an ordinary resolution of the shareholders.

 

Cimpress plc’s Constitution also authorizes the Cimpress plc Board to declare interim dividends if it considers that the financial position of Cimpress plc justifies such payment.

 

Cimpress plc’s Constitution provides that dividends may be paid in cash, property or paid-up shares.

 

63


Table of Contents
 

 

The part of the profits not reserved, shall be at the disposal of the general meeting.

 
Repurchases and Redemptions  

Any repurchase by us of our own shares requires that the Board is authorized by the general meeting. This authority can be granted for a maximum period of 18 months.

 

In the authorizing resolution, the shareholders shall determine (x) the number of shares that may be repurchased, (y) how these shares may be obtained, and (z) the bandwidth for the purchase price.

 

A share repurchase is only permitted if our net equity, reduced by the purchase price, exceeds our issued share capital increased by any statutory reserves and reserves that must be maintained pursuant to its articles of association.

 

As the Cimpress N.V. Shares are listed, Cimpress N.V. together with its subsidiaries may not hold more than 50% of its own shares.

 

Cimpress plc’s Constitution provides that Cimpress plc may purchase its own shares and redeem outstanding redeemable shares.

 

Under Irish law, shares can only be purchased or redeemed out of: (i) distributable profits; or (ii) the proceeds of a new issue of shares made for the purpose of the purchase or redemption.

 

Under Irish law, a company may purchase its own shares either (i) “on-market” on a recognized stock exchange, which includes Nasdaq; or (ii) “off-market” (i.e., otherwise than on a recognized stock exchange).

 

For Cimpress plc to make “on-market” purchases of its ordinary shares, shareholders must provide general authorization to the company to do so by way of an ordinary resolution. Such authority can be given for a maximum period of five years before it requires to be renewed and must specify: (i) the maximum number of shares that may be purchased; and (ii) the maximum and minimum prices that may be paid for the shares by specifying particular sums or providing a formula.

 

For an “off-market” purchase, the proposed purchase contract must be authorized by special resolution of the shareholders before the contract is entered into.

 

Under Irish law, Cimpress plc may, if permitted by its constitution, separately acquire its shares by redemption without the requirement for shareholder approval.

 

Cimpress plc’s Constitution provides that, unless the Cimpress plc Board determines otherwise, any

 

64


Table of Contents
   

ordinary share that Cimpress plc has agreed to acquire shall be automatically converted into a redeemable share. Accordingly, for purposes of Irish law, unless the Cimpress plc Board determines otherwise, the acquisition of ordinary shares by Cimpress plc will technically be effected as a redemption of those shares. If Cimpress plc’s Constitution did not contain such provision, acquisition of ordinary shares by Cimpress plc would require to be effected as “on-market” or “off-market” purchases, as described above.

 

Repurchased and redeemed shares may be cancelled or held as treasury shares, provided that the par value of treasury shares held by Cimpress plc at any time must not exceed 10% of the company capital of Cimpress plc.

Reduction of Share Capital  

The general meeting may decide to reduce the issued capital upon proposal by the Board and subject to the provisions of article 2:99 DCC, by cancellation of shares or by reducing the amount of the shares by amendment of these articles of association.

 

This resolution must designate the shares to which the resolution pertains and must provide for the implementation of the resolution.

 

Partial repayment on shares or discharge of the obligation to pay, as referred to in article 2:99 DCC, may also be effected exclusively with respect to a separate class of shares.

 

A partial repayment or discharge must be effected in proportion to all shares involved. This requirement may be deviated from with the consent of all shareholders concerned.

 

For a resolution to reduce the capital, a majority of at least

  Cimpress plc may, by special resolution, reduce its share capital by way of a court approved procedure that also requires approval by special resolution of Cimpress plc shareholders at a general meeting.

 

65


Table of Contents
 

two-thirds of the votes cast is required if less than half of the issued capital is represented at the meeting.

 

A resolution to reduce capital requires prior or simultaneous approval of the meeting of each group of holders of shares of the same class whose rights are prejudiced.

 

The above referred to approval of the meeting of each group of holders of shares of the same class whose rights are prejudiced requires a majority of at least two-thirds of the votes cast if less than half of the issued capital of the relevant class of shareholders is represented at such meeting.

 

The convocation for a meeting at which a resolution will be passed shall state the purpose of the capital reduction and how it is to be implemented.

 
Liens on Shares, Calls on Shares and Forfeiture of Shares   N/A   Cimpress plc’s Constitution provides that Cimpress plc will have a first and paramount lien on every share that is not a fully paid-up share for an amount equal to the unpaid portion of such share. Subject to the terms of their allotment, directors may call for any unpaid amounts in respect of any shares to be paid, and if payment is not made, the shares may be forfeited. Cimpress plc will not have a lien on any fully paid shares.
Variation of Rights Attaching to a Class or Series of Shares   The articles of association of Cimpress N.V. can be amended by the general meeting if a majority of the shareholders vote in favor of such amendment, provided that at least one third of the outstanding shares are represented in the general meeting.   Amendments affecting the rights of the holders of any class of shares may, depending on the rights attached to the class and the nature of the amendments, also require approval of the class affected at a separate class meeting.
Uncertificated Shares   The Cimpress N.V. Shares are uncertificated.   The Cimpress plc Board has the authority to resolve that a class of

 

66


Table of Contents
   

shares, is capable of being held in uncertified form.

 

Uncertificated shares are capable of being transferred by means of CREST or similar systems in accordance with the Irish Companies Act 1990 (Uncertificated Securities) Regulations 1996. Certificated shares are also capable of being deposited in DTC and the beneficial interests therein transferred within the DTC system.

Transfer and Registration of Shares   N/A  

Cimpress plc’s Constitution allows shareholders to transfer all or any of their certificated shares by instrument of transfer in writing in any usual form or in any other form approved by the Cimpress plc Board. The instrument of transfer must be executed by or on behalf of the transferor and (in the case of a transfer of a share which is not fully paid) by or on behalf of the transferee.

 

The Cimpress plc Board may refuse to register a transfer if the shares are:

 

(1)   not fully paid;

 

(2)   on which Cimpress has a lien;

 

(3)   in respect to more than one class of shares;

 

(4)   in favor of more than four persons jointly;

 

(5)   not duly stamped (if required); and

 

(6)   not delivered and accompanied by the certificate for the shares and any other evidence the Board may reasonably require.

 

If the Cimpress plc Board refuses to register a transfer of a share, it shall, within two months after the date on which the transfer is lodged with Cimpress plc, send to the transferee notice of the refusal together with its reasons for refusal.

 

67


Table of Contents
Calling of Special Meetings of Shareholders   Extraordinary meetings of shareholders are held as often as the Board deems this necessary.  

Cimpress plc’s Constitution provides that general meetings of shareholders may be called on the order of the Cimpress plc Board.

 

Under Irish law, one or more shareholders representing at least 10% of the paid-up share capital of Cimpress plc carrying voting rights have the right to requisition the holding of an extraordinary general meeting.

Election of Directors  

Executive directors and non-executive directors shall be appointed by the general meeting from a binding nomination to be drawn up by the Board in accordance with article 2:133 DCC, which nomination shall specify whether the Director is nominated as executive director or non-executive director. The resolution of the general meeting shall specify whether a Director is appointed as executive director or as non-executive director.

 

If the appointment of a Director occurs pursuant to and in accordance with a binding nomination prepared by the Board, and the list of candidates contains one candidate for each vacancy to be filled, the proposed candidate shall be appointed in accordance with article 2:133 paragraph 3 of the DCC, unless the binding nature of the nomination was overruled by the general meeting.

 

In the event the Board exercises its right to prepare a binding nomination, the general meeting may overrule the binding nature of such nomination by a resolution of the general meeting adopted with a majority of two thirds of the votes cast, representing more than half of the issued share capital.

 

If the Board fails to make use of its right to submit a binding nomination for a Director or fails to

 

Both Cimpress plc Shareholders and the Cimpress plc Board have the power to appoint a person as a Director by simple majority resolution, either to fill a vacancy or as an additional position.

 

Under Cimpress plc’s Constitution, starting with the annual general meeting to be held in 2020, any Director whose term expires at an annual general meeting shall stand for re-election at the annual general meeting. Notwithstanding that a Director might not be re-elected at an annual general meeting, such Director shall nevertheless hold office until his or her successor is elected or is appointed by the Cimpress plc Board, or until his or her earlier resignation or removal in accordance with Cimpress plc’s Constitution or the Irish Companies Act.

 

Cimpress plc’s Constitution provides that the number of Directors will be as the Cimpress plc Board determines from time to time, and at the date of adoption of Cimpress plc’s Constitution, will be not more than 15 and not fewer than two Directors. Immediately following the completion of the Merger there will be five Directors on the Cimpress plc Board.

 

68


Table of Contents
 

do so in due time, the general meeting is unrestricted in its nomination and appointment of such Director.

 

In each case in which the general meeting is unrestricted in its nomination and appointment of a Director, the resolution for the appointment of a Director by the general meeting requires a majority of two thirds of the votes cast, representing more than half of the issued share capital

 

Each Director is appointed for a maximum term of four years, provided, however, that unless such Director resigns or is suspended or dismissed at an earlier date, his or her term of office lapses immediately after the general meeting held four years after his or her last appointment. A Director may be re-appointed with due observance of the preceding sentence. The Board may establish a rotation schedule

 
Vacancies; Removal of Directors/Board of Directors  

Directors may be suspended or dismissed by the general meeting at any time. A resolution of the general meeting to suspend or dismiss a Director pursuant to and in accordance with a proposal by the Board shall be passed with an absolute majority of the votes cast.

 

A resolution of the general meeting to suspend or dismiss a Director other than pursuant to and in accordance with a proposal by the Board requires a majority of two thirds of the votes cast, representing more than half of the issued share capital.

 

An executive director may also be suspended by the Board at any time. A suspension by the Board may at any time be discontinued by the general meeting and automatically lapses if the general meeting does not resolve to dismiss such Director

 

Removal of Directors

 

Under Irish law and Cimpress plc’s Constitution, shareholders may remove a director without cause by ordinary resolution, provided that at least 28 clear days’ notice of the resolution is given to Cimpress plc and the shareholder(s) comply with the relevant procedural requirements.

 

Under Irish law, one or more shareholders representing at least 10% of the paid-up share capital of Cimpress plc carrying voting rights have the right to requisition the holding of an extraordinary general meeting at which such a resolution to remove a director (and appoint a replacement) may be proposed.

 

Under Cimpress plc’s Constitution, a Director may also be removed from office by notice in writing

 

69


Table of Contents
  within three months from the date of such suspension  

addressed to him or her at his or her address as shown in the company’s register of directors and signed by not less than a majority in number of all the Directors (rounded down to the nearest whole number and excluding the Director in question).

 

Vacancies of the Board of Directors

 

Cimpress plc’s Constitution provides that vacancies in the board of directors may be filled by the Cimpress plc Board.

Quorum of the Board  

At meetings of the Board, each Director is entitled to cast one vote.

 

In the event that one or more Directors are absent or not able to act, the powers of the Board continue unaffected.

 

In the event of the absence or inability to act of all executive directors, the non-executive directors are authorized to temporarily entrust the task and duties of the executive directors to other persons (including to non-executive directors). In the event of the absence or inability to act of all non-executive directors or all of the Directors, a person to be appointed for that purpose by the general meeting, whether or not from among its members, is temporarily entrusted with the management of Cimpress N.V.

 

Each Cimpress plc Director present and voting at a meeting of the Cimpress plc Board shall have one vote. In the case of an equality of votes, the chairperson of such meeting will have a second or casting vote.

 

No business shall be transacted at any meeting of the Cimpress plc Board unless a quorum is present. The quorum may be fixed by the Cimpress plc Board and unless so fixed at any other number shall be a majority in number of the Cimpress plc Directors in office at the time when the meeting is convened.

Duties of Directors  

Each Director has a duty to act in the corporate interest of Cimpress N.V. and its business.

 

The corporate interest extends to the interests of all stakeholders, including shareholders, creditors, employees, lenders, suppliers, customers and the region in which Cimpress N.V. is located.

 

The role of the Board is to manage Cimpress N.V. and to further the sustainable success of Cimpress N.V.’s business, i.e. to be responsible for achieving Cimpress

 

Under Irish law, a fiduciary relationship exists between the directors and the company. The Irish Companies Act sets out eight principal fiduciary duties for directors, which are derived from common law and equitable principles, as follows:

 

(1)   to act in good faith in what the director considers to be the interests of the company;

 

(2)   to act honestly and responsibly in relation to the conduct of the affairs of the company;

 

70


Table of Contents
  N.V.’s aims, the strategy and associated risk profile, the development of results and corporate social responsibility issues.  

 

(3)   to act in accordance with the company’s memorandum and constitution and to exercise his or her powers only for the purposes allowed by law;

 

(4)   not to use the company’s property, information or opportunities for his or her own benefit, or that of anyone else;

 

(5)   not to agree to restrict the director’s power to exercise an independent judgement.

 

(6)   to avoid conflicts of interest;

 

(7)   to exercise due care, skill and diligence; and

 

(8)   to have regard to the interests of the company’s employees in general and its shareholders.

 

Such duties are owed to the company (not to individual shareholders or third parties) and only the company may take an action for breach of duty against a director. On a liquidation, this power may be exercised by the liquidator. In limited situations, shareholders may be able to bring a derivative action on behalf of the company.

 

Additional statutory duties of directors include ensuring the maintenance of proper books of account, having annual statutory accounts prepared and audited, maintaining certain registers, making certain filings and disclosing personal interests in securities of, and transactions with, Cimpress plc. Directors of public limited companies, such as Cimpress plc also have a specific duty to ensure that the company secretary is a person with the requisite knowledge and experience to discharge the role.

 

71


Table of Contents
Conflicts of Interest of Directors  

A Director may not participate in the deliberation and the decision-making process of the Board if it concerns a subject in which such Director has a direct or indirect personal interest which conflicts with the interest of Cimpress N.V. and the business it operates.

 

In such event, the other Directors are authorized to adopt the relevant resolution. If all Directors have a conflict of interest as indicated above, the resolution may nonetheless be adopted by the Board.

 

Under Cimpress plc’s Constitution, provided that a director who is in any way (directly or indirectly) interested in an existing or proposed contract, transaction or arrangement with Cimpress plc or in which Cimpress plc is otherwise interested (including any position as a director, officer or employee of a body corporate in which Cimpress plc is interested) has declared the nature and extent of his or her interest, the director may be a party to such contract, transaction or arrangement or hold such office or employment and the director shall (i) not be accountable to Cimpress plc for any benefit which he or she, derives from any such contract, transaction, arrangement, office or employment and (ii) not be required to disclose to Cimpress plc or use in his or her position as a director of Cimpress plc any confidential information relating to any such employment or office which is in breach of an existing duty of confidentiality.

 

The directors are generally empowered to authorize a director (and release a director from his or her duty to Cimpress plc) in relation to any matter proposed to the Cimpress plc Board which otherwise would infringe the director’s duty to avoid conflicts of interests.

 

A director cannot vote and count towards a quorum in respect of any contracts, transactions or proposals in which he or she has any material interest.

Liability and Indemnification of Directors and Officers   Cimpress N.V. shall indemnify any person who is a Director (each of them an ‘indemnified person’) and who was or is in his or her capacity as director a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal or administrative or any action, suit   Subject to exceptions, Irish law does not permit a company to exempt a director or certain officers from, or indemnify a director against, liability in connection with any negligence, default, breach of duty or breach of trust by a director in relation to the company.

 

72


Table of Contents
 

or proceeding in order to obtain information (other than an action, suit or proceeding instituted by or on behalf of Cimpress N.V.), against any and all liabilities including all expenses (including attorneys’ fees), judgments, fines, amounts paid in settlement and other financial losses, actually and reasonably incurred by him or her in connection with such action, suit or proceeding if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of Cimpress N.V.

 

No indemnification shall be made in respect of any claim, issue or matter: (i) as to which such person shall have been adjudged in a final and non-appealable judgment by a Dutch judge to be liable for gross negligence or willful misconduct in the performance of his or her duty to Cimpress N.V., unless and only to the extent that the judge before whom such action or proceeding was brought or any other Dutch judge having appropriate jurisdiction shall determine upon application that, despite the adjudication of liability but in view of all of the circumstances of the case, such person is fairly and reasonably entitled to a compensation which the judge before whom such action or proceeding was brought or such other judge having appropriate jurisdiction shall deem proper; or (ii) insofar costs and losses have been insured under any insurance and the insurance company has reimbursed to him or her the costs and losses.

 

Expenses (including attorneys’ fees) incurred by an indemnified person in defending a civil or criminal action, suit or proceeding shall be paid by Cimpress N.V. in advance of the final disposition of such action, suit or proceeding upon

 

 

The exceptions allow a company to:

 

(1)   purchase and maintain D&O Insurance against any liability attaching in connection with any negligence, default, breach of duty or breach of trust owed to the company; and

 

(2)   indemnify a director or such other officer against any liability incurred in defending proceedings, whether civil or criminal: (i) in which judgment is given in his, or her, favor or in which he or she is acquitted; or (ii) in respect of which an Irish court grants him, or her, relief from any such liability on the grounds that he or she acted honestly and reasonably and that, having regard to all the circumstances of the case, he or she ought fairly to be excused for the wrong concerned.

 

Cimpress plc’s Constitution includes a provision which entitles every director to be indemnified by Cimpress plc to the fullest extent permitted by law (including by funding any expenditure incurred or to be incurred by him or her) against any loss or liability incurred in his or her capacity as a director.

 

Cimpress plc’s Constitution also provides the Cimpress plc Board with authority to purchase and maintain insurance at the expense of Cimpress plc for the benefit of any person who is, or was at any time, a director or other officer or employee of the company or any associated company.

 

In addition to the provisions of Cimpress plc’s Constitution, it is common for a public limited company to enter into a separate deed of indemnity with a director or officer which essentially indemnifies the director or officer against claims brought by third

 

73


Table of Contents
 

receipt of an undertaking by or on behalf of an indemnified person to repay such amount if it shall ultimately be determined that he or she is not entitled to be indemnified by Cimpress N.V.

 

The indemnification shall not be deemed exclusive of any other right to which a person seeking indemnification or advancement of expenses may be entitled under the laws of The Netherlands as from time to time amended or under any by-laws, agreement, resolution of the general meeting or of the members of the Board who are not an interested party in this matter or otherwise, both as to actions in his or her official capacity and as to actions in another capacity while holding such position, and shall continue as to a person who has ceased to be a Directors, but was a Director at any time after the execution of this deed of amendment and shall also inure to the benefit of the heirs, executors and administrators of the estate of such person.

 

Cimpress N.V. may purchase and maintain insurance on behalf of any indemnified person, whether or not Cimpress N.V. would have the power to indemnify him or her against such liability.

 

parties to the fullest extent permitted under Irish law. Cimpress plc Ireland intends to enter into such deeds of indemnity with each of its directors and officers.

 

Separately, in proceedings where negligence, default, breach of duty or breach of trust against a director has or may be established (or in anticipation of any such proceedings), an Irish court has the power to grant a director or other officer relief from liability on the grounds that he or she acted honestly and reasonably and that, having regard to all the circumstances of the case, he or she ought fairly to be excused for the wrong concerned.

Annual Meetings of Shareholders  

The annual general meeting shall be held every year within six months of the end of the financial year, in which shall, in any event, be considered: (i) the consideration of the annual report; (ii) the adoption of the annual accounts; (iii) any other matters put forward by the Board.

 

General meetings will be held in Amsterdam, Baarlo, Venlo, The Hague, Rotterdam, Haarlemmermeer (Schiphol) or in Deventer.

 

Cimpress plc must hold its annual general meeting within the nine-month period beginning with the day following its accounting reference date.

 

In addition to any SEC mandated resolutions, the business of Cimpress plc’s annual general meeting is required to include:

 

(1)   the consideration of Cimpress plc’s statutory financial statements;

 

74


Table of Contents
 

 

General meetings shall be convened by the Board in the manner and with reference to the applicable provisions of the legislation and applicable stock exchange regulations and with consideration of the applicable terms.

 

The convocation states: (i) the subjects to be discussed; (ii) the place and time of the general meeting; (iii) the procedure for participation in the general meeting and the exercise of voting rights in person or by proxy.

 

 

(2)   the review by Cimpress plc Shareholders of Cimpress plc’s affairs;

 

(3)   the election and reelection of directors in accordance with Cimpress plc’s Constitution;

 

(4)   the appointment or reappointment of the Irish statutory auditors;

 

(5)   the authorization of the directors to approve the remuneration of the statutory auditors; and

 

(6)   the declaration of dividends (other than interim dividends).

 

Cimpress plc’s Constitution provides that the Cimpress plc Board may convene general meetings of the shareholders at any place they so designate.

 

If a general meeting is held outside Ireland, Cimpress plc has a duty, at its expense, to make all necessary arrangements to ensure that shareholders can by technological means participate in any such meeting without leaving Ireland.

Notice Provisions   The articles of association of Cimpress N.V. provide that general meetings shall be convened by the Board in the manner and with reference to the applicable provisions of the legislation and applicable stock exchange regulations and with consideration of the applicable terms.  

Cimpress plc’s Constitution requires that notice of an annual general meeting of shareholders must be delivered to the shareholders at least 21 clear days and no more than 60 clear days before the meeting. Shareholders must be notified of all general meetings (other than annual general meetings) at least 14 clear days and no more than 60 clear days prior to the meeting (provided that, in the case of an extraordinary general meeting for the passing of a special resolution, at least 21 clear days’ notice is required).

 

Notice periods for general meetings can be shortened if all shareholders entitled to attend and vote at the meeting agree to hold the meeting on short notice.

 

75


Table of Contents
   

 

“Clear days” means calendar days and excludes (1) the date on which a notice is given, or a request received; and (2) the date of the meeting itself.

Quorum for General Meetings   Approval of a resolution of the general meeting requires a simple majority of votes cast in a meeting where at least one third of the outstanding shares are represented.   Under Cimpress plc’s Constitution, holders of at least a simple majority of the shares issued and entitled to vote at a general meeting, constitute a quorum.
Record Date   The record date for a general meeting must be 28 days before the meeting.   Cimpress plc’s Constitution provides that, subject to certain restrictions, the Cimpress plc Board may set the record date for a dividend or other distribution.
Serious Loss of Capital   N/A   If the directors of Cimpress plc become aware that the assets of Cimpress plc are half or less of the amount of Cimpress plc’s called-up share capital, the directors must convene an extraordinary general meeting of Cimpress plc not later than 28 days after the earliest day on which that fact is known to a director (and the general meeting must be convened for a date not later than 56 days from that day). The meeting must be convened for the purpose of considering whether any, and if so what, measures should be taken to address the situation.
Adjournment of Shareholder Meetings   N/A  

Cimpress plc’s Constitution provides that the chairman may adjourn the meeting with the consent of the meeting at which a quorum is present.

 

The chairman also has the power to adjourn any meetings without the consent of the meeting if he or she decides that it is necessary or appropriate to do so in order to:

 

(1)   secure the proper and orderly conduct of the meeting;

 

(2)   give all persons entitled to do so an opportunity of attending the meeting;

 

76


Table of Contents
   

 

(3)   give all persons entitled to do so a reasonable opportunity of speaking and voting at the meeting; or

 

(4)   ensure that the business of the meeting is properly conducted or disposed of.

 

No business can be transacted at any adjourned meeting other than the business which might have properly been transacted at the meeting.

New Business Proposals by Shareholders  

Cimpress N.V. Shareholders holding at least 3% of the issued share capital may propose agenda items for a general meeting. If Cimpress N.V. Shareholders and our Board cannot agree on whether and how that item should be put on the agenda, our Board can try to resist this on grounds of reasonableness and fairness, but ultimately it would be a court judgment whether or not the item will be put on the agenda.

 

Cimpress N.V. Shareholders holding at least 10% of the issued share capital of Cimpress N.V. may request our Board to hold an extraordinary general meeting or request the court to authorize them to convene an extraordinary general meeting.

 

Under Irish law, the ownership of shares (by one or more shareholders) representing 10% of the paid-up share capital of Cimpress plc carrying voting rights carries the right to requisition the holding of an extraordinary general meeting of shareholders.

 

Subject to compliance with Cimpress plc’s Constitution, shareholders can require resolutions to be put before the annual general meeting in accordance therewith.

 

Under Cimpress plc’s Constitution, shareholders have further notification requirements in addition to what is required under Irish law in order to bring a resolution before a meeting of shareholders. For notices relating to the nomination of directors, shareholders must provide all information required to be disclosed in a proxy statement and a description of all direct and indirect compensation and other material monetary agreements during the past three years, and any other material relationships, between the nominee and the shareholders and any associated persons of the nominee and the shareholders, respectively. For notices relating to any other business, further information including a comprehensive description of the business desired to be brought before the meeting, the complete text of any proposed resolution and

 

77


Table of Contents
    a declaration of any material interest in such business by shareholders and any associated persons are required.
Voting Rights  

Each Cimpress N.V. share confers the right to cast one vote. The chairman of the meeting determines the method of voting, which includes oral, written or electronic voting. In the event of the election of persons, anyone entitled to vote may demand that voting take place by written ballot. Voting by written ballot shall take place by means of sealed, unsigned ballot papers.

 

In the event the votes tie, the issue shall be decided by drawing lots, if it involves a proposal to individuals. If it concerns matters, the proposal shall be rejected in the event the votes tie. Blank votes and invalid votes will be considered as not having been cast.

 

All resolutions at an annual general meeting or other general meeting will be decided on a poll.

 

On a poll every shareholder who is present, in person or by proxy, at the general meeting, is entitled to one vote for every Cimpress plc Share held by such shareholder.

 

On a separate general meeting of the holders of any class of shares, all votes will be taken on a poll and each holder of shares of the class will, on a poll, have one vote in respect of every share of that class held by such shareholder.

 

Under the Irish Companies Act and Cimpress plc’s Constitution, certain matters require “ordinary resolutions,” which must be approved by at least a majority of the votes cast, in person or by proxy, by shareholders at a general meeting, and certain other matters require “special resolutions,” which require the affirmative vote of at least 75% of the votes cast, in person or by proxy, by shareholders at a general meeting.

 

An ordinary resolution is needed (among other matters) to: remove a director; provide, vary or renew the directors’ authority to allot shares and to appoint directors (where appointment is by shareholders).

 

A special resolution is needed (among other matters) to: alter a company’s constitution, exclude statutory pre-emptive rights on allotment of securities for cash (up to five years); reduce a company’s share capital; re-register a public company as a private company (or vice versa); and approve a scheme of arrangement.

 

78


Table of Contents
   

 

The chairman at a general meeting has a casting vote if equal votes are cast for and against a resolution on a poll.

 

Cumulative voting is not recognized under Irish law.

Shareholder Approval of Business Combinations  

Under Dutch law, certain decisions of the Board involving a substantial change in the Company’s identity or character are subject to the prior approval of the shareholders meeting.

 

This includes, in any event, the following board decisions:

 

•  the transfer of all or substantially all of the business of Cimpress N.V.

 

•  the entering into or termination of longstanding joint ventures of Cimpress N.V. or a subsidiary, including as a fully liable partner in a limited partnership or a general partnership, if such joint venture or termination thereof is of a substantial significance to Cimpress N.V.

 

•  the acquisition or disposition by Cimpress N.V. or a subsidiary of a participation in the share capital of a company with a value equal to or greater than one third of the amount of the assets reflected on the balance sheet of Cimpress N.V. or, if Cimpress N.V. prepares a consolidated balance sheet, on such consolidated balance sheet, in each case representing the last

 

Irish law recognizes the concept of a statutory merger in three situations:

 

(1)   a domestic merger where an Irish private limited company merges with another Irish company (not being a public limited company) under Part 9 of the Irish Companies Act;

 

(2)   a domestic merger where an Irish public limited company merges with another Irish company under Part 17 of the Irish Companies Act; and

 

(3)   a cross-border merger, where an Irish company merges with another company based in the European Economic Area under the European Communities (Cross-border Merger) Regulations 2008 of Ireland.

 

Under Irish law and subject to applicable U.S. securities laws and Nasdaq rules and regulations, where Cimpress plc proposes to acquire another company, approval of Cimpress plc’s shareholders is not required, unless effected as a direct domestic merger or direct cross-border merger as referred to above.

 

Under Irish law, where another company proposes to acquire Cimpress plc, the requirement for the approval of the Cimpress plc Shareholders depends on the method of acquisition.

 

Schemes of Arrangement

 

Under Irish law, schemes of arrangement are arrangements or compromises between a company and any class of shareholders or

 

79


Table of Contents
 

adopted annual accounts of Cimpress N.V.

 

creditors, and are used in certain types of reconstructions, amalgamations, capital reorganizations or takeovers (similar to a merger in the United States). Such arrangements require the approval of: (i) a majority in number of shareholders or creditors (as the case may be) representing 75% in value of the creditors or class of creditors or shareholders or class of shareholders present and voting either in person or by proxy at a special meeting convened by order of the court; and (ii) the Irish High Court.

 

Takeover Offers

 

The Irish Companies Act also provides that where (i) a takeover offer is made for shares, and (ii) following the offer, the offeror has acquired or contracted to acquire not less than 80% of the shares to which the offer relates, the offeror may require the other shareholders who did not accept the offer to transfer their shares on the terms of the offer.

 

Statutory Mergers

 

It is also possible for Cimpress plc to be acquired by way of a domestic or cross-border statutory merger, as described above. Such mergers must be approved by a special resolution of shareholders.

 

Related Party Transactions   Cimpress N.V. is subject to the rules of Nasdaq regarding related party transactions.  

Cimpress plc will be subject to the rules of Nasdaq regarding related party transactions.

 

Under Irish law, certain transactions between Cimpress plc and any director of Cimpress plc are prohibited unless approved by the shareholders, such as loans, credit transactions and substantial property transactions. This prohibition extends to transactions with close personal relations and companies controlled by any such director.

 

80


Table of Contents
Shareholder Suits  

In the event that a director, officer or other third party is liable to a Dutch company, only the company itself can bring a civil action against that party. Individual shareholders do not have the right to bring a derivative action on behalf of the company. Dutch law does allow suits by a shareholder against directors or officers of a company if their actions constitute a tort committed against that shareholder.

 

Pursuant to Dutch law, shareholders that together hold shares with an aggregate value of at least €20,000,000 may file a request with a special court (in The Netherlands generally referred to as the Enterprise Chamber) to appoint one or more persons to investigate the company’s policy and course of business.

 

The procedure before the Enterprise Chamber consists of two distinct proceedings: (i) the first proceedings are about whether an examination should be ordered; (ii) if the Enterprise Chamber orders an examination, the second proceedings are about whether there has been mismanagement, and if so, whether measures should be taken.

 

During the entire proceedings, the Enterprise Chamber may impose immediate provisional measures, e.g. temporary deviation from the articles and appointment of interim board members.

 

Under Irish law, the power to initiate a lawsuit on behalf of the company is generally a matter for the board of directors, and shareholders’ rights to initiate a derivative lawsuit on behalf of the company are limited.

 

The central question at issue in deciding whether a shareholder may be entitled to bring a derivative action is whether, unless the action is brought, a wrong committed against the company would go unredressed.

 

The principal case law in Ireland indicates that to bring a derivative action, a person must first establish a prima facie case: (a) that the company is entitled to the relief claimed; and (b) that the action falls within one of the five exceptions derived from case law, as follows:

 

(1)   where an ultra vires or illegal act is perpetrated;

 

(2)   where more than a bare majority is required to ratify the “wrong” complained of;

 

(3)   where the shareholders’ personal rights are infringed;

 

(4)   where a fraud has been perpetrated upon a minority by those in control; or

 

(5)   where the justice of the case requires.

 

While Irish law only permits a shareholder to bring a derivative action and initiate a lawsuit on behalf of the company in limited circumstances, it does permit a shareholder whose name is on the register of shareholders of a company to apply for a court order where the company’s affairs are being conducted or the powers of the company’s directors are being exercised:

 

(a) in a manner oppressive to him or her or any of the shareholders; or

 

81


Table of Contents
   

 

(b) in disregard of his or her or their interests as shareholders.

 

Oppression connotes conduct that is burdensome, harsh and wrongful. Furthermore, the oppression or the disregard of interests must result from either the conduct of the affairs of the company or the exercise of the powers of the directors.

 

This is a statutory remedy and an Irish court has wide discretion to make such order as it sees fit.

 

Lawsuits brought by a shareholder on behalf of the company may be brought exclusively in the courts of Ireland when they are related to or in connection with a derivative claim, an alleged breach of fiduciary or other duty by a director, officer or employee of Cimpress plc or any other claim against Cimpress plc or its directors, officers and employees under Irish law or pursuant to the constitution.

Inspection of Books and Records  

Under applicable Dutch law, Cimpress N.V. Shareholders have no right to inspect Cimpress N.V.’s books and records. notwithstanding the possible perusal of all publicly accessible information.

 

In addition, the Board is required to answer questions posed to it by shareholders at shareholders, unless answering the question would conflict with a substantial interest of the company. Shareholders are not entitled to obtain information from the Board, or from individual directors, other than at a shareholders meeting.

 

Generally, the register of Cimpress plc Shareholders may be inspected during business hours: (1) for free, by its shareholders and (2) for a fee by any other person.

 

Documents may be copied for a fee.

 

The service contracts, if any, of Cimpress plc’s directors can be inspected by shareholders without charge and during business hours. A “service contract” includes any contract under which such a director undertakes personally to provide services to the company or a subsidiary company, whether in that person’s capacity as a director, an executive officer or otherwise. Service contracts with an unexpired term of less than three years are not required to be kept for inspection.

 

Cimpress plc Shareholders may also inspect, without charge and during business hours, the minutes of

 

82


Table of Contents
   

meetings of the shareholders and obtain copies of the minutes for a fee.

 

In addition, the published annual statutory financial statements of Cimpress plc are required to be available for shareholders at a general meeting and a shareholder is entitled to a copy of these financial statements.

 

Under Irish law, the shareholders of a company do not have the right to inspect the corporate books of a subsidiary of that company.

Anti-takeover Provisions   Cimpress N.V. has granted an option to acquire preference shares to an independent Foundation. The Foundation may exercise this option with the purpose of preventing, discouraging or delaying a hostile take-over.  

Takeover offers and certain other transactions in respect of Irish registered public companies listed on certain stock exchanges, including Nasdaq, are regulated by the Irish Takeover Panel Act 1997 and the Irish Takeover Rules made thereunder. The Irish Takeover Rules are administered by the Irish Takeover Panel, which oversees the conduct of such transactions. Cimpress plc, as an Irish registered public limited company, listed on Nasdaq is subject to the Irish Takeover Rules and the supervisory jurisdiction of the Irish Takeover Panel.

 

Among other matters, the Irish Takeover Rules operate to ensure that no offer is frustrated or unfairly prejudiced and, in the case of multiple bidders, that there is a level playing field. For example, pursuant to the Irish Takeover Rules, the Cimpress plc Board will not be permitted to take actions, without shareholder approval, which might result in the frustration of an offer, or potential offer, for Cimpress plc shares once the Cimpress plc Board has received an approach which might lead to an offer or has reason to believe that an offer is, or may be, imminent.

 

Cimpress plc’s Constitution provides the Cimpress plc Board

 

83


Table of Contents
   

with the power to establish a rights plan and to grant rights to subscribe for Cimpress plc Shares pursuant to a rights plan.

 

Cimpress plc will be subject to the Irish Takeover Panel Act 1997, as amended, and the Irish Takeover Rules promulgated thereunder. Pursuant to the Irish Takeover Rules, the Cimpress plc Board will not be permitted, without shareholder approval, to take certain actions that might frustrate an offer for Cimpress plc once the Cimpress plc Board has received an approach that may lead to an offer or has reason to believe an offer is, or may be, imminent. The adoption and operation of any rights plan will be subject to the Irish Takeover Rules, which may impact on when a plan can be adopted, or rights issued thereunder.

Rights on Liquidation   The remainder of the company’s assets after payment of all debts and the costs of the liquidation shall be distributed as follows: (i) first, the holders of the preferred shares shall be paid the nominal amount paid on their preferred shares, increased by (a) any deficit in the payment of dividend as referred to in article 22 paragraph 2 and (b) an amount equal to the percentage referred to in article 22 paragraph 2 on the compulsory amount paid on the preferred shares, calculated over the period starting on the first day of the last full financial year prior to the liquidation and ending on the day of the payment on preferred shares as referred to in this article, with due observance of the fact that any and all dividends and/or other distributions paid on the preferred shares relating to such period shall be deducted from the payment as referred to in this subparagraph; (ii) the remainder shall be paid to the holders of ordinary shares, in proportion to the number of ordinary shares that each party owns.   Under Cimpress plc’s Constitution, if Cimpress plc is wound up and the assets available for distribution among the Cimpress plc Shareholders are insufficient to repay the whole of the paid-up or credited as paid-up share capital, those assets are required to be distributed so that, as nearly as may be, the losses are borne by the Cimpress plc Shareholders in proportion to the capital paid-up or credited as paid-up at the commencement of the winding up on the Cimpress plc Shares held by them respectively. If in a winding-up the assets available for distribution among the Cimpress plc Shareholders are more than sufficient to repay the whole of the share capital paid-up or credited as paid- up at the commencement of the winding-up, the excess is required to be distributed among the shareholders in proportion to the capital at the commencement of the winding-up paid- up or credited as paid-up on the said Cimpress plc Shares held by them respectively.

 

84


Table of Contents

BENEFICIAL OWNERSHIP

The following table contains information regarding the beneficial ownership of our ordinary shares as of August 12, 2019 by:

 

   

each shareholder we know to own beneficially more than 5% of our outstanding ordinary shares;

 

   

each member of our Board;

 

   

each of our current executive officers;

 

   

two individuals who served as Cimpress N.V. executive officers during our fiscal year ended June 30, 2019 but were no longer executive officers at the end of that fiscal year; and

 

   

all of our current directors and executive officers as a group.

 

Name and Address of Beneficial Owner (1)    Number of Ordinary
Shares Beneficially
Owned (2)
     Percent of Ordinary
Shares Beneficially
Owned (3)
 

Arlington Value Capital LLC (4)
222 S. Main Street, Suite 1750
Salt Lake City, UT 84101

     1,570,251        5.2

Janus Henderson Group plc (5)
201 Bishopsgate
EC2M 3AE London UK

     3,713,176        12.3

Prescott General Partners LLC
2200 Butts Road, Suite 320
Boca Raton, FL 33431 USA

     4,656,492        15.4

The Spruce House Partnership LP
435 Hudson Street, 8th Floor
New York, NY 10014 USA

     2,358,903        7.8

Vanguard Group Inc (6) 
PO Box 2600 V26
Valley Forge, PA 19482

     1,739,622        5.8

Named Executive Officers and Directors

     

Robert S. Keane (7)(8)

     3,241,296        10.3

Sophie A. Gasperment

     —          0  

John J. Gavin, Jr. (9)

     32,029        *  

Peter Kelly

     —          0  

Donald LeBlanc (8)

     16,837        *  

Sean E. Quinn (8)

     3,774        *  

Zachary S. Sternberg (10)

     2,374,246        7.9

Scott J. Vassalluzzo (8) (11)

     76,321        *  

Maarten Wensveen (8)

     2,655        *  

Katryn S. Blake (12)

     —          0  

Cornelis David Arends (13)

     16,750        *  

All current executive officers and directors as a group (9 persons) (8)

     5,747,158        18.2

All current executive officers and directors as a group (9 persons) (9)

     

 

*

Less than 1%

(1)

Unless otherwise indicated, the address of each executive officer and director is c/o Cimpress N.V., Building D, Xerox Technology Park, Dundalk, Co. Louth, Ireland.

 

85


Table of Contents
(2)

For each person or entity in the table above, the “Number of Shares Beneficially Owned” column may include ordinary shares attributable to the person or entity because of that holder’s voting or investment power or other relationship, as determined under SEC rules. Under these rules, a person or entity is deemed to have “beneficial ownership” of any shares over which that person or entity has or shares voting or investment power, plus any shares that the person or entity may acquire within 60 days of August 12, 2019 (i.e., October 11, 2019), including through the exercise of share options or the vesting of restricted share units. Unless otherwise indicated, each person or entity referenced in the table has sole voting and investment power over the shares listed or shares such power with his or her spouse. The inclusion in the table of any shares, however, does not constitute an admission of beneficial ownership of those shares by the named shareholder.

(3)

The percentage ownership for each shareholder on August 12, 2019 is calculated by dividing (1) the total number of shares beneficially owned by the shareholder by (2) 30,190,617, the number of ordinary shares outstanding on August 12, 2019, plus any shares issuable to the shareholder within 60 days after August 12, 2019 (i.e., October 11, 2019), including restricted share units that vest and share options that are exercisable on or before October 11, 2019.

(4)

This information is based solely upon a Schedule 13G/A that the shareholder filed with the SEC on February 13, 2019.

(5)

This information is based solely upon a Schedule 13G/A that the shareholder filed with the SEC on February 12, 2019.

(6)

This information is based solely upon a Schedule 13G that the shareholder filed with the SEC on February 11, 2019.

(7)

Includes an aggregate of (i) 1,714,113 shares held by entities wholly owned by irrevocable discretionary trusts established for the benefit of Mr. Keane or members of his immediate family, or the Trusts, and (ii) 100,681 shares held by a charitable entity established by Mr. Keane and his spouse. Mr. Keane and his spouse disclaim beneficial ownership of the shares and share options beneficially owned by the entities owned by the Trusts and shares owned by the charitable entity except to the extent of their pecuniary interest therein.

(8)

Includes the number of shares listed below that each named executive officer and director has the right to acquire under share options and restricted share units that vest on or before October 11, 2019:

 

   

Mr. Keane: 1,426,502 shares held by entities wholly owned by the Trusts

 

   

Mr. LeBlanc: 460 shares

 

   

Mr. Quinn: 724 shares

 

   

Mr. Vassalluzzo: 5,298 shares

 

   

Mr. Wensveen: 100 shares

 

   

All current executive officers and directors in the aggregate: 1,433,084 shares

 

(9)

Includes 32,029 shares held by a trust of which Mr. Gavin and his wife are trustees.

(10)

Includes 2,358,903 shares held by The Spruce House Partnership LP. The general partner of The Spruce House Partnership LP is Spruce House Capital LLC, of which Mr. Sternberg is a managing member. Mr. Sternberg disclaims beneficial ownership of the shares held by The Spruce House Partnership LP except to the extent of his pecuniary interest therein.

(11)

Includes 2,174 shares held in investment accounts established for the benefit of certain family members, with respect to which Mr. Vassalluzzo disclaims beneficial ownership except to the extent of his pecuniary interest therein.

(12)

Ms. Blake left Cimpress in March 2019.

(13)

Includes 11,900 shares held by a limited company of which Mr. Arends is a managing director. Mr. Arends disclaims beneficial ownership of these shares except to the extent of his pecuniary interest therein. Mr. Arends ceased to be an executive officer in January 2019 but remains an employee of Cimpress.

 

86


Table of Contents

MARKET PRICE AND DIVIDEND INFORMATION

Cimpress N.V. Shares are traded on Nasdaq under the symbol “CMPR”. On [●], 2019, the closing price per share of Cimpress N.V. Shares as reported on Nasdaq was $[●]. As of [●], 2019, the approximate number of registered Cimpress N.V. Shareholders was [●].

We have never paid or declared any cash dividends on Cimpress N.V. Shares, and we do not anticipate paying any cash dividends in the foreseeable future. We currently intend to retain all future earnings to finance the growth and operations of our business, investment in or acquisition of other businesses, share repurchases, or pay down of our debt.

 

87


Table of Contents

EXPENSE OF PROXY STATEMENT

We will bear the costs of solicitation of proxies. We have retained Alliance Advisors for a fee of $11,000 plus expenses to assist us in soliciting proxies from Cimpress N.V. Shareholders and to verify certain records relating to the solicitation. We and our directors, officers, and selected other employees may also solicit proxies by mail, telephone, e-mail, or other means of communication. Directors, officers, and employees who help us in soliciting proxies will not be specially compensated for those services, but they may be reimbursed for their reasonable out-of-pocket expenses incurred in connection with their solicitation. We will request brokers, custodians, and fiduciaries to forward proxy soliciting material to Cimpress N.V. Shareholders that they hold in their names and will reimburse these entities for their out-of-pocket expenses incurred in connection with the distribution of our proxy materials.

HOUSEHOLDING OF MEETING MATERIALS

Some banks, brokers, and other nominee record holders may participate in the practice of “householding” proxy statements and annual reports. This means that only one copy of our proxy statement and annual report to shareholders may be sent to multiple shareholders in your household. We will promptly deliver a separate copy of either document to you if you contact us by emailing IR@cimpress.com, writing us at Investor Relations, Cimpress, 275 Wyman Street, Waltham, MA 02451 USA, or calling us at telephone no. +1 781-652-6480. If you want to receive separate copies of the proxy statement or annual report to shareholders in the future, or if you are receiving multiple copies and would like to receive only one copy per household, you should contact your bank, broker, or other nominee record holder if you hold your Cimpress N.V. Shares in street name, or you may contact us per the above if you are a Cimpress N.V. Shareholder of Record.

WHERE YOU CAN FIND MORE INFORMATION

We are subject to the informational requirements of the Exchange Act, and file annual, quarterly and current reports, proxy statements and other information with the SEC. You can read our SEC filings through the Internet at the SEC’s website at www.sec.gov. You may obtain any of the documents we file with the SEC, without charge, by visiting the SEC Filings page of our website at http://ir.cimpress.com/financial-information/sec-filings.

We will furnish without charge copies of these documents to any person who requests them by emailing IR@cimpress.com, writing us at Investor Relations, Cimpress, 275 Wyman Street, Waltham, MA 02451 USA, or calling us at telephone no. +1 781-652-6480.

We have not authorized anyone to give any information or make any representation about the Merger or about us that differs from or adds to the information in this Proxy Statement. Therefore, you should not rely upon any information that differs from or is in addition to the information contained in this Proxy Statement.

The information contained in this Proxy Statement speaks only as of the date on the cover, unless the information specifically indicates that another date applies.

CERTAIN ITEMS

Certain items required by Regulation S-K are attached hereto as Annexes E-G. Namely, Item 303 management’s discussion and analysis of financial condition and results of operations is contained in Annex E, Item 304 changes in and disagreements with accountants on accounting and financial disclosure is contained in Annex F and Item 305 quantitative and qualitative disclosures about market risk is contained in Annex G. These annexes are specifically deemed to be part of this Proxy Statement.

 

88


Table of Contents

Annex A

 

DATED                     2019

CROSS-BORDER MERGER

Between

CIMPRESS LIMITED

AND

CIMPRESS N.V.

 

 

COMMON DRAFT TERMS OF MERGER

(joint merger proposal (gezamenlijk voorstel tot fusie) in the meaning of the DCC]

(Dutch translation required for publication with Dutch Trade Registry)

 

 

 

 

 

A-1


Table of Contents

THESE COMMON DRAFT TERMS OF MERGER are made between:

 

(1)

CIMPRESS LIMITED, a private company limited by shares incorporated under the laws of Ireland with company number 607465 and having its registered office at Building D, Xerox Technology Park, Dundalk, Co. Louth (the “Successor Company”);

AND

 

(2)

CIMPRESS N.V., a public limited company incorporated under the laws of The Netherlands, having its corporate seat (statutaire zetel) in Venlo, The Netherlands and registered in the Dutch trade register under number 14117527 and headquartered in Ireland, having its address at Dublin Road, Building D, A91 H9N9, Dundalk, County Louth and registered as a branch in Ireland under number 909075 (the “Transferor Company”).

PURSUANT TO the provisions of the Irish Regulations (as defined below), the provisions of the Dutch Regulations (as defined below) and the provisions of the Directive (as defined below).

 

1

Interpretation

 

1.1

Definitions

In these Common Draft Terms unless the context otherwise requires or unless otherwise specified:

Assets” means all assets held by the Transferor Company as at the Effective Time;

Business” means the business of the Transferor Company as carried on at the Effective Time;

Business Day” means a day (other than a Saturday or Sunday) on which clearing banks are generally open for business in The Netherlands and Ireland;

Cash Compensation has the meaning given to it in clause 13.4;

Cash Compensation Request has the meaning given to it in clause 13.5;

Cash Compensation Right has the meaning given to it in clause 13.4;

Cimpress Equity Plans” means any of the following: (a) 2016 Performance Equity Plan adopted on 27 May 2016 and amended on 15 November 2016 and 13 November 2018; (b) 2011 Equity Incentive Plan adopted on 30 June 2011; (c) 2005 Non-Employee Directors’ Share Option Plan adopted on 28 August 2009 and amended on 2 October 2010; and (d) Amended and Restated 2005 Equity Incentive Plan adopted on 28 August 2009 and amended on 2 October 2010;

Cimpress Group means the group of companies whose ultimate parent is the Transferor Company;

Cimpress Shareholders” means the shareholders of the Transferor Company;

Cimpress ULC” means Cimpress Holding Unlimited Company, a private unlimited company incorporated under the laws of Ireland, registered with the CRO under company number 655038 and with its registered office at Building D, Xerox Technology Park, Dundalk, Co. Louth;

Common Draft Terms” means the present common draft terms of the Cross-Border Merger meaning the joint merger proposal (gezamenlijk voorstel tot fusie) pursuant to section 2:312, section 2:326 and section 2:333d DCC;

Constitution” means the constitution of the Successor Company;

CRO” means the Irish Companies Registration Office;

Cross-Border Merger” means a merger of a national limited liability company with a limited liability company from another EU Member State, as provided for by the Directive, the Irish Regulations and the Dutch Regulations;

 

A-2


Table of Contents

DCC” means the Dutch Civil Code;

Directive” means Directive 2005/56/EC of the European Parliament and of the Council of Ministers of 26 October 2005 on Cross-Border Mergers of Limited Liability Companies as repealed and codified by Chapter II, Title II of Directive 2017/1132/EU;

Draft Amendment Articles of Association Transferor Company” has the meaning given to in clause 13.2;

Dutch Directors’ Explanatory Report” has the meaning given to it in clause 2.3.2;

“Dutch Independent Expert” has the meaning given to it in clause 8.3;

“Dutch Regulations means title 7 of book 2 of the Dutch Civil Code;

Effective Time” means 4:15 p.m. Eastern Standard Time, immediately after the close of trading on NASDAQ, on 3 December 2019 or such other date as may be agreed by the Merging Companies, subject to the approval of the Irish Court;

“EGM” has the meaning given to it in clause 13.2;

Election Period has the meaning given to it in clause 13.5;

Electing Shareholder” has the meaning given to it in clause 13.4;

Exit Shares has the meaning given to it in clause 13.6;

EY Ireland” means Ernst & Young (Ireland);

EY Netherlands” means Ernst & Young (Netherlands);

Final Order” means the order made by the Irish Court (defined below) under Regulation 14 of the Irish Regulations pursuant to which the Irish Court approves the completion of the Merger, confirms that the terms and conditions of the Merger are fair (both procedurally and substantively) to the Cimpress Shareholders, and fixes the Effective Time;

“Foundation” has the meaning given to it in clause 5.3;

Irish Independent Expert” has the meaning given to it in clause 8.2;

Irish Court” means the High Court of Ireland;

Irish Directors’ Explanatory Report” has the meaning given to it in clause 2.3.1;

Irish Regulations” means the European Communities (Cross-Border Mergers) Regulations 2008 (S.I. No. 157 of 2008), as amended from time to time;

Liabilities” means all the liabilities of the Transferor Company as at the Effective Time;

Matsack” means Matsack Nominees Limited, a private company limited by shares incorporated under the laws of Ireland, registered with the CRO under company number 172157 and with its registered office at 70 Sir John Rogerson’s Quay, Dublin 2, Ireland;

Merger” means the proposed Cross-Border Merger (by acquisition) of the Transferor Company into the Successor Company under the terms and conditions set forth in these Common Draft Terms, by which the Assets and Liabilities shall transfer by universal succession of title (onder algemene titel) to the Successor Company and the Transferor Company will cease to exist as at the Effective Time;

Merger Proxy Statement” means the proxy statement to be furnished to the Cimpress Shareholders in connection with the EGM at which such shareholders will be asked to adopt the resolution to enter into the Merger in accordance with these terms and conditions of the Common Draft Terms;

Merging Companies” means the Successor Company and the Transferor Company (each as defined above), and “Merging Company” shall be construed accordingly as the context so requires;

 

A-3


Table of Contents

NASDAQ” means the Nasdaq Global Stock Market;

Revised Constitution” means the constitution of the Successor Company to be in effect as of the Effective Time, substantially in the form of Schedule 2 hereto;

Schedules” means the schedules annexed to these Common Draft Terms, and “Schedule” shall be construed accordingly as the context so requires;

“Share Exchange Ratio” means the share exchange ratio for the Merger as described in clause 4.1.2;

Shareholder Resolution” means the special resolution of the shareholders of the Successor Company to be passed in order to approve these Common Draft Terms, as provided for by Regulation 10 of the Irish Regulations;

Successor Company’s Financial Statements” means the audited financial statements of the Successor Company dated 30 June 2019;

Successor Company New Shares” means ordinary shares of EUR0.01 each in the capital of the Successor Company to be issued to the Cimpress Shareholders on consummation of the Merger in accordance with the Share Exchange Ratio;

Successor Company Ordinary Shares” has the meaning given to it in clause 3.2.5;

Transferor Company’s Financial Statements” means the unaudited interim non-consolidated balance sheet (tussentijdse vermogensopstelling) of the Transferor Company dated 30 June 2019; and

Transferor Company Shares” means all shares of the Transferor Company issued and outstanding immediately prior to completion of the Merger.

 

1.2

Interpretation

 

1.2.1

In these Common Draft Terms, unless the context otherwise requires or unless otherwise specified:

 

  (a)

any reference to any statute, statutory provision or to any order or regulation shall be construed as a reference to that statute, provision, order or regulation as extended, modified, amended, replaced or re-enacted from time to time (whether before or after the date of these Common Draft Terms) and all statutory instruments, regulations and orders from time to time made thereunder or deriving validity therefrom (whether before or after the date of these Common Draft Terms);

 

  (b)

words denoting any gender include all genders and words denoting the singular include the plural and vice versa;

 

  (c)

all references to recitals, sections, clauses, paragraphs, schedules and annexures are to recitals in, sections, clauses and paragraphs of and schedules and annexures to these Common Draft Terms;

 

  (d)

headings are for convenience only and shall not affect the interpretation of these Common Draft Terms;

 

  (e)

words such as “hereunder”, “hereto”, “hereof” and “herein” and other words commencing with “here” shall unless the context clearly indicates to the contrary refer to the whole of these Common Draft Terms and not to any particular section, clause or paragraph hereof;

 

  (f)

in construing these Common Draft Terms general words introduced by the word “other” shall not be given a restrictive meaning by reason of the fact that they are preceded by words indicating a particular class of acts, matters or things and general words shall not be given a restrictive meaning by reason of the fact that they are followed by particular examples intended to be embraced by the general words and any reference to the word “include” or “including” is to be construed without limitation;

 

A-4


Table of Contents
  (g)

any reference to “Common Draft Terms” or any other document or to any specified provision of these Common Draft Terms or any other document is to these Common Draft Terms, that document or that provision as in force for the time being and as amended from time to time in accordance with the terms of these Common Draft Terms or that document;

 

  (h)

“writing” or any similar expression includes transmission by fax or by email;

 

  (i)

any reference to a document being in the “agreed form” means in relation to that document the draft of that document which has been initialled by each of the Merging Companies or by their respective solicitors on their behalf by way of identification; and

 

  (j)

if any action or duty to be taken or performed under any of the provisions of these Common Draft Terms would fall to be taken or performed on a day which is not a Business Day such action or duty shall be taken or performed on the next Business Day following such day.

 

1.3

Schedules

 

1.3.1

The contents of the Schedules form an integral part of these Common Draft Terms and shall have as full effect as if they were incorporated in the body of these Common Draft Terms and the expressions “these Common Draft Terms” and “the Common Draft Terms” as used in any of the Schedules shall mean these Common Draft Terms and any reference to “these Common Draft Terms” shall be deemed to include the Schedules.

 

2

Preliminary

 

2.1

Background to Merger

 

2.1.1

The boards of directors of the Merging Companies believe that giving effect to the Merger will be in the best interests of the Cimpress Group and the Cimpress Shareholders. In arriving at this determination, the boards of directors of the Merging Companies consulted with the Cimpress Group’s management along with its legal and tax advisors and considered various factors in its deliberations.

 

2.1.2

The boards of directors of the Merging Companies concluded that the Merger is likely to result in benefits to the Cimpress Group and the Cimpress Shareholders, including, among other benefits, maintaining the Cimpress Group’s flexibility on capital deployment strategies, such as the repurchase of shares in the Successor Company at times when it is needed to cover obligations under the Cimpress Equity Plans, for acquisitions or similar transactions or more generally at times that management believes shares in the Successor Company represent an attractive investment for the Cimpress Group and the Cimpress Shareholders.

 

2.1.3

If approved, the Merger will change the Cimpress Group’s legal domicile from The Netherlands to Ireland. The board of directors of the Transferor Company and the board of directors of the Successor Company believe that the Irish regime represents a more flexible and favourable environment for multinational groups with a profile like the Cimpress Group and aligns better with the Cimpress Groups’ current international footprint and profile.

 

2.1.4

Therefore the entire board of directors of the Transferor Company and the entire board of directors of the Successor Company propose to merge the Transferor Company into the Successor Company for the purpose of restructuring the economic and legal organisation of its Business.

 

2.1.5

Notwithstanding anything to the contrary contained in these Common Draft Terms, the boards of directors of the Merging Companies reserve the right to withdraw from the Merger at any time prior to the issuance of the Final Order.

 

2.2

Merger by Acquisition

 

2.2.1

The Merger shall be carried out as a merger by acquisition in the manner pursuant to Regulation 2(1) of the Irish Regulations and section 2:309 and section 2:333c DCC whereby the Successor Company

 

A-5


Table of Contents
  acquires all assets and liabilities by universal succession of title (onder algemene titel) of the Transferor Company and the Transferor Company ceases to exist, in exchange for the allotment and issuance of the Successor Company New Shares to the Cimpress Shareholders, without any cash payment (except in cases as described in clause 13).

 

2.2.2

Accordingly, at the Effective Time, the Transferor Company shall merge into the Successor Company pursuant to the terms and conditions of these Common Draft Terms, with the Successor Company being the resulting company and the Transferor Company as the disappearing company.

 

2.2.3

As a consequence of the Merger, ownership, title and the possession of the Assets and Liabilities will be transferred to, or assumed by, the Successor Company by universal succession of title (onder algemene titel) by operation of the Irish Regulations and the Dutch Regulations. The Successor Company will become entitled to the Assets, will continue the activities of the Business and shall assume, carry out, perform and complete the Liabilities from the Effective Time. All other rights and obligations of the Transferor Company shall also pass from the Transferor Company to the Successor Company under universal succession of title (onder algemene titel) at the Effective Time.

 

2.2.4

Following completion of the Merger, and as a consequence of the Merger, the Transferor Company ceases to exist.

 

2.3

Shareholders of the Merging Companies

 

2.3.1

In accordance with Regulation 6 of the Irish Regulations, the board of directors of the Successor Company shall prepare a report which will set out information on the implications of the Merger for the shareholders of the Successor Company and (where applicable) creditors and employees of the Successor Company, as well as the economic and legal grounds for the Merger (the “Irish Directors’ Explanatory Report”). The Irish Directors’ Explanatory Report shall be made available for inspection by the shareholders of the Successor Company for a period of at least one month. The approval of the shareholders of the Successor Company of these Common Draft Terms is required pursuant to Regulation 10 of the Irish Regulations. Following the expiration of the foregoing notice period, it is proposed that the Shareholder Resolution is passed in order to approve these Common Draft Terms, as provided for by Regulation 10 of the Irish Regulations.

 

2.3.2

Similarly, in accordance with section 2:313 DCC, the board of directors of the Transferor Company shall prepare a report which will set out information on the implications of the Merger indicating the anticipated consequences for the activities, and more specifically the information on the implications of the Merger for the Cimpress Shareholders and (where applicable) creditors and employees of the Transferor Company, as well as the social, economic and legal grounds for the Merger (the “Dutch Directors’ Explanatory Report”). The Dutch Directors’ Explanatory Report, and the documents referred thereto in section 2:314(2) and section 2:328(2) DCC will be filed at the offices of the Transferor Company for the Cimpress Shareholders.

 

3

The Merging Companies

 

3.1

The Merging Companies are the Successor Company and the Transferor Company, and are identified as follows:

 

3.2

The Successor Company

 

3.2.1

The Successor Company is Cimpress Limited, a private company limited by shares incorporated under the laws of Ireland and tax resident in Ireland, with company number 607465 and with its registered office at Building D, Xerox Technology Park, Dundalk, Co. Louth.

 

3.2.2

The Successor Company has an issued share capital of EUR100 divided into 100 ordinary shares of EUR1.00 each.

 

A-6


Table of Contents
3.2.3

The shareholders of the Successor Company are Matsack and Cimpress ULC.

 

3.2.4

The Successor Company’s shares are not listed on a regulated market and it has not previously offered financial securities to the public.

 

3.2.5

Prior to the Effective Time, the Successor Company intends to (a) apply to re-register as an Irish public limited company pursuant to Part 20 of the Companies Act 2014 of Ireland, and (b) (i) adopt an authorised share capital of EUR2,025,000 comprising 100,000,000 ordinary shares of EUR0.01 each (the “Successor Company Ordinary Shares”) and 100,000,000 preferred shares of EUR0.01 each, plus 25,000 deferred ordinary shares of EUR1.00 each, (ii) convert the existing 100 ordinary shares of EUR1.00 each currently in issue to deferred ordinary shares and (iii) allot and issue 24,900 deferred ordinary shares of EUR1.00 each to Matsack (“Legal Capital Changes”).

 

3.2.6

The Successor Company’s Constitution (which is in place as of the date of these Common Draft Terms) and the Successor Company’s Revised Constitution (which will be in place as of the Effective Time) are attached hereto at Schedule 1 and Schedule 2, respectively.

 

3.2.7

The Successor Company is not subject to any bankruptcy or insolvency proceedings, has not ceased trading, has not been dissolved or is not in liquidation, and has not filed a petition for suspension of payments.

 

3.3

The Transferor Company

 

3.3.1

The Transferor Company is Cimpress N.V., a public limited company incorporated under the laws of The Netherlands, having its corporate seat (statutaire zetel) in Venlo, The Netherlands and registered in the Dutch trade register under number 14117527, and headquartered and tax resident in Ireland, having its address at Dublin Road, Building D, A91 H9N9, Dundalk, County Louth, and registered as a branch in Ireland under number 909075.

 

3.3.2

The Transferor Company has an issued share capital of EUR 440,806.27 divided into 44,080,627 ordinary shares, each share with a nominal value of EUR 0.01. All these ordinary shares are fully paid up.

 

3.3.3

In excess of 65% of the Transferor Company’s issued share capital is listed on the NASDAQ.

 

3.3.4

The Transferor Company is not subject to any bankruptcy or insolvency proceedings, has not ceased trading, has not been dissolved or is not in liquidation, and has not filed a petition for suspension of payments.

 

3.3.5

No depository receipts for shares in the Transferor Company have been issued with the cooperation of the Transferor Company and no right of usufruct or right of pledge has been created on any share in the capital of the Transferor Company.

 

3.3.6

The Transferor Company has no supervisory board.

 

3.3.7

The Transferor Company has no shares issued without profit rights or without voting rights.

 

4

Share Exchange Ratio and Terms of Allotment

 

4.1

Share Exchange Ratio

 

4.1.1

The Successor Company shall allot and issue the Successor Company New Shares to the Cimpress Shareholders as consideration for the transfer by universal succession of title (onder algemene titel) of the Assets and Liabilities of the Transferor Company to the Successor Company.

 

4.1.2

The boards of directors of the Merging Companies have agreed that the Share Exchange Ratio should be one share in the Successor Company for one share in the Transferor Company, calculated in accordance with the number of Transferor Company Shares immediately prior to the Effective Time, except in cases as described in clause 13.

 

A-7


Table of Contents
4.1.3

The Share Exchange Ratio is based on the fair market value of the Successor Company and on the fair market value of the Transferor Company. In evaluating these components in the determination of the Share Exchange Ratio and in establishing the conditions of the Merger generally, the Successor Company and the Transferor Company used the Successor Company’s Financial Statements (as defined above) and the Transferor Company’s Financial Statements (as defined above). In that regard, the Merging Companies took into consideration that, as of the date of the Successor Company’s Financial Statements, the Successor Company had no retained profits or losses.

 

4.1.1

No cash payment will be made to the Cimpress Shareholders, nor will any other consideration be provided pursuant to the Merger (other than the assumption of the Liabilities), except in cases as described in clause 13.

 

4.1.2

No shares in the capital of the Transferor Company shall be cancelled on the occasion of the Merger pursuant to section 2:325(3)DCC.

 

4.1.3

All Cimpress Shareholders, except for the Electing Shareholders who receive a Cash Compensation for their Exit Shares, shall be fully entitled to share the profits in the Successor Company as from the Effective Time.

 

4.1.4

On the occasion of the Merger, no shares in the capital of the Successor Company shall be cancelled pursuant to section 2:325(3)DCC.

 

4.2

Terms of Allotment

 

4.2.1

At the Effective Time, the Successor Company shall allot and issue the Successor Company New Shares credited as fully paid to the Cimpress Shareholders, except in cases as described in clause 13, on the basis of the Share Exchange Ratio and otherwise on the terms and conditions set out in this Agreement.

 

4.2.2

The Successor Company New Shares will rank pari passu in all respects with the Successor Company Ordinary Shares at the Effective Time, including, where the record date for determining entitlements is at or after the Effective Time, the right to all dividends and other distributions (if any) declared, made or paid by the Successor Company on the Successor Company Ordinary Shares. No special rights or conditions will affect this entitlement of the Successor Company New Shares (or the holders thereof) in respect of dividends or distributions declared, made or paid on the ordinary share capital of the Successor Company where the record date for determining entitlement to such dividends or distributions is at or after the Effective Time.

 

4.2.3

An application will be made to have the Successor Company New Shares admitted to trading on the NASDAQ as from the Effective Time.

 

4.3

Increase in the Successor Company’s issued share capital

 

4.3.1

As a consequence of the Merger, the Successor Company will increase its issued share capital (which, immediately prior to the Merger, will consist, as a result of the Legal Capital Changes, of 25,000 deferred ordinary shares of EUR 1.00 each) by allotting and issuing the Successor Company New Shares.

 

4.3.2

The Successor Company New Shares will be issued at a premium to their nominal value equal in aggregate to the difference between the market capitalisation of the Transferor Company (“Market Cap”) at the Effective Time and the nominal value of the Successor Company New Shares at the Effective Time.

 

4.3.3

By way of example, on the basis of assuming an estimated Market Cap of USD2,767,206,855.41 on 30 June 2019, as detailed in Schedule 3, the total share premium would be USD2,766,704,336.26 and, based on the allotment and issuance of 44,080,627 Successor Company New Shares (being the number

 

A-8


Table of Contents
  of issued shares in the Transferor Company at the date of these Common Draft Terms), the share premium per share would be USD90.87.

 

4.3.4

The actual value of the share premium must, under Irish company law, be calculated based on the Market Cap as at the Effective Time. This calculation shall be completed as soon as reasonably practicable following the Effective Time.

 

4.3.5

Under Irish company law, since the actual value of the share premium must be calculated based on the Market Cap as at the Effective Time:

 

  (a)

In the event that the Market Cap determined as at the Effective Time is higher than that set out above, the Successor Company’s share premium account will be higher.

 

  (b)

In the event that the Market Cap determined as at the Effective Time is less than that set out above, the Successor Company’s share premium account will be lower.

 

  (c)

In no event shall the number of Successor Company New Shares change to reflect any such difference in Market Cap as the exchange ratio is fixed.

 

5

Shares or Other Securities in the Transferor Company to Which Special Rights or Restrictions Attach

 

5.1

There are no individuals or legal entities that have special rights towards the Transferor Company as referred to in section 2:320 in conjunction with section 2:312(2)DCC, other than in the capacity of shareholder, so that no special rights or compensation should be granted or allocated on account of the Successor Company. Accordingly, no special rights or compensation should be granted or allocated on account of the Successor Company.

 

5.2

Save as disclosed in clause 6 of these Common Draft Terms, the Transferor Company has not issued any equity securities or equity-linked securities other than Transferor Company Shares and accordingly no measures are required or proposed under the Merger concerning holders of any such securities.

 

5.3

Stichting Continuïteit Cimpress, a foundation incorporated under the laws of The Netherlands, having its seat in Venlo, The Netherlands (the “Foundation”), was granted the right to acquire preferred shares in the capital of the Transferor Company as a protective measure (the “Foundation Option Agreement”). The Foundation may only exercise this call option taking into account its objects and the intention of the Foundation set out in its articles of association and set out in the option agreement entered into by the Foundation and the Transferor Company. The board of the Foundation shall irrevocably and unconditionally have waived in writing subject to the Effective Time any and all rights under the Foundation Option Agreement, as a result of which the Foundation will not have any rights to receive any option rights of the Successor Company New Shares on the occasion of the Merger.

 

5.4

No shares or securities will be issued by the Successor Company under the Merger other than the Successor Company New Shares. No special rights or restrictions will apply to any of the Successor Company New Shares to be issued pursuant to the Merger.

 

6

Proposal in relation to Cimpress Equity Plans

 

6.1

The Successor Company will assume all of the Transferor’s Company’s obligations under the Cimpress Equity Plans. At the Effective Time, the rights of beneficiaries to receive shares, share options or other equity awards under the Cimpress Equity Plans will be converted to equivalent rights to receive ordinary shares, share options or other equity awards in the Successor Company. The Cimpress Equity Plans will be amended in connection with the Merger only to the extent necessary to effect the substitution of the Successor Company for the Transferor Company with regard to the Transferor Company’s obligations pursuant to the Cimpress Equity Plans.

 

A-9


Table of Contents
7

Composition of the Board of Directors of the Successor Company

 

7.1

The composition of the board of directors of the Successor Company shall be amended with effect from the Effective Time with the result that the composition of the board of directors of the Successor Company with effect from the Effective Time shall be the same as the board of directors of the Transferor Company immediately prior to the Effective Time.

 

8

Special Advantages

 

8.1

No special advantages, amounts or benefits will be granted, paid or given or are intended to be granted, paid or given in connection with the Merger to any directors, supervisory board members, or managers of the Merging Companies nor to any auditors or independent experts assisting with the Merger, nor to any third party involved in the intended Merger.

 

8.2

In accordance with Regulation 7 of the Irish Regulations, EY Ireland has been appointed for the Successor Company by its board of directors on [●] 2019 as an independent expert (the “Irish Independent Expert”) for the purposes of preparing a report to the shareholders of the Successor Company on the Common Draft Terms. Accordingly, no advantage is granted and no amount or benefit has been or will be paid or given to the Irish Independent Expert except for its fees.

 

8.3

In accordance with section 2:328 DCC, EY Netherlands has been appointed for the Transferor Company by its board of directors on [●] 2019 as an independent expert (the “Dutch Independent Expert”) for the purposes of (1) examining these Common Draft terms and (a) certifying that the proposed Share Exchange Ratio is reasonable, and (b) certifying that the sum of the net assets of the Transferor Company as of the date to which the Transferor Company’s Financial Statements relate, on the basis of generally acceptable valuation methods, at least corresponds to the nominal paid up amount on the aggregate number of Successor Company New Shares to be issued to the Cimpress Shareholders under the Merger increased with the total amount of the Cash Compensation which shareholders may claim as referred to in clause 13, and (2) preparing a report stating his opinion on the matters mentioned in section 2:327 DCC. Accordingly, no advantage is granted and no amount or benefit has been or will be paid or given to the Dutch Independent Expert except for its fees.

 

9

Likely Repercussions on Employment

 

9.1

Employees

 

9.1.1

As at the date of these Common Draft Terms, the Transferor Company has two employees. The Successor Company does not have nor will have at the Effective Time any employees.

 

9.1.2

As a consequence of the Merger, the employees of the Transferor Company will become employees of the Successor Company by operation of law pursuant to the laws of each of the Merging Companies’ jurisdictions. Such employees of the Transferor Company will continue to be employed on the same terms as they are currently employed once the Merger has completed. Accordingly, it is anticipated that the Merger will not have any negative impact on the employees of the Transferor Company.

 

9.2

Employee Participation

As at the date of these Common Draft Terms, neither of the Merging Companies has a system of employee participation in force. Accordingly, no obligation arises to elect a special negotiating body or to negotiate an employee participation agreement in accordance with Regulation 23 of the Irish Regulations and section 2:333k DCC, and as a result whereof no information can be given in accordance with section 333e(1)(c) DCC.

None of the Merging Companies has a works council (ondernemingsraad), nor is there a works council (ondernemingsraad) from a group undertaking of the Merging Companies that is entitled to advise on the intended Merger.

 

A-10


Table of Contents
9.3

Agency Workers

As at the date of this Agreement, the Transferor Company has no agency workers and the Successor Company has no agency workers.

 

10

Accounting

 

10.1

Treatment for Accounting Purposes

 

10.1.1

All of the Assets and Liabilities shall for accounting purposes be treated as those of the Successor Company with effect from the Effective Time. The transactions of the Transferor Company shall be treated as those of the Successor Company from the Effective Time.

 

10.1.2

The statutory provisions regarding the legal effectiveness of the Merger shall not be affected.

 

10.1.3

The financial data of the Transferor Company with respect to the period running from 1 July 2019 up to the Effective Time shall be accounted for in the annual accounts of the Successor Company as per [●].

 

10.1.4

As the Successor Company is a new company with no trading activity, it will not have any distributable reserves prior to completion of the Merger. As a result of the Merger, the Successor Company will acquire the goodwill of the Transferor Company. The Merger itself, however, will not result in the creation of distributable reserves in the Successor Company.

 

10.2

Merging Companies’ Accounts

 

10.2.1

For the purposes of preparing the Common Draft Terms, the Merging Companies used the following financial statements:

 

  (a)

in the case of the Successor Company, the Successor Company’s Financial Statements (that is, the audited financial statements made up to 30 June 2019); and

 

  (b)

in the case of the Transferor Company, the Transferor Company’s Financial Statements (that is the unaudited interim non-consolidated balance sheet of the Transferor Company dated 30 June 2019).

 

10.2.2

The Successor Company’s Financial Statements (being the Successor Company’s latest annual accounts) are not more than 6 months old at the date of these Common Draft Terms and accordingly Regulation 11(3) of the Irish Regulations shall not be relevant.

 

10.2.3

As the Transferor Company’s latest annual accounts are more than 6 months old, the Transferor Company has prepared an unaudited interim non-consolidated balance sheet dated 30 June 2019 which has been prepared (i) in the format of the last adopted annual accounts and (ii) in accordance with Dutch law. Accordingly, such unaudited interim non-consolidated balance shall constitute the “merger accounting statement” for the purposes of Regulation 11(3) of the Irish Regulations and the “tussentijdse vermogensopstelling” for the purpose of section 2:314(2) DCC.

 

11

Evaluation of the Assets and Liabilities

 

11.1

Evaluation and Description of Assets and Liabilities

 

11.1.1

At the Effective Time, all of the Assets and Liabilities shall be transferred to the Successor Company by universal succession of title (onder algemene titel).

 

11.1.2

The description of the Assets and Liabilities is established for information purposes only based on the Transferor Company’s Financial Statements. This description is not exhaustive as the Merger will lead to a transfer by universal succession of title (onder algemene titel) of all Assets and Liabilities to the Successor Company as of the Effective Time.

 

A-11


Table of Contents
11.1.3

The final net book value of the assets and liabilities transferred to the Successor Company, and, as a consequence, the resulting net asset value, will be determined by the board of directors of the Successor Company as soon as practicable after the Effective Time.

 

11.1.4

The Successor Company will record the Assets and Liabilities acquired from the Transferor Company by universal succession of title (onder algemene titel) in accordance with the accounting standards applicable to the Successor Company.

 

11.2

Transferred Assets

For information purposes only, the Assets recorded in the Transferor Company’s Financial Statements have a book value of [●] on 30 June 2019.

 

11.3

Transferred Liabilities

 

11.3.1

For information purposes only, the Liabilities recorded in the Transferor Company’s Financial Statements have a book value of [●] on 30 June 2019.

 

11.3.2

Should any liability appear over and above the liabilities mentioned above as a result of any error or omission (or any over- or under- provisioning), the Successor Company will assume such liability without any right of recourse against the Transferor Company.

 

11.3.3

Furthermore, as a result of the Merger, both pending cases of litigation and possible future cases of litigation involving the Transferor Company will be transferred to the Successor Company.

 

11.4

Net Assets Transferred

Based on the above, the Assets and Liabilities recorded in the Transferor Company’s Financial Statements for information purposes have a net book value of [●].

 

12

Creditors Rights

 

12.1

Upon the completion of the Merger, the creditors of the Transferor Company shall become the creditors of the Successor Company. As both Merging Companies are solvent in all respects as at the date of these Common Draft Terms, it is not envisaged that the rights of the creditors of either Merging Company will be adversely affected by the Merger.

 

12.2

The creditors of the Transferor Company may exercise their rights under section 2:316 DCC.

 

12.3

The creditors of the Successor Company may exercise their rights under Regulation 15 of the Irish Regulations.

 

13

EGM and Cash Compensation

 

13.1

The general meeting of the Transferor Company may resolve to enter into the Merger, but only at the proposal of the board of directors of the Transferor Company. This resolution of the general meeting of the Transferor Company is not subject to the approval of any other corporate body of the Transferor Company. The resolution to enter into the Merger can be adopted with an absolute majority (volstrekte meerderheid) of votes cast in a general meeting in which at least one third of the outstanding shares are represented, provided that such resolution requires a majority of at least a two thirds majority of the votes cast if less than half of the issued capital is represented at the general meeting.

 

13.2

The resolution to enter into the Merger will be proposed to the general meeting of the Transferor Company (the “EGM”). It will be proposed to the EGM to also resolve to amend the articles of association of the Transferor Company, a copy of which proposed amendment is attached to these

 

A-12


Table of Contents
  Common Draft Terms as Schedule 4 (the “Draft Amendment Articles of Association Transferor Company”). Pursuant to such amendment, a formula, as referred to in section 2:333h(2), last sentence DCC, will be included in the articles of association of the Transferor Company, on the basis of which the Cash Compensation payable to the Cimpress Shareholders as described below in clause 13.3 up to and including clause 13.10 can be readily determined (the “Formula”).

The Formula reads as follows: the Cash Compensation payable to an Electing Shareholder (defined below) in respect of each Exit Share (defined below) shall be calculated using the closing price of the Transferor Company’s shares on the NASDAQ on the first trading day immediately after the expiration of the Election Period (defined below).

 

13.3

The resolution to enter into the Merger will only be put to a vote at the EGM if the resolution relating to the aforementioned amendment to the articles of association in accordance with the Draft Amendment Articles of Association Transferor Company has been adopted by the EGM and the articles of association of the Transferor Company have been amended accordingly.

 

13.4

If the EGM resolves to enter into the Merger, any Cimpress Shareholder that voted against the Merger (the “Electing Shareholder”) is entitled to claim a cash compensation in lieu of shares in the Successor Company, in accordance with section 2:333h(1) DCC (the “Cash Compensation Right”), within one month after the EGM. At the Effective Time, such Electing Shareholder will not receive Successor Company New Shares. Instead, such Electing Shareholder will receive a compensation in cash (the “Cash Compensation”) for the shares for which he or she duly exercised his Cash Compensation Right.

 

13.5

In order for a Electing Shareholder that voted against the Merger to become eligible for the Cash Compensation Right, such Electing Shareholder should file a request for compensation (the “Cash Compensation Request’) with the Transferor Company within one month starting the day after the date of the EGM (the “Election Period”). A draft of the Cash Compensation Request form is attached to these Common Draft Terms as Schedule 5.

 

13.6

The Cash Compensation Right of such Electing Shareholder only relates to the shares that the relevant Electing Shareholder (i) held at the record date for the EGM in which such Electing Shareholder voted against the Merger and (ii) still holds at the time the Electing Shareholder submits its Compensation Request (such shares to be referred to as “Exit Shares”). A Cimpress Shareholder who voted in favour of the proposal to enter into the Merger at the EGM, abstained from voting or was not present or represented at the EGM, does not have the Cash Compensation Right.

 

13.7

If a Cimpress Shareholder that voted against the Merger does not file a Cash Compensation Request within the Election Period, such shareholder will be entitled to shares in the Successor Company in accordance with the Share Exchange Ratio.

 

13.8

The Cash Compensation Request will be irrevocable once the Election Period has ended, and following the submission of such request, the relevant Electing Shareholder shall not be allowed to transfer or dispose of his Exit Shares in any manner. The Exit Shares will be cancelled as per the Effective Time.

 

13.9

The Cash Compensation per Exit Share to be received by an Electing Shareholder will be determined in accordance with the Formula.

 

13.10

The Successor Company hereby assumes the obligation of the Transferor Company to pay the Cash Compensation to the Electing Shareholders in accordance with section 2:333i(4) DCC and will pay such Cash Compensation to the Electing Shareholders within 60 days following the Effective Time, net of applicable withholding tax, if any, that is required to be withheld by law.

 

A-13


Table of Contents
14

Conditions Precedent

 

14.1

The Merger shall not be completed unless each of the following conditions precedent has been satisfied:

 

  14.1.1

the Successor Company’s shareholders have approved the Merger and these Common Draft Terms;

 

  14.1.2

the EGM has adopted the resolution to amend the articles of association of the Transferor Company in accordance with the Draft Amendment Articles of Association Transferor Company and the articles of association of the Transferor Company have been amended accordingly;

 

  14.1.3

the EGM adopted the resolution to enter into the Merger;

 

  14.1.4

a declaration has been received from the district court in Roermond, The Netherlands, that no creditor opposed the Merger pursuant to section 2:316 DCC or, in case of any opposition pursuant to section 2:316 DCC, a declaration that such opposition was withdrawn or discharged;

 

  14.1.5

the issuance by a Dutch civil law notary selected by the Transferor Company of the pre-merger certificate and delivery thereto to the Transferor Company, in accordance with section 2:333i DCC;

 

  14.1.6

the aggregate amount of the Cash Compensation for all Exit Shares on the basis of the received Cash Compensation Requests, will not exceed USD 100,000,000;

 

  14.1.7

the Successor Company’s shareholders have approved the Revised Constitution;

 

  14.1.8

the Successor Company has given full effect to the Legal Capital Changes;

 

  14.1.9

the Transferor Company has submitted the Merger Proxy Statement to the Irish Court;

 

  14.1.10

the Successor Company has advised the Irish Court that, based on the Final Order, the Successor Company will rely upon the exemption from U.S. securities law registration available under Section 3(a)(10) under the U.S. Securities Act of 1933 and it will not register the Successor Company New Shares under that Act;

 

  14.1.11

by placing advertisements in the CRO gazette and/or such other publications as the Irish Court shall order, the Transferor Company has given its shareholders and creditors prior notice of the hearing of the Irish Court at which such Court will consider the Merger for purposes of approval thereof; and

 

  14.1.12

the Irish Court has issued the Final Order.

 

14.2

Notwithstanding anything to the contrary contained in clause 14.1, the boards of directors of the Merging Companies may mutually agree to waive condition 14.1.6 at any time prior to the issuance of the Final Order without notice to any other parties in interest and without any formal action other than proceeding to complete the Merger.

 

15

Effect of the Merger

 

15.1

At the Effective Time:

 

  15.1.1

the Assets and Liabilities shall transfer to, and be assumed by, the Successor Company by universal succession of title and by operation of law;

 

  15.1.2

the Successor Company shall, by operation of law, succeed the Transferor Company in all agreements previously entered into by the Transferor Company;

 

  15.1.3

the activities of the Business shall be continued by the Successor Company;

 

A-14


Table of Contents
  15.1.4

the Successor Company shall allot and issue the Successor Company New Shares to the Cimpress Shareholders in accordance with the Share Exchange Ratio, except in cases as described in clause 13;

 

  15.1.5

the Transferor Company shall cease to exist; and

 

  15.1.6

without prejudice to the foregoing, the consequences of the Merger set out in Regulation 19(1) of the Irish Regulations and section 2:309 DCC shall apply to the Merger.

 

15.2

The Merging Companies intend that all the benefits and burdens of ownership of all of the Assets and Liabilities shall transfer to, and be acquired and assumed by, the Successor Company by universal succession of title at the Effective Time. The Merging Companies acknowledge and agree that certain of the transfers contemplated by these Common Draft Terms may nevertheless not be completed at the Effective Time due to the inability of the appearing parties to obtain necessary consents or approvals or the inability of the Merging Companies to take certain other actions necessary to effect such transfers. To the extent that any transfers contemplated by these Common Draft Terms have not been fully effected at the Effective Time, the Successor Company shall use commercially reasonable efforts to obtain any necessary consents or approvals or take any other actions necessary to effect or complete the transfer of any such Assets as promptly as practicable following the Effective Time. In connection therewith, the Successor Company will pay, perform and discharge on behalf of the Transferor Company all of the Transferor Company’s obligations with respect to any such transfers in a timely manner and in accordance with the terms thereof.

 

16

Miscellaneous Provisions

 

16.1

Further Assurances

Each Merging Company shall do, sign or execute, or procure to be done, signed or executed all such other acts, deeds, documents and things as may be necessary or desirable in respect of the Merger and the transfer of the Assets and Liabilities to the Successor Company pursuant to these Common Draft Terms.

 

16.2

Severability

Each of the provisions of these Common Draft Terms are separate and severable and enforceable accordingly and if at any date any provision is adjudged by any court of competent jurisdiction to be void or unenforceable the validity, legality and enforceability of the remaining provisions hereof and of that provision in any other jurisdiction shall not in any way be affected or impaired thereby.

 

16.3

Survival of Obligations

The provisions of these Common Draft Terms which shall not have been performed at the Effective Time shall, to the extent possible and to the extent that this does not contravene the legal rules governing the Merger, remain in full force and effect notwithstanding the Effective Time.

 

16.4

Binding on Successors

These Common Draft Terms shall be binding upon and enure to the benefit of the respective Merging Companies hereto and their respective personal representatives, successors and permitted assigns.

 

16.5

Whole Common Draft Terms

These Common Draft Terms contain the whole agreement between the Merging Companies relating to the transactions provided for in these Common Draft Terms and supersede all previous agreements (if

 

A-15


Table of Contents

any) between such Merging Companies in respect of such matters and each of the Merging Companies acknowledges that in agreeing to enter into these Common Draft Terms it has not relied on any representations or warranties except for those contained in these Common Draft Terms.

 

16.6

Variation

No variation of these Common Draft Terms shall be valid unless it is in writing and signed by or on behalf of each of the Merging Companies hereto, or unless it is required pursuant to an order of the Irish Court or other Dutch or Irish authorities.

 

16.7

Governing Law and Jurisdiction

These Common Draft Terms shall be governed by and construed in accordance with the laws of Ireland save to the extent that the application of the laws of Ireland would be contrary to the mandatory rules of the laws of The Netherlands, in which case and to that extent, only the laws of The Netherlands shall apply. Each of the Merging Companies hereto hereby agrees that the courts of Ireland shall have jurisdiction to hear and determine any suit, action or proceedings that may arise out of or in connection with these Common Draft Terms and for such purposes irrevocably submits to the jurisdiction of such courts.

[signature page follows]

 

A-16


Table of Contents

SIGNED for and on behalf of

CIMPRESS LIMITED

 

Robert Keane

Director

Date:

 

Kathryn Leach

Director

Date:

 

Matthew Walsh

Director

Date:

 

A-17


Table of Contents

SIGNED for and on behalf of

CIMPRESS N.V.

 

Robert Keane

Executive Director

Date:

 

Sophie Gasperment

Lead Non-Executive Director

Date:

 

John Gavin

Non-Executive Director

Date:

 

Zachary Sternberg

Non-Executive Director

Date:

 

Scott Vassalluzzo

Non-Executive Director

Date:

 

A-18


Table of Contents

Schedule 1

Constitution of Successor Company

 

A-19


Table of Contents

Schedule 2

Revised Constitution of the Successor Company

 

A-20


Table of Contents

Schedule 3

Estimated Share Premium Calculation

The share premium will be computed by using the market capitalisation of the Transferor Company on the NASDAQ immediately following the Merger and deducting the nominal value of the share capital issued in the Merger.

For the purposes of the Common Draft Terms, the share premium has been provisionally calculated on the basis of an estimated market capitalisation of USD2,767,206,855.41 on 30 June 2019, as detailed below:

 

Cimpress N.V.

 

     USD  

Share Price on 30 June 2019

     90.89  

Outstanding Shares

     30,445,669  

Total Market Capitalisation

     2,767,206,855.41  

Less:

  

Nominal Value of Share Capital

     502,519.15  

Share Premium

     2,766,704,336.26  

Share Premium per share

     90.87  

 

A-21


Table of Contents

Schedule 4

Draft Amendment Articles of Association Transferor Company

 

A-22


Table of Contents

Schedule 5

Cash Compensation Request

 

A-23


Table of Contents

ANNEX B

CONSTITUTION OF CIMPRESS plc

 

B-1


Table of Contents

COMPANY NUMBER 607465

COMPANIES ACT 2014

A PUBLIC COMPANY LIMITED BY SHARES

CONSTITUTION

OF

CIMPRESS PUBLIC LIMITED COMPANY

 

B-2


Table of Contents

COMPANY NUMBER 607465

COMPANIES ACT 2014

A PUBLIC COMPANY LIMITED BY SHARES

MEMORANDUM OF ASSOCIATION

OF

CIMPRESS PUBLIC LIMITED COMPANY

(Adopted by special resolution passed on [[] November] 2019)

 

1

The name of the company is Cimpress public limited company (the “Company”).

 

2

The Company is a public limited company, registered under Part 17 of the Companies Act 2014.

 

3

The objects for which the Company is established are as follows:

 

3.1

To carry on all or any of the businesses of designing, engineering, marketing, producing, decorating, manufacturing, buying, selling, distributing, offering, managing, servicing, and dealing in all kinds of products and services, including, without limitation, custom products and digital marketing services. The objects of the Company in this section 3.1 include, without limitation, the mass customization of print, signage, photo merchandise, invitations and announcements, writing instruments, promotional products, drinkware, bags, packaging, apparel and other objects as determined by the Company from time to time, the provision of website development tools and services, email marketing services and social media marketing services and such other services as determined by the Company from time to time, the packaging, shipment and/or distribution of such objects and services, the taking of such other actions related to any of the foregoing as the Company may determine from time to time, the holding of patents and intellectual property rights and the undertaking of all things usually dealt in by persons carrying on the above mentioned businesses or any of them or likely to be required in connection with any of the said businesses. Mass customization is a competitive strategy which seeks to produce goods and services to meet individual customer needs with near mass production efficiency.

 

3.2

To carry on the business of a holding company, to determine Company strategy, and to co-ordinate the administration, finances and activities of any subsidiary companies or associated companies, to do all lawful acts and things whatever that are necessary or convenient in carrying on the business of such a holding company and, in particular, to carry on in all its branches the business of a management services company, to act as managers and to direct or coordinate the management of other companies or of the business, property and estates of any company or person and to undertake and carry out all such services in connection therewith as may be deemed expedient by the Company’s board of directors and to exercise its powers as a shareholder of other companies.

 

3.3

To carry on the business of investing in shares, bonds and other securities including investments in foreign currencies.

 

3.4

To invest any moneys of the Company in such investments and in such manner as may from time to time be determined, and to hold, sell or deal with such investments and generally to purchase, take on lease or in exchange or otherwise acquire any real and personal property and rights or privileges.

 

3.5

To acquire shares, stocks, debentures, debenture stock, indentures, notes, loan notes, loan stock, bonds, obligations and other securities of any description, by original subscription, tender, purchase, exchange or otherwise and to subscribe for the same either conditionally or otherwise, and to guarantee the subscription thereof and to exercise and enforce all rights and powers conferred by or incidental to the ownership thereof.

 

B-3


Table of Contents
3.6

To facilitate, effect, and encourage the creation, issue or conversion of, and to offer for public or private subscription, tender, purchase or exchange, shares, stocks, debentures, debenture stock, indentures, notes, loan notes, loan stock, bonds, obligations and other securities of any description of the Company, of any member of the group to which the Company belongs or of any other person and to act as trustees in connection with any such securities and to take part in the conversion of business concerns and undertakings into companies.

 

3.7

To purchase or by any other means acquire any freehold, leasehold or other property and real estate and in particular lands, tenements and hereditaments of any tenure, whether subject or not to any charges or encumbrances, for any estate or interest whatever, and any rights, privileges or easements over or in respect of any property and real estate, and any buildings, factories, mills, works, wharves, roads, rigs, machinery, engines, plant, live and dead stock, barges, vessels or things, and any real or personal property or rights whatsoever which may be necessary for, or may conveniently be used with, or may enhance the value or property of the Company, and to hold or to sell, let, alienate, mortgage, charge or otherwise deal with all or any such freehold, leasehold, or other property and real estate, lands, tenements or hereditaments, rights, privileges or easements.

 

3.8

To establish and contribute to any scheme (including any share option scheme or similar scheme) for the purchase of shares in the Company to be held for the benefit of current, or former, directors, officers, employees and consultants of, or to, the Company or any of its subsidiaries or associated undertakings, and to lend or otherwise provide money to such schemes or any such directors, officers, employees and consultants to enable them to purchase shares of the Company, in each case subject to applicable law.

 

3.9

To sell, lease, exchange, grant, convey, transfer or otherwise dispose of any or all of the property and real estate, investments or assets of the Company of whatever nature or tenure for such price, consideration, sum or other return, whether equal to or less than the market value thereof and whether by way of gift or otherwise, as the board of directors of the Company shall deem appropriate and to grant any fee farm grant or lease or to enter into any agreement for letting or hire of any such property or asset for a rent or return equal to or less than the market or rack rent therefor or at no rent and subject to or free from covenants and restrictions as the board of directors of the Company shall deem appropriate.

 

3.10

To acquire and undertake the whole or any part of the business, good-will and assets of any person, firm or company carrying on or proposing to carry on any of the businesses which this Company is authorised to carry on, and as part of the consideration for such acquisition to undertake all or any of the liabilities of such person, firm or company, or to acquire an interest in, amalgamate with, or enter into any arrangement for sharing profits, or for co-operation, or for limiting competition or for mutual assistance with any such person, firm or company and to give or accept by way of consideration for any of the acts or things aforesaid or property acquired, any shares, stocks, debentures, debenture stock, indentures, notes, loan notes, loan stock, bonds, obligations and other securities of any description that may be agreed upon, and to hold and retain or sell, mortgage or deal with any shares, stocks, debentures, debenture stock, indentures, notes, loan notes, loan stock, bonds, obligations and other securities of any description so received.

 

3.11

To apply for, register, purchase, acquire, sell, lease, hold, use, administer, control, license or otherwise deal with any patents, brevets d’invention, copyrights, trademarks, licences, technical and industrial know-how, concessions and the like conferring any exclusive or non-exclusive or limited rights to use or any secret or other inventing information as to any invention which may seem capable of being used for any of the purposes of the Company or the acquisition of which may seem calculated directly or indirectly to benefit the Company, and to use, exercise, develop or grant licences in respect of or otherwise turn to account the property, rights or information so acquired.

 

3.12

To enter into partnership or into any arrangement for sharing profits, union of interests, co-operation, joint venture, reciprocal concession or otherwise with any person or company carrying on or engaged in or about to carry on or engage in any business or transaction which the Company is authorised to carry on or engage in or any business or transaction capable of being conducted so as to, directly or indirectly, benefit the Company.

 

B-4


Table of Contents
3.13

To incorporate or cause to be incorporated any one or more subsidiaries for the purpose of carrying on any business.

 

3.14

To invest and deal with the moneys of the Company not immediately required upon such securities and in such manner as may from time to time be determined.

 

3.15

To lend money to and guarantee the performance of the contracts or obligations of any company, firm or person, and the repayment of the capital and principal of, and dividends, interest or premiums payable on, any stock, shares and securities of any company, whether having objects similar to those of this Company or not, and to give all kinds of indemnities.

 

3.16

To enter into, invest or engage in, acquire, hold or dispose of any financial instruments or risk management instruments, whether or not of a type currently in existence, and currency exchange, interest rate or commodity or index linked transactions (whether in connection with or incidental to any other contract, undertaking or business entered into or carried on by the Company or whether as an independent object or activity), including securities in respect of which the return or redemption amount is calculated by reference to any index, price or rate, monetary and financial instruments of all kinds, futures contracts, swaps and hedges (including credit default, interest rate and currency swaps and hedges of any kind whatsoever), options contracts, contracts for differences, commodities (including bullion and other precious metals), forward rate agreements, debentures, debenture stock, warrants, commercial paper, promissory notes, mortgage backed securities, asset backed securities, dealings in foreign currency, spot and forward rate exchange contracts, caps, floors, collars, and any other foreign exchange, interest rate or commodity or index linked arrangements, and such other instruments whether for the purpose of making a profit or avoiding a loss or managing a currency or interest rate exposure or any other purpose and to enter into any contract for and to exercise and enforce all rights and powers conferred by or incidental, directly or indirectly, to such transactions or the termination of any such transactions.

 

3.17

To guarantee, support or secure, whether by personal covenant or by mortgaging or charging all or any part of the undertaking, property and assets (both present and future) and uncalled capital of the Company, or by both such methods, the performance of the obligations of, and the repayment or payment of the principal amounts of and premiums, interest and dividends on any securities of, any person, firm or company including, without prejudice to the generality of the foregoing, any company which is, for the time being, the Company’s subsidiary, holding company, subsidiary of any such holding company or otherwise associated with the Company in business.

 

3.18

To borrow or raise finance or secure the payment of money in such manner as the Company shall think fit, and in particular by the provision of a guarantee or by the issue of shares, stocks, debentures, debenture stock, notes, loan notes, loan stock, bonds, obligations and other securities of all kinds, either perpetual or terminable and either redeemable or otherwise and to secure the repayment of any money borrowed, raised or owing by trust deed, mortgage, charge, or lien upon the whole or any part of the Company’s property or assets (whether present or future) including its uncalled capital, and also by a similar trust deed, mortgage, charge or lien to secure and guarantee the performance by the Company of any obligation or liability it may undertake.

 

3.19

To carry on the business of financing and re-financing whether asset based or not (including financing and re-financing of financial assets), including managing financial assets with or without security in whatever currency including financing or re-financing by way of loan, acceptance credits, commercial paper, euro medium term bonds, euro bonds, asset-backed securities, securitisation, synthetic securitisation, collateralised debt obligations, bank placements, leasing, hire purchase, credit sale, conditional sale, factoring, forfeiting, invoice discounting, note issue facilities, project financing, bond issuances, participation and syndications, assignment, novation, factoring, discounting, participation, sub-participation, derivative contracts, securities/stock lending contracts, repurchase agreements or other appropriate methods of finance and to discount mortgage receivables, loan receivables and lease rentals for persons wherever situated in any currency whatsoever, and to do all of the foregoing as principal, agent or broker.

 

B-5


Table of Contents
3.20

To draw, make, accept, endorse, discount, execute, negotiate and issue promissory notes, bills of exchange, bills of lading, warrants, indentures, debentures and other negotiable or transferable instruments.

 

3.21

To subscribe for, take, purchase or otherwise acquire, hold, sell and transfer shares, stocks, debentures, debenture stock, indentures, notes, loan notes, loan stock, bonds, obligations and other securities of any description of, or other interests in, any other company or person.

 

3.22

To hold in trust as trustees or as nominees and to deal with, manage and turn to account, any real or personal property of any kind, and in particular shares, stocks, debentures, debenture stock, indentures, notes, loan notes, loan stock, bonds, obligations and other securities of any description, policies, book debts, claims and choses in actions, lands, buildings, hereditaments, business concerns and undertakings, mortgages, charges, annuities, patents, licences, and any interest in real or personal property, and any claims against such property or against any person or company.

 

3.23

To constitute any trusts with a view to the issue of preferred and, deferred or other special stocks or securities based on or representing any shares, stocks and other assets specifically appropriated for the purpose of any such trust and to settle and regulate and if thought fit to undertake and execute any such trusts and to issue dispose of or hold any such preferred, deferred or other special stocks or securities.

 

3.24

To give any guarantee in relation to the payment of any debentures, debenture stock, indentures, notes, loan notes, loan stock, bonds, obligations or other securities of any description and to guarantee the payment of interest thereon or of dividends on any stocks or shares of any company.

 

3.25

To construct, erect and maintain buildings, houses, flats, shops and all other works, erections, and things of any description whatsoever either upon the lands acquired by the Company or upon other lands and to hold, retain as investments or to sell, let, alienate, mortgage, charge or deal with all or any of the same and generally to alter, develop and improve the lands and other property of the Company.

 

3.26

To provide for the welfare of persons in the employment of or holding office with, or formerly in the employment of or holding office with, the Company or any of its subsidiaries and associated undertakings, including directors and ex-directors and the spouses, widows, widowers and families, dependents or connections of such persons by grants of money, pensions or other payments and by forming and contributing to pension, provident or benefit funds or profit sharing or co-partnership schemes for the benefit of such persons, and to form, subscribe to or otherwise aid charitable, benevolent, religious, scientific, national or other institutions, exhibitions or objects which shall have any moral or other claims to support or aid by the Company by reason of the locality of its operation or otherwise.

 

3.27

To remunerate by cash payments or allotment of shares or securities of the Company credited as fully paid up or otherwise any person or company for services rendered or to be rendered to the Company or any member of the group to which the Company belongs, whether in the course of employment with the Company or any group company or the conduct or the management of the business of the Company or any group company or in placing or assisting to place or guaranteeing the placing of any of the shares or other securities of the Company’s, or any group company’s capital, or any debentures or other securities of the Company or any group company or in or about the formation or promotion of the Company or any group company.

 

3.28

To enter into and carry into effect any arrangement for joint working in business or for sharing of profits or for amalgamation with any other company or association or any partnership or person carrying on any business within the objects of the Company.

 

3.29

To distribute in specie or as otherwise may be resolved all or any portion of the assets of the Company among its shareholders and, in particular, the shares, debentures or other securities of any other company owned by the Company or which this Company may have the power to dispose of.

 

3.30

To vest any real or personal property, rights or interest acquired or belonging to the Company in any person or company on behalf of or for the benefit of the Company, and with or without any declared trust in favour of the Company.

 

B-6


Table of Contents
3.31

To transact or carry on any business which may seem to be capable of being conveniently carried on in connection with any of these objects or calculated directly or indirectly to enhance the value of or facilitate the realisation of or render profitable any of the Company’s property or rights.

 

3.32

To accept stock or shares in or indentures, debentures, mortgages or securities of any other company in payment or part payment for any services rendered or for any sale made to or debt owing from any such company, whether such shares shall be wholly or partly paid up.

 

3.33

To pay all costs, charges and expenses incurred or sustained in or about the promotion and establishment of the Company or which the Company shall consider to be preliminary thereto and to issue shares as fully or in part paid up, and to pay out of the funds of the Company all brokerage and charges incidental thereto.

 

3.34

To procure the Company to be registered or recognised in Ireland or in any foreign country or in any colony or dependency of any such foreign country and to establish branches offices, places of business or subsidiaries in Ireland or any foreign country or in any colony or dependency of any such foreign country.

 

3.35

To do all or any of the matters hereby authorised in any part of the world or in conjunction with or as trustee or agent for any other company or person or by or through any factors, trustees or agents.

 

3.36

To make gifts or grant bonuses to the directors or any other persons who are, or have been, in the employment of the Company including substitute and alternate directors.

 

3.37

To carry on any business which the Company may lawfully engage in and to do all such things incidental or conducive to the business of the Company.

 

3.38

To make or receive gifts by way of capital contribution or otherwise.

 

3.39

To reduce its share capital in any manner permitted by law.

 

3.40

To the extent permitted by law, to give whether directly or indirectly, any kind of financial assistance for the purpose of, or in connection with, the purchase of, or subscription for, shares, stocks, debentures, debenture stock, indentures, notes, loan notes, loan stock, bonds, obligations and other securities of any description of the Company or of any company which is at any given time the Company’s holding company.

 

3.41

To do and take all such things, measures, acts and actions (including, but not limited to, entering into agreements, contracts, deeds and other documents or instruments and giving undertakings, covenants, representations, warranties, indemnities and other commitments and promises) as the Company considers may be necessary or required in connection with, or incidental or conducive to, attainment of the above objects, or any of them, or as are capable of being conveniently carried on in connection therewith.

The objects specified in each paragraph of this clause 3 shall, except where otherwise expressed in such paragraph, be in no way limited or restricted by reference to, or inference from, the terms of any other paragraph. None of such paragraphs, the objects therein specified nor the powers thereby conferred shall be deemed subsidiary or auxiliary merely to the objects set out in the first paragraph of this clause 3, but the Company shall have full power to exercise all, or any, of the powers conferred by any part of this clause 3 in any part of the world, notwithstanding that the business, property or acts proposed to be transacted, acquired or performed do not fall within the objects set out in the first paragraph of this clause 3.

 

4

The liability of the shareholders is limited.

 

5

The authorised share capital of the Company is: €2,025,000 divided into 100,000,000 ordinary shares of €0.01 each, 100,000,000 preferred shares of €0.01 each and 25,000 deferred ordinary shares of €1.00 each.

The shares forming the capital, increased or reduced, may be increased or reduced and be divided into such classes and issued with any preferred, deferred, qualified or other special rights and privileges and

 

B-7


Table of Contents

with such conditions, restrictions or qualifications, whether in regard to preference, dividends, capital (including return of capital), voting or otherwise, and may be held upon such terms as may be attached thereto or as may from time to time be provided by the original or any substituted or amended articles of association of the Company for the time being, but so that where shares are issued with any preferential or special rights attached thereto, such rights shall not be alterable otherwise than pursuant to the provisions of the Company’s articles of association for the time being in force.

For the purposes of this memorandum of association: (a) a reference to the “Act” means the Companies Act 2014 (including any statutory modification or re-enactment of it for the time being in force), (b) the terms “holding company”, “subsidiary”, “associated undertaking” and “member” have the meanings ascribed to such terms in section 7, section 8, paragraph 20 of Schedule 4 and section 168 of the Act, respectively; (c) the term “group” means the group of companies comprising the Company and its subsidiaries from time to time, (d) the term “shareholder”, insofar as it refers to the Company means a member of the Company; (e) the term “company” (except where used in reference to the Company) means and includes any body corporate, corporation, company, partnership, limited liability company or any body of persons, whether incorporated or not incorporated in Ireland or elsewhere in any other part of the world), (f) the words “including” and “includes” shall not be given a restrictive interpretation and shall be deemed to be followed by the words “without limitation” and (g) unless a clear contrary intention appears, the word “or” shall be deemed to be used in the inclusive sense of “and / or”.

 

B-8


Table of Contents

COMPANY NUMBER 607465

COMPANIES ACT 2014

A PUBLIC COMPANY LIMITED BY SHARES

ARTICLES OF ASSOCIATION

OF

CIMPRESS PUBLIC LIMITED COMPANY

(Adopted by special resolution passed on [[] November] 2019)

CONTENTS

 

          Page  

PRELIMINARY

     B-15  
1    DEFINITIONS      B-15  
2    OPTIONAL PROVISIONS OF THE ACT      B-18  

CAPITAL

     B-18  
3    SHARE CAPITAL      B-18  
4    ORDINARY SHARES      B-19  
5    PREFERRED SHARES      B-19  
6    DEFERRED ORDINARY SHARES      B-20  
7    SECTION 1021: ALLOTMENT AUTHORITY      B-21  
8    SECTION 1023: PRE-EMPTION DISAPPLICATION      B-21  
9    RESIDUAL ALLOTMENT PROVISIONS      B-21  
10    RIGHTS PLAN      B-21  
11    COMMISSIONS AND BROKERAGE      B-22  
12    TRUSTS NOT RECOGNISED      B-22  
13    FINANCIAL ASSISTANCE      B-22  
14    REDEMPTION AND REPURCHASE OF OWN SHARES      B-22  
15    VARIATION OF CLASS RIGHTS      B-23  
16    VARIATION OF COMPANY CAPITAL      B-23  
17    FRACTIONS      B-23  
18    REDUCTION OF SHARE CAPITAL      B-24  

CERTIFICATED SHARES

     B-24  
19    RIGHT TO CERTIFICATES      B-24  
20    REPLACEMENT CERTIFICATES      B-25  

 

B-9


Table of Contents
          Page  

LIEN ON SHARES

     B-25  
21    COMPANY’S LIEN ON SHARES NOT FULLY PAID      B-25  
22    ENFORCEMENT OF LIEN BY SALE      B-25  

CALLS

     B-27  
23    CALLS      B-27  
24    LIABILITY OF JOINT HOLDERS      B-27  
25    INTEREST      B-27  
26    DIFFERENTIATION      B-27  
27    PAYMENT IN ADVANCE OF CALLS      B-27  
28    RESTRICTIONS IF CALLS UNPAID      B-28  
29    SUMS DUE ON ALLOTMENT TREATED AS CALLS      B-28  

FORFEITURE

     B-28  
30    FORFEITURE AFTER NOTICE OF UNPAID CALL      B-28  
31    NOTICE AFTER FORFEITURE      B-29  
32    CONSEQUENCES OF FORFEITURE      B-29  
33    DISPOSAL OF FORFEITED SHARE      B-29  
34    PROOF OF FORFEITURE      B-30  

UNTRACED MEMBERS

     B-30  
35    SALE OF SHARES      B-30  
36    APPLICATION OF SALE PROCEEDS      B-31  
37    APPLICABLE ESCHEATMENT LAWS      B-31  

TRANSFER OF SHARES

     B-31  
38    FORM OF TRANSFER      B-31  
39    REGISTRATION OF A SHARE TRANSFER      B-32  
40    CLOSING OF REGISTER OF MEMBERS      B-33  

TRANSMISSION OF SHARES

     B-33  
41    ON DEATH      B-33  
42    ELECTION OF PERSON ENTITLED BY TRANSMISSION      B-33  
43    RIGHTS ON TRANSMISSION      B-34  

GENERAL MEETINGS

     B-34  
44    ANNUAL AND OTHER GENERAL MEETINGS      B-34  
45    NOTICE OF GENERAL MEETINGS      B-34  
46    QUORUM FOR GENERAL MEETING      B-36  
47    PROCEDURE IF QUORUM NOT PRESENT      B-36  

 

B-10


Table of Contents
          Page  
48    CHAIRPERSON OF GENERAL MEETING      B-36  
49    RIGHTS OF DIRECTORS AND OTHERS TO ATTEND MEETINGS      B-37  
50    ACCOMMODATION OF MEMBERS AT MEETING      B-37  
51    SECURITY      B-37  
52    POWER TO ADJOURN      B-37  
53    NOTICE OF ADJOURNED MEETING      B-38  
54    BUSINESS OF ADJOURNED MEETING      B-38  
55    THE BUSINESS OF THE GENERAL MEETINGS      B-38  
56    PROPOSED SHAREHOLDER RESOLUTIONS      B-38  
57    TIME FOR RECEIVING REQUESTS      B-41  

VOTING

     B-42  
58    VOTING AT A GENERAL MEETING      B-42  
59    POLL PROCEDURE      B-42  
60    VOTES OF MEMBERS      B-42  
61    CHAIRPERSON’S CASTING VOTE      B-43  
62    VOTING RESTRICTIONS ON AN OUTSTANDING CALL      B-43  
63    PROXY INSTRUMENT      B-43  
64    CORPORATE REPRESENTATIVES      B-44  
65    AMENDMENT TO RESOLUTIONS      B-45  
66    OBJECTION TO ERROR IN VOTING      B-45  

FAILURE TO DISCLOSE INTERESTS IN SHARES

     B-45  
67    FAILURE TO DISCLOSE INTERESTS IN SHARES      B-45  

APPOINTMENT, RETIREMENT AND REMOVAL OF DIRECTORS AND OFFICERS

     B-47  
68    NUMBER OF DIRECTORS      B-47  
69    SHARE QUALIFICATION      B-47  
70    COMPANY’S POWER TO APPOINT DIRECTORS      B-47  
71    BOARD POWER TO APPOINT DIRECTORS      B-47  
72    APPOINTMENT OF EXECUTIVE OFFICERS      B-48  
73    APPOINTMENT OF OTHER OFFICERS      B-48  
74    ALTERNATE DIRECTORS      B-48  
75    RE-ELECTION      B-49  
76    ELIGIBILITY OF NEW DIRECTORS      B-49  
77    REMOVAL BY ORDINARY RESOLUTION      B-49  
78    VACATION OF DIRECTORS’ OFFICE      B-49  

 

B-11


Table of Contents
          Page  

BOARD POWERS

     B-50  
79    BOARD POWERS      B-50  
80    DIRECTORS BELOW THE MINIMUM NUMBER      B-50  
81    DELEGATION TO EXECUTIVE DIRECTORS      B-50  
82    DELEGATION TO COMMITTEES      B-51  
83    DELEGATION TO AGENTS      B-51  
84    EXERCISE OF VOTING POWER      B-51  
85    PROVISION FOR EMPLOYEES      B-51  
86    OVERSEAS REGISTERS      B-52  
87    BORROWING POWERS      B-52  

DIRECTORS’ REMUNERATION, EXPENSES AND BENEFITS

     B-52  
88    FEES      B-52  
89    EXPENSES      B-52  
90    REMUNERATION OF EXECUTIVE DIRECTORS      B-52  
91    SPECIAL REMUNERATION      B-52  
92    COMPANY PROPERTY      B-53  
93    PENSIONS AND OTHER BENEFITS      B-53  

DIRECTORS’ PROCEEDINGS

     B-53  
94    BOARD MEETINGS      B-53  
95    NOTICE OF BOARD MEETINGS      B-53  
96    QUORUM      B-53  
97    BOARD CHAIRPERSON      B-54  
98    VOTING      B-54  
99    TELEPHONE / VIDEO PARTICIPATION      B-54  
100    WRITTEN RESOLUTIONS      B-54  
101    COMMITTEE PROCEEDINGS      B-54  
102    MINUTES      B-55  
103    VALIDITY OF PROCEEDINGS      B-55  

INTERESTS OF DIRECTORS

     B-55  
104    CONTRACTING WITH THE COMPANY      B-55  
105    DECLARATION OF INTERESTS      B-55  
106    AUTHORISATION OF BOARD OF CONFLICTS OF INTERESTS      B-56  
107    PROHIBITION ON VOTING BY INTERESTED DIRECTORS      B-57  
108    ABILITY OF INTERESTED DIRECTORS TO VOTE      B-57  

 

B-12


Table of Contents
          Page  
109    DIVISION OF PROPOSALS      B-58  
110    RULINGS ON QUESTIONS OF ENTITLEMENT TO VOTE      B-58  
111    INTERESTS OF CONNECTED PERSONS      B-58  
112    ABILITY OF DIRECTOR TO HOLD OTHER OFFICES      B-58  
113    REMUNERATION FOR PROFESSIONAL SERVICES      B-59  
114    DIRECTORSHIPS OF OTHER COMPANIES      B-59  

SECRETARY

     B-59  
115    SECRETARY      B-59  

SEALS AND DOCUMENT AUTHENTICATION

     B-59  
116    SEAL      B-59  
117    DIRECTORS OR SECRETARY TO AUTHENTICATE OR CERTIFY      B-59  

DIVIDENDS AND OTHER PAYMENTS

     B-60  
118    DECLARATION      B-60  
119    INTERIM DIVIDENDS      B-60  
120    ENTITLEMENT TO DIVIDENDS      B-60  
121    PAYMENT METHODS      B-61  
122    DEDUCTIONS      B-61  
123    INTEREST      B-61  
124    UNCLAIMED DIVIDENDS      B-61  
125    UNCASHED DIVIDENDS      B-61  
126    DIVIDENDS IN KIND      B-62  
127    SCRIP DIVIDENDS      B-62  
128    RESERVES      B-62  
129    CAPITALISATION OF PROFITS AND RESERVES      B-62  

RECORD DATES

     B-63  
130    BOARD TO FIX DATE      B-63  

ACCOUNTS

     B-63  
131    ACCOUNTING RECORDS      B-63  
132    ACCESS TO ACCOUNTING RECORDS      B-64  
133    DISTRIBUTION OF ANNUAL ACCOUNTS      B-64  

AUDIT

     B-65  
134    APPOINTMENT OF AUDITORS      B-65  

COMMUNICATIONS

     B-65  
135    COMMUNICATIONS      B-65  

 

B-13


Table of Contents
          Page  
136    COMMUNICATIONS TO THE COMPANY      B-65  
137    COMMUNICATIONS BY THE COMPANY OR THE BOARD IN HARD COPY FORM      B-66  
138    COMMUNICATIONS BY THE COMPANY IN ELECTRONIC FORM      B-66  
139    COMMUNICATIONS BY THE COMPANY BY MEANS OF A WEBSITE      B-67  
140    COMMUNICATIONS BY OTHER MEANS      B-67  
141    FAILURE TO DELIVER BY ELECTRONIC MEANS      B-67  
142    WHEN SERVICE IS EFFECTED ON A MEMBER      B-68  
143    NOTICE BY ADVERTISEMENT      B-68  
144    DOCUMENTS AND INFORMATION TO JOINT HOLDERS      B-69  
145    SERVICE OF DOCUMENTS AND INFORMATION ON PERSONS ENTITLED TO SHARES BY TRANSMISSION      B-69  
146    MEMBERS NOT ENTITLED TO NOTICES, DOCUMENTS AND INFORMATION      B-69  
147    DOCUMENT DESTRUCTION      B-69  

MISCELLANEOUS

     B-70  
148    CHANGE OF COMPANY NAME      B-70  
149    WINDING UP      B-70  
150    INDEMNITY AND INSURANCE      B-71  
151    DISPUTE RESOLUTION      B-72  

 

B-14


Table of Contents

COMPANY NUMBER 607465

COMPANIES ACT 2014

A PUBLIC COMPANY LIMITED BY SHARES

ARTICLES OF ASSOCIATION

OF

CIMPRESS PUBLIC LIMITED COMPANY

PRELIMINARY

 

1

DEFINITIONS

 

1.1

In these Articles (unless the context requires otherwise) the following words have the following meanings:

Act” means the Companies Act 2014 (including any statutory modification or re-enactment of it for the time being in force);

acting in concert” has the meaning given to it in the Irish Takeover Rules;

Articles” means the articles of association, as amended from time to time by Special Resolution;

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

beneficial ownership of any person or group of affiliated or associated persons shall have the meaning given to such term under the United States federal securities laws, including the Exchange Act;

Board” means the Directors or any of them duly acting as the board of directors of the Company;

certificated” means in relation to a share in the Company, a share which is recorded in the Share Register as being held in certificated form;

chairperson” means the Director who is elected by the Directors from time to time to preside as chairperson at all meetings of the Board and at general meetings of the Company;

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

Cimpress N.V.” means a public limited company incorporated under the laws of The Netherlands, having its corporate seat (statutaire zetel) in Venlo, The Netherlands, registered in the Dutch trade register under number 14117527 and headquartered in Ireland, having its address at Dublin Road, Building D, A91 H9N9, Dundalk, County Louth and registered as a branch in Ireland under number 909075;

Company” means Cimpress public limited company (or Cimpress plc), a public limited company organised under the laws of Ireland with company number 607465;

Cross-Border Merger” means a merger of a national limited liability company with a limited liability company from another EU Member State, as provided in the Directive and as implemented in the relevant EU Member States;

Deferred Ordinary Shares” means the deferred ordinary shares of €1.00 each (par value) in the capital of the Company;

Depositary” means any depositary, clearing agency, custodian, nominee or similar entity appointed under arrangements entered into by the Company or otherwise approved by the Board that holds, or is

 

B-15


Table of Contents

interested directly or indirectly, including through a nominee, in, shares, or rights or interests in respect thereof, and which issues certificates, instruments, securities or other documents of title, or maintains accounts, evidencing or recording the entitlement of the holders thereof, or account holders, to or to receive such shares, rights or interests (and shall include, where so approved by the Board, the trustees (acting in their capacity as such) of any employees’ share scheme established by the Company);

Directive” means Directive 2005/56/EC of the European Parliament and of the Council of Ministers of 26 October 2005 on Cross-Border Mergers of Limited Liability Companies as repealed and codified by Chapter II, Title II of Directive 2017/1132/EU;

Directors” means the directors of the Company from time to time;

document” includes, unless otherwise specified, any document sent or supplied in electronic form;

electronic communication” has the meaning given in the Electronic Commerce Act 2000 (including any statutory modification or re-enactment of it for the time being in force);

electronic means” has the meaning given to it in section 2 of the Act, and includes it being done by means of all forms of electronic communication as the Board may, from time to time, prescribe, either generally or for a particular purpose;

electronic signature” has the meaning given in the Electronic Commerce Act 2000 (including any statutory modification or re-enactment of it for the time being in force);

Exchange Act” means the Securities Exchange Act of 1934 of the United States of America, as amended from time to time;

execution” means any mode of execution, including such forms of electronic signature or other means of verifying the authenticity of a communication by electronic means as the Board may, from time to time, prescribe, either generally or for a particular purpose (and “executed” shall be construed accordingly);

Group” means the group comprising the Company and its subsidiaries within the meaning of section 7 of the Act for the time being;

Group Member” means any member of the Group, including the Company;

holder” or “shareholder”, means in relation to a share, the member whose name is entered in the Share Register as the holder of that share or, where the context permits, the members whose names are entered in the Share Register as the joint holders of shares in the Company;

interest in shares” includes, where the context permits, “interests in securities” as defined in the Irish Takeover Rules and, for the avoidance of doubt, includes, without duplication, beneficial ownership, and “interested in shares” will be construed accordingly;

Irish Takeover Rules” means the Irish Takeover Panel Act, 1997, Takeover Rules, 2013 (including any statutory modification or re-enactment of it for the time being in force);

member” means a member within the meaning of section 168 of the Act;

Merger” means the proposed Cross-Border Merger (being a merger by acquisition under Irish law) of Cimpress N.V. into the Company, by which the all assets and liabilities held by Cimpress N.V. at the Merger Effective Time shall transfer by universal succession of title (onder algemene titel) to the Company and Cimpress N.V. will cease to exist as at the Merger Effective Time;

Merger Effective Time” means the effective time of the Merger;

Ordinary Resolution” means an ordinary resolution of the Company’s shareholders within the meaning of the Act;

Ordinary Shares” means ordinary shares of €0.01 each (par value) in the capital of the Company, which shall rank pari passu in all respects;

 

B-16


Table of Contents

paid” or “paid up” means paid up or credited as paid up;

Preferred Shares” means the preferred shares of €0.01 each (par value) in the capital of the Company;

Redeemable Shares” means redeemable shares within the meaning of sections 64 and 66(4) of the Act;

Registered Office” means the registered office for the time being of the Company or, as appropriate, in the case of sending or supplying documents or information by electronic means, the address specified by the Board for the purpose of receiving documents or information by electronic means;

Rights” has the meaning given to that term in Article 10;

Rights’ Plan” has the meaning given to that term in Article 10;

Seal” means the common seal of the Company or any official or securities seal that the Company has or may have as permitted by the Statutes;

Secretary” means the secretary of the Company or any other person appointed to perform any of the duties of the secretary of the Company including a joint, temporary, assistant or deputy secretary;

share” means a share in the capital of the Company;

Share Register” means the Company’s register of shareholders kept pursuant to the Statutes or, as the case may be, any overseas branch register kept pursuant to these Articles;

Special Resolution” means a special resolution of the Company’s shareholders within the meaning of the Act;

Statutes” the Act and every other legislation, statute, order regulation, instrument or other subordinate legislation for the time being in force concerning companies and affecting the Company, including any statutory re-enactment or modification of the Act or any other act, order, regulation, instrument, subordinate legislation or statutory instrument;

treasury shares” means treasury shares within the meaning of section 109 of the Act;

uncertificated” means in relation to a share, a share to which title is recorded in the Share Register as being held in uncertificated form;

working day” means a day that is not a Saturday, Sunday or public holiday in Ireland or the United States;

writing” includes printing, typewriting, lithography, photography, electronic mail and any other mode or modes of presenting or reproducing words in a visible form including communications by electronic means; and

$” means, US dollars, the lawful currency of the United States, and “” means euro, the lawful currency of Ireland.

 

1.2

In these Articles:

 

  1.2.1

words or expressions which are not defined in Article 1.1 or elsewhere in these Articles have the same meanings (where applicable) as in the Statutes as in force on the date of the adoption of these Articles;

 

  1.2.2

a reference to any Statute or any provision of a Statute includes a reference to any statutory modification or re-enactment of it for the time being in force, as (where applicable) amended or modified or extended by any other Statute or any order, regulation, instrument or other subordinate legislation made under such Statute or statutory provision or under the Statute under which such statutory instrument was made;

 

  1.2.3

words in the singular include the plural and vice versa, words importing any gender include all genders and a reference to a “person” includes any individual, firm, partnership, unincorporated association, company, corporation or other body corporate;

 

B-17


Table of Contents
  1.2.4

mental disorder” means mental disorder as defined in section 3 of the Mental Health Act 2001 (including any statutory modification or re-enactment of it for the time being in force);

 

  1.2.5

where an Ordinary Resolution is expressed to be required for any purpose, a Special Resolution is also effective for such purpose;

 

  1.2.6

headings do not affect the interpretation of any Article;

 

  1.2.7

any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding the terms;

 

  1.2.8

any reference to a dividend includes any dividend or other distribution, in cash or by the distribution of assets, paid or distributed to shareholders out of the profits of the Company available for distribution, and includes final dividends, interim dividends and bonus dividends;

 

  1.2.9

reference to “officer” or “officers” in these Articles means any executive that has been designated by the Company as an “officer” and, for the avoidance of doubt, shall not have the meaning given to such term in the Act, and any such officers shall not constitute officers of the Company within the meaning of section 2(1) of the Act; and

 

  1.2.10

the masculine gender shall include the feminine and neuter, and vice versa, and the singular number shall include the plural, and vice versa, and words importing persons shall include firms or companies.

 

1.3

These Articles shall be governed by and construed in accordance with Irish law.

 

2

OPTIONAL PROVISIONS OF THE ACT

 

2.1

Without prejudice to section 1007(4) of the Act and save as otherwise expressly provided in these Articles, where a provision of these Articles covers substantially the same subject matter as any optional provisions (as defined in section 1007(2) of the Act) of the Act, any such optional provisions shall be deemed not to apply to the Company and, for the avoidance of doubt, these Articles shall be deemed to have effect and prevail over the terms of such optional provisions.

 

2.2

Sections 43(2), 43(3), 77 to 81, 95(1)(a), 96(2) to (11), 124, 125, 126, 144(3), 144(4), 148(2), 158, 159, 160, 161, 162, 165, 181(6), 182(2) and (5), 183(3) and (6), 187, 188, 338(5), 338(6), 618(1)(b), 620(8), 1090, 1092 and 1113 of the Act shall not apply to the Company.

CAPITAL

 

3

SHARE CAPITAL

 

3.1

The authorised share capital of the Company is: €2,025,000 divided into 100,000,000 ordinary shares of €0.01 each, 100,000,000 preferred shares of €0.01 each and 25,000 deferred ordinary shares of €1.00 each.

 

3.2

Subject to the provisions of the Statutes and of these Articles and without prejudice to any special rights previously conferred on the holders of any existing shares or class of shares, any shares in the capital of the Company may be issued with such preferred, deferred, qualified or other special rights and privileges and with such conditions restrictions or qualifications, whether in regard to preference, dividend, capital (including return of c