Shareholder Rights Plan
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, although the ability of the Companys board of directors to do so would be subject to its fiduciary duties and, during the course of an offer, the Irish Takeover Rules. However, there is no directly relevant Irish case law on this issue. The constitution expressly authorizes the Companys board of directors to adopt a shareholder rights plan upon such terms and conditions as it deems expedient in the interests of Company, subject to applicable law.
The Companys constitution allocates authority over the day-to-day management of the Company to its board of directors. The Companys board of directors may then delegate the management of the Company to committees of the board of directors (consisting of one or more members of the board of directors) but regardless, the Companys board of directors remains responsible, as a matter of Irish law, for the proper management of the affairs of the Company. Committees may meet and adjourn as they determine proper. A vote at any committee meeting will be determined by a majority of votes of the members present.
The board of directors of the Company has a standing Audit Committee, a Compensation Committee, a Transaction Committee and a Nominating and Corporate Governance Committee, with each committee comprised solely of independent directors, as prescribed by the Nasdaq listing standards and SEC rules and regulations. The Company has adopted corporate governance policies, including a code of conduct and an insider trading policy, as well as an open door reporting policy and a comprehensive compliance program.
The Companies Act provide for a minimum of two directors. The Companys constitution provides that, subject to the Companies Act, the board may determine the size of the board from time to time.
The Companys board of directors is divided into three classes, designated Class I, Class II and Class III. Each class has a three-year term, with the terms expiring in staggered years on the date of the annual general meeting of shareholders for the applicable year. At each annual general meeting of shareholders, successors to the class of directors whose term expires at that annual general meeting are eligible for election for a successive three-year term. If the number of directors is changed, any increase or decrease shall be apportioned among the classes so as to maintain the number of directors in each class as nearly as possible or as the chairman of the board of directors may otherwise direct. In no case will a decrease in the number of directors shorten the term of any incumbent director. A director may hold office until the annual general meeting of the year in which his or her term expires and until his or her successor is elected and duly qualified, subject to his or her prior death, resignation, retirement, disqualification or removal from office.
Directors are elected by ordinary resolution at a general meeting. Irish law requires majority voting for the election of directors, which could result in the number of directors falling below the prescribed minimum number of directors due to the failure of nominees to be elected. Accordingly, the Companys constitution provides that if, at any general meeting of shareholders, the number of directors is reduced below the minimum prescribed by the constitution due to the failure of any person nominated to be a director to be elected, then, in such circumstances, the nominee or nominees who receive the highest number of votes in favor of election will be elected in order to maintain such prescribed minimum number of directors. Each director elected in this manner will remain a director (subject to the provisions of the Companies Act and the articles of association) only until the conclusion of the next annual general meeting of the Company unless he or she is reelected.
Under the Companies Act and notwithstanding anything contained in the constitution or in any agreement between the Company and a director, the shareholders may, by an ordinary resolution, remove a director from office before the expiration of his or her term at a meeting held on no less than 28 days notice and at which the director is entitled to be heard. The power of removal is without prejudice to any claim for damages for breach of contract (e.g. employment contract) that the director may have against the Company in respect of his removal.
The Companys constitution provides that, subject to the terms of any one or more classes or series of preferred shares, the board of directors may fill any vacancy occurring on the board of directors. Any director of any class