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NEOGAMES S.A.
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By:
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/s/ Moti Malul
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Name: Moti Malul
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Title: Chief Executive Officer
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1. |
a proposal (the “Continuation Proposal”) to approve, (a) the transfer (by way of continuation) of the Company’s statutory seat, registered office (siège statutaire)
and seat of central administration (siège de l’administration centrale) from Luxembourg to the Cayman Islands and change of its legal form as a Luxembourg law governed public limited liability company
(société anonyme) to a Cayman Islands exempted company (without the dissolution of the Company or the liquidation of its assets) (the “Continuation”), subject to the satisfaction or waiver of
certain conditions specified in the Business Combination Agreement (as defined below) and summarized in the section entitled “The Business Combination Agreement—Conditions to the Effectuation of the
Continuation” (the “Continuation Conditions”) and effective as of the date of registration specified in the certificate of continuation from the Cayman Registrar (the “Continuation Certificate”) to be issued by the
Cayman Registrar upon registration of the continuation of the Company as a Cayman Islands exempted company (the “Continuation Effective Time”), and (b) effective as of the Continuation Effective Time, the following items:
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a. |
the change of name of the Company from “NeoGames S.A.” to “Neo Group Ltd.”;
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b. |
the adoption of the memorandum and articles of association in the form attached to the enclosed shareholder circular as Annex C (the “Continuation Articles”) as the Company’s memorandum and
articles of association in replacement of the Company’s existing articles of association (the “Existing Articles”); and
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c. |
the granting of powers to the authorized officers of the Company in order to execute any formalities in relation to the Continuation and to record the satisfaction of the Continuation Conditions;
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2. |
a proposal (the “BCA Proposal”) to approve (a) the adoption of the Business Combination Agreement attached to the enclosed shareholder circular as Annex A (as it may be amended from time to
time, the “Business Combination Agreement”), dated May 15, 2023, by and among Aristocrat Leisure Limited, a company organized under the laws of Australia (“Parent”), Anaxi Investments Limited, a Cayman Islands exempted company
and wholly owned indirect subsidiary of Parent (“Merger Sub”), and the Company, pursuant to which, following the Continuation and subject to receiving the Cayman Shareholder Approval (as defined below), Merger Sub will merge with and
into the Company (and will cease to exist as a separate legal entity), and the Company will be the surviving company (the “Surviving Company”) and will become a wholly owned indirect subsidiary of Parent (the “Merger”) and (b)
all other transactions and arrangements contemplated by the Business Combination Agreement (together with the Merger, the “Transactions”), including taking all actions and making filings required for the Company to suspend trading of
the Company Shares on the Nasdaq Global Market upon the completion of the Continuation and to permanently de-list the Company Shares from the Nasdaq Global Market upon completion of the Merger;
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3. |
a proposal (the “Statutory Plan of Merger Proposal”) to approve the adoption of the statutory plan of merger attached to the enclosed shareholder circular as Annex B (the “Statutory Plan of Merger”) to be entered into by and
between the Company and Merger Sub and filed with the Cayman Registrar following the Continuation and receiving Cayman Shareholder Approval; and
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4. |
a proposal (the “Waiver Proposal”) to approve, subject to completion of the Continuation, the waiver of any notice requirements under the Continuation Articles or applicable law to calling, holding and convening a shareholder
meeting (or any adjournment, reconvening or postponement thereof) of the Company in the Cayman Islands (the “Cayman Shareholder Meeting”) that will be held to approve the Merger, subject to the satisfaction or waiver of the Merger
Conditions.
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By the Order of the Board,
John E. Taylor, Jr.
Chair of the Board June 21, 2023
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Page
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1 | |
Parties Involved in the Merger
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1 |
The Continuation and Merger
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2 |
The Re-Continuation
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3 |
Treatment of Company Equity Awards
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3
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The Luxembourg Shareholder Meeting
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5
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Market Price Information
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Recommendation of the Board
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8
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Fairness Opinion of Stifel
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8
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Business Combination Agreement
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8
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Financing of the Merger
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9
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Material U.S. Federal Income and Luxembourg Income Tax Consequences of the Continuation and the Merger
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9
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Regulatory Approvals Required for the Merger and Other Regulatory Filings
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Appraisal Rights
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10
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11
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22
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24
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Date, Time and Place
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30
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Purpose of the Luxembourg Shareholder Meeting
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30
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Board Recommendation
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Record Date; Shares Entitled to Vote; Vote Required and Quorum
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30
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Abstentions and Broker Non‑Votes
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Shares Held by the Company’s Directors and Executive Officers
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Support Agreement
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Voting of Proxies
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31
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Revocability of Proxies
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Adjournments, Reconvening or Postponements
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Questions and Additional Information
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34 | |
35
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37 |
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38 | |
Parties Involved in the Merger
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38 |
Effect of the Continuation and the Merger
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Effect on the Company if the Continuation or Merger are Not Completed
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The Re-Continuation
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39
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Merger Consideration
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40
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Background of the Merger
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Reasons for the Merger and Recommendation of the Board
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Company Management Projections
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52
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Fairness Opinion of Stifel
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Selected Comparable Companies Analysis
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Selected Comparable Transaction Analysis
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59
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Discounted Cash Flow Analysis
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Terminal Multiple Method
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60
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Perpetuity Growth Method
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Miscellaneous
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Interests of the Company’s Directors and Executive Officers in the Merger
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Financing of the Merger
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The Continuation and the Merger Effective Time
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Appraisal Rights
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Material U.S. Federal and Luxembourg Income Tax Consequences of the Continuation and the Merger
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75
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Explanatory Note Regarding the Business Combination Agreement
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Effects of the Continuation and the Merger; Directors and Officers; Memorandum and Articles of Association
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The Continuation and the Merger Effective Time
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The Re-Continuation
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Exchange and Payment Procedures
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Representations and Warranties
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Conduct of Business Pending the Merger
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Competing Proposals
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The Board’s Recommendation; Company Board Recommendation Change
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Employee Benefits Following the Merger Effective Time
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Efforts to Close the Merger
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Indemnification and Insurance
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Conditions to the Effectuation of the Continuation
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Conditions to the Closing of the Merger
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Termination of the Business Combination Agreement
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Other Material Provisions of the Business Combination Agreement
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Description of Company’s Share Capital as a Cayman Islands Exempted Company
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Comparison of Luxembourg Shareholder Rights and Cayman Shareholder Rights
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99 | |
100 | |
101 | |
A
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B
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C
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D
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E
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F
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G
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• |
“ASX” means the Australian Securities Exchange Ltd.;
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“Board” means the board of Directors of the Company;
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“Cayman Companies Act” means the Companies Act (as Revised) of the Cayman Islands;
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“Cayman Registrar” means the Registrar of Companies of the Cayman Islands;
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“Company Shares”
means the Company’s outstanding ordinary shares, without par value, before and after the Continuation or, if applicable, after the Re-Continuation, as the
context requires;
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“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended;
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“Luxembourg” means the Grand Duchy of Luxembourg;
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“Luxembourg Company Law” means the Luxembourg Law dated August 10, 1915 on commercial companies, as amended;
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“Nasdaq” means the Nasdaq Global Market; and
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“SEC” means the U.S. Securities and Exchange Commission.
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(1) |
the Continuation Proposal
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(2) |
the BCA Proposal
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(3) |
the Statutory Plan of Merger Proposal; and
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(4) |
the Waiver Proposal
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Q: |
Why am I receiving these materials?
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A: |
You are receiving this shareholder circular from us because you were a shareholder of the Company of record at the close of business on June 16, 2023. You are entitled to attend the Luxembourg Shareholder Meeting and are entitled to vote
on the items of business described in this shareholder circular if you own Company Shares at the close of business on the Record Date. Your vote is very important, and we encourage you to vote by proxy or
voting instruction form as soon as possible.
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What am I being asked to vote on at the Luxembourg Shareholder Meeting?
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You are being asked to vote on the following proposals:
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(1) |
the Continuation Proposal
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(2) |
the BCA Proposal
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(3) |
the Statutory Plan of Merger Proposal; and
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(4) |
the Waiver Proposal
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What happens if additional matters are presented at the Luxembourg Shareholder Meeting?
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The only items of business that the Board intends to present at the Luxembourg Shareholder Meeting are the Luxembourg Meeting Proposals set forth in this shareholder circular. No shareholder has advised us of the intent to present any
other matter, and we are not aware of any other matters to be presented at the meeting. If any other matter or matters are brought before the meeting in accordance with the provisions of the Existing Articles and the Luxembourg Company Law,
the person(s) named as your proxyholder(s), if any, will have the discretion to vote your Company Shares on such matters in accordance with their best judgment and as they deem advisable.
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When and where is the Luxembourg Shareholder Meeting?
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The Luxembourg Shareholder Meeting will take place on July 18, 2023, at 3 p.m. (Luxembourg time) (9 a.m. Eastern time), at the registered office of the Company 63-65, rue de Merl, L-2146 Luxembourg, Grand Duchy of Luxembourg.
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Who is entitled to vote at the Luxembourg Shareholder Meeting?
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Shareholders as of the Record Date are entitled to notice of the Luxembourg Shareholder Meeting and to vote at the Luxembourg Shareholder Meeting. Each holder of Company Shares is entitled to cast one vote on each matter properly brought
before the Luxembourg Shareholder Meeting for each Company Share owned as of the Record Date.
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What shares can I vote at the Luxembourg Shareholder Meeting?
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You may vote all of the Company Shares you owned as of the Record Date, including Company Shares held directly in your name as the shareholder of record and all Company Shares held for you in “street name” as the beneficial owner through a
broker, trustee or other nominee such as a bank.
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How many votes do I have?
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Each Company shareholder of record is entitled to one vote for each Company Share held of record by the shareholder as of the close of business on the Record Date.
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If I purchased my Company Shares after the Record Date, may I vote these shares at the Luxembourg Shareholder Meeting?
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No. A shareholder is not entitled to vote Company Shares purchased after the Record Date because the shareholder was not the holder of record of those Company Shares on the Record Date. Only the holders as of the Record Date may vote
Company Shares. However, such shareholder’s Company Shares will be automatically converted into and represent the right to receive the Merger Consideration upon completion of the Merger, unless the record holder of those Company Shares
following the Continuation validly dissent and exercise their appraisal rights. For more information regarding appraisal rights, see the section of this shareholder circular entitled “The Continuation and the
Merger—Appraisal Rights”).
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How may I vote?
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Shareholders of Record: If you are a shareholder of record, you can vote either in person at the Luxembourg Shareholder Meeting or by authorizing another person as your proxy,
whether or not you attend the Luxembourg Shareholder Meeting. You may vote by proxy to be received in any case no later than 11:59 p.m. (Eastern time) on July 17, 2023 in any of the manners below:
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By mail—If you are a shareholder of record, you can submit a proxy by completing, dating, signing and returning your proxy card in the postage-paid envelope provided to be received by the Company’s tabulation agent, Broadridge, by 11:59 p.m. (Eastern time) on July 17, 2023. You should sign your name exactly as it appears on the enclosed proxy card. If you are signing in a representative
capacity (for example, as a guardian, executor, trustee, custodian, attorney or officer of a corporation), please indicate your name and title or capacity.
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By telephone—If you are a shareholder of record, you can submit a proxy by telephone by calling the toll-free number listed on the enclosed proxy card, entering your control number located on
the enclosed proxy card or voting instruction form and following the prompts.
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By Internet—If you are a shareholder of record, you can submit a proxy over the Internet by logging on to the website listed on the enclosed proxy card, entering your control number located
on the enclosed proxy card or voting instruction form and submitting a proxy by following the on-screen prompts.
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What happens if I do not indicate how to vote on the proxy card or voting instruction form?
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If you vote by proxy, your Company Shares will be voted at the Luxembourg Shareholder Meeting in the manner you indicate (by marking a box on your proxy card). If your Company Shares are held in your name (and not in “street name” through
a broker) and if you sign your proxy card, but do not specify how you want your Company Shares to be voted, they will be counted as present for the purpose of determining the presence or absence of a quorum for the Luxembourg Shareholder
Meeting, but they will not be counted in tabulating the voting result for any particular proposal.
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If any broker, bank or other nominee holds my shares in “street name,” will my nominee vote my shares for me?
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No. Your bank, broker or other nominee is not permitted to vote your Company Shares on any proposal currently scheduled to be considered at the Luxembourg Shareholder Meeting unless you instruct your bank, broker or other nominee how to
vote. You should follow the procedures provided by your bank, broker or other nominee to vote your Company Shares. Without instructions, your Company Shares will not be counted as voted at the Luxembourg Shareholder Meeting.
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How are “broker non‑votes” counted?
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Broker non‑votes will be counted as present for the purpose of determining the presence or absence of a quorum for the Luxembourg Shareholder Meeting, but they will not be counted in tabulating the voting result for the Luxembourg Meeting
Proposals.
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How are abstentions counted?
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If you return a proxy card that indicates an abstention from voting on all matters, the Company Shares represented by your proxy will be counted as present for the purpose of determining the presence or absence of a quorum for the
transaction of business, but they will not be counted in tabulating the voting result for any particular proposal.
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May I attend the Luxembourg Shareholder Meeting and vote in person?
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Yes. All registered shareholders of record as of the Record Date may attend the Luxembourg Shareholder Meeting and vote in person. To be admitted to the Luxembourg Shareholder Meeting, you will need a form of photo identification. You will
be admitted to the Luxembourg Shareholder Meeting only if we are able to verify your status as a registered shareholder by checking your name against the list of registered shareholders on the Record Date.
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What is the proposed Merger and what effects will it have on the Company?
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The proposed Merger is the acquisition of the Company by Parent. Following the Continuation, if the Cayman Merger Proposal is approved by shareholders at the Cayman Shareholder Meeting and the Merger Conditions have been satisfied or
waived, Merger Sub will merge with and into the Company, with the Company continuing as the Surviving Company. As a result of the Merger, the Company will become a wholly owned, indirect subsidiary of Parent, and the Company Shares will no
longer be publicly traded and will be delisted from Nasdaq. In addition, the Company Shares will be deregistered under the Exchange Act, and the Company will no longer file periodic reports with the SEC.
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Will I be able to trade, sell or otherwise transfer my shares following the Continuation?
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No. Following the Continuation, unless a Re-Continuation has occurred, the Company will not permit any transfers on the register of members of the Company and trading of Company Shares on Nasdaq will be suspended. Upon completion of the
Merger, the Company will permanently de-list the Company Shares from Nasdaq.
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What will I receive if the Merger is completed?
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Upon completion of the Merger, you will be entitled to receive the Merger Consideration for each Company Share that you owned immediately prior to the Merger Effective Time. For example, if you owned 100 Company Shares immediately prior to
the Merger Effective Time, you will receive $2,950.00 in cash in exchange for your Company Shares, less any applicable withholding taxes.
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How does the Merger Consideration compare to the unaffected market price of the Company Shares?
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The $29.50 per share Merger Consideration (before any applicable withholding taxes) constitutes a premium of approximately 130% to the per share closing price of the Company Shares on Nasdaq on May 12, 2023, the last trading day prior to
the execution of the Business Combination Agreement. The volume-weighted average sale price on Nasdaq during the 90-day period ended May 12, 2023 was $14.45 per share, representing a premium of approximately 104%. On June 16, 2023, the
closing price of the Company Shares on Nasdaq was $27.39.
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What do I need to do now?
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We encourage you to read this shareholder circular, the annexes to this shareholder circular and the documents that we refer to in this shareholder circular carefully and consider how the Continuation and the Merger affect you. Then sign,
date and return, as promptly as possible, the enclosed proxy card in the accompanying reply envelope, or grant your proxy electronically over the Internet or by telephone so that your Company Shares can be voted at the Luxembourg Shareholder
Meeting. If you hold your Company Shares in “street name,” please refer to the voting instruction forms provided by your bank, broker or other nominee to vote your Company Shares.
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What happens if I sell or otherwise transfer my Company Shares after the Record Date but before the Luxembourg Shareholder Meeting?
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The Record Date for the Luxembourg Shareholder Meeting is earlier than the date of the Luxembourg Shareholder Meeting and the date on which the Merger is expected to be completed.
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How does the Board recommend that I vote?
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The Board, after considering the various factors described under the section of this shareholder circular entitled “The Continuation and the Merger—Reasons for the Merger and Recommendation of the Board,”
has unanimously (i) determined that the Company’s entry into the Business Combination Agreement and consummation of the Transactions, including the Continuation and the Merger, are fair to, and in the best interests of, the Company and its
shareholders; and (ii) authorized, declared advisable and approved in all respects, the Business Combination Agreement, the delivery and performance of the Business Combination Agreement and the consummation of the Transactions, upon the
terms and subject to the conditions set forth in the Business Combination Agreement. The Board unanimously recommends that you vote (1) “FOR” the Continuation Proposal;
(2) “FOR” the BCA Proposal; (3) “FOR” the Waiver Proposal; and (4) “FOR” the Statutory Plan of Merger Proposal.
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What happens if the Continuation Proposal is not approved or the Continuation is not completed?
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If the Continuation Proposal is not approved or the Continuation is not completed and the Business Combination Agreement is terminated, shareholders will not receive any Merger Consideration for their Company Shares. Instead, the Company
will remain a public company, the Company Shares will continue to be listed and traded on Nasdaq and registered under the Exchange Act, and the Company will continue to file periodic reports with the SEC.
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What happens if the Continuation is completed but the Merger is not completed?
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If the Continuation is completed and the Continuation Period begins, trading of Company Shares on Nasdaq will be suspended, and you will not be able to transfer or sell your shares during the
Continuation Period. If the Merger is not completed by the end of the Continuation Period, the Company will take all actions to effect the Re-Continuation and unwind the effects of the Continuation, including convening the Luxembourg
Re-Continuation Meeting to obtain shareholder approval, and to resume trading of the Company Shares on Nasdaq. In such a scenario, following the completion of the Re-Continuation and subject to the approval by Nasdaq, the Company would remain
a public company, the Company Shares would resume their trading on Nasdaq and their registration under the Exchange Act, and the Company would continue to file periodic reports with the SEC. However, Parent, Merger Sub and Company would
remain subject to the terms and conditions of the Business Combination Agreement unless it is terminated in accordance with its terms.
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What vote is required to approve the Luxembourg Meeting Proposals?
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Approval of each of the BCA Proposal, the Continuation Proposal and the Statutory Plan of Merger Proposal requires the affirmative vote of
shareholders holding no less than sixty-six point seven percent (66.7%) of the Company Shares present or represented at the Luxembourg Shareholder Meeting (or any adjournment, reconvening or postponement thereof), in person, by proxy or
by electronic voting and entitled to vote on the Luxembourg Meeting Proposals. Approval of the Waiver Proposal requires the affirmative vote of shareholders holding a majority of more than fifty percent (50%) of the Company Shares
entitled to vote on such proposal.
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How does the Support Agreement impact the vote for the Luxembourg Meeting Proposals?
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How many shares must be present or represented to conduct business at the Luxembourg Shareholder Meeting (that is, what constitutes a quorum)?
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The presence (in person, by proxy or by electronic voting) of shareholders holding at least fifty percent (50%) of the Company Shares constitutes a quorum for purposes of holding the Luxembourg Shareholder Meeting and voting on the
Luxembourg Meeting Proposals.
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What happens if a quorum is not present?
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In the absence of the requisite quorum of shareholders at the Luxembourg Shareholder Meeting, the Luxembourg Shareholder Meeting will be reconvened to the fifteenth day following the initial date of the Luxembourg Shareholder Meeting and
will be held at the same time and place, unless otherwise determined at the Luxembourg Shareholder Meeting in accordance with the Existing Articles. At such reconvened meeting, if a quorum is not present as aforesaid, the shareholders
present, in person, by proxy or by electronic voting (regardless of the voting power represented by their shares) will constitute a quorum. Under the terms of the Business Combination Agreement, the Luxembourg Shareholder Meeting cannot be
reconvened on a date that is more than ten business days after the date for which the Luxembourg Shareholder Meeting was originally scheduled (or twenty business days in the aggregate if reconvened more than once), or less than ten business
days before July 15, 2024, without the prior written consent of Parent.
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Q: |
What is the difference between holding Company Shares as a shareholder of record and as a beneficial owner?
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A: |
Most of our shareholders hold their Company Shares through a broker or other nominee rather than directly in their own name. As summarized below, there are some distinctions between shares held of record and those owned beneficially.
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Q: |
May I change my vote after I have mailed my signed proxy card?
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A: |
Yes. You may change your vote or revoke your proxy prior to the Luxembourg Shareholder Meeting.
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Q: |
What is a proxy?
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A: |
A proxy is a document by which you authorize a person to be your representative at a meeting of the Company and to vote for you at that meeting of shareholders in the way that you have directed. That document is called a “proxy card” or,
if your Company Shares are held in street name and you give instructions to the record holder of your Company Shares, is called a “voting instruction form.”
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What should I do if I receive more than one proxy card or voting instruction form?
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A: |
You may receive more than one set of these proxy solicitation materials, including multiple copies of this shareholder circular and multiple proxy cards or voting instruction forms. Please complete, sign date and return all proxy cards and
voting instruction forms you receive, or vote each group of Company Shares by mail, telephone or over the Internet to ensure that all your Company Shares are voted. For example, if you hold your Company Shares in more than one brokerage
account, you may receive a separate voting instruction form for each brokerage account in which you hold Company Shares. In addition, if you are a shareholder of record and your Company Shares are registered in more than one name, you may
receive more than one proxy card.
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Q: |
Who will count the votes?
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A: |
The Company will appoint an inspector of election for the Luxembourg Shareholder Meeting to determine whether a quorum is present and tabulate the affirmative and negative votes, abstentions and broker non-broker, if any.
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Q: |
Where can I find the voting results of the Luxembourg Shareholder Meeting?
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A: |
The Company intends to publish final voting results in a Report of Foreign Private Issuer on Form 6‑K to be furnished to the SEC as soon as practicable following the Luxembourg Shareholder Meeting. All reports that the Company files or
furnishes with the SEC are publicly available when filed or furnished. See the section of this shareholder circular entitled “Where You Can Find More Information; Information Incorporated By Reference.”
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Q: |
Will the Continuation and the Merger constitute taxable transactions for Luxembourg tax purposes?
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A: |
The Continuation may, at the level of Luxembourg resident and non-resident holders of Company Shares, constitute a taxable transaction to holders of Company Shares for Luxembourg tax purposes. Further, the
receipt of the Merger Consideration in exchange for Company Shares may constitute a taxable transaction to Luxembourg resident holders of Company Shares for Luxembourg tax purposes. For more details, please refer to “The Continuation and the Merger—Material U.S. Federal and Luxembourg Income Tax Consequences and Israeli Tax Consequences of the Continuation and the Merger-—Luxembourg Income Tax Consequences of the
Continuation” and “The Continuation and the Merger—Material U.S. Federal and Luxembourg Income Tax Consequences and Israeli Tax Consequences of the Continuation and the Merger-—Luxembourg Capital
Gains Tax Consequences of the Merger”.
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Q: |
Will U.S. Holders be subject to U.S. federal income tax upon the exchange of Company Shares for cash pursuant to the Merger?
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A: |
The Continuation is not expected to be a taxable transaction to U.S. Holders (as defined in “The Continuation and the Merger—Material U.S. Federal and Luxembourg Income Tax Consequences and Israeli Tax
Consequences of the Continuation and the Merger—Material U.S. Federal Income Tax Consequences”) for U.S. federal income tax purposes. The exchange of the Company Shares for cash pursuant to the Merger will be a taxable transaction
for U.S. Holders for U.S. federal income tax purposes and for Israeli-resident Holders for Israeli tax purposes. For more details, see “The Continuation and the Merger—Material U.S. Federal and Luxembourg
Income Tax Consequences and Israeli Tax Consequences of the Continuation and the Merger”.
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Q: |
What will the holders of Company equity awards receive in the Merger?
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A: |
Cashed-Out Company Options
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Q: |
When do you expect the Merger to be completed?
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A: |
The Merger has been approved by the respective boards of directors of Parent, the Company and Merger Sub and we are working towards completing the Merger as quickly as reasonably possible. Several conditions
must be satisfied or waived before the Merger is completed. See the section of this document titled “The Business Combination Agreement—Conditions to the Effectuation of the Continuation and to the
Closing of the Merger” for further information regarding the Continuation Conditions and the Merger Conditions. The Merger is expected to be completed in approximately twelve months from the date of the Business Combination
Agreement. However, the exact timing of completion of the Merger cannot be predicted, nor can the parties assume that the Merger will be completed, because completion of the Merger is subject to the Merger Conditions, many of which are
outside of our control.
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Q: |
Am I entitled to appraisal rights?
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A: |
No. No appraisal rights exist under the Luxembourg Company Law. The appraisal rights described in the immediately following paragraph apply and exist only following the Continuation and in connection with the Merger.
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Q: |
Are there any risks that I should consider as a Company shareholder in deciding how to vote?
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A: |
Yes. You should read and carefully consider the risk factors set forth in the section titled “Risk Factors” beginning on page 24 of this shareholder circular. You also should read and carefully
consider other risk factors of the Company contained in the Company’s most recent Annual Report on Form 20-F for the year ended December 31, 2022, filed with the SEC on April 28, 2023, and incorporated by reference into this shareholder
circular.
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Q: |
Do any of the Company’s directors or officers have any interests in the Merger?
|
A: |
Yes. Our directors and executive officers may have interests in the Merger that may be different from, or in addition to, your interests as a shareholder. The Board was aware of these interests during its deliberations on the merits of the
Merger and in deciding to recommend that shareholders vote in favor of the Luxembourg Meeting Proposals. These interests are described in more detail under the section of this shareholder circular entitled “The
Continuation and the Merger—Interests of the Company’s Directors and Executive Officers in the Merger.”
|
Q: |
Who will solicit and pay the cost of soliciting proxies?
|
A: |
The Company has engaged Morrow Sodali, LLC, which is referred to as the “Proxy Solicitor,” to assist in the solicitation of proxies for the Luxembourg Shareholder Meeting. The Company estimates that it will
pay Morrow Sodali, LLC, a fee of approximately $20,000, plus reimbursement for certain out-of-pocket fees and expenses. The Company has agreed to indemnify Morrow Sodali, LLC against various liabilities and expenses that relate to or
arise out of its solicitation of proxies (subject to certain exceptions). The Company also may reimburse banks, brokers and other custodians, nominees and fiduciaries or their respective agents for their expenses in forwarding proxy
materials to beneficial owners of Company Shares. Company and Parent directors, officers and employees also may solicit proxies by telephone, by electronic means or in person. They will not be paid any additional amounts for soliciting
proxies.
|
Q: |
What should I do now?
|
A: |
You should read this shareholder circular carefully and in its entirety, including the annexes, and either make provisions to attend the Luxembourg Shareholder Meeting in person, return your completed, signed and dated proxy card by mail
in the enclosed postage-paid envelope or submit your voting instructions by phone or Internet as soon as possible so that your Company Shares will be voted in accordance with your instructions.
|
Q: |
Who can help answer my questions?
|
A: |
If you have any questions concerning the Luxembourg Shareholder Meeting, the Luxembourg Meeting Proposals, the Merger or any other matter related to the accompanying shareholder circular, would like additional copies of the accompanying
shareholder circular or need help voting your Company Shares, please contact our Proxy Solicitor:
|
• |
the risk that the Continuation, the Merger and other Transactions may not be completed in a timely manner or at all due to failure to satisfy the Continuation Conditions and/or the Merger Conditions, including the potential that the
Company’s shareholders may not approve the Luxembourg Meeting Proposals;
|
• |
the occurrence of any event, change or other circumstance that could give rise to the termination of the Business Combination Agreement, including the (a) potential failure to obtain approvals and/or consents for the Transactions from
third parties, including governmental and regulatory approvals, which may under certain circumstances afford Parent the right to terminate the Business Combination Agreement and (b) the potential for regulatory authorities to require
divestitures, behavioral remedies or other concessions that Parent and Merger Sub are not required to effectuate under the Business Combination Agreement;
|
• |
the risk that following the Continuation, the Merger Effective Time may not occur and the Company may be required to transfer by way of continuation from the Cayman Islands back to Luxembourg pursuant to the Re-Continuation, which may
adversely impact the Company’s business and the price of the Company Shares, especially if the resumption of trading of the Company Shares on Nasdaq is delayed;
|
• |
the effect of the announcement or pendency of the Transactions on the Company’s business relationships, operating results and business generally;
|
• |
the risk that unanticipated restructuring costs may be incurred or undisclosed liabilities may be assumed while the Transactions are pending, which may adversely impact the Company’s business and the price of Company Shares if the Merger
is not completed;
|
• |
the risk that attempts to retain key personnel and customers may not succeed while the Transactions are pending, which may adversely impact the financial performance of the Company and the price of the Company Shares if the Merger is not
completed;
|
• |
the risk that the attention of Company management may be diverted from ongoing business operations and potential inability of Company management to respond effectively to competitive pressures, industry developments and future
opportunities, including new strategic transactions, new business deals and/or renewals of certain agreements with third parties, given the restrictions on the conduct of the Company’s business while the Transactions are pending pursuant to
its covenants under the Business Combination Agreement, which may adversely impact the financial performance of the Company and the price of the Company Shares if the Merger is not completed;
|
• |
ongoing or potential litigation or disputes while the Transactions are pending related to the conduct of the Company’s ongoing business with customers, suppliers, landlords, or other third parties, which may adversely impact the financial
performance of the Company and the price of the Company Shares if the Merger is not completed; and
|
• |
the other risk factors described in the section of this shareholder circular entitled “—Risk Factors” and described from time to time by the Company in its most recent Annual Report on Form 20-F and
in any subsequent reports filed with or furnished to the SEC, available at the SEC’s website at www.sec.gov and in the Investor Relations section of the Company’s website at ir.neogames.com, the realization of which may adversely impact the
financial performance of the Company and the price of the Company Shares if the Merger is not completed.
|
• |
the diversion of management and employee attention from implementing our growth strategy in our existing markets or in new markets that we are targeting;
|
• |
potential diversion of public attention from our positioning of our independent brand and products in a manner that appeals to customers;
|
• |
the fact that we have and will continue to incur significant expenses related to the Transactions without a guarantee that the Transactions will be completed;
|
• |
our potential inability to respond effectively to competitive pressures, industry developments and future opportunities, given the restrictions on the conduct of our business pursuant to the Business
Combination Agreement;
|
• |
we could be subject to costly litigation associated with the Transactions;
|
• |
our current and prospective employees may be uncertain about their future roles and relationships with us following completion of the Merger, which may adversely affect our ability to attract and retain key
personnel; and
|
• |
a number of restrictions on our business activities that could otherwise increase the value of the Company, as further discussed in the section of this shareholder circular entitled “The Business Combination Agreement—Conduct of Business Pending the Merger.”
|
• |
delay, defer, or cease purchasing products or services or providing products or services to us;
|
• |
delay or defer other decisions concerning our business, including entering into contracts with us or seeking to change or cancel existing business relationships with us; or
|
• |
otherwise seek to change the terms on which they do business with us.
|
(1) |
the Continuation Proposal;
|
(2) |
the BCA Proposal;
|
(3) |
the Statutory Plan of Merger Proposal; and
|
(4) |
the Waiver Proposal
|
• |
By mail—If you are a shareholder of record, you can submit a proxy by completing, dating, signing and returning your proxy card in the postage‑paid envelope provided, to
be received by the Company’s tabulation agent (Broadridge) by 11:59 p.m. (Eastern time) on July 17, 2023. You should sign your name exactly as it appears on the enclosed proxy card or voting instruction form. If you are signing in a
representative capacity (for example, as a guardian, executor, trustee, custodian, attorney or officer of a corporation), please indicate your name and title or capacity. If you are a beneficial owner, you have the right to direct your
brokerage firm, bank or other similar organization on how to vote your Company Shares, and the brokerage firm, bank or other similar organization is required to vote your Company Shares in accordance with your instructions. To provide
instructions to your brokerage firm, bank or other similar organization by mail, please complete, date, sign and return your proxy card in the postage‑paid envelope provided by your brokerage firm, bank or other similar organization.
|
• |
By telephone—If you are a shareholder of record, you can submit a proxy by telephone by calling the toll‑free number listed on the enclosed proxy card, entering your control number located on the
enclosed proxy card and following the prompts. If you are a beneficial owner and if the brokerage firm, bank or other similar organization that holds your Company Shares offers telephone voting, you will receive instructions from the
brokerage firm, bank or other similar organization that you must follow in order to submit a proxy by telephone.
|
• |
By Internet—If you are a shareholder of record, you can submit a proxy over the Internet by logging on to the website listed on the enclosed proxy card, entering your control number located on the
enclosed proxy card and submitting a proxy by following the on‑screen prompts. If you are a beneficial owner, and if the brokerage firm, bank or other similar nominee that holds your Company Shares offers Internet voting, you will receive
instructions from the brokerage firm, bank or other similar organization that you must follow in order to submit your proxy over the Internet.
|
a. |
the change of name of the Company from “NeoGames, S.A.” to “Neo Group Ltd.”;
|
b. |
the adoption of the Continuation Articles as the Company’s memorandum and articles of association in replacement of the Existing Articles; and
|
c. |
the granting of powers to the authorized officers of the Company in order to execute any formalities in relation to the Continuation and to record the satisfaction of the Continuation Conditions.
|
• |
Attractive Value. The belief of the Board that the Merger Consideration of $29.50 in cash per share represents a full and fair value for the Company Shares, taking into account the Board’s
familiarity with the Company’s current and historical financial condition and results of operations and the Company’s business strategy, financial requirements, assets and business prospects.
|
• |
Negotiations with Parent. The Board considered the course of negotiations between the Company and Parent, which resulted in an increase in the price that Parent was willing to pay to acquire
the Company of $5.50 per share (from the $23.0 - $24.0 price range per share, initially offered by Parent to $29.50 per share) and the Board’s belief that, based on those negotiations, the Merger Consideration of $29.50 in cash per share
represented the highest price per share that Parent was willing to pay and that the Business Combination Agreement contained the most favorable terms to the Company in the aggregate to which Parent was then willing to agree.
|
• |
Premium to Current and Historical Trading Prices. The Board considered the fact that the Merger Consideration to be paid by Parent would provide the Company’s
shareholders with the opportunity to receive an attractive premium over the market price of the Company Shares. The Board reviewed the current and historical market prices and trading information with respect to the Company Shares,
including the fact that the Merger Consideration of $29.50 in cash per share represents a meaningful premium to those historical prices, including:
|
• |
a premium of approximately 130% over $12.84 per share, the closing sale price on Nasdaq as of May 12, 2023, the last full trading day prior to the meeting of the Board;
|
• |
a premium of approximately 121% over $13.33 per share, the volume-weighted average sale price on Nasdaq (the “VWAP”) during the 30-day trading period ended May 12, 2023;
|
• |
a premium of approximately 104% over $14.45 per share, the VWAP during the 90-day trading period ended May 12, 2023; and
|
• |
a premium of approximately 61% over $18.35 per share, the 52-week high closing sale price on Nasdaq as of May 12, 2023.
|
• |
Cash Merger Consideration; Certainty of Value. The Board considered the fact that the Merger Consideration consists entirely of cash, which provides liquidity and certainty of value to the
shareholders of the Company. The Board weighed the certainty of realizing a compelling value for the Company Shares by virtue of the Merger against the uncertain prospect that the trading value for the Company Shares would approach the
Merger Consideration in the foreseeable future. Based upon its knowledge of, and familiarity with, the Company’s historical and current business, operations, prospects, business strategy, competitive position and the online lottery and
gaming industry generally, the Board believed this certainty of value was compelling compared to the long-term value creation potential of the Company’s business, taking into account the risks of remaining independent and pursuing the
Company’s current business and financial plans, including the risks and uncertainties associated with our business described in this shareholder circular and the other risks and uncertainties discussed in the Company’s public filings
filed with or furnished to the SEC.
|
• |
Stifel Opinion. The Board considered the financial analyses reviewed and discussed with the Board by representatives of Stifel, the Company’s financial advisor,
as well as the oral opinion, which was subsequently confirmed by delivery of its written opinion, to the Board on May 14, 2023, that, as of such date, and based upon and subject to the factors and assumptions set forth in its
opinion, the Merger Consideration to be paid to the holders of the Company Shares (excluding Excluded Shares and Dissenting Shares (as defined in the Business Combination Agreement)) in the proposed Merger
was fair, from a financial point of view, to such holders, which opinion was based on and subject to various assumptions made, procedures followed, matters considered and limitations and qualifications on the review undertaken as
further described under the heading “—Fairness Opinion of Stifel.”
|
• |
Potential Strategic Alternatives. The Board considered possible alternatives to the acquisition by Parent reasonably available to the Company, including continuing to operate as a stand-alone
company, and the potential benefits and risks to the Company’s shareholders of these alternatives, as well as the Board’s assessment that none of these alternatives was reasonably likely to create greater value for the Company’s
shareholders within a reasonable period of time, taking into account the Company’s risks of execution as well as market, industry, business and competitive risks.
|
• |
Risks Relating to Remaining a Stand-Alone Company. The Board considered the Company’s prospects and risks if the Company were to remain an independent company. The Board considered the
Company’s current business and financial plans, including the risks and uncertainties associated with achieving and executing on the Company’s business and financial plans in the short and long-term, as well as the general risks of market
conditions that could reduce the price of the Company Shares. Among the potential risks and uncertainties identified by the Board were:
|
• |
we have concentrated customer base, and our failure to retain certain existing contracts with our customers could have a significant adverse effect on our business;
|
• |
our inability to successfully integrate Aspire Global plc, or complete or integrate other future acquisitions, could limit our future growth or otherwise be disruptive to our ongoing business;
|
• |
a reduction in discretionary consumer spending could have a material adverse impact on our business;
|
• |
the growth of our business largely depends on our continued ability to procure new contracts;
|
• |
we incur significant costs related to the procurement of new iLottery and iGaming contracts, which we may be unable to recover in a timely manner, or at all; and
|
• |
intense competition exists in the iLottery and iGaming industries, and we expect competition to continue to intensify.
|
• |
Other Potential Acquirers. The Board considered, in consultation with management and its financial and legal advisors, the potential risks and benefits of negotiating on an exclusive basis
with Parent or commencing a process in which certain other third parties (potential strategic and financial acquirers) that could be potentially interested in pursuing a business combination with the Company (in addition to Parent) would
be invited to submit indications of interest. The Board determined, in consultation with management and its financial and legal advisors, to proceed on an exclusive basis with Parent for the following primary reasons:
|
• |
no third party was perceived to have the financial ability or willingness (including, in view of the potential synergies) to pay a purchase price for the Company in excess of Parent’s offer or to consummate a transaction on financial
terms more favorable to the Company’s shareholders than Parent’s offer and that, as of the date of the Business Combination Agreement, the Company had not received any written proposals or indications of interest from any other
potentially interested parties;
|
• |
the solicitation of other third party interests would raise confidentiality concerns and potentially heighten the risk that the process would become known to the broader market, including customers, suppliers and/or employees; and
|
• |
the commencement of a broader process may deter Parent and cause it to withdraw its offer, and the potential synergies with the Company and Parent’s financial ability, would likely result in a higher price per share premium than those
that may be offered by potential acquirers.
|
• |
Terms of the Business Combination Agreement. The Board considered all of the terms and conditions of the Business Combination Agreement, including the structure of
the transaction, the all-cash form of the Merger Consideration, the Company’s right to specific performance to cause Parent to consummate the Merger, and other remedies available under the Business Combination Agreement, subject to
certain conditions, and the customary nature of the representations, warranties, and the covenants and agreements of the parties. The Board further considered the course and nature of negotiations with Parent, which were conducted at
arm’s length and during which the Board was advised by independent legal and financial advisors. These negotiations ultimately resulted in terms that (1) provide for an attractive premium over the then current trading price of the
Company Shares; and (2) provide robust provisions designed to ensure, absent certain circumstances that would cause a closing condition not to be satisfied or allow termination of the Business Combination Agreement, that the transaction
is completed.
|
• |
Regulatory Approvals. The Board considered the relative likelihood of antitrust, gaming or other regulatory impediments to closing and the provisions of the Business Combination Agreement
related to regulatory approvals, including the obligation of Parent and the Company to use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under
applicable laws to consummate and make effective the Merger and to obtain as promptly as reasonably practicable all waiting period expirations or terminations, approvals, consents, clearances, registrations, permits and authorizations
from any governmental authority or third party that are or may become necessary, proper or advisable to consummate the transactions contemplated by the Business Combination Agreement, including by supplying any information that may be
required or reasonably requested by the applicable governmental authorities and agreeing to take all lawful actions necessary to obtain all approvals and clearances of the Merger or the transactions contemplated by the Business
Combination Agreement (provided that Parent and its subsidiaries will not be required to take any actions that would, or would reasonably be expected to, individually or in the aggregate, have a material adverse impact on Parent, the
Company, and their respective Subsidiaries (as defined in the Business Combination Agreement), taken as a whole).
|
• |
Likelihood of Completion. The likelihood that the Merger will be completed, based on, among other things the absence of a financing condition or related contingencies with respect to the Merger
Consideration, the relative likelihood of obtaining required regulatory approvals, the remedies available under the Business Combination Agreement to the Company in the event of various breaches by Parent, and Parent’s reputation in the
gaming industry and its financial capacity to complete an acquisition of this size which the Board believed supported the conclusion that a transaction with Parent could be completed on a reasonable timetable for such a transaction and in
an orderly manner.
|
• |
Shareholder Approval. The Board considered that the Merger would be subject to the approval of the shareholders of the Company both prior to the Continuation and following the Continuation and
that shareholders would be free to vote against the approval of the Business Combination Agreement and reject the Merger. However, the Board also considered that shareholders who hold Company Shares representing approximately 61% of the
Company’s outstanding shares, executed the Support Agreement with Parent pursuant to which such shareholders irrevocably agreed to vote in favor of the Merger.
|
• |
No Shareholder Participation in Future Earnings or Growth. The Board considered the fact that if the Merger is consummated, holders of the Company Shares will receive the Merger Consideration
in cash, the Company will no longer exist as an independent company, and accordingly, the shareholders of the Company will no longer participate in any future earnings or growth the Company may experience or any potential future
appreciation in the value of the Company Shares, and will not participate in any potential future sale of the Company’s business to a third party.
|
• |
Inability to Solicit Other Takeover Proposals and Force the Vote. The Business Combination Agreement includes a covenant prohibiting the Company from directly or indirectly soliciting,
seeking, initiating, encouraging, facilitating or taking actions that would lead to other potential acquisition proposals. Moreover, under the Business Combination Agreement, even if the Company received an unsolicited Superior Proposal,
at the election of Parent, the Company would be required to either (i) submit the Transactions to the vote of its shareholders, which, given the Support Agreement, would result in an approval by the shareholders or (ii) pay a termination
fee to Parent of approximately $40.4 million. The Board also considered the termination fee of approximately $40.4 million to be paid by the Company to Parent under certain circumstances, the potential that such termination fee and the
Support Agreement may deter other potential acquirers from making a competing offer for the Company, the impact of the termination fee on the Company’s ability to engage in certain transactions for 12 months from the date the Business
Combination Agreement is terminated under certain circumstances, and the fact that the right afforded to Parent under the Business Combination Agreement to force a shareholder vote to approve the Business Combination Agreement together
with the Support Agreement that provides Parent with substantial voting power at the meeting, may discourage other parties that might otherwise have an interest in a business combination with, or an acquisition of, the Company. The Board
recognized that the provisions in the Business Combination Agreement relating to these restrictions on takeover proposals, the payment of these fees and the ability to force a shareholder meeting were insisted upon by Parent as a
condition to entering into the Business Combination Agreement.
|
• |
Effect of Public Announcement. The effect of the public announcement of the Business Combination Agreement, including effects on the Company’s operations, the Company’s relationships with
customers and suppliers, the trading price of the Company Shares, and the Company’s ability to attract and retain management and other key employees, including sales, operations, research and development, procurement, finance and other
support function personnel, during the pendency of the transactions contemplated by the Business Combination Agreement, as well as the potential of litigation in connection with the Merger and other potential adverse effects on the
financial results of the Company as a result of any related disruption in the Company’s business during the pendency of the transactions contemplated by the Business Combination Agreement, which is anticipated to be approximately 12
months following the execution of the Business Combination Agreement.
|
• |
Timing and Regulatory Risks. The Board considered the amount of time it could take to complete the Merger, which is anticipated to be approximately 12 months following the execution of the
Business Combination Agreement, including the possibility that the Merger may not be completed or that completion may be unduly delayed for reasons beyond the control of the Company or Parent, and including the risk that Parent might not
receive the necessary regulatory approvals or clearances to complete the Merger or that governmental authorities could attempt to condition their approvals or clearances of the Merger on one or more of the parties’ compliance with certain
terms or conditions which may cause one or more of the Merger Conditions not to be satisfied.
|
• |
Opportunity Costs and Interim Operating Covenants. The Board considered restrictions on the conduct of the Company’s business during the interim period between signing and closing, which is
anticipated to be approximately 12 months following the execution of the Business Combination Agreement, due to the pre-closing covenants in the Business Combination Agreement whereby the Company agreed that it will conduct its business,
in all material respects, in the ordinary course of business consistent with past practice and, subject to specified exceptions, will not take a number of actions related to the conduct of its business without the prior written consent of
Parent (in each case subject to specified exceptions), which may have an adverse effect on the Company, including a potential loss of customers or business, or reduction in business with current customers, and the Company’s ability to
respond to changing market and business conditions in a timely manner or at all.
|
• |
Risk Associated with Failure to Consummate the Merger. While the Board expects that the Merger will be consummated, there can be no assurance that all of the conditions to the consummation of
the Merger will be satisfied, that the Merger will receive required regulatory approvals, that the Merger will be consummated in a timely manner or at all, even if the shareholders of the Company approve the Cayman Merger Proposal. The
Board considered potential negative effects if the Merger is not consummated, including:
|
• |
the Company’s senior management and other employees will have expended extensive time and effort to negotiate, implement and consummate the Merger, and their time may have been diverted from other important business opportunities and
operational matters while working to implement the Merger;
|
• |
the Company will have incurred significant transaction and opportunity costs during the pendency of the transactions, without compensation;
|
• |
the Company’s continuing business relationships with customers, suppliers, and other business partners and employees, including key personnel, may be adversely affected;
|
• |
the trading price of the Company Shares could be adversely affected;
|
• |
the market’s perceptions of the Company and the Company’s prospects could be adversely affected; and
|
• |
the Company’s business may be subject to significant disruption and decline.
|
• |
Transaction Costs. The Board considered the fact that the Company has incurred and will continue to incur significant transaction costs and expenses in connection with the Merger, regardless of
whether the Merger is consummated, including resulting from seeking governmental consents and regulatory approvals necessary for completion of the Merger.
|
• |
Interests of Directors and Executive Officers. The Board considered the interests that the Company’s directors and executive officers may have in the transactions contemplated by the Business
Combination Agreement as individuals that are in addition to, or that may be different from, the interests of our other shareholders, as described in more detail under the section of this shareholder circular entitled “—Interests of the Company’s Directors and Executive Officers in the Merger.” The Board also considered the recommendation made to the Board by the transaction committee formed by the Board, which
included only independent directors, to approve the Merger, the Business Combination Agreement and the Transactions.
|
• |
Taxable Nature of the Transaction. The Board considered the fact that the receipt of cash in connection with the Merger will be a taxable transaction to the shareholders of the Company for
U.S. federal income tax purposes and to Israeli-resident shareholders for Israeli tax purposes.
|
2023E
|
2024E
|
2025E
|
2026E
|
2027E
|
2028E
|
|||||||||||||||||||
Revenue (1)
|
$
|
242
|
$
|
286
|
$
|
363
|
$
|
428
|
$
|
508
|
$
|
585
|
||||||||||||
Adjusted EBITDA(2)
|
$
|
81
|
$
|
99
|
$
|
127
|
$
|
153
|
$
|
186
|
$
|
218
|
||||||||||||
Unlevered Free Cash Flow(3)
|
$
|
27
|
$
|
56
|
$
|
80
|
$
|
89
|
$
|
113
|
$
|
141
|
(1) |
Revenues of Aspire Global were accounted, for the purpose of the Company Management Projections, on a net basis based on management estimates, although prior to 2023, Aspire Global’s revenues were accounted on a gross basis due to the
structure of Aspire Global’s customer contracts. The Company is currently in the process of modifying Aspire’s customer contracts to a form that would requires Aspire Global’s revenues to be accounted for on a net basis and as of January
1, 2023, contracts representing approximately 87% of Aspire Global’s 2022 revenues had been successfully modified.
|
(2) |
“Adjusted EBITDA” is defined as net income adjusted for interest, taxes, depreciation and amortization and non-recurring acquisition cost related to the acquisition of Aspire Global. Adjusted EBITDA is a
non-IFRS financial measure and should not be considered as an alternative to net income or operating income as a measure of operating performance or cash flows or as a measure of liquidity.
|
(3) |
“Unlevered Free Cash Flow” is defined as the Company’s after tax Non-IFRS net income, adding depreciation and amortization, subtracting capital expenditures and adjusting for expected cash flows from
payments related to the promissory notes issued as part of the sale of Aspire’s B2C business to Esports Technologies, Inc. on November 30, 2021. Unlevered Free Cash Flow is a non-IFRS financial measure and should not be considered as an
alternative to cash flow or as a measure of liquidity.
|
(i) |
discussed the Merger and related matters with the Company’s counsel and reviewed a draft copy of the Business Combination Agreement, dated May 13, 2023, such draft being the latest draft of the Business
Combination Agreement provided to Stifel;
|
(ii) |
reviewed the audited consolidated financial statements of the Company contained in its Annual Report on Form 20-F for the fiscal years ended December 31, 2022, December 31, 2021 and December 31, 2020 and the
unaudited consolidated financial statements of the Company for the fiscal quarter ended March 31, 2023;
|
(iii) |
reviewed and discussed with the Company’s management certain other publicly available information concerning the Company;
|
(iv) |
reviewed certain non-publicly available information concerning the Company, including internal financial analysis and forecasts prepared by its management and held discussions with the Company’s senior
management regarding recent developments;
|
(v) |
reviewed and analyzed certain publicly available financial and stock market data relating to selected public companies that Stifel deemed relevant to its analysis;
|
(vi) |
reviewed and analyzed certain publicly available information concerning the terms of selected merger and acquisition transactions that Stifel considered relevant to its analysis;
|
(vii) |
reviewed the reported prices and trading activity of the equity securities of the Company;
|
(viii) |
performed a discounted cash flow analysis;
|
(ix) |
participated in certain discussions and negotiations between representatives of the Company and Parent;
|
(x) |
conducted such other financial studies, analysis and investigations and considered such other information as Stifel deemed necessary or appropriate for purposes of its opinion; and
|
(xi) |
took into account Stifel’s assessment of general economic, market and financial conditions and Stifel’s experience in other transactions, as well as Stifel’s experience in securities valuations and its knowledge
of the Company’s industry generally.
|
• |
Evolution AB (publ)
|
• |
Gaming Innovation Group Inc.
|
• |
Genius Sports Limited
|
• |
Jumbo Interactive Limited
|
• |
Kambi Group plc
|
• |
La Française des Jeux Société anonyme
|
• |
Organization of Football Prognostics S.A.
|
• |
Playtech plc
|
• |
Pollard Banknote Limited
|
• |
Sportradar Group AG
|
• |
The Lottery Corporation Limited
|
EV / EBITDA |
||||||||
CY2023E |
CY2024E | |||||||
1st Quartile | 8.0 | x | 7.7 | x | ||||
Mean
|
12.6
|
x
|
10.7
|
x
|
||||
Median
|
11.3
|
x
|
10.7
|
x
|
||||
3rd Quartile
|
17.9
|
x
|
13.9
|
x
|
Implied Stock Price | ||||||||
CY2023E |
CY2024E | |||||||
1st Quartile | $ | 13.36 | $ | 16.51 | ||||
3rd Quartile
|
$
|
36.81
|
$
|
34.53
|
Date
|
Target
|
Buyer
|
Enterprise Value ($MM)
|
Enterprise Value / EBITDA
|
||||||||||||
Oct-22
|
KickerTech
|
Betsson AB
|
$
|
18
|
13.5
|
x
|
||||||||||
Sep-22
|
Shape Games
|
Kambi Group plc
|
39
|
6.9
|
x
|
|||||||||||
Jun-22
|
Nolimit City
|
Evolution AB (publ)
|
212
|
8.7
|
x
|
|||||||||||
Apr-22
|
iSoftbet
|
International Game Technology plc
|
174
|
20.0
|
x
|
|||||||||||
Jan-22
|
Aspire Global Ltd
|
NeoGames S.A.
|
480
|
13.9
|
x
|
|||||||||||
Dec-21
|
Sportnco Gaming SAS
|
Gaming Innovation Group Inc.
|
79
|
14.0
|
x
|
|||||||||||
Oct-21
|
Scientific Games Lottery
|
Brookfield Business Partners
|
5,825
|
12.5
|
x
|
|||||||||||
Jul-21
|
Relax Gaming
|
Kindred Group plc
|
178
|
14.3
|
x
|
|||||||||||
Apr-21
|
Big Time Gaming
|
Evolution AB (publ)
|
262
|
7.6
|
x
|
|||||||||||
Sep-20
|
BtoBet
|
Aspire Global Ltd
|
24
|
9.6
|
x
|
|||||||||||
Jun-20
|
NetEnt
|
Evolution AB (publ)
|
2,349
|
25.6
|
x
|
|||||||||||
Sep-19
|
Red Tiger
|
NetEnt
|
247
|
11.1
|
x
|
|||||||||||
Jun-19
|
Pariplay
|
Aspire Global Ltd
|
15
|
7.7
|
x
|
|||||||||||
Oct-17
|
NYX Gaming Group
|
Scientific Games
|
631
|
12.6
|
x
|
|||||||||||
Mar-17
|
INNOVA Gaming Group
|
Pollard Banknote Limited
|
37
|
5.9
|
x
|
|||||||||||
Oct-16
|
Tatts Group Ltd.
|
Tabcorp Holdings Ltd.
|
5,715
|
15.0
|
x
|
|||||||||||
1st Quartile
|
|
8.4
|
x
|
|||||||||||||
Mean
|
|
12.4
|
x
|
|||||||||||||
Median
|
|
12.5
|
x
|
|||||||||||||
3rd Quartile
|
14.1
|
x
|
|
EV / EBITDA
|
|||
1st Quartile
|
8.4x Mean 12.4
|
x |
||
Median
|
12.5
|
x
|
||
3rd Quartile
|
14.1
|
x
|
|
Implied Stock Price
|
|||
1st Quartile
|
$
|
14.30
|
||
3rd Quartile
|
$
|
27.64
|
• |
pay the Company’s shareholders the amounts due under the Business Combination Agreement;
|
• |
make payments in respect of certain of the Company’s outstanding equity‑based awards pursuant to the Business Combination Agreement in exchange for cancellation of such awards; and
|
• |
make payments in respect of certain outstanding debt of the Company.
|
• |
banks, thrifts, mutual funds, insurance companies and other financial institutions;
|
• |
real estate investment trusts and regulated investment companies;
|
• |
traders in securities who elect to apply a mark‑to‑market method of accounting;
|
• |
brokers, dealers or traders in securities or foreign currency;
|
• |
tax‑exempt organizations or governmental organizations (including agencies and instrumentalities thereof);
|
• |
tax-qualified retirement plans, individual retirement accounts or other tax-deferred accounts;
|
• |
corporations that accumulate earnings to avoid U.S. federal income tax (and investors therein);
|
• |
persons whose “functional currency” is not the U.S. dollar;
|
• |
U.S. expatriates and former citizens or long‑term residents of the United States;
|
• |
persons who hold their Company Shares as part of a straddle, hedging, appreciated financial position, conversion, constructive sale or other risk reduction transaction or integrated investment;
|
• |
persons who purchase or sell their Company Shares as part of a wash sale for tax purposes;
|
• |
“S corporations,” partnerships or other entities or arrangements classified as partnerships for U.S. federal income tax purposes, or other pass‑through entities (and investors therein);
|
• |
persons who hold their Company Shares through a bank, financial institution or other entity, or a branch thereof, located, organized or resident outside of the United States;
|
• |
persons that exercise appraisal rights;
|
• |
persons who own or have owned (directly, indirectly or through attribution) more than 5% of the voting power or value of Company Shares; and
|
• |
persons who received their Company Shares pursuant to the exercise of employee stock options or other compensation arrangements or through a tax-qualified retirement plan.
|
• |
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, 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 that (1) is subject to the primary supervision of a court within the United States and all substantial decisions of which are subject to the control of one or more “United States persons” (within the meaning of
Section 7701(a)(30) of the Code), or (2) has a valid election in effect under applicable Treasury regulations to be treated as a United States person for U.S. federal income tax purposes.
|
• |
the holder of Company Shares realizing the capital gains is either (i) a fully taxable Luxembourg resident collective entity, (ii) a Luxembourg permanent establishment of an EU resident collective entity falling within the scope of
article 2 of the EU Parent-Subsidiary Directive, (iii) a Luxembourg permanent establishment of a joint-stock company that is resident in a State with which Luxembourg has concluded a double tax treaty, or (iv) a Luxembourg permanent
establishment of a joint-stock company or of a cooperative company which is a resident of a EEA Member State (other than a EU Member State); and
|
• |
on the date on which the disposal takes place, the holder of Company Shares has held for an uninterrupted period of at least twelve months, a participation of at least 10% in the share capital of the Company (or with an acquisition
price of at least EUR 6,000,000).
|
• |
the receipt of determinations by the gaming regulatory authorities that the gambling licenses in the following jurisdictions will continue in effect following the Merger Effective Time (or that new gambling licenses have been issued in
such jurisdictions that will be in effect following the Merger Effective Time), without imposition of material limitations or conditions on the ability of Parent to operate the business of both the Company and Parent following the Merger
Effective Time: Arizona, Colorado, Connecticut, Washington DC, Illinois, Indiana, Kansas, Louisiana, Maryland, Massachusetts, Michigan, Mississippi, Nevada, New Jersey, New York, Nova Scotia, Ohio, Ontario, Pennsylvania, Puerto Rico,
Tennessee, Virginia, Washington State, West Virginia, Wyoming, Alberta, British Columbia, Quebec, Malta, the United Kingdom, Germany, Gibraltar and (at the discretion of Parent) such additional jurisdiction(s) in which the Company or any
Subsidiary obtains a gambling license at any time following the date of the Business Combination Agreement (collectively, the “Gaming Regulatory Authorities”);
|
• |
the finding of suitability or the grant of personal or entity licenses by the Gaming Regulatory Authorities to any person or corporate entity who was not already found by them suitable, or does not already
hold a personal license issued by the Gaming Regulatory Authorities, as needed to ensure compliance with such gambling licenses with respect to the continued operation of the business of the Surviving Company, Parent and their
respective subsidiaries;
|
• |
obtaining any approvals (or waivers) of the transfer of ownership and any necessary findings of suitability by the Gaming Regulatory Authorities; and
|
• |
obtaining any other written
confirmations or such other approvals and consents (including from customers which are state, provincial or national lotteries) as may be necessary to
permit the Company to continue to provide its services following the Merger Effective Time to existing and new customers.
|
(i) |
the Nevada Gaming Control Act and the regulations promulgated thereunder (collectively, the “Nevada Act”); and
|
(ii) |
various local ordinances and regulations.
|
(i) |
the prevention of unsavory or unsuitable persons from having a direct or indirect involvement with gaming, manufacturing or distributing activities at any time or in any capacity;
|
(ii) |
the establishment and maintenance of responsible accounting practices and procedures;
|
(iii) |
the maintenance of effective controls over the financial practices of licensees, including the establishment of minimum procedures for internal fiscal affairs and the safeguarding of assets and revenues, providing reliable record
keeping and requiring the filing of periodic reports with the Nevada Gaming Authorities;
|
(iv) |
the prevention of cheating and fraudulent practices; and
|
(v) |
providing a source of state and local revenues through taxation and licensing fees.
|
(i) |
within 2 days after possession of such intent, notify the Chair of the Nevada Board in the manner prescribed by the chair;
|
(ii) |
apply to the NGC for a finding of suitability within 30 days after notifying the Chair pursuant to paragraph (i); and
|
(iii) |
deposit with the Nevada Board the sum of money required by the Nevada Board to pay the costs of investigation.
|
(i) |
An activity that necessitates a change or amendment to the corporate charter, bylaws, management, policies or operation of a publicly traded corporation that is registered with the NGC;
|
(ii) |
An activity that materially influences or affects the affairs of a publicly traded corporation that is registered with the NGC; or
|
(iii) |
Any other activity determined by the NGC to be inconsistent with holding voting securities for investment purposes only.
|
(i) |
pays that person any dividend or interest upon its voting securities,
|
(ii) |
allows that person to exercise, directly or indirectly, any voting right conferred through securities held by that person,
|
(iii) |
pays remuneration in any form to that person for services rendered or otherwise, or
|
(iv) |
fails to pursue all lawful efforts to require such unsuitable person to relinquish his voting securities including, if necessary, the immediate purchase of said voting securities for cash at fair market value.
|
(i) |
changes in, or events generally affecting, the U.S. or global financial, securities or capital markets or the financial, securities or capital markets in any other jurisdictions in which the Company or its subsidiaries operate;
|
(ii) |
general economic or political conditions in the United States or any foreign jurisdiction in which the Company or any of its subsidiaries operate, including any changes in currency exchange rates, interest rates, monetary policy,
inflation, or any instability in the banking sector, including the failure or placement into receivership of any financial institution;
|
(iii) |
changes in, or events generally affecting, the industries in which the Company or any of its subsidiaries operate;
|
(iv) |
any natural or man-made disaster or acts of God, including earthquakes, floods, hurricanes, tornados, volcanic eruption, epidemics, pandemics or disease outbreak (including COVID-19) or any COVID-19 Measures (as defined in the Business
Combination Agreement) or any change in such COVID-19 Measures or official interpretations thereof following the date of the Business Combination Agreement or any acts of terrorism, sabotage, riots, demonstrations, public disorders,
military action or war or any escalation or worsening thereof;
|
(v) |
any failure by the Company or any of its subsidiaries to meet any internal or published budgets, projections, estimates, forecasts or predictions in respect of financial performance;
|
(vi) |
a decline in the price of the Company Shares, or a change in the trading volume of the Company Shares, on Nasdaq;
|
(vii) |
changes in applicable Law;
|
(viii) |
changes in IFRS (or authoritative interpretation thereof); and
|
(ix) |
the taking of any specific action expressly required by the Business Combination Agreement, or the announcement or pendency of the Business Combination Agreement, the Continuation and the Merger, including the impact thereof on the
relationships with customers, suppliers, distributors, partners, other third parties with whom the Company has a relationship or employees, but, in each case, excluding the Company’s compliance with its obligations pursuant to the terms
and conditions of the Business Combination Agreement.
|
• |
due organization, valid existence, good standing (to the extent applicable) and authority and qualification to conduct business with respect to the Company and its subsidiaries;
|
• |
the capital structure of the Company and its subsidiaries;
|
• |
the Company’s corporate power and authority to enter into and perform its obligations under the Business Combination Agreement, and the enforceability of the Business Combination Agreement;
|
• |
the Company Board’s recommendation in favor of the Transactions;
|
• |
shareholder voting requirements;
|
• |
required consents, approvals and regulatory filings in connection with the Business Combination Agreement and performance thereof;
|
• |
the accuracy and timeliness of all documents required to be filed or furnished by the Company with the SEC;
|
• |
compliance with Nasdaq listing criteria;
|
• |
the accuracy and completeness of the Company’s consolidated financial statements;
|
• |
the Company’s internal accounting controls and procedures;
|
• |
the Company’s disclosure controls and procedures;
|
• |
the absence of Material Adverse Effects on the Company and its subsidiaries;
|
• |
the absence of any litigation or legal proceedings against the Company or its subsidiaries;
|
• |
the Company’s and its subsidiaries’ compliance with laws, including applicable anti-bribery and anti-corruption laws, applicable customs and trade laws, and applicable laws relating to government contracts;
|
• |
the Company’s and its subsidiaries’ possession of necessary permits and internal controls, policies and procedures;
|
• |
tax matters;
|
• |
employee benefit plans;
|
• |
labor and employment matters;
|
• |
environmental matters;
|
• |
trademarks, patents, copyrights and other intellectual property matters;
|
• |
real property owned or leased by the Company and its subsidiaries;
|
• |
the existence and enforceability of specified categories of the Company’s and its subsidiaries’ material contracts and the violation or breach of or default thereunder;
|
• |
gaming matters, including regulatory compliance and authority to conduct business;
|
• |
insurance matters;
|
• |
the identities of and status of relationships with the Company’s and its subsidiaries’ top customers and suppliers;
|
• |
the rendering of Stifel’s fairness opinions to the Board;
|
• |
payment of fees to brokers in connection with the Business Combination Agreement; and
|
• |
absence of any transactions, relations or understandings between the Company or any of its subsidiaries and any affiliate or related person.
|
• |
due organization, good standing and authority and qualification to conduct business with respect to Parent and Merger Sub;
|
• |
Parent’s ownership of Merger Sub, which was formed solely for the purposes of engaging in the Transactions;
|
• |
power and authority to execute and deliver and perform their respective obligations under the Business Combination Agreement;
|
• |
required consents and regulatory filings in connection with the Business Combination Agreement;
|
• |
the absence of litigation and legal proceedings against Parent or Merger Sub; and
|
• |
matters with respect to Parent’s and Merger Sub’s sufficiency of funds, including solvency.
|
(a) |
will, and will cause each of its subsidiaries, to use its and their commercially reasonable efforts to (A) preserve substantially intact the Company’s and its subsidiaries’ business organizations, goodwill, assets, properties, Gaming
Licenses and Contracts, (B) maintain its existence in good standing under the Laws of its organization, incorporation or formation, as applicable, (C) keep available the services of its current officers, employees and independent
contractors, (D) preserve its existing relationships with its material customers, suppliers, licensors, licensees, distributors, lessors and other persons with which the Company and its subsidiaries have business relations and (E)
maintain in effect all of its foreign, federal, state and local licenses;
|
(b) |
will not, and will not permit any of its subsidiaries to, among other things (subject to certain exceptions set forth in the Business Combination Agreement and Company Disclosure Schedule to the Business Combination Agreement):
|
(i) |
(A) amend, supplement or otherwise modify its Organizational Documents, (B) adjust, split, combine, subdivide or reclassify its Company Securities, (C) declare, set aside or pay any dividend or distribution payable in cash, stock,
property or otherwise (or any combination thereof) in respect of, or enter into any Contract with respect to the voting of, any shares of its Company Securities, or (D) purchase, repurchase, redeem or otherwise acquire any Company
Securities (other than pursuant to the exercise of Company Options or the forfeiture of, or withholding of Taxes with respect to, Company Options or Company RSUs outstanding on the date of the Business Combination Agreement, or permitted
to be granted pursuant to the Business Combination Agreement in accordance with the existing terms of such awards and the Company Equity Plans;
|
(ii) |
merge or consolidate with any other person, or restructure, recapitalize, dissolve, reorganize or completely or partially liquidate, or adopt or effect a plan of complete or partial liquidation or dissolution, except with respect to
any wholly owned Subsidiary of the Company;
|
(iii) |
except as required by applicable Law or by any Company Plan in effect as of May 15, 2023, (A) increase the compensation or benefits payable to any Participant, except for (i) increases in cash compensation in the ordinary course of
business and consistent with past practice for current employees of no greater than 5% in the aggregate relative to what was scheduled in the Company’s budget included in the Company Disclosure Schedule (the “2023 Budget”) or,
(ii) with respect to employees who, as of the date of the Business Combination Agreement, hold Company Equity Awards, grants of equity awards permitted under the Business Combination Agreement, (B) grant any bonus, severance, change of
control, retention, termination or similar compensation or benefits to any Participant other than (x) one-off cash bonuses that do not exceed the aggregate amount budgeted in the 2023 Budget or (y) severance entitlements in offer letters
for new hires, in each case in the ordinary course of business consistent with past practice, (C) amend, adopt, establish, agree to establish, enter into, terminate or make any change to any Company Plan, including any new annual bonus or
incentive plan, or any collective bargaining agreement or other labor union Contract, (D) take any action to accelerate the vesting of, or payment of, any compensation or benefit under any Company Plan, (E) take any action to fund or in
any other way secure the payment of compensation or benefits under any Company Plan other than in the ordinary course of business, (F) hire, engage, promote, temporarily layoff, furlough or terminate the employment or service of (other
than termination for cause, including terminations resulting as a result of an employee’s failure to meet reasonable performance expectations) any Participant who, in the case of promotions, layoffs, terminations and furloughs, holds
Company Equity Awards as of the date of the Business Combination Agreement and, in the case of hirings and engagements, (x) will be granted Company Equity Awards by the Company or (y) will have an annual base salary or fees of $200,000 or
more (G) waive or release any noncompetition, non-solicitation, non-disclosure, non-interference, non-disparagement, or other restrictive covenant obligation of any Participant, (H) grant or forgive any loan to any Participant or (I)
effectuate any employee layoff or restructuring event affecting in whole or in material part any site of employment, facility, or operating unit;
|
(iv) |
incur any Indebtedness or issue any rights to acquire any Indebtedness, or assume, guarantee, grant any Lien in respect of or otherwise become liable for any Indebtedness for any Person, except (A) pursuant to agreements set forth in
the Company Disclosure Schedule, in the ordinary course of business consistent with past practice, (B) inter-company Indebtedness among the Company and its wholly owned Subsidiaries, or (C) as otherwise do not exceed $10,000,000 in the
aggregate;
|
(v) |
make or commit to make any capital expenditures, or any obligations or liabilities in connection therewith, greater than as scheduled in the 2023 Budget, except as otherwise do not exceed $2,000,000 individually or $10,000,000 in the
aggregate;
|
(vi) |
transfer, lease, license, sell, assign, mortgage, pledge, place a Lien upon, surrender, divest, cancel, abandon, allow to lapse or otherwise dispose of any tangible properties or assets (including capital stock of any of its
Subsidiaries), with a fair market value in excess of $1,000,000 individually and $5,000,000 in the aggregate (other than (1) transactions among the Company and its wholly owned Subsidiaries, (2) sales or purchases of inventory or obsolete
or worthless equipment, in each case, in the ordinary course of business);
|
(vii) |
issue, deliver, sell, grant, transfer, or encumber, or authorize the issuance, delivery, sale, grant, transfer or encumbrance of Company Securities, except as contemplated by the Continuation in Section 1.03 of the Business Combination
Agreement and any Company Shares issued pursuant to Company Options, or Company RSUs outstanding on May 15, 2023 in accordance with the existing terms of such awards and the Company Equity Plans;
|
(viii) |
(A) acquire or commit to acquire any business, whether by merger, purchase of property or assets, consolidation or otherwise or (B) subject to the foregoing clause (A), spend or commit to spend in excess of $1,000,000 individually and
$5,000,000 in the aggregate to acquire assets or other property (valuing any non-cash consideration at its fair market value as of the date of the agreement for such acquisition);
|
(ix) |
make any material change with respect to its financial accounting policies or procedures, in each case, except as required by changes in IFRS or by applicable Law;
|
(x) |
(A) enter into any new line of business, (B) conduct business in breach of any applicable Gaming Laws or (C) amend or vary the manner or scope of any existing line of business, if, for purposes of this paragraph (C), such amendment or
variation may give rise to a requirement for the Company or any of its subsidiaries to apply for and/or obtain any new Gaming License or to vary any existing Gaming License in a manner that would reasonably be expected to cause the
Closing Date to be materially delayed or the Closing to be materially impaired or prevented;
|
(xi) |
make any loans, advances or capital contributions to, or investments in, any person in excess of $250,000 individually and $1,000,000 in the aggregate (other than extensions of credit to customers in the ordinary course of business,
advances to directors, officers and other employees or independent contractors for travel and other business-related expenses, in each case, in the ordinary course of business and in compliance in all material respects with the Company’s
policies related thereto, or loans, advances or capital contributions to the Company or any direct or indirect wholly owned Subsidiary of the Company);
|
(xii) |
(A) amend or modify in any material respect or terminate (excluding terminations upon expiration of the term thereof in accordance with the terms thereof) any Material Contract or waive, release or assign any material rights, claims or
benefits under any Material Contract or take (or fail to take) any action that would reasonably be expected to cause or result in a material breach of, or material default under, any Material Contract or (B) other than in the ordinary
course of business and after consultation with Parent, enter into any Contract that would have been a Material Contract had it been entered into prior to the date of the Business Combination Agreement;
|
(xiii) |
settle, waive, release compromise or otherwise resolve any Proceeding in a manner resulting in liability for, or restrictions on the conduct of the business by, the Company or any of its subsidiaries, other than settlements, waivers or
releases of, or compromises for or resolutions of any Proceeding (A) if the amount of any such settlement is not in excess of $1,000,000 individually or $5,000,000 in the aggregate; provided, that such settlements do not involve any
non-de minimis injunctive or equitable relief or impose non-de minimis restrictions on the business activities of the Company and its Subsidiaries or Parent and its Subsidiaries or (B) waive any material right with respect to any material
claim held by the Company or any of its Subsidiaries;
|
(xiv) |
fail to maintain, cancel, terminate or allow to lapse without a commercially reasonable substitute therefor, any material License;
|
(xv) |
terminate, fail to renew, abandon, cancel, let lapse, encumber, license, sell, transfer or otherwise dispose of any material Company IP, or disclose (other than to agents, service providers, employees and contractors under
confidentiality agreements) any material, confidential Company IP, in each case, other than (A) non-exclusive licenses granted in the ordinary course of business or (B) failing to renew, abandoning, cancelling, letting lapse immaterial
Registered Company IP in the Company’s reasonable business judgement;
|
(xvi) |
(A) settle, consent to or compromise any material Tax claim, audit, or assessment (B) make, revoke or change any material Tax election, change any Tax accounting period, or adopt or change any material method of Tax accounting, (C)
make any material amendment to any Tax Returns, (D) surrender or waive any right to claim a material Tax refund or (E) consent to any extension or waiver of the statute of limitations period applicable to any material Tax claim or
assessment;
|
(xvii) |
terminate, cancel or make any material changes to the structure, limits or terms and conditions of any of the material insurance policies of the Company or its subsidiaries, including allowing the policies to expire without renewing
such policies or obtaining comparable replacement coverage, or prejudicing rights to insurance payments or coverage;
|
(xviii) |
fail to use its reasonable best efforts not to allow or suffer any Gaming License to lapse, expire or be cancelled, suspended, limited, revoked, materially modified, become subject to a condition, other than a Customary Condition, or
not be renewed;
|
(xix) |
surrender or rescind any Gaming License, or otherwise withdraw any pending application for a Gaming License; or
|
(xx) |
agree, resolve or commit to do any of the foregoing.
|
(i) |
solicit, initiate, propose or induce the making, submission or announcement of, or knowingly encourage, facilitate or assist, any offer inquiry, indication of interest or proposal that constitutes or would reasonably be expected to
lead to, an Acquisition Proposal;
|
(ii) |
furnish to any Person or Group (other than Parent or any of its Representatives in their capacity as such) any non-public information relating to the Company or any of its Subsidiaries or to afford any Person or Group (other than
Parent or any of its Representatives in their capacity as such) access to the business, properties, assets, books, records or other non-public information relating to the Company or any of its Subsidiaries, or to any personnel, of the
Company or any of its Subsidiaries, in any such case in connection with an Acquisition Proposal or with the intent to induce the making, submission or announcement of, or to knowingly encourage, facilitate or assist, an Acquisition
Proposal or the making of any offer, inquiry, indication of interest or proposal that constitutes, or would reasonably be expected to lead to an Acquisition Proposal;
|
(iii) |
participate or engage in discussions or negotiations with any Person or Group with respect to an Acquisition Proposal or with respect to any inquiries from third Persons relating to the making of an Acquisition Proposal;
|
(iv) |
approve, endorse or recommend any offer, inquiry, indication of interest or proposal that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal;
|
(v) |
enter into any letter of intent, memorandum of understanding, merger agreement, acquisition agreement or other Contract (whether written or oral, binding or non-binding) relating to an Acquisition Transaction;
|
(vi) |
authorize or commit to do any of the foregoing.
|
(vii) |
withhold, withdraw, amend, qualify or modify or publicly propose to withhold, withdraw, amend qualify or modify, the Company Board Recommendation in a manner adverse to Parent;
|
(viii) |
adopt, approve or recommend an Acquisition Proposal;
|
(ix) |
fail to publicly reaffirm the Company Board Recommendation within three business days of the occurrence of a material event or development and after Parent so requests in writing (or if the Luxembourg Shareholder Meeting or the Cayman
Shareholder Meeting is scheduled to be held within ten business days, then within one business day after Parent so requests in writing);
|
(x) |
if any Acquisition Proposal structured as a tender or exchange offer is commenced, fail to recommend against acceptance of such tender or exchange offer by the Company’s stockholders within ten business days of commencement thereof or
fail to maintain such recommendation against acceptance at any time; or
|
(xi) |
fail to include the Company Board Recommendation in the shareholder circulars for the Luxembourg Shareholder Meeting and the Cayman Shareholder Meeting
|
• |
furnish information (including nonpublic information) of the Company or any of its Subsidiaries to the person making such Acquisition Proposal and afford such person access to the business, properties, assets, books, records or other
non-public information, or to any personnel, of the Company or any of its Subsidiaries; and
|
• |
participate or engage in discussions or negotiations with such person with respect to such Acquisition Proposal and any changes thereto.
|
• |
the Company Board determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary duties pursuant to applicable Law;
|
• |
in the case of a Superior Proposal, the Company has complied with its obligations pursuant to the Business Combination Agreement to such Acquisition Proposal in all material respects;
|
• |
the Company has provided prior written notice to Parent at least four Business Days in advance (the “Notice Period”) to the effect that the Company Board has (A) received a bona fide
written Acquisition Proposal that has not been withdrawn or that an Intervening Event has arisen; (B) concluded in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal
constitutes a Superior Proposal or that such Intervening Event requires a Company Board Recommendation Change; and (C) resolved to effect a Company Board Recommendation Change, which notice will describe the basis for such Company Board
Recommendation Change, including the identity of the Person or Group making such Acquisition Proposal and the terms of such Acquisition Proposal and includes copies of all relevant documents relating to such Acquisition Proposal or the
facts and circumstances of such Intervening Event; and
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• |
prior to effecting such Company Board Recommendation Change, the Company and its Representatives, until 5 p.m. on the last day of the Notice Period, have (A) negotiated with Parent and its Representatives in good faith (to the extent
that Parent requests to negotiate) to make such adjustments to the terms and conditions of the Business Combination Agreement and the other Transaction Documents so that such Acquisition Proposal would cease to constitute a Superior
Proposal or such Intervening Event no longer requires a Company Board Recommendation Change; and (B) permitted Parent and its Representatives to make a presentation to the Company Board regarding the Business Combination Agreement and any
adjustments with respect thereto (to the extent that Parent requests to make such a presentation), it being understood that (1) in the event of change to the form or amount of consideration or any other material revision, amendment,
update or supplement to such Acquisition Proposal or a material development relating to the Intervening Event, the Company will be required to deliver a new written notice to Parent and to comply with the requirements of the Business
Combination Agreement with respect to such new written notice (with the Notice Period in respect of such new written notice being three Business Days); and (2) at the end of the Notice Period, the Company Board must have in good faith
(after consultation with its financial advisor and outside legal counsel) reaffirmed its determination that such bona fide written Acquisition Proposal is a Superior Proposal or that such
Intervening Event requires a Company Board Recommendation Change.
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• |
obtainment of the Luxembourg Shareholder Approval;
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• |
the expiration or earlier termination of the waiting period applicable to the consummation of the Transactions under the HSR Act;
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• |
the receipt of all Required Clearances and the expiration or earlier termination of all related applicable waiting periods;
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• |
no governmental authority in any jurisdiction has by any law or order restrained, enjoined or otherwise prohibited the consummation of the Transactions;
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• |
the receipt by each of Parent and the Company of a certificate from the other party dated as of the Continuation Date and signed on behalf of Parent or the Company, as applicable, by its executive officer, to
the effect that as of the Continuation Date, it has no knowledge of any Effect, or the magnitude or consequences of such Effect that has caused or that would cause any of the Merger Conditions not to be satisfied on the Closing Date
(assuming the Closing Date will be within three business days from the Continuation Date; and
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• |
the satisfaction or waiver of the other Merger Conditions except for any Merger Conditions that are not able by their terms or nature to be satisfied prior to the Continuation Effective Time.
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• |
the completion of the Continuation;
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• |
obtainment of the Cayman Shareholder Approval; and
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• |
the continued satisfaction or waiver (to the extent permitted under applicable Law) of the first four Continuation Conditions listed in the section of this shareholder circular entitled “—Conditions to the Effectuation of the Continuation.”
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• |
with specified qualifications and exceptions, the truth and correctness of the Company’s representations and warranties contained in the Business Combination Agreement as of immediately prior to the Merger Effective Time;
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• |
the Company having complied with or performed, in all material respects, the obligations required to be complied with or performed by it under the Business Combination Agreement on or prior to the Merger Effective Time;
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• |
no Company Material Adverse Effect shall have occurred since May 15, 2023 that is continuing;
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• |
the receipt by Parent of a certificate dated as of the Closing Date and signed on behalf of the Company by a senior executive officer, to the effect that the conditions described in the preceding three items have been satisfied;
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• |
no Remedy Actions have been imposed, or are expected to be imposed on or following the Merger Effective Time, that would, individually or in the aggregate, result in a Regulatory Detriment; and
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• |
the receipt of confirmation from the CMA that (i) the CMA does not intend to request further information or open a Phase I investigation in relation to the Transactions or any matters arising therefrom, after submission by Parent of a
briefing paper to the CMA’s merger intelligence committee (provided, that the CMA has not subsequently decided to open an investigation in relation to the Transactions or any matters arising therefrom or related thereto); (ii) the CMA
does not intend to refer the Transactions or any matters arising therefrom for a CMA Phase II Reference (which includes a decision accepting a Remedy Action in lieu of such a reference to the extent such Remedy Action would not have a
Regulatory Detriment individually or in the aggregate); or (iii) following a CMA Phase II Reference of the Transactions or any matters arising therefrom or related thereto, the Transactions may proceed without any Remedy Action or with a
Remedy Action that individually or in the aggregate would not have a Regulatory Detriment.
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• |
with specified qualifications and exceptions, the truth and correctness of Parent’s and Merger Sub’s representations and warranties contained in the Business Combination Agreement as of immediately prior to the Merger Effective Time;
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• |
Parent and Merger Sub having complied with or performed, in all material respects, their respective obligations required to be performed or complied with by them under the Business Combination Agreement on or prior to the Merger
Effective Time; and
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• |
the receipt by the Company of a certificate dated as of the Closing Date and signed on behalf of Parent by a senior executive officer, to the effect that the conditions described in the preceding two items have been satisfied.
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• |
by mutual written consent of the Company and Parent;
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• |
by either the Company or Parent, if there shall be any applicable Law that makes consummation of the Transactions illegal or otherwise prohibited or if at any time, consummation of the Transactions would violate any Law or Order of any
Governmental Authority having competent jurisdiction and such applicable Law or Order shall have become final and non-appealable;
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• |
by either Parent or the Company, if the Merger Effective Time has not occurred by the Termination Date, provided that (i) if on the Termination Date all of the Merger Conditions have been satisfied or waived, other than the conditions
that related to Required Clearances, each of Parent and the Company may, at its sole discretion, extend the Termination Date by two months (the “Outside Date Termination”);
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• |
by either the Company or Parent upon failure to obtain the Luxembourg Shareholder Approval or the Cayman Shareholder Approval at the Luxembourg Shareholder Meeting or Cayman Shareholder Meeting, respectively, or any adjournment,
reconvening, or postponement thereof, in each case at which a vote on such approval was taken (the “Voting Failure Termination”);
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• |
by Parent, if there has been a breach by the Company of its representations, warranties or covenants contained in the Business Combination Agreement such that any of the conditions precedent in Article VI of the Business Combination
Agreement is not reasonably capable of being satisfied in a way that is incapable of being cured prior to the Termination Date or is not cured by the Company within thirty days after receipt by the Company of written notice of such breach
from Parent; provided that the right to terminate the Business Combination Agreement will not be available to Parent if either Parent or Merger Sub are then in breach of their respective obligations under the Business Combination
Agreement, such that the Merger Conditions shall not be satisfied prior to the Termination Date (the “Company Breach Termination”);
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• |
by the Company if there has been a breach by either Parent or Merger Sub of their respective representations, warranties or covenants contained in the Business Combination Agreement such that any of the conditions precedent in Article
VI of the Business Combination Agreement is not reasonably capable of being satisfied in a way that is incapable of being cured prior to the Termination Date or is not cured by Parent or Merger Sub, as applicable, within thirty days after
receipt by Parent of written notice of such breach from the Company; provided that the right to terminate the Business Combination Agreement will not be available to the Company if the Company is then in breach of its obligations under
the Business Combination Agreement, such that the Merger Conditions shall not be satisfied prior to the Termination Date; and
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• |
by Parent, if, prior to obtaining the Luxembourg Shareholder Approval or the Cayman Shareholder Approval, (i) the Company materially and willfully breaches its obligations described in the sections of this shareholder circular entitled
“—Competing Proposals” and “—The Board’s Recommendation; Company Board Recommendation Change” (provided that the right to terminate the Business Combination
Agreement will not be available to Parent following the obtainment of the Luxembourg Shareholder Approval) or (ii) the Board has effected a Company Board Recommendation Change in respect of the Luxembourg Shareholder Approval or the
Cayman Shareholder Approval (provided that the right to terminate the Business Combination Agreement will not be available to Parent following the respective Luxembourg Shareholder Approval or Cayman Shareholder Approval (the “Competing
Proposal Termination”)).
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• |
(A) the Business Combination Agreement was validly terminated pursuant to the Outside Date Termination, Voting Failure Termination or Company Breach Termination, (B) prior to such termination of the Business Combination Agreement or,
in the case of a Vote Failure Termination, before whichever shareholder meeting that failed to approve the Transactions, an Acquisition Proposal has been publicly announced or publicly disclosed or delivered to the Company Board and (C)
within one year of such termination, either an Acquisition Transaction (which need not be the Acquisition Transaction referenced under clause (B)) is consummated or the Company enters into a definitive agreement providing for the
consummation of an Acquisition Transaction (which need not be the Acquisition Transaction referenced under clause (B)) and such Acquisition Transaction is subsequently consummated (or is subsequently terminated before consummation but a
subsequent Acquisition Transaction is entered into in connection with the termination of such Acquisition Transaction and such subsequent Acquisition Transaction is subsequently consummated); and
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• |
the Business Combination Agreement is validly terminated pursuant to a Competing Proposal Termination.
|
Luxembourg:
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Cayman Islands:
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Transferability of Company Shares
|
|
Under Luxembourg law, the shares of the Company are freely transferrable subject to any restrictions set out in our articles of association.
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The Company Shares are non-transferrable and the directors of the Company shall decline to register any transfer of the legal title to any Company Shares without a requirement to assign
any reason therefor.
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Limited Liability of Shareholders
|
|
The liability of the shareholders of the Company is limited to the amount contributed on the shares of the Company and, if any, unpaid on the shares of the Company respectively held by
them.
|
The liability of the shareholders of the Company is limited to the amount, if any, unpaid on the Company Shares respectively held by them.
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Amendment of Governing Documents
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Under Luxembourg law, amendments to our articles of association require a general meeting of shareholders held in Luxembourg and in front of a public notary at which at least one half
of the share capital is represented. The notice of the general meeting of shareholders shall set out the proposed amendments to the articles of association.
If the aforementioned quorum is not reached, a second meeting may be convened by means of a notice published in the Luxembourg official gazette (Recueil
Electronique des Sociétés et Associations) and in a Luxembourg newspaper 15 days before the meeting. The second meeting shall be validly constituted regardless of the proportion of the share capital represented.
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Subject to the Cayman Companies Act and the rights attaching to the various classes of shares that may be issued from time to time by the Company, the Company may at any time and from
time to time by Special Resolution alter or amend the Continuation Articles in whole or in part.
For the purposes of this table:
“Ordinary Resolution” means a resolution:
(a) passed by a simple majority of such shareholders as, being entitled to do so, vote in person or, where proxies are allowed, by proxy
at a general meeting of the Company and where a poll is taken regard shall be had in computing a majority to the number of votes to which each shareholder is entitled; or
(b) approved in writing by all of the shareholders entitled to vote at a general meeting of the Company in one or more instruments each
signed by one or more of the shareholders and the effective date of the resolution so adopted shall be the date on which the instrument, or the last of such instruments, if more than one, is executed.
“Special Resolution” means a special resolution of the Company passed in accordance with the Cayman Companies Act, being a resolution:
(a) passed by a majority of not less than two-thirds of such shareholders as, being entitled to do so, vote in person or, where proxies
are allowed, by proxy at a general meeting of the Company of which notice specifying the intention to propose the resolution as a special resolution has been duly given and where a poll is taken regard shall be had in computing a
majority to the number of votes to which each shareholder is entitled; or
(b) approved in writing by all of the shareholders entitled to vote at a general meeting of the Company in one or more instruments each
signed by one or more of the shareholders and the effective date of the special resolution so adopted shall be the date on which the instrument or the last of such instruments, if more than one, is executed.
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At both meetings, resolutions will be adopted if approved by at least two-thirds of the votes cast (unless otherwise required by Luxembourg law or the articles of association). Where
classes of shares exist and the resolution to be adopted by the general meeting of shareholders changes the respective rights attaching to such shares, the resolution will be adopted only if the conditions as to quorum and majority set
out above are fulfilled with respect to each class of shares.
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|
An increase of the commitments of its shareholders requires, however, the unanimous consent of the shareholders (and bondholders, if any).
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|
In very limited circumstances, the board of directors may be authorized by the shareholders to amend the articles of association, albeit always within the limits set forth by the
shareholders at a duly convened shareholders’ meeting. This is the case in the context of our authorized share capital within which the board of directors is authorized to issue further ordinary shares or in the context of a share capital
reduction and cancellation of ordinary shares. The board of directors is then authorized to appear in front of a public notary to record the capital increase or decrease and to amend the share capital set forth in the articles of
association. The above also applies in case of the transfer of our registered office outside the current municipality.
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Meetings of Shareholders
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Pursuant to Luxembourg law, at least one general meeting of shareholders must be held each year within six months as from the close of the financial year. The purpose of such ordinary
general meeting is to approve the annual accounts, allocate the results, proceed to statutory appointments, and grant discharge to the directors. The ordinary general meeting must be held within six months of the end of each financial
year.
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The directors of the Company may, whenever they think fit, convene a general meeting of the Company by notice in writing to the shareholders. Such notice shall be in any usual or common
form or such other form as the directors of the Company may determine.
General meetings of the Company shall also be convened on the requisition in writing of any shareholder or shareholders entitled to attend and vote at general meetings of the Company
holding at least fifty percent (50%) of the paid up voting share capital of the Company deposited at the registered office of the Company specifying the objects of the meeting by notice in writing, and if the directors do not convene such
meeting, the requisitionists themselves may convene the general meeting in the same manner, as nearly as possible, as that in which general meetings may be convened by the directors, and all reasonable expenses incurred by the
requisitionists as a result of the failure of the directors to convene the general meeting shall be reimbursed to them by the Company.
Notice of a general meeting shall be given in writing and shall be given no later than the day immediately prior to the date of the general meeting.
Notice of a general meeting shall specify the place, the day and the hour of the meeting and the general nature of the business.
Notice of a general meeting shall be given in the manner provided in the Continuation Articles or in such other manner (if any) as may be prescribed by the Company by a resolution of
directors to such persons as are, under the Continuation Articles, entitled to receive such notices from the Company.
With the consent of shareholders holding at least a majority of the paid-up voting share capital entitled to receive notice of a particular general meeting and to attend and vote thereat,
such meeting may be convened by such shorter notice or without notice and in such manner as those shareholders may think fit.
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Other meetings of shareholders may be convened.
Pursuant to Luxembourg law, the board of directors is obliged to convene a general meeting so that it is held within a period of one month of the receipt of a written request of
shareholders representing one-tenth of the issued capital. Such request must be in writing and indicate the agenda of the meeting.
Quorum Requirements:
Luxembourg law distinguishes ordinary resolutions and extraordinary resolutions. Extraordinary resolutions relate to proposed amendments to the articles of association and certain other
limited matters. All other resolutions are ordinary resolutions.
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Ordinary Resolutions: Pursuant to Luxembourg law, there is no requirement of a quorum for any ordinary resolutions to be considered at a general meeting, and such ordinary
resolutions shall be adopted by a simple majority of votes validly cast on such resolution. Abstentions are not considered “votes.”
Extraordinary Resolutions: Extraordinary resolutions are required for any of the following matters, among others: (i) an increase or decrease of the authorized or issued capital,
(ii) a limitation or exclusion of preemptive rights, (iii) approval of a statutory merger or de-merger (scission), (iv) dissolution, and (v) an amendment of the articles of association.
Pursuant to Luxembourg law for any extraordinary resolutions to be considered at a general meeting, the quorum shall generally be at least one half (50%) of the issued share capital. If
the said quorum is not present, a second meeting may be convened at which Luxembourg law does not prescribe a quorum. Any extraordinary resolution shall be adopted at a quorate general meeting (save as otherwise provided by mandatory law)
by a two-thirds majority of the votes validly cast on such resolution. Abstentions are not considered “votes.
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Quorum Requirements:
No business shall be transacted at any general meeting unless a quorum of shareholders is present at the time when the meeting proceeds to business. Save as otherwise provided by the
Continuation Articles, two shareholders present in person or by proxy and entitled to vote at that meeting shall form a quorum.
If within an hour from the time appointed for the meeting a quorum is not present, the meeting, if convened upon the requisition of shareholders, shall be dissolved. In any other case it
shall stand adjourned to the next business day, at the same time and place, and if at the adjourned meeting a quorum is not present within an hour from the time appointed for the meeting the shareholder or shareholders present and
entitled to vote shall form a quorum.
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Shareholder Approval of Business Combinations
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Under Luxembourg law and our articles of association, the board of directors has the broadest power to take any action necessary or useful to achieve the corporate objective. The board of
directors’ powers are limited only by law and our articles of association.
Any type of transaction that would require an amendment to the articles of association, such as a merger, de-merger, consolidation, dissolution, or voluntary liquidation, requires an
extraordinary resolution of a general meeting of shareholders.
Transactions such as a sale, lease, or exchange of substantial company assets require only the approval of the board of directors. Neither Luxembourg law nor our articles of association
contain any provision specifically requiring the board of directors to obtain shareholder approval of the sale, lease, or exchange of substantial assets of ours.
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The Company may merge or consolidate in accordance with the Cayman Companies Act.
To the extent required by the Cayman Companies Act, the Company may by Special Resolution resolve to merge or consolidate the Company.
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Shareholder Action Without a Meeting
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A shareholder meeting must always be called if the matter to be considered requires a shareholder resolution under Luxembourg law or our articles of association.
Pursuant to Luxembourg law, shareholders of a public limited liability company may not take actions by written consent. All shareholder actions must be approved at an actual meeting of
shareholders held before a notary public or under private seal, depending on the nature of the matter. Shareholders may vote by proxy.
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A resolution in writing signed by all the shareholders for the time being entitled to receive notice of and to attend and vote at general meetings of the Company (or being corporations by
their duly authorized representatives) shall be as valid and effective as if the same had been passed at a general meeting of the Company duly convened and held.
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Distributions
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Under Luxembourg law, the amount and payment of dividends or other distributions is determined by a simple majority vote at a general meeting of shareholders based on the recommendation
of our board of directors, except in certain limited circumstances. Pursuant to our articles of association, our board of directors has the power to pay interim dividends or make other distributions in accordance with applicable
Luxembourg law.
Distributions (in the form of either dividends, share premium reimbursements or capital surplus reimbursements) may be lawfully declared and paid if our net profits and/or distributable
reserves are sufficient under Luxembourg law.
Under Luxembourg law, the amount of a distribution paid to shareholders (including in the form of dividends or share premium reimbursements) may not exceed the amount of the profits at
the end of the last financial year plus any profits carried forward and any amounts drawn from reserves that are available for that purpose, less any losses carried forward and sums to be placed in reserve in accordance with Luxembourg
law or our articles of association.
Furthermore, no distributions (including in the form of dividends or share premium reimbursements) may be made if net assets were, at the end of the last financial year (or would become,
following such a distribution), less than the amount of the subscribed share capital plus the non-distributable reserves. Distributions in the form of dividends may only be made out of net profits and profits carried forward, whereas
distributions in the form of share premium reimbursements may only be made out of available share premium and distributions in the form of capital surplus reimbursements may only be made out of capital surplus.
Under Luxembourg law, at least 5% of our net profits per year must be allocated to the creation of a legal reserve until such reserve has reached an amount equal to 10% of our issued
share capital. The allocation to the legal reserve becomes compulsory again when the legal reserve no longer represents 10% of our issued share capital. The legal reserve is not available for distribution.
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No dividend may be declared or paid, and no other distribution (whether in cash or otherwise) of the Company's assets may be declared or paid in respect of the Company Shares.
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Repurchases and Redemptions
|
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Pursuant to Luxembourg law, we (or any party acting on our behalf) may repurchase our own shares and hold them in treasury, provided that:
• the shareholders at a general meeting have previously authorized our board of directors to acquire
our ordinary shares. The general meeting shall determine the terms and conditions of the proposed repurchase and in particular the maximum number of ordinary shares to be acquired, the period for which the authorization is given (which
may not exceed five years), and, in the case of repurchase for consideration, the maximum and minimum consideration, provided that the prior authorization shall not apply in the case of ordinary shares acquired by either us or by a person
acting in its own name but on our behalf for the distribution thereof to our staff or to the staff of a company with which we are in a control relationship;
• the acquisitions, including ordinary shares previously acquired by us and held by us and shares
acquired by a person acting in his or her own name but on our behalf, may not have the effect of reducing the net assets below the amount of the issued share capital plus the reserves (which may not be distributed by law or under the
articles of association);
• the ordinary shares repurchased are fully paid-up; and
• the acquisition offer must be made on the same terms and conditions to all the shareholders who are
in the same position, except for acquisitions which were unanimously decided by a general meeting at which all the shareholders were present or represented (and except for acquisitions made on Nasdaq).
No prior authorization by shareholders is required (i) if the acquisition is made to prevent serious and imminent harm to us, provided that the board of directors informs the next general
meeting of the reasons for and the purpose of the acquisitions made, the number and nominal values or the accounting value of the ordinary shares acquired, the proportion of the subscribed capital which they represent, and the
consideration paid for them, and (ii) in the case of ordinary shares acquired by either us or by a person acting on our behalf with a view to redistributing the ordinary shares to our staff or its controlled subsidiaries, provided that
the distribution of such shares is made within twelve months from their acquisition.
Luxembourg law provides for further situations in which the above conditions do not apply, including the acquisition of shares pursuant to a decision to reduce our capital or the
acquisition of shares issued as redeemable shares. Such acquisitions may not have the effect of reducing net assets below the aggregate of subscribed capital and reserves (which may not be distributed by law and are subject to specific
provisions on reductions in capital and redeemable shares under Luxembourg law).
Any shares acquired in contravention of the above provisions must be resold within a period of one year after the acquisition or be cancelled at the expiration of the one-year period.
As long as shares are held in treasury, the voting rights attached thereto are suspended. Further, to the extent the treasury shares are reflected as assets on our balance sheet a non-
distributable reserve of the same amount must be reflected as a liability. Our articles of association provide that shares may be acquired in accordance with the law.
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Subject to the Cayman Companies Act, the Company may:
(a) issue shares on terms that they are to be redeemed or are liable to be redeemed at the option of the Company or the shareholder on such
terms and in such manner as the directors of the Company may determine;
(b) purchase its own shares (including any redeemable shares) on such terms and in such manner as the directors of the Company may determine
and agree with the shareholder;
(c) make a payment in respect of the redemption or purchase of its own shares in any manner authorized by the Cayman Companies Act,
including out of its capital; and
(d) accept the surrender for no consideration of any paid-up share (including any redeemable share) on such terms and in such manner as the
directors of the Company may determine.
Any share in respect of which notice of redemption has been given shall not be entitled to participate in the profits of the Company in respect of the period after the date specified as
the date of redemption in the notice of redemption.
The redemption, purchase or surrender of any share shall not be deemed to give rise to the redemption, purchase or surrender of any other share.
The directors of the Company may when making payments in respect of redemption or purchase of shares, if authorized by the terms of issue of the shares being redeemed or purchased or with
the agreement of the holder of such shares, make such payment either in cash or in specie including, without limitation, interests in a special purpose vehicle holding assets of the Company or holding entitlement to the proceeds of assets
held by the Company or in a liquidating structure.
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Dissenters’ Rights
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Neither Luxembourg law nor our articles of association provide for appraisal rights.
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Company Shares that are outstanding immediately prior to the Merger Effective Time and which are held by shareholders who have validly indicated by way of written objection (pursuant to
Section 238(2) of the Cayman Companies Act) the desire to dissent with respect to such Company Shares shall not be converted into or represent the right to receive the Merger Consideration attributable to such shares. Such shareholders
shall be entitled to receive payment of the fair value of such shares held by them in accordance with the Cayman Companies Act.
If shareholders wishing to dissent fail to comply with the strict provisions set out in Section 238 of the Cayman Companies Act, they may lose their dissenters' rights.
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Shareholder Suits
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Under Luxembourg law, the board of directors has sole authority to decide whether to initiate legal action to enforce a company’s rights (other than, in certain circumstances, an action
against board members).
Shareholders do not have the authority to initiate legal action on a company’s behalf. Shareholders holding at least 10% of the securities of a company having a right to vote at the
general meeting may bring an action against the directors on behalf of the company.
Luxembourg law does not provide for class action lawsuits.
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As a matter of Cayman Islands law, the decision whether to initiate proceedings for and on behalf of the company rests
with the board of directors. However, there are certain circumstances in which a shareholder of a Cayman Islands company can seek leave of the Court to commence proceedings for and on behalf of a company (for example, where the
wrongdoers are in control of the company and unreasonably fail to institute proceedings on the company's behalf).
An aggrieved shareholder's remedy against a Cayman Islands company must be sought by way of a petition to winding the company up on just and equitable grounds. However,
the Court has the discretion to order an alternative remedy where the shareholder is able to establish that it is, in principle, just and equitable that the company should be wound up. The alternative remedies include orders for purchase
of the plaintiff's shares, orders regulating the conduct of the company's affairs and injunctive relief.
Cayman Islands law does not provide for class action law suits. However, in certain circumstances, parties with the same interest in proceedings may be able to bring
representative proceedings where one plaintiff acts on behalf of the group, though this is very rare in practice.
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Voting Rights
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Subject to any rights and restrictions attached to any Company Share or as set out in our articles of association, every shareholder has one vote and every person representing a
shareholder by proxy shall have one vote for each Company Share of which they or the person represented by proxy is the holder.
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Subject to any rights and restrictions for the time being attached to any Company Share, on a show of hands every shareholder present in person and every person representing a shareholder
by proxy shall, at a general meeting of the Company, each have one vote and on a poll every shareholder and every person representing a shareholder by proxy shall have one vote for each Company Share of which they or the person
represented by proxy is the holder.
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• |
Annual Report on Form 20‑F for the fiscal year ended December 31, 2022, filed on April 28, 2023;
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• |
Reports of Foreign Private Issuer on Form 6‑K furnished on May 10, 2023 and May 26, 2023; and
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• |
Any description of Company Shares contained in a registration statement filed on Form 8-A pursuant to the Exchange Act and any
amendment or report filed for the purpose of updating such description.
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By order of the Board of Directors,
/s/ John E. Taylor, Jr.
John E. Taylor, Jr.
Chair of the Board of Directors
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Section 1.01
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The Continuation
|
A-7
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Section 1.02
|
Continuation Closing
|
A-7
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Section 1.03
|
Effects of the Continuation
|
A-7
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Section 1.04
|
Memorandum and Articles of Association
|
A-8
|
Section 1.05
|
Board of Directors and Officers of the Company following the Continuation
|
A-8
|
Section 1.06
|
Necessary Further Actions
|
A-8 |
Section 2.01
|
The Merger
|
A-9
|
Section 2.02
|
Closing
|
A-9
|
Section 2.03
|
Effective Time
|
A-10
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Section 2.04
|
Memorandum and Articles of Association of the Surviving Company
|
A-10
|
Section 2.05
|
Board of Directors and Officers of Surviving Company
|
A-11
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Section 2.06
|
Effect of the Merger on the Share Capital
|
A-11
|
Section 2.07
|
Exchange and Payment
|
A-11
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Section 2.08
|
Continuation Equity Awards
|
A-15
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Section 2.09
|
Payments with Respect to Company Equity Awards
|
A-19
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Section 2.10
|
Appraisal Rights
|
A-19
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Section 2.11
|
No Dividends or Distributions
|
A-20
|
Section 2.12
|
Adjustments to Prevent Dilution
|
A-20
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Section 2.13
|
Necessary Further Actions
|
A-20
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Section 3.01
|
Organization; Standing
|
A-21
|
Section 3.02
|
Capitalization
|
A-22
|
Section 3.03
|
Authority; Non-contravention; Voting Requirements
|
A-24
|
Section 3.04
|
Governmental Clearances
|
A-26
|
Section 3.05
|
Company SEC Documents; Undisclosed Liabilities
|
A-27
|
Section 3.06
|
Absence of Certain Changes.
|
A-29
|
Section 3.07
|
Legal Proceedings
|
A-29
|
Section 3.08
|
Compliance with Laws; Permits
|
A-29
|
Section 3.09
|
Tax Matters
|
A-31
|
Section 3.10
|
Employee Benefits
|
A-33
|
Section 3.11
|
Labor Matters
|
A-35
|
Section 3.12
|
Environmental Matters
|
A-36
|
Section 3.13
|
Intellectual Property
|
A-37
|
Section 3.14
|
Anti-Takeover Provisions
|
A-40
|
Section 3.15
|
Real Property
|
A-40
|
Section 3.16
|
Contracts
|
A-40
|
Section 3.17
|
Gaming
|
A-43
|
Section 3.18
|
Customers and Suppliers
|
A-45
|
Section 3.19
|
Insurance
|
A-45
|
Section 3.20
|
Opinion of Financial Advisor
|
A-46
|
Section 3.21
|
Brokers and Other Advisors
|
A-46
|
Section 3.22
|
Affiliate Transactions
|
A-46
|
Section 3.23
|
No Other Representations or Warranties
|
A-46
|
Section 4.01
|
Organization, Good Standing and Qualification
|
A-47
|
Section 4.02
|
Ownership of Merger Sub
|
A-47
|
Section 4.03
|
Authority; Approval
|
A-47
|
Section 4.04
|
Governmental Approvals; Non-contravention
|
A-48
|
Section 4.05
|
Legal Proceedings
|
A-48
|
Section 4.06
|
Financial Ability
|
A-49
|
Section 4.07
|
Solvency
|
A-49
|
Section 4.08
|
Acknowledgement; No Other Representations and Warranties
|
A-49
|
Section 5.01
|
Conduct of Business
|
49
|
Section 5.02
|
No Solicitation by the Company; Change in Recommendation
|
54
|
Section 5.03
|
Preparation of the Luxembourg Shareholder Circular; Luxembourg Shareholder Meeting
|
57
|
Section 5.04
|
Preparation of the Cayman Shareholder Circular; Cayman Shareholder Meeting
|
59
|
Section 5.05
|
Filings; Other Actions; Notification and Cooperation
|
60
|
Section 5.06
|
Public Announcements
|
64
|
Section 5.07
|
Access to Information; Confidentiality
|
65
|
Section 5.08
|
Indemnification and Insurance
|
65
|
Section 5.09
|
Employee Matters
|
67
|
Section 5.10
|
Notification of Certain Matters; Shareholder Litigation
|
69
|
Section 5.11
|
Stock Exchange De-listing
|
69
|
Section 5.12
|
Treatment of Repaid Indebtedness
|
69
|
Section 5.13
|
Takeover Laws
|
69
|
Section 5.14
|
Control of the Company’s or Parent’s Operations
|
70
|
Section 5.15
|
Merger Sub Parent Approval.
|
70
|
Section 5.16
|
Director and Officer Resignations
|
70
|
Section 5.17
|
Options Tax Ruling
|
70
|
Section 5.18
|
U.S. Tax Matters
|
71
|
Section 6.01
|
Conditions to the Company’s Obligation to Effect the Continuation
|
71
|
Section 6.02
|
Conditions to Each Party’s Obligation to Effect the Merger
|
72
|
Section 6.03
|
Conditions to Obligations of Parent and Merger Sub to Effect the Merger
|
73
|
Section 6.04
|
Conditions to Obligations of the Company to Effect the Merger
|
74
|
Section 6.05
|
Frustration of Closing Conditions
|
75
|
Section 7.01
|
Termination
|
75
|
Section 7.02
|
Effect of Termination
|
77
|
Section 7.03
|
Fees and Expenses
|
77
|
Section 8.01
|
No Survival of Representations and Warranties
|
78
|
Section 8.02
|
Amendment or Supplement
|
78
|
Section 8.03
|
Extension of Time, Waiver, Etc.
|
79
|
Section 8.04
|
Assignment
|
79
|
Section 8.05
|
Counterparts
|
79
|
Section 8.06
|
Entire Agreement; No Third-Party Beneficiaries
|
79
|
Section 8.07
|
Governing Law; Jurisdiction
|
80
|
Section 8.08
|
Specific Enforcement
|
81
|
Section 8.09
|
Notices
|
81
|
Section 8.10
|
Agent for Service of Process
|
82
|
Section 8.11
|
Severability
|
82
|
Section 8.12
|
Definitions
|
85
|
Section 8.13
|
Interpretation
|
96
|
EXHIBIT 1 – MEMORANDUM AND ARTICLES OF ASSOCIATION OF THE COMPANY
|
99
|
|
100
100
|
|
(i) each issued and outstanding share of the Company without par value prior to the Continuation Effective Time (a
“Share”) will become and be deemed converted automatically, on a one-for-one basis, into an ordinary share without par value of the Company following the Continuation Effective Time (a “Continuation Share”),
and (i) each certificate previously representing any such Shares (a “Certificate”) shall thereafter represent, without the requirement of any exchange thereof, that number of Continuation Shares into which such Shares
represented by such Certificate have become and been deemed converted pursuant to this Section 1.03(b)(i), and (ii) each book-entry account formerly representing any uncertificated Shares shall thereafter represent,
without any further action, that number of Continuation Shares into which such Shares have become and been deemed converted pursuant to this Section 1.03(b)(i), and thereafter, the holders thereof shall cease to have
any rights with respect to such Shares;
|
|
(ii) each issued and outstanding Company Option prior to the Continuation Effective Time will become and be deemed
converted automatically, on a one-for-one basis, and in accordance with the terms of the Company Equity Plans and/or option agreement by which it is evidenced, into an option to acquire Continuation Shares, subject to the
same terms and conditions as were applicable under such Company Option immediately prior to the Continuation Effective Time (including the per-share exercise price, vesting schedule and any vesting acceleration) (each, a “Continuation
Option”); and
|
|
(iii) each issued and outstanding Company RSU prior to the Continuation Effective Time will become and be deemed
converted automatically, on a one-for-one basis, and in accordance with the terms of the Company Equity Plans and/or restricted share unit agreement by which it is evidenced, into a restricted share unit with respect to
Continuation Shares (or cash, if so provided under the terms of such Company RSU), subject to the same terms and conditions as were applicable under such Company RSU immediately prior to the Continuation Effective Time
(including the vesting schedule and any vesting acceleration) (each, a “Continuation RSU”).
|
ARISTOCRAT LEISURE LIMITED
|
||
By:
|
/s/ Trevor Croker | |
Name:
|
Trevor Croker
|
|
Title:
|
Director
|
By:
|
/s/ Kristy Jo | |
Name:
|
Kristy Jo
|
|
Title:
|
Secretary
|
ANAXI INVESTMENTS LIMITED
|
||
By:
|
/s/ Mitchell A. Bowen | |
Name:
|
Mitchell Bowen
|
|
Title:
|
Director
|
By:
|
/s/ Moti Malul
|
|
Name:
|
Moti Malul
|
|
Title:
|
Chief Executive Officer
|
1.
|
The Constituent Companies to this Plan of Merger are the Company and the Merger Sub.
|
2.
|
The surviving company that results from the Merger of the Constituent Companies shall be the Company (the “Surviving Company”) and shall have its registered office at SIX, Cricket Square, PO Box 2681, George Town, Grand Cayman KY1-111, Cayman Islands.
|
3.
|
Immediately prior to the Merger, the Company has an authorised share capital of US$174,388.19 divided into [•] shares without par value,
of which [•] shares are in issue and outstanding.
|
4.
|
Immediately prior to the Merger, the Merger Sub has an authorised share capital of US$10 divided into 10,000 shares without par value, of
which 10 shares are in issue and outstanding.
|
5.
|
It is intended that the Merger shall take effect on [DATE] (the “Effective Date”) in accordance
with section 234 of the Act.
|
6.
|
Upon the Merger, the rights, the property of every description including choses in action, and the business, undertaking, goodwill,
benefits, immunities and privileges of each of the Constituent Companies shall immediately vest in the Surviving Company and the Surviving Company shall be liable for and subject, in the same manner as the Constituent Companies, to
all mortgages, charges or security interests, and all contracts, obligations, claims, debts and liabilities of each of the Constituent Companies.
|
7.
|
The terms and conditions of the Merger, including the manner and basis of converting shares in each constituent company into shares in
the Surviving Company or into other property, are set out in the BCA.
|
8.
|
The shares of the Surviving Company shall be entitled to enjoy all of the rights and restrictions attaching to the shares as set out in
the Memorandum and Articles (as defined below).
|
9.
|
Upon the Merger, the memorandum of association and articles of association of the Surviving Company shall be in the form attached hereto
as Exhibit B (the “Memorandum and Articles”).
|
10.
|
No amounts or benefits have been paid, or shall be payable to any director of the Constituent Companies in connection with the Merger,
other than any such amount or benefit which shall be paid to any such director solely in its capacity as a shareholder of the Company in connection with the Merger.
|
11.
|
As at the Effective Date, neither of the Constituent Companies has any secured creditors.
|
12.
|
The names and addresses of the directors of the Surviving Company are as follows:
|
NAME
|
ADDRESS
|
Mitchell Alexander Bowen
|
12 Berrillee Street, Turramurra, NSW 2074, Australia
|
13. |
The Merger has been approved by each of the Constituent Companies in accordance with Section 233(6) of the Act.
|
14. |
At any time prior to the Effective Date, this Plan of Merger may be amended by the boards of directors of both the Surviving Company and the Merging Company to:
|
(a) |
change the Effective Date, provided that such changed date shall not be a date later than the ninetieth day after the date of registration of this Plan of Merger with the Registrar of Companies; and
|
(b) |
effect any other changes to this Plan of Merger as the BCA or this Plan of Merger may expressly authorise the boards of directors of both the Company and the Surviving Company to effect in their discretion.
|
15. |
At any time prior to the Effective Date, this Plan of Merger may only be, and will be, terminated upon the termination of the BCA, in accordance with the terms of the BCA.
|
16. |
This Plan of Merger may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument.
|
17. |
This Plan of Merger shall be governed by, and construed in accordance with, the laws of the Cayman Islands. The Constituent Companies hereby agree to submit any dispute arising from this Plan of Merger to the exclusive
jurisdiction of the courts of the Cayman Islands.
|
THE COMPANIES ACT (AS AMENDED)
COMPANY LIMITED BY SHARES
MEMORANDUM OF ASSOCIATION
OF
NEO GROUP LTD.
|
1. |
The name of the company is Neo Group Ltd. (the "Company").
|
2. |
The jurisdiction under which the Company is incorporated, registered or formed immediately prior to it continuing as a company incorporated under the Companies Act (as amended) of the Cayman Islands (the "Companies Act") is Luxembourg.
|
3. |
The Company was incorporated, registered or formed as 'NeoGames S.A.' on 10 April 2014 in Luxembourg and changed its name to Neo Group Ltd. on [Date] 2023.
|
4. |
The registered office of the Company will be situated at the offices of Walkers Corporate Limited, 190 Elgin Avenue, George Town, Grand Cayman KY1-9008, Cayman Islands or at such other location as the Directors may from time to
time determine.
|
5. |
The objects for which the Company is established are unrestricted and the Company shall have full power and authority to carry out any object not prohibited by any law as provided by Section 7(4) of the Companies Act.
|
6. |
The Company shall have and be capable of exercising all the functions of a natural person of full capacity irrespective of any question of corporate benefit as provided by Section 27(2) of the Companies Act.
|
7. |
The Company will not trade in the Cayman Islands with any person, firm or corporation except in furtherance of the business of the Company carried on outside the Cayman Islands; provided that nothing in this section shall be
construed as to prevent the Company effecting and concluding contracts in the Cayman Islands, and exercising in the Cayman Islands all of its powers necessary for the carrying on of its business outside the Cayman Islands.
|
8. |
The liability of the shareholders of the Company is limited to the amount, if any, unpaid on the shares respectively held by them.
|
9. |
The authorised share capital of the Company is US$174,388.19 (divided into [•] Ordinary shares with no par value each provided always that subject to
the Companies Act and the Articles of Association the Company shall have power to redeem or purchase any of its shares and to sub-divide or consolidate the said shares or any of them and to issue all or any part of its capital whether
original, redeemed, increased or reduced with or without any preference, priority, special privilege or other rights or subject to any postponement of rights or to any conditions or restrictions whatsoever and so that unless the
conditions of issue shall otherwise expressly provide every issue of shares whether stated to be ordinary, preference or otherwise shall be subject to the powers on the part of the Company hereinbefore provided.
|
10. |
The Company may exercise the power contained in Section 206 of the Companies Act to deregister in the Cayman Islands and be registered by way of continuation in some other jurisdiction.
|
THE COMPANIES ACT (AS AMENDED)
COMPANY LIMITED BY SHARES
ARTICLES OF ASSOCIATION
OF
NEO GROUP LTD.
|
CLAUSE
|
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C-21
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1. |
In these Articles the following defined terms will have the meanings ascribed to them, if not inconsistent with the subject or context:
|
(a) |
passed by a simple majority of such Shareholders as, being entitled to do so, vote in person or, where proxies are allowed, by proxy at a general meeting of the Company and where a poll is taken regard shall be had in computing a
majority to the number of votes to which each Shareholder is entitled; or
|
(b) |
approved in writing by all of the Shareholders entitled to vote at a general meeting of the Company in one or more instruments each signed by one or more of the Shareholders and the effective date of the resolution so adopted shall
be the date on which the instrument, or the last of such instruments, if more than one, is executed.
|
(a) |
passed by a majority of not less than two-thirds of such Shareholders as, being entitled to do so, vote in person or, where proxies are allowed, by proxy at a general meeting of the Company of which notice specifying the intention
to propose the resolution as a special resolution has been duly given and where a poll is taken regard shall be had in computing a majority to the number of votes to which each Shareholder is entitled; or
|
(b) |
approved in writing by all of the Shareholders entitled to vote at a general meeting of the Company in one or more instruments each signed by one or more of the Shareholders and the effective date of the special resolution so
adopted shall be the date on which the instrument or the last of such instruments, if more than one, is executed.
|
2. |
In these Articles, save where the context requires otherwise:
|
(a) |
words importing the singular number shall include the plural number and vice versa;
|
(b) |
words importing the masculine gender only shall include the feminine gender and any Person as the context may require;
|
(c) |
the word "may" shall be construed as permissive and the word "shall" shall be construed as imperative;
|
(d) |
reference to a dollar or dollars or USD (or $) and to a cent or cents is reference to dollars and cents of the United States of America;
|
(e) |
reference to a statutory enactment shall include reference to any amendment or re-enactment thereof for the time being in force;
|
(f) |
reference to any determination by the Directors shall be construed as a determination by the Directors in their sole and absolute discretion and shall be applicable either generally or in any particular case; and
|
(g) |
reference to "in writing" shall be construed as written or represented by any means reproducible in writing, including any form of print, lithograph, email, facsimile, photograph or telex or represented by any other substitute or
format for storage or transmission for writing or partly one and partly another.
|
3. |
Subject to the preceding Articles, any words defined in the Companies Act shall, if not inconsistent with the subject or context, bear the same meaning in these Articles.
|
4. |
The Office shall be at such address in the Cayman Islands as the Directors may from time to time determine. The Company may in addition establish and maintain such other offices and places of business and agencies in such places as
the Directors may from time to time determine.
|
5. |
The Directors shall keep, or cause to be kept, the Register at such place or (subject to compliance with the Companies Act and these Articles) places as the Directors may from time to time determine. In the absence of any such
determination, the Register shall be kept at the Office. The Directors may keep, or cause to be kept, one or more Branch Registers as well as the Principal Register in accordance with the Companies Act, provided always that a
duplicate of such Branch Register(s) shall be maintained with the Principal Register in accordance with the Companies Act.
|
6. |
Subject to these Articles, all Shares for the time being unissued shall be under the control of the Directors who may:
|
(a) |
issue, allot and dispose of the same to such Persons, in such manner, on such terms and having such rights and being subject to such restrictions as they may from time to time determine; and
|
(b) |
grant options with respect to such Shares and issue warrants or similar instruments with respect thereto;
|
7. |
The Directors may authorise the division of Shares into any number of Classes and sub-classes and the different Classes and sub-classes shall be authorised, established and designated (or re-designated as the case may be) and the
variations in the relative rights (including, without limitation, voting, dividend and redemption rights), restrictions, preferences, privileges and payment obligations as between the different Classes (if any) may be fixed and
determined by the Directors.
|
8. |
The Company shall not be permitted to pay a commission to any Person in consideration of their subscribing or agreeing to subscribe whether absolutely or conditionally for any Shares.
|
9. |
The Directors may refuse to accept any application for Shares, and may accept any application in whole or in part, for any reason or for no reason.
|
10. |
Whenever the capital of the Company is divided into different Classes (and as otherwise determined by the Directors) the rights attached to any such Class may, subject to any rights or restrictions for the time being attached to
any Class only be materially adversely varied or abrogated with the consent in writing of the holders of not less than two-thirds of the issued Shares of the relevant Class, or with the sanction of a resolution passed at a separate
meeting of the holders of the Shares of such Class by a majority of two-thirds of the votes cast at such a meeting. To every such separate meeting all the provisions of these Articles relating to general meetings of the Company or to
the proceedings thereat shall, mutatis mutandis, apply, except that the necessary quorum shall be one or more Persons at least holding or representing by proxy one-third in nominal or par
value amount of the issued Shares of the relevant Class (but so that if at any adjourned meeting of such holders a quorum as above defined is not present, those Shareholders who are present shall form a quorum) and that, subject to
any rights or restrictions for the time being attached to the Shares of that Class, every Shareholder of the Class shall on a poll have one vote for each Share of the Class held by them. For the purposes of this Article the Directors
may treat all the Classes or any two or more Classes as forming one Class if they consider that all such Classes would be affected in the same way by the proposals under consideration, but in any other case shall treat them as
separate Classes. The Directors may vary the rights attaching to any Class without the consent or approval of Shareholders provided that the rights will not, in the determination of the Directors, be materially adversely varied or
abrogated by such action.
|
11. |
The rights conferred upon the holders of the Shares of any Class issued with preferred or other rights shall not, subject to any rights or restrictions for the time being attached to the Shares of that Class, be deemed to be
materially adversely varied or abrogated by, inter alia, the creation, allotment or issue of further Shares ranking pari passu with or subsequent to
them or the redemption or purchase of any Shares of any Class by the Company.
|
12. |
No Person shall be entitled to a certificate for any or all of their Shares, unless the Directors shall determine otherwise.
|
13. |
The Directors may issue fractions of a Share and, if so issued, a fraction of a Share shall be subject to and carry the corresponding fraction of liabilities (whether with respect to nominal or par value, premium, contributions,
calls or otherwise), limitations, preferences, privileges, qualifications, restrictions, rights (including, without prejudice to the generality of the foregoing, voting and participation rights) and other attributes of a whole Share.
If more than one fraction of a Share of the same Class is issued to or acquired by the same Shareholder such fractions shall be accumulated.
|
14. |
The Company has a first and paramount lien on every Share (whether or not fully paid) for all amounts (whether presently payable or not) payable at a fixed time or called in respect of that Share. The Company also has a first and
paramount lien on every Share (whether or not fully paid) registered in the name of a Person indebted or under liability to the Company (whether they are the sole registered holder of a Share or one of two or more joint holders) for
all amounts owing by them or their estate to the Company (whether or not presently payable). The Directors may at any time declare a Share to be wholly or in part exempt from the provisions of this Article. The Company's lien on a
Share extends to any amount payable in respect of it.
|
15. |
The Company may sell, in such manner as the Directors may determine, any Share on which the Company has a lien, but no sale shall be made unless an amount in respect of which the lien exists is presently payable nor until the
expiration of fourteen days after a notice in writing, demanding payment of such part of the amount in respect of which the lien exists as is presently payable, has been given to the registered holder for the time being of the Share,
or the Persons entitled thereto by reason of their death or bankruptcy.
|
16. |
For giving effect to any such sale the Directors may authorise some Person to transfer the Shares sold to the purchaser thereof. The purchaser shall be registered as the holder of the Shares comprised in any such transfer and they
shall not be bound to see to the application of the purchase money, nor shall their title to the Shares be affected by any irregularity or invalidity in the proceedings in reference to the sale.
|
17. |
The proceeds of the sale after deduction of expenses, fees and commission incurred by the Company shall be received by the Company and applied in payment of such part of the amount in respect of which the lien exists as is
presently payable, and the residue shall (subject to a like lien for sums not presently payable as existed upon the Shares prior to the sale) be paid to the Person entitled to the Shares immediately prior to the sale.
|
18. |
The Directors may from time to time make calls upon the Shareholders in respect of any moneys unpaid on their Shares, and each Shareholder shall (subject to receiving at least fourteen days' notice specifying the time or times of
payment) pay to the Company at the time or times so specified the amount called on such Shares.
|
19. |
The joint holders of a Share shall be jointly and severally liable to pay calls in respect thereof.
|
20. |
If a sum called in respect of a Share is not paid before or on the day appointed for payment thereof, the Person from whom the sum is due shall pay interest upon the sum at the rate of eight percent per annum from the day appointed
for the payment thereof to the time of the actual payment, but the Directors shall be at liberty to waive payment of that interest wholly or in part.
|
21. |
The provisions of these Articles as to the liability of joint holders and as to payment of interest shall apply in the case of non-payment of any sum which, by the terms of issue of a Share, becomes payable at a fixed time, whether
on account of the amount of the Share, or by way of premium, as if the same had become payable by virtue of a call duly made and notified.
|
22. |
The Directors may make arrangements on the issue of partly paid Shares for a difference between the Shareholders, or the particular Shares, in the amount of calls to be paid and in the times of payment.
|
23. |
The Directors may, if they think fit, receive from any Shareholder willing to advance the same all or any part of the moneys uncalled and unpaid upon any partly paid Shares held by them, and upon all or any of the moneys so
advanced may (until the same would, but for such advance, become presently payable) pay interest at such rate (not exceeding without the sanction of an Ordinary Resolution, eight percent per annum) as may be agreed upon between the
Shareholder paying the sum in advance and the Directors.
|
24. |
If a Shareholder fails to pay any call or instalment of a call in respect of any Shares on the day appointed for payment, the Directors may, at any time thereafter during such time as any part of such call or instalment remains
unpaid, serve a notice on them requiring payment of so much of the call or instalment as is unpaid, together with any interest which may have accrued.
|
25. |
The notice shall name a further day (not earlier than the expiration of fourteen days from the date of the notice) on or before which the payment required by the notice is to be made, and shall state that in the event of
non-payment at or before the time appointed the Shares in respect of which the call was made will be liable to be forfeited.
|
26. |
If the requirements of any such notice as aforesaid are not complied with, any Share in respect of which the notice has been given may at any time thereafter, before the payment required by notice has been made, be forfeited by a
resolution of the Directors to that effect.
|
27. |
A forfeited Share may be sold or otherwise disposed of on such terms and in such manner as the Directors think fit, and at any time before a sale or disposition the forfeiture may be cancelled on such terms as the Directors think
fit.
|
28. |
A Person whose Shares have been forfeited shall cease to be a Shareholder in respect of the forfeited Shares, but shall, notwithstanding, remain liable to pay to the Company all moneys which at the date of forfeiture were payable
by them to the Company in respect of the Shares forfeited, but their liability shall cease if and when the Company receives payment in full of the amount unpaid on the Shares forfeited.
|
29. |
A statutory declaration in writing that the declarant is a Director, and that a Share has been duly forfeited on a date stated in the declaration, shall be conclusive evidence of the facts in the declaration as against all Persons
claiming to be entitled to the Share.
|
30. |
The Company may receive the consideration, if any, given for a Share on any sale or disposition thereof pursuant to the provisions of these Articles as to forfeiture and may execute a transfer of the Share in favour of the Person
to whom the Share is sold or disposed of and that Person shall be registered as the holder of the Share, and shall not be bound to see to the application of the purchase money, if any, nor shall their title to the Shares be affected
by any irregularity or invalidity in the proceedings in reference to the disposition or sale.
|
31. |
The provisions of these Articles as to forfeiture shall apply in the case of non-payment of any sum which by the terms of issue of a Share becomes due and payable, whether on account of the amount of the Share, or by way of
premium, as if the same had been payable by virtue of a call duly made and notified.
|
32. |
The Shares are non-transferrable and the Directors shall decline to register any transfer of the legal title to any Shares without a requirement to assign any reason therefor.
|
33. |
The legal personal representative of a deceased sole holder of a Share shall be the only Person recognised by the Company as having any title to the Share. In the case of a Share registered in the name of two or more holders, the
survivors or survivor, or the legal personal representatives of the deceased holder of the Share, shall be the only Person recognised by the Company as having any title to the Share.
|
34. |
Any Person becoming entitled to a Share in consequence of the death or bankruptcy of a Shareholder shall upon such evidence being produced as may from time to time be required by the Directors, have the right either to be
registered as a Shareholder in respect of the Share or, instead of being registered themself, to make such transfer of the Share as the deceased or bankrupt Person could have made; but the Directors shall, in either case, have the
same right to decline or suspend registration as they would have had in the case of a transfer of the Share by the deceased or bankrupt Person before the death or bankruptcy.
|
35. |
A Person becoming entitled to a Share by reason of the death or bankruptcy of a Shareholder shall be entitled to the same advantages to which they would be entitled if they were the registered Shareholder, except that they shall
not, before being registered as a Shareholder in respect of the Share, be entitled in respect of it to exercise any right conferred by membership in relation to meetings of the Company.
|
36. |
The Company may from time to time by Ordinary Resolution increase the share capital by such sum, to be divided into Shares of such Classes and amount, as the resolution shall prescribe.
|
37. |
The Company may by Ordinary Resolution:
|
(a) |
consolidate and divide all or any of its share capital into Shares of a larger amount than its existing Shares;
|
(b) |
convert all or any of its paid up Shares into stock and reconvert that stock into paid up Shares of any denomination;
|
(c) |
subdivide its existing Shares, or any of them into Shares of a smaller amount provided that in the subdivision the proportion between the amount paid and the amount, if any, unpaid on each reduced Share shall be the same as it was
in case of the Share from which the reduced Share is derived; and
|
(d) |
cancel any Shares that, at the date of the passing of the resolution, have not been taken or agreed to be taken by any Person and diminish the amount of its share capital by the amount of the Shares so cancelled.
|
38. |
The Company may by Special Resolution reduce its share capital and any capital redemption reserve in any manner authorised by law.
|
39. |
Subject to the Companies Act, the Company may:
|
(a) |
issue Shares on terms that they are to be redeemed or are liable to be redeemed at the option of the Company or the Shareholder on such terms and in such manner as the Directors may determine;
|
(b) |
purchase its own Shares (including any redeemable Shares) on such terms and in such manner as the Directors may determine and agree with the Shareholder;
|
(c) |
make a payment in respect of the redemption or purchase of its own Shares in any manner authorised by the Companies Act, including out of its capital; and
|
(d) |
accept the surrender for no consideration of any paid up Share (including any redeemable Share) on such terms and in such manner as the Directors may determine.
|
40. |
Any Share in respect of which notice of redemption has been given shall not be entitled to participate in the profits of the Company in respect of the period after the date specified as the date of redemption in the notice of
redemption.
|
41. |
The redemption, purchase or surrender of any Share shall not be deemed to give rise to the redemption, purchase or surrender of any other Share.
|
42. |
The Directors may when making payments in respect of redemption or purchase of Shares, if authorised by the terms of issue of the Shares being redeemed or purchased or with the agreement of the holder of such Shares, make such
payment either in cash or in specie including, without limitation, interests in a special purpose vehicle holding assets of the Company or holding entitlement to the proceeds of assets held by the Company or in a liquidating
structure.
|
43. |
Shares that the Company purchases, redeems or acquires (by way of surrender or otherwise) may, at the option of the Company, be cancelled immediately or held as Treasury Shares in accordance with the Companies Act. In the event
that the Directors do not specify that the relevant Shares are to be held as Treasury Shares, such Shares shall be cancelled.
|
44. |
No dividend may be declared or paid, and no other distribution (whether in cash or otherwise) of the Company's assets (including any distribution of assets to members on a winding up) may be declared or paid in respect of a
Treasury Share.
|
45. |
The Company shall be entered in the Register as the holder of the Treasury Shares provided that:
|
(a) |
the Company shall not be treated as a member for any purpose and shall not exercise any right in respect of the Treasury Shares, and any purported exercise of such a right shall be void;
|
(b) |
a Treasury Share shall not be voted, directly or indirectly, at any meeting of the Company and shall not be counted in determining the total number of issued shares at any given time, whether for the purposes of these Articles or
the Companies Act, save that an allotment of Shares as fully paid bonus shares in respect of a Treasury Share is permitted and Shares allotted as fully paid bonus shares in respect of a treasury share shall be treated as Treasury
Shares.
|
46. |
Treasury Shares may be disposed of by the Company on such terms and conditions as determined by the Directors.
|
47. |
The Directors may, whenever they think fit, convene a general meeting of the Company by notice in writing to the Shareholders. Such notice shall be in any usual or common form or such other form as the Directors may determine.
|
48. |
The Directors may cancel or postpone any duly convened general meeting at any time prior to such meeting, except for general meetings requisitioned by the Shareholders in accordance with these Articles, for any reason or for no
reason at any time prior to the time for holding such meeting or, if the meeting is adjourned, the time for holding such adjourned meeting. The Directors shall give Shareholders notice in writing of any cancellation or postponement.
A postponement may be for a stated period of any length or indefinitely as the Directors may determine.
|
49. |
General meetings shall also be convened on the requisition in writing of any Shareholder or Shareholders entitled to attend and vote at general meetings of the Company holding at least fifty percent (50%) of the paid up voting
share capital of the Company deposited at the Office specifying the objects of the meeting by notice in writing, and if the Directors do not convene such meeting, the requisitionists themselves may convene the general meeting in the
same manner, as nearly as possible, as that in which general meetings may be convened by the Directors, and all reasonable expenses incurred by the requisitionists as a result of the failure of the Directors to convene the general
meeting shall be reimbursed to them by the Company.
|
50. |
If at any time there are no Directors, any two Shareholders (or if there is only one Shareholder then that Shareholder) entitled to vote at general meetings of the Company may convene a general meeting in the same manner as nearly
as possible as that in which general meetings may be convened by the Directors.
|
51. |
Notice of a general meeting shall be given in writing and shall be given no later than the day immediately prior to the date of the general meeting. Notice of a general meeting shall specify the place, the day and the hour of the
meeting and the general nature of the business. Notice of a general meeting shall be given in the manner hereinafter provided or in such other manner (if any) as may be prescribed by the Company by a resolution of Directors to such
Persons as are, under these Articles, entitled to receive such notices from the Company, but with the consent of the Shareholders holding at least a majority of the paid up voting share capital entitled to receive notice of some
particular meeting and attend and vote thereat, that meeting may be convened by such shorter notice or without notice and in such manner as those Shareholders may think fit.
|
52. |
The accidental omission to give notice of a meeting to or the non-receipt of a notice of a meeting by any Shareholder shall not invalidate the proceedings at any meeting.
|
53. |
All business carried out at a general meeting shall be deemed special with the exception of the consideration of the accounts, balance sheets, any report of the Directors or of the Company's auditors, and the fixing of the
remuneration of the Company's auditors. No special business shall be transacted at any general meeting without the consent of all Shareholders entitled to receive notice of that meeting unless notice of such special business has been
given in the notice convening that meeting.
|
54. |
No business shall be transacted at any general meeting unless a quorum of Shareholders is present at the time when the meeting proceeds to business. Save as otherwise provided by these Articles, two Shareholders present in person
or by proxy and entitled to vote at that meeting shall form a quorum.
|
55. |
If within an hour from the time appointed for the meeting a quorum is not present, the meeting, if convened upon the requisition of Shareholders, shall be dissolved. In any other case it shall stand adjourned to the next business
day, at the same time and place, and if at the adjourned meeting a quorum is not present within an hour from the time appointed for the meeting the Shareholder or Shareholders present and entitled to vote shall form a quorum.
|
56. |
If the Directors wish to make this facility available for a specific general meeting or all general meetings of the Company, participation in any general meeting of the Company may be by means of a telephone or similar
communication equipment by way of which all Persons participating in such meeting can communicate with each other and such participation shall be deemed to constitute presence in person at the meeting.
|
57. |
The chair, if any, of the Directors shall preside as chair at every general meeting of the Company.
|
58. |
If there is no such chair, or if at any general meeting they are not present within fifteen minutes after the time appointed for holding the meeting or is unwilling to act as chair, any Director or Person nominated by the Directors
shall preside as chair, failing which the Shareholders present in person or by proxy shall choose any Person present to be chair of that meeting.
|
59. |
The chair may adjourn a meeting from time to time and from place to place either:
|
(a) |
with the consent of any general meeting at which a quorum is present (and shall if so directed by the meeting); or
|
(b) |
without the consent of such meeting if, in their sole opinion, they consider it necessary to do so to:
|
(i) |
secure the orderly conduct or proceedings of the meeting; or
|
(ii) |
give all persons present in person or by proxy and having the right to speak and / or vote at such meeting, the ability to do so,
|
60. |
At any general meeting a resolution put to the vote of the meeting shall be decided on a show of hands, unless a poll is (before or on the declaration of the result of the show of hands) demanded by the chair or one or more
Shareholders present in person or by proxy entitled to vote, and unless a poll is so demanded, and a declaration by the chair that a resolution has, on a show of hands, been carried, or carried unanimously, or by a particular
majority, or lost, and an entry to that effect in the book of the proceedings of the Company, shall be conclusive evidence of the fact, without proof of the number or proportion of the votes recorded in favour of, or against, that
resolution.
|
61. |
If a poll is duly demanded it shall be taken in such manner as the chair directs, and the result of the poll shall be deemed to be the resolution of the meeting at which the poll was demanded.
|
62. |
In the case of an equality of votes, whether on a show of hands or on a poll, the chair of the meeting at which the show of hands takes place or at which the poll is demanded, shall be entitled to a second or casting vote.
|
63. |
A poll demanded on the election of a chair of the meeting or on a question of adjournment shall be taken forthwith. A poll demanded on any other question shall be taken at such time as the chair of the meeting directs.
|
64. |
Subject to any rights and restrictions for the time being attached to any Share, on a show of hands every Shareholder present in person and every Person representing a Shareholder by proxy shall, at a general meeting of the
Company, each have one vote and on a poll every Shareholder and every Person representing a Shareholder by proxy shall have one vote for each Share of which they or the Person represented by proxy is the holder.
|
65. |
In the case of joint holders the vote of the senior who tenders a vote whether in person or by proxy shall be accepted to the exclusion of the votes of the other joint holders and for this purpose seniority shall be determined by
the order in which the names stand in the Register.
|
66. |
A Shareholder of unsound mind, or in respect of whom an order has been made by any court having jurisdiction in lunacy, may vote in respect of Shares carrying the right to vote held by them, whether on a show of hands or on a poll,
by their committee, or other Person in the nature of a committee appointed by that court, and any such committee or other Person, may vote in respect of such Shares by proxy.
|
67. |
No Shareholder shall be entitled to vote at any general meeting of the Company unless all calls, if any, or other sums presently payable by them in respect of Shares carrying the right to vote held by them have been paid.
|
68. |
On a poll votes may be given either personally or by proxy.
|
69. |
An instrument appointing a proxy may be in any usual or common form or such other form as the Directors may approve and, for the avoidance of any doubt, shall include any instrument appointing a proxy given during the period in
which the Company was registered in Luxembourg and further, for the avoidance of doubt, shall include any proxy or power of attorney granted to Aristocrat Leisure Limited pursuant to the Support Agreement. A proxy need not be a
Shareholder.
|
70. |
The instrument appointing a proxy shall be deemed to confer authority to demand or join in demanding a poll.
|
71. |
A resolution in writing signed by all the Shareholders for the time being entitled to receive notice of and to attend and vote at general meetings of the Company (or being corporations by their duly authorised representatives)
shall be as valid and effective as if the same had been passed at a general meeting of the Company duly convened and held.
|
72. |
Any corporation which is a Shareholder or a Director may by resolution of its directors or other governing body authorise such Person as it thinks fit to act as its representative at any meeting of the Company or of any meeting of
holders of a Class or of the Directors or of a committee of Directors, and the Person so authorised shall be entitled to exercise the same powers on behalf of the corporation which they represent as that corporation could exercise if
it were an individual Shareholder or Director.
|
73. |
The Company may by Ordinary Resolution appoint any Person to be a Director.
|
74. |
Subject to these Articles, a Director shall hold office until such time as they are removed from office by Ordinary Resolution.
|
75. |
The Company may by Ordinary Resolution from time to time fix the maximum and minimum number of Directors to be appointed but unless such numbers are fixed as aforesaid the minimum number of Directors shall be one and the maximum
number of Directors shall be unlimited.
|
76. |
The remuneration of the Directors may be determined by the Directors or by Ordinary Resolution.
|
77. |
There shall be no shareholding qualification for Directors unless determined otherwise by Ordinary Resolution.
|
78. |
Any Director may in writing appoint another Person to be their alternate and, save to the extent provided otherwise in the form of appointment, such alternate shall have authority to sign written resolutions on behalf of the
appointing Director, but shall not be authorised to sign such written resolutions where they have been signed by the appointing Director, and to act in such Director's place at any meeting of the Directors. Every such alternate shall
be entitled to attend and vote at meetings of the Directors as the alternate of the Director appointing them and where they are Director to have a separate vote in addition to their own vote. A Director may at any time in writing
revoke the appointment of an alternate appointed by them. Such alternate shall not be an Officer solely as a result of their appointment as an alternate other than in respect of such times as the alternate acts as a Director. The
remuneration of such alternate shall be payable out of the remuneration of the Director appointing them and the proportion thereof shall be agreed between them.
|
79. |
Subject to the Companies Act, these Articles and to any resolutions passed in a general meeting, the business of the Company shall be managed by the Directors, who may pay all expenses incurred in setting up and registering the
Company and may exercise all powers of the Company. No resolution passed by the Company in general meeting shall invalidate any prior act of the Directors that would have been valid if that resolution had not been passed.
|
80. |
The Directors may from time to time appoint any Person, whether or not a Director to hold such office in the Company as the Directors may think necessary for the administration of the Company, including but not limited to, the
office of president, one or more vice-presidents, treasurer, assistant treasurer, manager or controller, and for such term and at such remuneration (whether by way of salary or commission or participation in profits or partly in one
way and partly in another), and with such powers and duties as the Directors may think fit. Any Person so appointed by the Directors may be removed by the Directors or by the Company by Ordinary Resolution. The Directors may also
appoint one or more of their number to the office of managing director upon like terms, but any such appointment shall ipso facto terminate if any managing director ceases from any cause to be a Director, or if the Company by Ordinary
Resolution resolves that their tenure of office be terminated.
|
81. |
The Directors may appoint any Person to be a Secretary (and if need be an assistant Secretary or assistant Secretaries) who shall hold office for such term, at such remuneration and upon such conditions and with such powers as they
think fit. Any Secretary or assistant Secretary so appointed by the Directors may be removed by the Directors or by the Company by Ordinary Resolution.
|
82. |
The Directors may delegate any of their powers to committees consisting of such member or members of their body as they think fit; any committee so formed shall in the exercise of the powers so delegated conform to any regulations
that may be imposed on it by the Directors.
|
83. |
The Directors may from time to time and at any time by power of attorney (whether under Seal or under hand) or otherwise appoint any company, firm or Person or body of Persons, whether nominated directly or indirectly by the
Directors, to be the attorney or attorneys or authorised signatory (any such person being an "Attorney" or "Authorised Signatory", respectively) of the
Company for such purposes and with such powers, authorities and discretion (not exceeding those vested in or exercisable by the Directors under these Articles) and for such period and subject to such conditions as they may think fit,
and any such power of attorney or other appointment may contain such provisions for the protection and convenience of Persons dealing with any such Attorney or Authorised Signatory as the Directors may think fit, and may also
authorise any such Attorney or Authorised Signatory to delegate all or any of the powers, authorities and discretion vested in them.
|
84. |
The Directors may from time to time provide for the management of the affairs of the Company in such manner as they shall think fit and the provisions contained in the three next following Articles shall not limit the general
powers conferred by this Article.
|
85. |
The Directors from time to time and at any time may establish any committees, local boards or agencies for managing any of the affairs of the Company and may appoint any Person to be a member of such committees or local boards and
may appoint any managers or agents of the Company and may fix the remuneration of any such Person.
|
86. |
The Directors from time to time and at any time may delegate to any such committee, local board, manager or agent any of the powers, authorities and discretions for the time being vested in the Directors and may authorise the
members for the time being of any such local board, or any of them to fill any vacancies therein and to act notwithstanding vacancies and any such appointment or delegation may be made on such terms and subject to such conditions as
the Directors may think fit and the Directors may at any time remove any Person so appointed and may annul or vary any such delegation, but no Person dealing in good faith and without notice of any such annulment or variation shall be
affected thereby.
|
87. |
Any such delegates as aforesaid may be authorised by the Directors to sub-delegate all or any of the powers, authorities, and discretion for the time being vested in them.
|
88. |
The Directors may agree with a Shareholder to waive or modify the terms applicable to such Shareholder's subscription for Shares without obtaining the consent of any other Shareholder; provided that such waiver or modification does
not amount to a variation or abrogation of the rights attaching to the Shares of such other Shareholders.
|
89. |
The Directors shall have the authority to present a winding up petition on behalf of the Company on the grounds that the Company is unable to pay its debts within the meaning of section 93 of the Companies Act or where a winding up
petition has been presented, apply on behalf of the Company, for the appointment of a provisional liquidator without the sanction of a resolution passed by the Company at a general meeting.
|
90. |
The Directors may exercise all the powers of the Company to borrow money and to mortgage or charge its undertaking, property and uncalled capital or any part thereof, or to otherwise provide for a security interest to be taken in
such undertaking, property or uncalled capital, and to issue debentures, debenture stock and other securities whenever money is borrowed or as security for any debt, liability or obligation of the Company or of any third party.
|
91. |
The Seal shall not be affixed to any instrument except by the authority of a resolution of the Directors provided always that such authority may be given prior to or after the affixing of the Seal and if given after may be in
general form confirming a number of affixings of the Seal. The Seal shall be affixed in the presence of a Director or a Secretary (or an assistant Secretary) or in the presence of any one or more Persons as the Directors may appoint
for the purpose and every Person as aforesaid shall sign every instrument to which the Seal is so affixed in their presence.
|
92. |
The Company may maintain a facsimile of the Seal in such countries or places as the Directors may appoint and such facsimile Seal shall not be affixed to any instrument except by the authority of a resolution of the Directors
provided always that such authority may be given prior to or after the affixing of such facsimile Seal and if given after may be in general form confirming a number of affixings of such facsimile Seal. The facsimile Seal shall be
affixed in the presence of such Person or Persons as the Directors shall for this purpose appoint and such Person or Persons as aforesaid shall sign every instrument to which the facsimile Seal is so affixed in their presence and such
affixing of the facsimile Seal and signing as aforesaid shall have the same meaning and effect as if the Seal had been affixed in the presence of and the instrument signed by a Director or a Secretary (or an assistant Secretary) or in
the presence of any one or more Persons as the Directors may appoint for the purpose.
|
93. |
Notwithstanding the foregoing, a Secretary or any assistant Secretary shall have the authority to affix the Seal, or the facsimile Seal, to any instrument for the purposes of attesting authenticity of the matter contained therein
but which does not create any obligation binding on the Company.
|
94. |
The office of Director shall be vacated, if the Director:
|
(a) |
becomes bankrupt or makes any arrangement or composition with their creditors;
|
(b) |
dies or is found to be or becomes of unsound mind;
|
(c) |
resigns their office by notice in writing to the Company;
|
(d) |
is removed from office by Ordinary Resolution; or
|
(e) |
is removed from office pursuant to any other provision of these Articles.
|
95. |
The Directors may meet together (either within or outside the Cayman Islands) for the despatch of business, adjourn, and otherwise regulate their meetings and proceedings as they think fit. Questions arising at any meeting shall
be decided by a majority of votes. In case of an equality of votes the chair shall have a second or casting vote. A Director may, and a Secretary or assistant Secretary on the requisition of a Director shall, at any time summon a
meeting of the Directors.
|
96. |
A Director may participate in any meeting of the Directors, or of any committee appointed by the Directors of which such Director is a member, by means of telephone or similar communication equipment by way of which all Persons
participating in such meeting can communicate with each other and such participation shall be deemed to constitute presence in person at the meeting.
|
97. |
The quorum necessary for the transaction of the business of the Directors may be fixed by the Directors, and unless so fixed, if there be two or more Directors the quorum shall be two, and if there be one Director the quorum shall
be one. A Director represented by an alternate Director at any meeting shall be deemed to be present for the purposes of determining whether or not a quorum is present.
|
98. |
A Director who is in any way, whether directly or indirectly, interested in a contract or proposed contract with the Company shall declare the nature of their interest at a meeting of the Directors. A general notice given to the
Directors by any Director to the effect that they are to be regarded as interested in any contract or other arrangement which may thereafter be made with that company or firm shall be deemed a sufficient declaration of interest in
regard to any contract so made. A Director may vote in respect of any contract or proposed contract or arrangement notwithstanding that they may be interested therein and if they do so their vote shall be counted and they may be
counted in the quorum at any meeting of the Directors at which any such contract or proposed contract or arrangement shall come before the meeting for consideration.
|
99. |
A Director may hold any other office or place of profit under the Company (other than the office of auditor) in conjunction with their office of Director for such period and on such terms (as to remuneration and otherwise) as the
Directors may determine and no Director or intending Director shall be disqualified by their office from contracting with the Company either with regard to their tenure of any such other office or place of profit or as vendor,
purchaser or otherwise, nor shall any such contract or arrangement entered into by or on behalf of the Company in which any Director is in any way interested, be liable to be avoided, nor shall any Director so contracting or being so
interested be liable to account to the Company for any profit realised by any such contract or arrangement by reason of such Director holding that office or of the fiduciary relation thereby established. A Director, notwithstanding
their interest, may be counted in the quorum present at any meeting of the Directors whereat such Director or any other Director is appointed to hold any such office or place of profit under the Company or whereat the terms of any
such appointment are arranged and they may vote on any such appointment or arrangement.
|
100. |
Any Director may act by themselves or their firm in a professional capacity for the Company, and they or their firm shall be entitled to remuneration for professional services as if they were not a Director; provided that nothing
herein contained shall authorise a Director or their firm to act as auditor to the Company.
|
101. |
The Directors shall cause minutes to be made in books or loose-leaf folders provided for the purpose of recording:
|
(a) |
all appointments of Officers made by the Directors;
|
(b) |
the names of the Directors present at each meeting of the Directors and of any committee of the Directors; and
|
(c) |
all resolutions and proceedings at all meetings of the Company, and of the Directors and of committees of Directors.
|
102. |
When the chair of a meeting of the Directors signs the minutes of such meeting the same shall be deemed to have been duly held notwithstanding that all the Directors have not actually come together or that there may have been a
technical defect in the proceedings.
|
103. |
A resolution in writing signed by all the Directors or all the members of a committee of Directors entitled to receive notice of a meeting of Directors or committee of Directors, as the case may be (an alternate Director, subject
as provided otherwise in the terms of appointment of the alternate Director, being entitled to sign such a resolution on behalf of their appointer), shall be as valid and effectual as if it had been passed at a duly called and
constituted meeting of Directors or committee of Directors, as the case may be. When signed a resolution may consist of several documents each signed by one or more of the Directors or their duly appointed alternate.
|
104. |
The continuing Directors may act notwithstanding any vacancy in their body but if and for so long as their number is reduced below the number fixed by or pursuant to these Articles as the necessary quorum of Directors, the
continuing Directors may act for the purpose of increasing the number, or of summoning a general meeting of the Company, but for no other purpose.
|
105. |
The Directors may elect a chair of their meetings and determine the period for which they are to hold office but if no such chair is elected, or if at any meeting the chair is not present within fifteen minutes after the time
appointed for holding the meeting, the Directors present may choose one of their number to be chair of the meeting.
|
106. |
Subject to any regulations imposed on it by the Directors, a committee appointed by the Directors may elect a chair of its meetings. If no such chair is elected, or if at any meeting the chair is not present within fifteen minutes
after the time appointed for holding the meeting, the committee members present may choose one of their number to be chair of the meeting.
|
107. |
A committee appointed by the Directors may meet and adjourn as it thinks proper. Subject to any regulations imposed on it by the Directors, questions arising at any meeting shall be determined by a majority of votes of the
committee members present and in case of an equality of votes the chair shall have a second or casting vote.
|
108. |
All acts done by any meeting of the Directors or of a committee of Directors, or by any Person acting as a Director, shall notwithstanding that it be afterwards discovered that there was some defect in the appointment of any such
Director or Person acting as aforesaid, or that they or any of them were disqualified, be as valid as if every such Person had been duly appointed and was qualified to be a Director.
|
109. |
No dividend may be declared or paid, and no other distribution (whether in cash or otherwise) of the Company's assets may be declared or paid in respect of the Shares.
|
110. |
The books of account relating to the Company's affairs shall be kept in such manner as may be determined from time to time by the Directors.
|
111. |
The books of account shall be kept at the Office, or at such other place or places as the Directors think fit, and shall always be open to the inspection of the Directors.
|
112. |
The Directors may from time to time determine whether and to what extent and at what times and places and under what conditions or regulations the accounts and books of the Company or any of them shall be open to the inspection of
Shareholders not being Directors, and no Shareholder (not being a Director) shall have any right of inspecting any account or book or document of the Company except as conferred by law or authorised by the Directors or by Ordinary
Resolution.
|
113. |
The accounts relating to the Company's affairs shall only be audited if the Directors so determine, in which case the accounting principles will be determined by the Directors. The financial year of the Company shall end on 31
December of each year or such other date as the Directors may determine.
|
114. |
The Directors in each year shall prepare, or cause to be prepared, an annual return and declaration setting forth the particulars required by the Companies Act and deliver a copy thereof to the Registrar of Companies in the Cayman
Islands.
|
115. |
Subject to the Companies Act and these Articles, the Directors may:
|
(a) |
resolve to capitalise an amount standing to the credit of reserves (including a Share Premium Account, capital redemption reserve and profit and loss account), whether or not available for distribution;
|
(b) |
appropriate the sum resolved to be capitalised to the Shareholders in proportion to the nominal amount of Shares (whether or not fully paid) held by them respectively and apply that sum on their behalf in or towards:
|
(i) |
paying up the amounts (if any) for the time being unpaid on Shares held by them respectively, or
|
(ii) |
paying up in full unissued Shares or debentures of a nominal amount equal to that sum,
|
(c) |
make any arrangements they think fit to resolve a difficulty arising in the distribution of a capitalised reserve and in particular, without limitation, where Shares or debentures become distributable in fractions the Directors may
deal with the fractions as they think fit;
|
(d) |
authorise a Person to enter (on behalf of all the Shareholders concerned) into an agreement with the Company providing for either:
|
(i) |
the allotment to the Shareholders respectively, credited as fully paid, of Shares or debentures to which they may be entitled on the capitalisation, or
|
(ii) |
the payment by the Company on behalf of the Shareholders (by the application of their respective proportions of the reserves resolved to be capitalised) of the amounts or part of the amounts remaining unpaid on their existing
Shares,
|
(e) |
generally do all acts and things required to give effect to any of the actions contemplated by this Article.
|
116. |
The Directors shall in accordance with the Companies Act establish a Share Premium Account and shall carry to the credit of such account from time to time a sum equal to the amount or value of the premium paid on the issue of any
Share.
|
117. |
There shall be debited to any Share Premium Account on the redemption or purchase of a Share the difference between the nominal value of such Share and the redemption or purchase price provided always that at the determination of
the Directors such sum may be paid out of the profits of the Company or, if permitted by the Companies Act, out of capital.
|
118. |
Any notice or document may be served by the Company or by the Person entitled to give notice to any Shareholder either personally, or by posting it airmail or air courier service in a prepaid letter addressed to such Shareholder at
their address as appearing in the Register, or by electronic mail to any electronic mail address such Shareholder may have specified in writing for the purpose of such service of notices, or by facsimile should the Directors deem it
appropriate or by making such notice available on EDGAR (by furnishing a filing on Form 6-K or otherwise). In the case of joint holders of a Share, all notices shall be given to that one of the joint holders whose name stands first in
the Register in respect of the joint holding, and notice so given shall be sufficient notice to all the joint holders.
|
119. |
Any Shareholder present, either personally or by proxy, at any meeting of the Company shall for all purposes be deemed to have received due notice of such meeting and, where requisite, of the purposes for which such meeting was
convened.
|
120. |
Any notice or other document, if served by:
|
(a) |
post, shall be deemed to have been served five clear days after the time when the letter containing the same is posted;
|
(b) |
facsimile, shall be deemed to have been served upon production by the transmitting facsimile machine of a report confirming transmission of the facsimile in full to the facsimile number of the recipient;
|
(c) |
recognised courier service, shall be deemed to have been served 48 hours after the time when the letter containing the same is delivered to the courier service;
|
(d) |
electronic mail, shall be deemed to have been served immediately upon the time of the transmission by electronic mail; or
|
(e) |
publishment on EDGAR (by furnishing a filing on Form 6-K or otherwise), shall be deemed to have been served at the time made publicly available on EDGAR.
|
121. |
Any notice or document delivered or sent in accordance with the terms of these Articles shall notwithstanding that such Shareholder be then dead or bankrupt, and whether or not the Company has notice of their death or bankruptcy,
be deemed to have been duly served in respect of any Share registered in the name of such Shareholder as sole or joint holder, unless their name shall at the time of the service of the notice or document, have been removed from the
Register as the holder of the Share, and such service shall for all purposes be deemed a sufficient service of such notice or document on all Persons interested (whether jointly with or as claiming through or under them) in the Share.
|
122. |
Notice of every general meeting of the Company shall be given to:
|
(a) |
all Shareholders holding Shares with the right to receive notice and who have supplied to the Company an address for the giving of notices to them; and
|
(b) |
every Person entitled to a Share in consequence of the death or bankruptcy of a Shareholder, who but for their death or bankruptcy would be entitled to receive notice of the meeting.
|
123. |
Every Director (including for the purposes of this Article any alternate Director appointed pursuant to the provisions of these Articles), Secretary, assistant Secretary, or other Officer (but not including the Company's auditors)
and the personal representatives of the same (each an "Indemnified Person") shall be indemnified and secured harmless out of the assets and funds of the Company against all actions, proceedings, costs, charges, expenses, losses,
damages or liabilities incurred or sustained by such Indemnified Person, other than by reason of such Indemnified Person's own dishonesty, wilful default or fraud as determined by a court of competent jurisdiction, in or about the
conduct of the Company's business or affairs (including as a result of any mistake of judgment) or in the execution or discharge of their duties, powers, authorities or discretions, including without prejudice to the generality of the
foregoing, any costs, expenses, losses or liabilities incurred by such Indemnified Person in defending (whether successfully or otherwise) any civil proceedings concerning the Company or its affairs in any court whether in the Cayman
Islands or elsewhere.
|
124. |
No Indemnified Person shall be liable:
|
(a) |
for the acts, receipts, neglects, defaults or omissions of any other Director or Officer or agent of the Company; or
|
(b) |
for any loss on account of defect of title to any property of the Company; or
|
(c) |
on account of the insufficiency of any security in or upon which any money of the Company shall be invested; or
|
(d) |
for any loss incurred through any bank, broker or other similar Person; or
|
(e) |
for any loss occasioned by any negligence, default, breach of duty, breach of trust, error of judgement or oversight on such Indemnified Person's part; or
|
(f) |
for any loss, damage or misfortune whatsoever which may happen in or arise from the execution or discharge of the duties, powers, authorities, or discretions of such Indemnified Person's office or in relation thereto;
|
125. |
Subject to the proviso hereto, no Person shall be recognised by the Company as holding any Share upon any trust and the Company shall not, unless required by law, be bound by or be compelled in any way to recognise (even when
having notice thereof) any equitable, contingent, future or partial interest in any Share or (except only as otherwise provided by these Articles or as the Companies Act requires) any other right in respect of any Share except an
absolute right to the entirety thereof in each Shareholder registered in the Register, provided that, notwithstanding the foregoing, the Company shall be entitled to recognise any such interests as shall be determined by the
Directors.
|
126. |
If the Company shall be wound up the liquidator shall apply the assets of the Company in such manner and order as they think fit in satisfaction of creditors' claims.
|
127. |
If the Company shall be wound up, the liquidator may, with the sanction of an Ordinary Resolution divide amongst the Shareholders in specie or kind the whole or any part of the assets of
the Company (whether they shall consist of property of the same kind or not) and may, for such purpose set such value as they deem fair upon any property to be divided as aforesaid and may determine how such division shall be carried
out as between the Shareholders or different Classes. The liquidator may, with the like sanction, vest the whole or any part of such assets in trustees upon such trusts for the benefit of the Shareholders as the liquidator, with the
like sanction shall think fit, but so that no Shareholder shall be compelled to accept any assets whereon there is any liability.
|
128. |
Subject to the Companies Act and the rights attaching to the various Classes, the Company may at any time and from time to time by Special Resolution alter or amend these Articles in whole or in part.
|
129. |
The Company may, in the event that the Merger does not complete in accordance with the terms of the Merger Agreement or otherwise, by resolution of the Directors resolve to be registered by way of continuation in a jurisdiction
outside the Cayman Islands or such other jurisdiction in which it is for the time being incorporated, registered or existing. In furtherance of such a resolution of the Directors adopted pursuant to this Article, the Directors may
cause an application to be made to the Registrar of Companies to deregister the Company in the Cayman Islands or such other jurisdiction in which it is for the time being incorporated, registered or existing and may cause all such
further steps as they consider appropriate to be taken to effect the transfer by way of continuation of the Company to a jurisdiction outside the Cayman Islands or such other jurisdiction in which it is for the time being
incorporated, registered or existing.
|
130. |
The Company may merge or consolidate in accordance with the Companies Act.
|
131. |
To the extent required by the Companies Act, the Company may by Special Resolution resolve to merge or consolidate the Company.
|
132. |
The Directors, or any authorised service providers (including the Officers, the Secretary and the registered office agent of the Company), shall be entitled to disclose to any regulatory or judicial authority, or to any stock
exchange on which the Shares may from time to time be listed, any information regarding the affairs of the Company including, without limitation, information contained in the Register and books of the Company.
|
ARISTOCRAT LEISURE LIMITED
|
||
By:
|
/s/ Trevor Croker | |
Name:
|
Trevor Croker
|
|
Title:
|
Director
|
By:
|
/s/ Kristy Jo | |
Name:
|
Kristy Jo
|
|
Title:
|
Secretary
|
BARAK MATALON
|
||
By:
|
/s/ BARAK MATALON | |
PINHAS ZAHAVI
|
||
By:
|
/s/ PINHAS ZAHAVI | |
ELYAHU AZUR
|
||
By:
|
/s/ ELYAHU AZUR | |
AHARON ARAN
|
||
By:
|
/s/ AHARON ARAN | |
ODED GOTTFRIED
|
||
By:
|
/s/ ODED GOTTFRIED | |
(i) |
discussed the Merger and related matters with the Company’s counsel and reviewed a draft copy of the Business Combination Agreement, dated May 13, 2023, such draft being the latest draft of the Business
Combination Agreement provided to us;
|
(ii) |
reviewed the audited consolidated financial statements of the Company contained in its Annual Report on Form 20-F for the fiscal years ended December 31, 2022, December 31, 2021 and December 31, 2020 and
the unaudited consolidated financial statements of the Company for the fiscal quarter ended March 31, 2023;
|
(iii) |
reviewed and discussed with the Company’s management certain other publicly available information concerning the Company;
|
(iv) |
reviewed certain non-publicly available information concerning the Company, including internal financial analysis and forecasts prepared by its management and held discussions with the Company’s senior
management regarding recent developments;
|
(v) |
reviewed and analyzed certain publicly available financial and stock market data relating to selected public companies that we deemed relevant to our analysis;
|
(vi) |
reviewed and analyzed certain publicly available information concerning the terms of selected merger and acquisition transactions that we considered relevant to our analysis;
|
(vii) |
reviewed the reported prices and trading activity of the equity securities of the Company;
|
(viii) |
performed a discounted cash flow analysis;
|
(ix) |
participated in certain discussions and negotiations between representatives of the Company and Parent;
|
(x) |
conducted such other financial studies, analysis and investigations and considered such other information as we deemed necessary or appropriate for purposes of our Opinion; and
|
(xi) |
taken into account our assessment of general economic, market and financial conditions and our experience in other transactions, as well as our experience in securities valuations and our knowledge of the
Company’s industry generally.
|
1. |
German Federal Cartel Office under the Gesetz gegen Wettbewerbsbeschränkungen (German Act Against Restraints of Competition)
|
2. |
North Macedonia Competition Commission under the Protection of Competition Act 2010
|
3. |
Turkish Competition Authority under the Law on the Protection of Competition No. 4054 and Communiqué No. 2010/4 on Mergers and Acquisitions Requiring the Approval of the Competition Board, as amended
|
1. |
Malta National Foreign Direct Investment Screening Office under the National Foreign Direct Investment Screening Office Act (Chapter 620 of the Laws of Malta) (the “NFDIS Act”)
|
Company or Company Subsidiary
|
State/Province/Country
|
Governmental Authority / Lottery Operator
|
Name of Licence/Registration
|
License Number
|
NeoPollard Interactive LLC
|
Alberta
|
Alberta Gaming, Liquor and Cannabis Commission
|
Gaming Terminal Dealer and Gaming Supplier
|
N/A
|
Pariplay USA Ltd
|
Alberta
|
Alberta Gaming, Liquor and Cannabis Commission
|
Finding of Suitability
|
N/A
|
NeoPollard Interactive LLC
|
Alberta1
|
Alberta Gaming, Liquor and Cannabis Commission
|
N/A
|
N/A
|
NeoGames Solutions, LLC
|
Arizona
|
Arizona Department of Gaming
|
Temporary Event Wagering Supplier License
|
Temporary License: EW255
|
Pariplay USA Ltd
|
British Columbia
|
British Columbia Gaming Policy and Enforcement Branch
|
Gaming Supplier Class B (Application Pending)
|
N/A
|
NeoGames Solutions, LLC
|
Colorado
|
Colorado Department of Revenue – Division of Gaming
|
Vendor Major License
|
94518886
|
Pariplay USA Ltd
|
Connecticut
|
Connecticut Department of Consumer Protection (Gaming Division)
|
Online Gaming Service Provider
Gaming Services Registration Exemption (Foxwoods Resort Casino)
|
OGSP.000078
GSP.XO.0000231.F
|
NeoGames Solutions, LLC
|
District of Columbia
|
District of Columbia Government – Office of Lottery and Gaming
|
Supplier License
|
SW22SWS0006
|
Aspire Global 7 Ltd
|
Germany
|
Gluecksspiel (GGL)
|
Betting Licence – in progress
Slots Licence – in progress
|
in progress
|
Pariplay Limited
|
Gibraltar
|
Licensing Authority (HM Government of Gibraltar)
|
Remote gambling licence (B2B)
|
RGL No. 93
|
NeoGames Solutions, LLC
|
Illinois
|
Illinois Gaming Board
|
Sports Wagering Supplier – Temporary Operating Permit
|
N/A
|
NeoGames Solutions, LLC
|
Indiana
|
Indiana Gaming Commission
|
Temporary Supplier License
|
NGS20-SL-09/2023
|
NeoGames Solutions, LLC
|
Kansas
|
Kansas Racing and Gaming Commission
|
Provisional Sports Wagering Service Provider
|
Provisional Certification #5000554
|
NeoGames Solutions, LLC
|
Louisiana
|
Louisiana Gaming Control Board
|
Sports Wagering Service Provider License
|
P016503470
|
Aspire Global International Ltd
|
Malta
|
Malta Gaming Authority
|
B2C gaming licence (Type 1 and Type 2)
|
MGA/CRP/148/2007
|
Aspire Global 7 Limited
|
Malta
|
Malta Gaming Authority
|
B2C Gaming Licence (Type 1 and Type 2)
|
MGA/CRP/148/2007-01
|
AG Software Limited
|
Malta
|
Malta Gaming Authority
|
B2B supply licence (Type 1 and Type 2)
|
MGA/B2B/147/2007
|
Pariplay Malta Limited
|
Malta
|
Malta Gaming Authority
|
B2B Critical gaming supply licence (Type 1)
|
MGA/B2B/469/2018
|
NeoGames Solutions, LLC
|
Maryland
|
Maryland Lottery and Gaming Control Agency
|
Sports Wagering Contractor
|
N/A
|
NeoGames Solutions, LLC
|
Massachusetts
|
Massachusetts Gaming Commission
|
Temporary Sports Wagering Vendor License
|
Temporary License: SWV-0032
|
NeoGames Solutions, LLC
|
Michigan
|
Michigan Gaming Control Board
|
Internet Gaming Supplier License
Sports Betting Supplier License
|
License No. 007576
License No. 007576
|
Pariplay USA Ltd
|
Michigan
|
Michigan Gaming Control Board
|
Internet Gaming Supplier License
|
No. #007770
|
NeoGames Solutions, LLC
|
Mississippi
|
Mississippi Gaming Commission
|
Manufacturer License (Application Pending)
|
N/A
|
NeoGames Solutions, LLC
|
Nevada
|
Nevada Gaming Control Board
|
Manufacturer License (Application Pending)
|
N/A
|
NeoGames Solutions, LLC
|
New Jersey
|
New Jersey Division of Gaming Enforcement
|
Casino Service Industry Enterprise License (Transactional Waiver)
|
PRN 2902202
|
NeoGames Solutions, LLC
|
New York
|
New York State Gaming Commission
|
Temporary Mobile Sports Wagering Vendor Registration
|
NXX646461
|
Pariplay USA Ltd
|
Nova Scotia
|
Nova Scotia Alcohol, Gaming, Fuel and Tobacco Division
|
Lottery Equipment Supplier
|
No. 20-17985-ALC
|
NeoGames Solutions, LLC
|
Ohio
|
Ohio Casino Control Commission
|
Sports Gaming Supplier License
|
SUP. 000011
|
NeoGames Solutions, LLC
|
Ontario
|
Alcohol and Gaming Commission of Ontario
|
Gaming-Related Supplier - License
|
Registration No. GRSM1233282
|
AG Communications LTD
|
Ontario
|
Alcohol and Gaming Commission of Ontario
|
Operator Registration (Application Pending)
|
N/A
|
AG Software Limited
|
Ontario
|
Alcohol and Gaming Commission of Ontario
|
Gaming-Related Supplier License (Application Pending)
|
N/A
|
Pariplay USA Ltd
|
Ontario
|
Alcohol and Gaming Commission of Ontario
|
Gaming-Related Supplier License
|
No. GRMS1227571
|
Btobet
|
Ontario
|
Alcohol and Gaming Commission of Ontario
|
Gaming-Related Supplier – Manufacturer License
|
GRSM1276116
|
NeoGames Solutions, LLC
|
Pennsylvania
|
Pennsylvania Gaming Control Board
|
iGaming Manufacturer
Sports Wagering Manufacturer
|
135884-1
135884-2
|
Pariplay USA Ltd
|
Pennsylvania
|
Pennsylvania Gaming Control Board
|
iGaming Manufacturer
|
128758-1
|
NeoGames Solutions, LLC
|
Puerto Rico
|
Puerto Rico Gaming Commission
|
Sport Betting, eSports & Fantasy Contest Service Industry License (Application Pending)
|
N/A
|
Pariplay USA Ltd
|
Quebec
|
Régie des alcools les courses et des jeux (RACJ)
|
Supplier Licence (Application Pending)
|
N/A
|
NeoGames Solutions, LLC
|
Tennessee
|
Tennessee Sports Wagering Advisory Council
|
Vendor Registration
|
N/A*
*Under Tennessee’ s prior regulatory agency (Tennessee Education Lottery), NeoGames Solutions, LLC held a Supplier License (20-20011)
|
AG Communications Ltd
|
United Kingdom
|
UK Gambling Commission
|
Combined remote operating licence (Bingo, Casino, General Betting Standard – Real Event)
|
039483-R-319409-017
|
Aspire Global Limited (ex: PLC)
|
United Kingdom
|
UK Gambling Commission
|
Gambling software licence
|
041204-R-320742-009
|
AG Software Limited
|
United Kingdom
|
UK Gambling Commission
|
Combined remote operating licence (Bingo, Casino, General Betting Standard – Real Event)
|
039675-R-319299-007
|
GMS Entertainment Limited
|
United Kingdom
|
UK Gambling Commission
|
Combined remote operating licence (gambling software and Game Host (Casino))
|
041665-R-327218-005
|
NeoGames S.A
|
United Kingdom
|
UK Gambling Commission
|
Gambling software licence
|
054717-R-331231-002
|
NeoGames Solutions, LLC
|
Virginia
|
Virginia Lottery
|
Supplier License
|
S #004
|
NeoGames Solutions, LLC
|
Washington
|
Washington State Gambling Commission
|
Mid-Level Sports Wagering Vendor License
|
License No. 82-00024
|
NeoGames Solutions, LLC
|
West Virginia
|
West Virginia Lottery
|
Sports Wagering Supplier License
Interactive Wagering (iGaming) Supplier License
|
SWS 031
IGS 027
|
Pariplay USA Ltd
|
West Virginia
|
West Virginia Lottery
|
Interactive Wagering (iGaming) Supplier License
|
IGS026
|
NeoGames Solutions, LLC
|
Wyoming
|
Wyoming Gaming Commission
|
Sports Wagering Vendor Permit
|
Permit No. 22-V-0043
|
2. |
If, at any time the Company has applied for or obtains a Gaming License after the date of the Business Combination Agreement, then obtaining a Gaming Consent related to such Gaming License shall, at Parent’s sole discretion, be
deemed an additional Gaming Consent under this Annex F.
|
Name of shareholder:
|
||
Authorized Signatory:
|
||
Date:
|
|
|
NEOGAMES S.A.
SOCIÉTÉ ANONYME
REGISTERED OFFICE: 63-65, RUE DE MERL
L-2146 LUXEMBOURG
R.C.S. LUXEMBOURG: B186309
|
VOTE BY INTERNET - www.proxyvote.com or scan the QR Barcode above
Use the Internet to transmit your voting instructions and for electronic delivery of information. Vote by 11:59 p.m. Eastern Time on July 17, 2023. Have your proxy card in hand when
you access the web site and follow the instructions to obtain your records and to create an electronic voting instruction form.
ELECTRONIC DELIVERY OF FUTURE PROXY MATERIALS
If you would like to reduce the costs incurred by our company in mailing proxy materials, you can consent to receiving all future proxy statements, proxy cards and annual reports
electronically via e-mail or the Internet. To sign up for electronic delivery, please follow the instructions above to vote using the Internet and, when prompted, indicate that you agree to receive or access proxy materials
electronically in future years.
VOTE BY PHONE - 1-800-690-6903
Use any touch-tone telephone to transmit your voting instructions up until 11:59 p.m. Eastern Time on July 17, 2023. Have your proxy card in hand when you call and then follow the
instructions.
VOTE BY MAIL
Mark, sign and date your proxy card and return it in the postage-paid envelope we have provided or return it to Vote Processing, c/o Broadridge, 51 Mercedes Way, Edgewood, NY 11717.
|
KEEP THIS PORTION FOR YOUR RECORDS
|
DETACH AND RETURN THIS PORTION ONLY
|
|
|
|
For
|
Against
|
Abstain
|
|
1.
|
A proposal (the “Continuation Proposal”) to approve, (a) the transfer (by way of continuation) of the Company’s statutory seat,
registered office (siège statutaire) and seat of central administration (siège de l’administration centrale) from Luxembourg to the Cayman Islands
and change of its legal form as a Luxembourg law governed public limited liability company (société anonyme) to a Cayman Islands exempted company (without the dissolution of the Company or
the liquidation of its assets) (the “Continuation”), subject to the satisfaction or waiver of certain conditions specified in the Business Combination Agreement (as defined below) and summarized in the section of the
shareholder circular entitled “The Business Combination Agreement—Conditions to the Effectuation of the Continuation” the “Continuation Conditions”)" and effective as of the date of
registration specified in the certificate of continuation from the Cayman Registrar to be issued by the Cayman Registrar upon registration of the continuation of the Company as a Cayman Islands exempted company (the “Continuation
Effective Time”), and (b) effective as of the Continuation Effective Time, the following items:
|
☐
|
☐
|
☐
|
|
|
|
1a.
|
The change of name of the Company from “NeoGames S.A.” to “Neo Group Ltd.”;
|
|
|
|
|
|
1b. |
The adoption of the memorandum and articles of association in the form attached to the shareholder circular as Annex C (the
“Continuation Articles”) as the Company’s memorandum and articles of association in replacement of the Company’s existing articles of association; and
|
|
|
|
|
|
1c.
|
The granting of powers to the authorized officers of the Company in order to execute any formalities in relation to the Continuation
and to record the satisfaction of the Continuation Conditions;
|
|
|
|
|
2.
|
|
A proposal (the “BCA Proposal”) to approve (a) the adoption of the Business Combination Agreement attached to the shareholder
circular as Annex A (as it may be amended from time to time, the “Business Combination Agreement”), dated May 15, 2023, by and among Aristocrat Leisure Limited, a company organized
under the laws of Australia (“Parent”), Anaxi Investments Limited, a Cayman Islands exempted company and wholly owned indirect subsidiary of Parent (“Merger Sub”), and the Company, pursuant to which, following the
Continuation and subject to receiving the Cayman Shareholder Approval (as defined below), Merger Sub will merge with and into the Company (and will cease to exist as a separate legal entity), and the Company will be the surviving
company and will become a wholly owned indirect subsidiary of Parent (the “Merger”) and (b) all other transactions and arrangements contemplated by the Business Combination Agreement, including taking all actions and making
all filings required for the Company to suspend trading of the Company Shares on the Nasdaq Global Market upon the completion of the Continuation and to permanently de-list the Company Shares from the Nasdaq Global Market upon
completion of the Merger;
|
☐
|
☐
|
☐
|
|
3.
|
|
A proposal (the “Statutory Plan of Merger Proposal”) to approve the adoption of the statutory plan of merger attached to the
shareholder circular as Annex B to be entered into by and between the Company and Merger Sub and filed with the Cayman Registrar following the Continuation and receiving Cayman Shareholder
Approval; and
|
☐
|
☐
|
☐
|
|
4. |
A proposal (the “Waiver Proposal”) to approve, subject to completion of the Continuation, the waiver of any notice requirements
under the Continuation Articles or applicable law to calling, holding and convening a shareholder meeting (or any adjournment, reconvening or postponement thereof) of the Company in the Cayman Islands of the shareholder circular
that will be held to approve the Merger, subject to the satisfaction or waiver of certain conditions specified in the Business Combination Agreement and summarized in the section entitled “The
Business Combination Agreement—Conditions to the Closing of the Merger”.
|
☐ | ☐ | ☐ |
|
|||||
Signature [PLEASE SIGN WITHIN BOX]
|
Date
|
|
Signature (Joint Owners)
|
Date
|
|