EXHIBIT 2.2
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AMENDED AND RESTATED DEPOSIT AGREEMENT
by and among
IONA TECHNOLOGIES PLC
as Issuer
AND
DEUTSCHE BANK TRUST COMPANY AMERICAS
as Depositary
AND
HOLDERS AND BENEFICIAL OWNERS OF AMERICAN DEPOSITARY SHARES
EVIDENCED BY AMERICAN DEPOSITARY RECEIPTS ISSUED HEREUNDER
DATED APRIL 26, 2004
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WHITE&CASE
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TABLE OF CONTENTS
PAGE
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1. DEFINITIONS AND INTERPRETATION ....................................... 1
2. FORM OF ADR: INCORPORATION BY REFERENCE ............................. 3
3. DEPOSIT OF SHARES .................................................... 4
4. ISSUE OF ADRs ........................................................ 6
5. TRANSFER, COMBINATION AND SPLIT-UP OF ADRS; SUBSTITUTION OF
ADRS; CANCELLATION AND DESTRUCTION OF ADRS; MAINTENANCE OF RECORDS ... 8
6. DISTRIBUTIONS: CONVERSION OF FOREIGN CURRENCY WITHHOLDING ........... 10
7. CUSTODIAN ............................................................ 16
8. DEPOSITARY'S AGENTS .................................................. 16
9. MAINTENANCE OF OFFICE ................................................ 17
10. STANDARD OF CARE ..................................................... 17
11. RESIGNATION AND REMOVAL OF THE DEPOSITARY:
SUCCESSOR DEPOSITARY ................................................. 17
12. AMENDMENT ............................................................ 18
13. TERMINATION .......................................................... 18
14. INFORMATION .......................................................... 19
15. INDEMNIFICATION ...................................................... 21
16. COMPLIANCE WITH U.S. SECURITIES LAWS ................................. 22
17. MISCELLANEOUS ........................................................ 22
18. GOVERNING LAW ........................................................ 22
EXHIBIT A TO DEPOSIT AGREEMENT: Form of ADR ............................... A-1
EXHIBIT B TO DEPOSIT AGREEMENT: Fees and Charges of the Depositary ........ B-1
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DEPOSIT AGREEMENT
AMENDED AND RESTATED DEPOSIT AGREEMENT, dated as of April 26, 2004 (the
"Agreement"), among IONA TECHNOLOGIES PLC, a public limited company organized
under the laws of the Ireland and its successors (hereinafter referred to as the
"Company"), DEUTSCHE BANK TRUST COMPANY AMERICAS, a corporation duly
incorporated and existing under the laws of the State of New York, United States
of America, as Depositary and any successor as depositary hereunder (hereinafter
referred to as the "Depositary"), and all Registered Holders and Beneficial
Owners from time to time of American Depositary Receipts (as hereinafter
defined) issued hereunder.
W I T N E S S E T H:
WHEREAS, the Company and ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank (as successor to ▇▇▇▇▇▇ Guaranty
Trust Company of New York) (the "Predecessor Depositary") are party to a Deposit
Agreement dated as of February 24, 1997 (the "Original Agreement") for the
purposes set forth therein;
WHEREAS, by written notice addressed to the Predecessor Depositary, the Company,
pursuant to Section 13 of the Original Agreement, has removed the Predecessor
Depositary under the Original Agreement;
WHEREAS, the Company and the Predecessor Depositary have agreed that the
Predecessor Depositary will be removed as depositary under the Original
Agreement with effect from the date hereof;
WHEREAS, the Company has appointed Deutsche Bank Trust Company Americas as
Depositary in accordance with and subject to the conditions of the Original
Agreement, as amended and restated by this Agreement;
WHEREAS, the Company and the Depositary have agreed that the Predecessor
Depositary shall deliver to the Depositary the information, records, property
and cash referred to in Section 13 of the Original Agreement; and
WHEREAS, Deutsche Bank Trust Company Americas has accepted its appointment as
Depositary in accordance with and subject to the conditions of the Original
Agreement, as amended and restated by this Agreement;
NOW, THEREFORE, in consideration of the premises, the Company and the Depositary
hereby amend and restate the Original Agreement and the form of Receipt as
follows:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
The following definitions shall for all purposes, unless otherwise clearly
indicated, apply to the respective terms used in this Agreement.
"ADR" or "RECEIPT" means an American depositary receipt evidencing ADSs.
"ADS" means an American depositary share representing beneficial interests
in the Deposited Securities. Each ADS represents the right to receive one
Ordinary Share.
"AFFILIATE" shall have the meaning assigned to such term by the Commission
under Regulation C promulgated under the Securities Act.
"ARTICLES OF ASSOCIATION" means the Memorandum and Articles of Association
of the Company, as the same may be amended or in force from time to time.
"BENEFICIAL OWNER" means a person with a beneficial interest in ADSs;
provided that a Beneficial Owner need not be the Holder of the ADR
evidencing such ADSs and that a Beneficial Owner may exercise any rights
or receive any benefits hereunder solely through the Holder of the ADR(s)
evidencing the ADSs in which such Beneficial Owner has an interest.
"BUSINESS DAY" shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday which is not (a) a day on which banking institutions in the Borough
of Manhattan, The City of New York are authorized or obligated by law or
executive order to close and (b) a day on which the market(s) in which
ADRs are traded are closed.
"CLEARING AGENT" means any registrar, transfer agent, clearing agent or
other entity recording ownership of Shares or transactions in them at the
relevant time.
"COMMISSION" shall mean the Securities and Exchange Commission of the
United States or any successor governmental agency in the United States.
"CUSTODIAN" means the agent or agents of the Depositary named as Custodian
in the Form of ADR and any additional or successor Custodian which may be
appointed pursuant to Section 7.
"DELIVERY ORDER" has the meaning set forth in Section 3.1.
"DEPOSITARY'S OFFICE" means at any particular time the office of the
Depositary in The City of New York at which its depositary receipt
business is then administered. At the date of this Agreement the
Depositary's Office is located at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇.
"DEPOSITED SECURITIES" at any particular time means all Shares then
deposited or deemed to be deposited under this Agreement and any and all
additional securities and cash received by the Depositary or the Custodian
in respect or in lieu thereof and at such time held hereunder.
"DOLLARS" AND "$" shall refer to the lawful currency of the United States.
"DRS/PROFILE" means the system for the uncertificated registration of
ownership of securities pursuant to which ownership of ADSs is maintained
on the books of the Depositary without the issuance of a physical
certificate and transfer instructions may be given to allow for the
automated transfer of ownership between the books of DTC and the
Depositary. Ownership of ADSs held in DRS/Profile are evidenced by
periodic statements issued by the Depositary to the Holders entitled
thereto.
"FOREIGN CURRENCY" shall refer to all lawful currency other than Dollars.
"FOREIGN REGISTRAR" shall mean any Clearing Agent and any other appointed
agent of the Company for the transfer and registration of Shares.
"FORM OF ADR" has the meaning set out in Section 2.2.
"HOLDER" means the person or persons in whose name an ADR is registered on
the Register and if a Holder is not the Beneficial Owner of the ADS(s)
evidenced by the Receipt registered in its name, such person shall be
deemed to have all requisite authority to act on behalf of the relevant
Beneficial Owners.
"PRE-RELEASE" has the meaning set forth in Section 3.1.
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"PRE-RELEASE TRANSACTION" has the meaning set forth in Section 4.3
"PRE-RELEASED ADR" has the meaning set forth in Section 3.1.
"REGISTER" means a register kept at the Depositary's office for the
registration, registration of transfer, combination and split-up of ADRs.
"RESTRICTED SECURITIES" shall mean Shares, or ADSs representing such
Shares, which (i) have been acquired directly or indirectly from the
Company or any of its Affiliates in a transaction or chain of transactions
not involving any public offering and subject to resale limitations under
the Securities Act or the rules issued thereunder, or (ii) are held by an
officer or director (or persons performing similar functions) or other
Affiliate of the Company, or (iii) are subject to other restrictions on
sale or deposit under the laws of the United States, Ireland, or under a
shareholders' agreement or the Company's Articles of Association or under
the regulations of an applicable securities exchange unless, in each case,
such Shares are being sold to persons other than an Affiliate of the
Company in a transaction (x) covered by an effective resale registration
statement or (y) exempt from the registration requirements of the
Securities Act (as hereinafter defined), and the Shares are not, when held
by such person, Restricted Securities.
"SECURITIES ACT" means the U.S. Securities Act of 1933, as amended.
"SECURITIES EXCHANGE ACT" means the U.S. Securities Exchange Act of 1934,
as amended.
"SHARES" means the ordinary shares, par value EUR0.0025 each, of the
Company, having the same rights, including with respect to distributions,
as all other outstanding ordinary shares of the Company, and, subject to
Pre-Release, shall include the rights to receive Shares.
1.2 INTERPRETATION
Unless the context of this Agreement otherwise clearly requires,
references to the plural include the singular and the plural and "or" has
the inclusive meaning represented by the phrase "and/or." The words
"include," "includes," and "including" shall be deemed to be followed by
the phrase "without limitation." The words "hereof," herein," "hereunder"
and similar terms in this Agreement refer to this Agreement as a whole and
not to any particular provision of this Agreement. References to Sections
or Exhibits are references to Sections in or Exhibits to this Agreement
unless otherwise provided.
2. FORM OF ADR: INCORPORATION BY REFERENCE
2.1 APPOINTMENT OF DEPOSITARY
The Company hereby appoints the Depositary as depositary for the Deposited
Securities and hereby authorizes and directs the Depositary to act in
accordance with the terms set forth in this Agreement. Each Holder and
each Beneficial Owner, upon acceptance of any ADSs (or any interest
therein) issued in accordance with the terms of this Agreement, shall be
deemed for all purposes to (a) be a party to and bound by the terms of
this Agreement and (b) appoint the Depositary its attorney-in-fact, with
full power to delegate, to act on its behalf and to take any and all
actions contemplated in this Agreement, to adopt any and all procedures
necessary to comply with applicable law and to take such action as the
Depositary in its sole discretion may deem necessary or appropriate to
carry out the purposes of this Agreement (the taking of such actions to be
the conclusive determinant of the necessity and appropriateness thereof).
2.2 FORM OF ADR
ADRs shall be substantially in the form of Exhibit A (the "FORM OF ADR"),
with such changes as may be required by the Depositary or the Company to
comply with their obligations
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hereunder, any applicable law, regulation or usage or to indicate any
special limitations or restrictions to which any particular ADRs are
subject. ADRs shall be engraved or printed or otherwise reproduced in
accordance with the Depositary's customary practices or as may be required
by any securities exchange on which the ADSs are listed or admitted for
trading. ADRs shall be executed by the manual or facsimile signature of a
duly authorised signatory of the Depositary, which signature shall bind
the Depositary, notwithstanding that such signatory has ceased to hold
such authority prior to the delivery of such ADRs.
2.3 TRANSFERABILITY
Subject to the limitations contained herein and in the Form of ADR, title
to an ADR (and to the ADSs evidenced thereby), when properly endorsed (in
the case of certificated ADRs) or upon delivery to the Depositary of
proper instruments of transfer, shall be transferable by delivery with the
same effect as in the case of a negotiable instrument under the laws of
the State of New York; provided, however, that the Depositary,
notwithstanding any notice to the contrary, may treat the Holder thereof
as the absolute owner thereof for the purpose of determining the person
entitled to distribution of dividends or other distributions or to any
notice provided for in this Agreement and for all other purposes and
neither the Depositary nor the Company will have any obligation or be
subject to any liability under this Agreement to any holder of a Receipt,
unless such holder is the Holder thereof.
3. DEPOSIT OF SHARES
3.1 DEPOSIT WITH CUSTODIAN
Subject to the terms and conditions of this Agreement, the Depositary
shall issue ADRs for delivery at the Depositary's Office against delivery
or transfer to the Custodian of: (a) Shares by credit to the account of
the Custodian with a Clearing Agent or as the Custodian may otherwise
specify; or (b) subject to the provisions of Section 4.3 below, rights to
receive Shares. ADRs issued upon the deposit of rights to receive Shares
in accordance with clause (b) of this Section 3.1 are hereinafter referred
to as "Pre-Released ADRs", and each such issuance as a "Pre-Release",
until such time as Shares are deposited with the Custodian in accordance
with clause (a) of this Section 3.1. In connection with any such deposit,
the Depositary or the Custodian may require a written order from the
person making such deposit specifying the person or persons in whose name
the ADRs are to be issued (a "Delivery Order"). Every deposit of Shares
shall be accompanied by the following: (A) (i) in the case of Shares
issued in certificated form, such Shares or the certificates representing
such Shares and an executed instrument of transfer thereof in favour of
such person as the Custodian may direct and (ii) in the case of Shares
delivered by book-entry transfer, confirmation of such book-entry transfer
to the Custodian or that irrevocable instructions have been given to cause
such Shares to be so transferred, (B) such certifications and payments
(including, without limitation, any applicable taxes and governmental
charges and the Depositary's fees, and related charges in accordance with
Exhibit B) and evidence of such payments (including, without limitation,
stamping or otherwise marking such Shares by way of receipt) as may be
required by the Depositary, Custodian or any Clearing Agent, as the case
may be, in accordance with the provisions of this Agreement, (C) if the
Depositary so requires, a written order directing the Depositary to
execute and deliver to, or upon the written order of, the person or
persons stated in such order an ADR or ADRs for the number of ADSs
representing the Shares so deposited, (D) evidence satisfactory to the
Depositary (which may include an opinion of counsel reasonably
satisfactory to the Depositary provided at the cost of the person seeking
to deposit Shares) that all conditions to such deposit have been met and
all necessary approvals have been granted by, and there has been
compliance with the rules and regulations of, any applicable governmental
agency in Ireland, and (E) if the Depositary so requires, (i) an
agreement, assignment or instrument satisfactory to the Depositary or the
Custodian which provides for the prompt transfer by any person in whose
name the Shares are or have been recorded to the Custodian of
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any distribution, or right to subscribe for additional Shares or to
receive other property in respect of any such deposited Shares or, in lieu
thereof, such indemnity or other agreement as shall be satisfactory to the
Depositary or the Custodian and (ii) if the Shares are registered in the
name of the person on whose behalf they are presented for deposit, a proxy
or proxies entitling the Custodian to exercise voting rights in respect of
the Shares for any and all purposes until the Shares so deposited are
registered in the name of the Depositary, the Custodian or any nominee. No
Share shall be accepted for deposit unless accompanied by confirmation or
such additional evidence, if any is required by the Depositary, that is
reasonably satisfactory to the Depositary or the Custodian that all
conditions to such deposit have been satisfied by the person depositing
such Shares under the laws and regulations of Ireland and any necessary
approval has been granted by any governmental body in Ireland, if any,
which is then performing the function of the regulator of currency
exchange. Subject to Section 4.3, the Depositary may issue Receipts
against evidence of rights to receive Shares from the Company, any
Clearing Agent, the Foreign Registrar, any agent of the Company or any
custodian, registrar, transfer agent, clearing agency or other entity
involved in ownership or transaction records in respect of the Shares.
Without limitation of the foregoing, the Depositary shall not knowingly
accept for deposit under this Agreement any Shares required to be
registered under the provisions of the Securities Act of 1933, unless a
registration statement is in effect as to such Shares. The Depositary will
use commercially reasonable efforts to comply with reasonable written
instructions of the Company that the Depositary shall not accept for
deposit hereunder any Shares specifically identified in such instructions
at such times and under such circumstances as may reasonably be specified
in such instructions in order to facilitate the Company's compliance with
the securities laws in the United States or its contractual obligations.
As soon as practicable after receipt of any permitted deposit hereunder
and compliance with the provisions of this Agreement, the Custodian shall
present the Shares so deposited, together with the appropriate instrument
or instruments of transfer or endorsement, duly stamped, to the Foreign
Registrar for transfer and registration of the Shares (as soon as transfer
and registration can be accomplished and at the expense of the person for
whom the deposit is made) in the name of the Depositary, the Custodian or
a nominee of either. Deposited Securities shall be held by the Depositary
or by a Custodian for the account and to the order of the Depositary or a
nominee, in each case for the account of the Holders and Beneficial
Owners, at such place or places as the Depositary or the Custodian shall
determine.
In the event any Shares are deposited which entitle the holders thereof to
receive a per-share distribution or other entitlement in an amount
different from the Shares then on deposit, the Depositary is authorized to
take any and all actions as may be necessary (including, without
limitation, making the necessary notations on ADRs) to give effect to the
issuance of such ADSs and to ensure that such ADSs are not fungible with
other ADSs issued hereunder until such time as the entitlement of the
Shares represented by such non-fungible ADSs equals that of the Shares
represented by ADSs prior to the original such deposit. The Company agrees
to give timely written notice to the Depositary if any Shares issued or to
be issued contain rights different from those of any other Shares
theretofore issued and shall assist the Depositary with the establishment
of procedures enabling the identification of such non-fungible Shares upon
delivery to the Custodian.
3.2 REPRESENTATIONS
Every person depositing Shares hereunder is deemed to represent and
warrant that such Shares are (i) duly authorized, validly issued and
outstanding, fully paid, nonassessable and were legally obtained, (ii)
were not acquired in violation of any pre-emptive rights, (iii) that the
person making such deposit is duly authorised to do so, (iv) free and
clear of any lien, encumbrance, security interest, charge, mortgage or
adverse claim, (v) have not been stripped of any rights or entitlements,
and (vi) that such Shares (a) are not "restricted securities" as such term
is defined in Rule 144 under the Securities Act and may be offered or sold
in the United
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States in transactions that are exempt from registration under the
Securities Act or (b) have been registered under the Securities Act. Such
representations and warranties shall survive the deposit of Shares and
issuance of ADRs.
3.3 HOLDING OF DEPOSITED SECURITIES
Deposited Securities shall be held by the Custodian for and to the order
of the Depositary on behalf of the Holders and the Beneficial Owners.
Shares and other Deposited Securities eligible for deposit with a Clearing
Agent shall be held by the Custodian at its account at the Clearing Agent
or Agents selected by it. Deposited Securities may be delivered by the
Depositary or the Custodian to any person only under the circumstances
expressly contemplated in this Agreement.
3.4 NO TREATMENT AS A LEGAL OWNER
Notwithstanding anything herein to the contrary, the Company will not be
required and will not, for any purposes, treat the Beneficial Owners, in
their capacity as such, as the legal owners of the Deposited Securities.
4. ISSUE OF ADRs
4.1 ISSUANCE
After any deposit of Shares or rights to receive Shares in accordance with
Section 3.1, together with any other documents required by the Depositary
in accordance with this Agreement, the Custodian shall as promptly as
practicable notify the Depositary of such deposit and of the information
contained in any Delivery Order. Such notice shall be given in writing,
either by letter, airmail, postage prepaid, or, at the request, risk and
expense of the person making the deposit, by telex or facsimile or
electronic transmission. After receiving such notice from the Custodian,
the Depositary, subject to this Agreement, shall as promptly as
practicable execute and deliver at the Depositary's Office, to or upon the
order of the person named in such notice, ADRs registered as requested and
evidencing the aggregate number of ADSs to which such person is entitled.
ADRs shall be issued only in denominations of any whole numbers of ADSs.
At the request, risk and expense of the person depositing Shares or rights
to receive shares, the Depositary may deliver ADRs at a place other than
the Depositary's Office. ADRs may be issued by the Depositary only under
the circumstances expressly contemplated in this Agreement. Nothing herein
shall prohibit any Pre-Release upon the terms set forth in this Agreement.
4.2 ISSUANCE OF ADDITIONAL SHARES
The Company agrees that in the event it or any of its Affiliates proposes
(i) an issuance, sale or distribution of additional Shares, (ii) an
offering of rights to subscribe for Shares or other Deposited Securities,
(iii) an issuance of securities convertible into or exchangeable for
Shares, (iv) an issuance of rights to subscribe for securities convertible
into or exchangeable for Shares, (v) an elective dividend of cash or
Shares, (vi) a redemption of Deposited Securities, (vii) a meeting of
holders of Deposited Securities, or solicitation of consents or proxies,
relating to any reclassification of securities, merger or consolidation or
transfer of assets or (viii) any reclassification, recapitalization,
reorganization, merger, consolidation or sale of assets which affects the
Deposited Securities, it will obtain U.S. legal advice and take all steps
necessary to ensure that the application of the proposed transaction to
Holders and Beneficial Owners does not violate the registration provisions
of the Securities Act, or any other applicable laws (including, without
limitation, the U.S. Investment Company Act of 1940, as amended, the
Exchange Act or the securities laws of any of the states of the United
States). In support of the foregoing, the Company will furnish to the
Depositary, at the Depositary's written request and the Company's expense,
(a) a written opinion of U.S. counsel or counsel in any other applicable
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jurisdiction (reasonably satisfactory to the Depositary) stating whether
or not application of such transaction to Holders and Beneficial Owners
(1) requires a registration statement under the Securities Act to be in
effect or (2) is exempt from the registration requirements of the
Securities Act and (b) an opinion of Irish counsel (reasonably
satisfactory to the Depositary) stating that (1) making the transaction
available to Holders and Beneficial Owners does not violate the laws or
regulations of Ireland and (2) all requisite regulatory consents and
approvals have been obtained in Ireland. If the filing of a registration
statement is required, the Depositary shall not have any obligation to
proceed with the transaction unless it shall have received evidence
reasonably satisfactory to it that such registration statement has been
declared effective and that such distribution is in accordance with all
applicable laws or regulations. If, being advised by counsel, the Company
determines that a transaction is required to be registered under the
Securities Act, the Company will either (i) register such transaction to
the extent necessary, (ii) alter the terms of the transaction to avoid the
registration requirements of the Securities Act or (iii) direct the
Depositary to take specific measures, in each case as contemplated in this
Agreement, to prevent such transaction from violating the registration
requirements of the Securities Act.
The Company agrees with the Depositary that neither the Company nor any of
its Affiliates will at any time (i) deposit any Shares or other Deposited
Securities, either upon original issuance or upon a sale of Shares or
other Deposited Securities previously issued and reacquired by the Company
or by any such Affiliate, or (ii) issue additional Shares, rights to
subscribe for such Shares, securities convertible into or exchangeable for
Shares or rights to subscribe for such securities, unless such transaction
and the securities issuable in such transaction are exempt from
registration under the Securities Act or have been registered under the
Securities Act (and such registration statement has been declared
effective).
Notwithstanding anything else contained in this Agreement, nothing in this
Agreement shall be deemed to obligate the Company to file any registration
statement in respect of any proposed transaction.
4.3 PRE-RELEASE
Subject to the further terms and provisions of this Section, the
Depositary, its affiliates and their agents, on their own behalf, may own
and deal in any class of securities of the Company and its Affiliates and
in ADSs. In its capacity as Depositary, the Depositary may (i) issue ADSs
represented by Pre-Released ADRs (each such transaction a "Pre-Release
Transaction") as provided below and (ii) deliver Shares upon the receipt
and cancellation of ADSs that were issued in a Pre-Release Transaction,
but for which Shares may not yet have been received. The Depositary may
receive ADSs in lieu of Shares under (i) above and receive shares in lieu
of ADSs under (ii) above. Each such Pre-Release Transaction will be (a)
subject to a written agreement whereby the person or entity (the
"Applicant") to whom ADSs or Shares are to be delivered (1) represents
that at the time of the Pre-Release Transaction the Applicant or its
customer owns the Shares or ADSs that are to be delivered by the Applicant
under such Pre-Release Transaction, (2) agrees to indicate the Depositary
as owner of such Shares or ADSs in its records and to hold such Shares or
ADSs in trust for the Depositary until such Shares or ADSs are delivered
to the Depositary or the Custodian, (3) unconditionally guarantees to
deliver to the Depositary or the Custodian, as applicable, such Shares or
ADSs, and (4) agrees to any additional restrictions or requirements that
the Depositary deems appropriate, (b) at all times fully collateralized
with cash, United States government securities or such other collateral as
the Depositary deems appropriate, (c) terminable by the Depositary on not
more than five business days' notice and (d) subject to such further
indemnities and credit regulations as the Depositary deems appropriate.
The Depositary will normally limit the number of ADSs and Shares involved
in such Pre-Release Transactions at any one time to 30% of the ADSs
outstanding (without giving effect to ADSs outstanding under (i) above),
provided, however, that the Depositary reserves the right to disregard
such limit from time to time as it deems
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reasonably appropriate and may, with the prior consent of the Company,
change such limit for purposes of general application; provided, however,
that such consent of the Company shall not be required in circumstances
where the number of ADSs and Shares involved in Pre-Release Transactions
exceeds 30% of the ADSs outstanding due to a decrease in the aggregate
number of ADSs outstanding. The Depositary may also set limits with
respect to the number of ADSs and Shares involved in Pre-Release
Transactions with any one person on a case by case basis as it deems
appropriate.
The Depositary may retain for its own account any compensation received by
it in conjunction with the foregoing. Collateral provided pursuant to (b)
above, but not the earnings thereon, shall be held for the benefit of the
Holders (other than the Applicant).
5. TRANSFER, COMBINATION AND SPLIT-UP OF ADRS; SUBSTITUTION OF ADRS;
CANCELLATION AND DESTRUCTION OF ADRS; MAINTENANCE OF RECORDS
5.1 TRANSFER, COMBINATION AND SPLIT-UP OF ADRs
Subject to the terms and conditions of this Agreement, the Depositary
shall, upon surrender of an ADR or ADRs in form satisfactory to the
Depositary at the Depositary's Office (a) for the purpose of transfer, if
such ADRs are accompanied by such instruments of transfer as the
Depositary may require and are stamped as may be required by law, register
the transfer of such ADRs on the Register and execute and deliver new ADRs
to or upon the order of the person entitled thereto; and (b) for the
purpose of effecting a split-up or combination, execute and deliver a new
ADR or ADRs in such denominations as may be requested, evidencing the same
aggregate number of ADRs as the ADRs surrendered.
5.2 SUBSTITUTION OF ADRs
The Depositary shall execute and deliver a new ADR of like tenor in
exchange and substitution for any mutilated ADR upon cancellation thereof
or in substitution for a destroyed, lost or stolen ADR, upon payment of
applicable fees, costs and expenses, unless the Depositary has notice that
such ADR has been acquired by a bona fide purchaser, upon the Holder
thereof filing with the Depositary a request for such execution and
delivery and a sufficient indemnity bond (for the benefit of the
Depositary and the Company) and satisfying any other reasonable
requirements imposed by the Depositary.
At the request of a Holder, the Depositary shall, for the purpose of
substituting a certificated Receipt with a Receipt issued through
DRS/Profile, or vice versa, execute and deliver a certificated Receipt or
DRS/Profile statement, as the case may be, for any authorized number of
ADSs requested, evidencing the same aggregate number of ADSs as those
evidenced by the certificated Receipt or DRS/Profile statement, as the
case may be, substituted.
5.3 CANCELLATION AND DESTRUCTION OF ADRs
The Depositary shall cancel all ADRs surrendered to it. The Depositary is
authorised to destroy ADRs so cancelled in accordance with customary
practices of stock transfer agents in The City of New York. Cancelled ADRs
shall not be entitled to any benefits under this Agreement or be valid or
obligatory for any purpose.
5.4 MAINTENANCE OF RECORDS
The Depositary shall maintain records of all ADRs surrendered and
Deposited Securities withdrawn under Section 5.5, transfer of ADRs,
substitute ADRs delivered, and cancelled or destroyed ADRs under this
Section 5, in keeping with the procedures ordinarily followed by stock
transfer agents located in The City of New York or as required by
applicable law or regulation.
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5.5 SURRENDER OF RECEIPTS AND WITHDRAWAL OF DEPOSITED SECURITIES
Upon surrender, at the Principal Office of the Depositary, of ADSs for the
purpose of withdrawal of the Deposited Securities represented thereby, and
upon payment of (i) the fees and charges of the Depositary for the making
of withdrawals of Deposited Securities and cancellation of ADRs (as set
forth in Exhibit B) and (ii) all applicable taxes and governmental charges
payable in connection with such surrender and withdrawal, including any
applicable Irish stamp duty, and subject to the terms and conditions of
this Agreement, the Company's Articles of Association, and any other
provisions of or governing the Deposited Securities and other applicable
laws, the Holder of such ADSs shall be entitled to Delivery, to him or
upon his order, of the Deposited Securities at the time represented by the
ADSs so surrendered. ADSs may be surrendered for the purpose of
withdrawing Deposited Securities by delivery of an ADR evidencing such
ADSs (if held in certificated form) or by book-entry delivery of such ADSs
to the Depositary.
A Receipt surrendered for such purposes shall, if so required by the
Depositary, be properly endorsed in blank or accompanied by proper
instruments of transfer in blank, and if the Depositary so requires, the
Holder thereof shall execute and deliver to the Depositary a written order
directing the Depositary to cause the Deposited Securities being withdrawn
to be delivered to or upon the written order of a person or persons
designated in such order. Thereupon, the Depositary shall direct the
Custodian to deliver (without unreasonable delay) at the designated office
of the Custodian or through a book entry delivery of the Shares (in either
case, subject to Section 5.6, Exhibit B and to the other terms and
conditions of this Agreement, to the Company's Articles of Association, to
the provisions of or governing the Deposited Securities and to applicable
laws, now or hereafter in effect) to or upon the written order of the
person or persons designated in the order delivered to the Depositary as
provided above, the Deposited Securities represented by such ADSs,
together with any certificate or other proper documents of or relating to
title of the Deposited Securities as may be legally required, as the case
may be, to or for the account of such person.
The Depositary may, in its discretion, refuse to accept for surrender a
number of ADSs representing a number other than a whole number of Shares.
In the case of surrender of an ADR evidencing a number of ADSs
representing other than a whole number of Shares, the Depositary shall
cause ownership of the appropriate whole number of Shares to be delivered
in accordance with the terms hereof, and shall, at the discretion of the
Depositary, either (i) issue and deliver to the person surrendering such
Receipt a new Receipt evidencing ADSs representing any remaining
fractional Share, or (ii) sell or cause to be sold the fractional Shares
represented by the Receipt surrendered and remit the proceeds of such sale
(net of (a) applicable fees and charges of, and expenses incurred by, the
Depositary and (b) taxes withheld) to the person surrendering the Receipt.
At the request, risk and expense of any Holder so surrendering an ADR, and
for the account of such Holder, the Depositary shall direct the Custodian
to forward (to the extent permitted by law) any cash or other property
(other than securities) held in respect of, and any certificate or
certificates and other proper documents of or relating to title to, the
Deposited Securities represented by such ADR to the Depositary for
delivery at the Principal Office of the Depositary, and for further
delivery to such Holder. Such direction shall be given by letter or, at
the request, risk and expense of such Holder, by cable, telex or facsimile
transmission. Upon receipt by the Depositary, the Depositary may make
delivery to such person or persons entitled thereto at the Principal
Office of the Depositary of any dividends or cash distributions with
respect to the Deposited Securities represented by such ADSs, or of any
proceeds of sale of any dividends, distributions or rights, which may at
the time be held by the Depositary.
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5.6 LIMITATIONS ON EXECUTION AND DELIVERY, TRANSFER, ETC. OF RECEIPTS;
SUSPENSION OF DELIVERY, TRANSFER, ETC.
As a condition precedent to the execution and delivery, registration,
registration of transfer, split-up, combination or surrender of any ADR,
the delivery of any distribution thereon or withdrawal of any Deposited
Securities, the Depositary or the Custodian may require (i) payment from
the depositor of Shares or presenter of the ADR of a sum sufficient to
reimburse it for any tax or other governmental charge, including any
applicable Irish stamp duty, and any stock transfer or registration fee
with respect thereto (including any such tax or charge and fee with
respect to Shares being deposited or withdrawn) and payment of any
applicable fees and charges of the Depositary as provided in Exhibit B,
(ii) the production of proof satisfactory to it as to the identity and
genuineness of any signature or any other matter contemplated by Section
14.5 and (iii) compliance with (A) any laws or governmental regulations
relating to the execution and delivery of ADRs or ADSs or to the
withdrawal or delivery of Deposited Securities and (B) such reasonable
regulations as the Depositary may establish consistent with the provisions
of this Agreement and applicable law.
The issuance of ADSs against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the issuance of ADSs
against the deposit of particular Shares may be withheld, or the
registration of transfer of ADRs in particular instances may be refused,
or the registration of transfers of ADRs generally may be suspended,
during any period when the transfer books of the Depositary are closed or
if any such action is deemed necessary or advisable by the Depositary or
the Company, in good faith, at any time or from time to time because of
any requirement of law, any government or governmental body or commission
or any securities exchange on which the Receipts or Shares are listed, or
under any provision of this Agreement or provisions of, or governing, the
Deposited Securities, or any meeting of shareholders of the Company or for
any other reason, subject, in all cases, to Section 16.
6. DISTRIBUTIONS: CONVERSION OF FOREIGN CURRENCY WITHHOLDING
6.1 CASH DISTRIBUTIONS
Whenever the Depositary receives confirmation from the Custodian of
receipt of any cash dividend or other cash distribution on any Deposited
Securities, or receives proceeds from the sale of any Shares, rights,
securities or other entitlements under the terms hereof, the Depositary
will, if at the time of receipt thereof any amounts received in a Foreign
Currency can in the judgment of the Depositary (pursuant to Section 6.8)
be converted on a practicable basis into Dollars transferable to the
United States, promptly convert or cause to be converted such cash
dividend, distribution or proceeds into Dollars (on the terms described in
Section 6.8) and will distribute promptly the amount thus received (net of
(a) the applicable fees and charges of, and expenses incurred by, the
Depositary and (b) taxes withheld) to the Holders of record as of the ADS
Record Date in proportion to the number of ADSs held by such Holders
respectively as of the ADS Record Date. The Depositary shall distribute
only such amount, however, as can be distributed without attributing to
any Holder a fraction of one cent. Any such fractional amounts shall be
rounded to the nearest whole cent and so distributed to Holders entitled
thereto. Holders and Beneficial Owners understand that in converting
Foreign Currency, amounts received on conversion are calculated at a rate
which exceeds three or four decimal places (the number of decimal places
used by the Depositary to report distribution rates). Any excess amount
may be retained by the Depositary as an additional cost of conversion,
irrespective of any other fees and expenses payable or owing hereunder and
shall not be subject to escheatment. If the Company, the Custodian or the
Depositary is required to withhold and does withhold from any cash
dividend or other cash distribution in respect of any Deposited Securities
an amount on account of taxes, duties or other governmental charges, the
amount distributed to Holders on the ADSs representing such Deposited
Securities shall be reduced accordingly. Such withheld amounts shall be
forwarded by the Company, the
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Custodian or the Depositary to the relevant governmental authority.
Evidence of payment thereof by the Company shall be forwarded by the
Company to the Depositary upon request. The Depositary will forward to the
Company or its agent such information from its records as the Company may
reasonably request to enable the Company or its agent to file necessary
reports with governmental agencies, such reports necessary to obtain
benefits under the applicable tax treaties for the Holders and Beneficial
Owners of Receipts.
6.2 DISTRIBUTION IN SHARES
If any distribution upon any Deposited Securities consists of a dividend
in, or free distribution of, Shares, the Company shall cause such Shares
to be deposited with the Custodian and registered, as the case may be, in
the name of the Depositary, the Custodian or any of their nominees. Upon
receipt of confirmation of such deposit from the Custodian, the Depositary
shall establish the ADS Record Date upon the terms described in Section
6.6 and shall, subject to Exhibit B hereof, either (i) distribute to the
Holders as of the ADS Record Date in proportion to the number of ADRs held
as of the ADS Record Date, additional ADRs evidencing ADSs, which
represent in the aggregate the number of Shares received as such dividend,
or free distribution, subject to the other terms of this Agreement
(including, without limitation, (a) the applicable fees and charges of,
and expenses incurred by, the Depositary and (b) taxes), or (ii) if
additional ADRs are not so distributed, each ADR issued and outstanding
after the ADS Record Date shall, to the extent permissible by law,
thenceforth also represent rights and interests in the additional Shares
distributed upon the Deposited Securities represented thereby (net of (a)
the applicable fees and charges of, and expenses incurred by, the
Depositary and (b) taxes). In lieu of delivering fractional ADSs, the
Depositary shall sell the number of Shares represented by the aggregate of
such fractions and distribute the proceeds upon the terms described in
Section 6.1. The Depositary may withhold any such distribution of Receipts
if it has not received satisfactory assurances from the Company
(including, at the written request of the Depositary, an opinion of
counsel to the Company furnished at the Company's expense) that such
distribution does not require registration under the Securities Act or is
exempt from registration under the provisions of the Securities Act. To
the extent such distribution may be withheld, the Depositary may dispose
of all or a portion of such distribution in such amounts and in such
manner, including by public or private sale, as the Depositary deems
necessary and practicable, and the Depositary shall distribute the net
proceeds of any such sale (after deduction of applicable (a) taxes and (b)
fees and charges of, and expenses incurred by, the Depositary) to Holders
entitled thereto upon the terms described in Section 6.1.
6.3 ELECTIVE DISTRIBUTIONS IN CASH OR SHARES
Whenever the Company intends to distribute a dividend payable at the
election of the holders of Shares in cash or in additional Shares, the
Company shall give notice thereof to the Depositary at least 30 days prior
to the proposed distribution stating whether or not it wishes such
elective distribution to be made available to Holders. Upon receipt of
notice indicating that the Company wishes such elective distribution to be
made available to Holders, the Depositary shall consult with the Company
to determine, and the Company shall assist the Depositary in its
determination, whether it is lawful and reasonably practicable to make
such elective distribution available to the Holders. The Depositary shall
make such elective distribution available to Holders only if (i) the
Company shall have timely requested that the elective distribution is
available to Holders, (ii) the Depositary shall have determined that such
distribution is reasonably practicable and (iii) the Depositary shall have
received satisfactory documentation within the terms of Section 4.2. If
the above conditions are not satisfied, the Depositary shall, to the
extent permitted by law, distribute to the Holders, on the basis of the
same determination as is made in the local market in respect of the Shares
for which no election is made, either (x) cash upon the terms described in
Section 6.1 or (y) additional ADSs representing such additional Shares
upon the terms described in Section 6.2. If the above conditions are
satisfied, the Depositary shall establish an ADS Record Date (on the terms
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described in Section 6.6) and establish procedures to enable Holders to
elect the receipt of the proposed dividend in cash or in additional ADSs.
The Company shall assist the Depositary in establishing such procedures to
the extent necessary. Subject to Exhibit B hereof, if a Holder elects to
receive the proposed dividend (x) in cash, the dividend shall be
distributed upon the terms described in Section 6.1, or (y) in ADSs, the
dividend shall be distributed upon the terms described in Section 6.2.
Nothing herein shall obligate the Depositary to make available to Holders
a method to receive the elective dividend in Shares (rather than ADSs).
There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to receive elective
distributions on the same terms and conditions as the holders of Shares.
6.4 DISTRIBUTION OF RIGHTS TO PURCHASE SHARES
(a) Distribution to ADS Holders. Whenever the Company intends to
distribute to the holders of the Deposited Securities rights to
subscribe for additional Shares, the Company shall give notice
thereof to the Depositary at least 60 days prior to the proposed
distribution stating whether or not it wishes such rights to be made
available to Holders. Upon receipt of a notice indicating that the
Company wishes such rights to be made available to Holders, the
Depositary shall consult with the Company to determine, and the
Company shall determine, whether it is lawful and reasonably
practicable to make such rights available to the Holders. The
Depositary shall make such rights available to Holders only if (i)
the Company shall have timely requested that such rights be made
available to Holders, (ii) the Depositary shall have received
satisfactory documentation within the terms of Section 4.2, and
(iii) the Depositary shall have determined that such distribution of
rights is lawful and reasonably practicable. In the event any of the
conditions set forth above are not satisfied, the Depositary shall
proceed with the sale of the rights as contemplated in Section
6.4(b) below or, if timing or market conditions may not permit, do
nothing thereby allowing such rights to lapse. In the event all
conditions set forth above are satisfied, the Depositary shall
establish an ADS Record Date (upon the terms described in Section
6.6) and establish procedures (x) to distribute such rights (by
means of warrants or otherwise) and (y) to enable the Holders to
exercise the rights (upon payment of applicable (a) fees and charges
of, and expenses incurred by, the Depositary and (b) taxes and other
governmental charges). Nothing herein shall obligate the Depositary
to make available to the Holders a method to exercise such rights to
subscribe for Shares (rather than ADSs).
(b) Sale of Rights. If (i) the Company does not timely request the
Depositary to make the rights available to Holders or requests that
the rights not be made available to Holders, (ii) the Depositary
fails to receive satisfactory documentation within the terms of
Section 4.2 or determines it is not lawful or reasonably practicable
to make the rights available to Holders, or (iii) any rights made
available are not exercised and appear to be about to lapse, the
Depositary shall determine whether it is lawful and reasonably
practicable to sell such rights, in a riskless principal capacity or
otherwise, at such place and upon such terms (including public or
private sale) as it may deem proper. The Company shall assist the
Depositary to the extent necessary to determine such legality and
practicability. The Depositary shall, upon such sale, convert and
distribute proceeds of such sale (net of applicable (a) fees and
charges of, and expenses incurred by, the Depositary and (b) taxes)
upon the terms set forth in Section 6.1.
(c) Lapse of Rights. If the Depositary is unable to make any rights
available to Holders upon the terms described in Section 6.4(a) or
to arrange for the sale of the rights upon the terms described in
Section 6.4(b), the Depositary shall allow such rights to lapse.
The Depositary shall not be responsible for (i) any failure to determine
that it may be lawful or practicable to make such rights available to
Holders in general or any Holders in particular, (ii) any foreign exchange
exposure or loss incurred in connection with such sale, or exercise, or
(iii) the content of any materials forwarded to the Holders on behalf of
the Company in connection with the rights distribution.
Notwithstanding anything to the contrary in this Section 6.4, if
registration (under the Securities Act or any other applicable law) of the
rights or the securities to which any rights relate may be
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required in order for the Company to offer such rights or such securities
to Holders and to sell the securities represented by such rights, the
Depositary will not distribute such rights to the Holders (i) unless and
until a registration statement under the Securities Act covering such
offering is in effect or (ii) unless the Company furnishes to the
Depositary, at the Depositary's written request and the Company's expense
opinion(s) of counsel to the Company in the U.S. and counsel to the
Company in any other applicable country in which rights would be
distributed, in each case satisfactory to the Depositary, to the effect
that the offering and sale of such securities to Holders and Beneficial
Owners are exempt from, or do not require registration under, the
provisions of the Securities Act or any other applicable laws. In the
event that the Company, the Depositary or the Custodian shall be required
to withhold and does withhold from any distribution of property (including
rights) an amount on account of taxes or other governmental charges, the
amount distributed to the Holders shall be reduced accordingly. In the
event that the Depositary determines that any distribution in property
(including Shares and rights to subscribe therefor) is subject to any tax
or other governmental charges which the Depositary is obligated to
withhold, the Depositary may dispose of all or a portion of such property
(including Shares and rights to subscribe therefor) in such amounts and in
such manner, including by public or private sale, as the Depositary deems
necessary and practicable to pay any such taxes or charges.
There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to exercise rights on the same
terms and conditions as the holders of Shares or be able to exercise such
rights. Nothing herein shall obligate the Company to file any registration
statement in respect of any rights or Shares or other securities to be
acquired upon the exercise of such rights.
6.4 DISTRIBUTIONS OTHER THAN CASH, SHARES OR RIGHTS TO PURCHASE SHARES
(a) Whenever the Company intends to distribute to the holders of
Deposited Securities property other than cash, Shares or rights to
purchase additional Shares, the Company shall give notice thereof to
the Depositary at least 30 days prior to the proposed distribution
and shall indicate whether or not it wishes such distribution to be
made to Holders. Upon receipt of a notice indicating that the
Company wishes such distribution be made to Holders, the Depositary
shall determine whether such distribution to Holders is lawful and
practicable. The Depositary shall not make such distribution unless
(i) the Company shall have timely requested the Depositary to make
such distribution to Holders, (ii) the Depositary shall have
received satisfactory documentation within the terms of Section 4.2,
and (iii) the Depositary shall have determined that such
distribution is reasonably practicable.
(b) Upon receipt of satisfactory documentation and the request of the
Company to distribute property to Holders and after making the
requisite determinations set forth in (a) above, the Depositary may
distribute the property so received to the Holders of record as of
the ADS Record Date, in proportion to the number of ADRs held by
such Holders respectively and in such manner as the Depositary may
deem practicable for accomplishing such distribution (i) upon
receipt of payment or net of the applicable fees and charges of, and
expenses incurred by, the Depositary, and (ii) net of any taxes and
other governmental charges withheld. The Depositary may dispose of
all or a portion of the property so distributed and deposited, in
such amounts and in such manner (including public or private sale)
as the Depositary may deem practicable or necessary to satisfy any
taxes (including applicable interest and penalties) or other
governmental charges applicable to the distribution.
(c) If (i) the Company does not request the Depositary to make such
distribution to Holders or requests not to make such distribution to
Holders, (ii) the Depositary does not receive satisfactory
documentation within the terms of Section 4.2, or (iii) the
Depositary determines that all or a portion of such distribution is
not reasonably practicable or feasible, the Depositary shall
endeavor to sell or cause such property to be sold in a public or
private sale, at such place or places and upon such terms as it may
deem proper and shall distribute the net proceeds, if any, of such
sale received by the Depositary (net of applicable (a) fees and
charges of, and expenses incurred by, the Depositary and (b) taxes)
to the Holders as of the
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ADS Record Date upon the terms of Section 6.1. If the Depositary is
unable to sell such property, the Depositary may dispose of such
property in any way it deems reasonably practicable under the
circumstances for nominal or no consideration and Holders and
Beneficial Owners shall have no rights thereto or arising therefrom.
6.6 FIXING OF RECORD DATE
Whenever necessary in connection with any distribution (whether in cash,
Shares, rights, or other distribution), or whenever for any reason the
Depositary causes a change in the number of Shares that are represented by
each ADS, or whenever the Depositary shall receive notice of any meeting
of or solicitation of holders of Shares or other Deposited Securities, or
whenever the Depositary shall find it necessary or convenient, the
Depositary shall fix a record date (the "ADS Record Date"), as close as
practicable to the record date fixed by the Company with respect to the
Shares, for the determination of the Holders who shall be entitled to
receive such distribution, to give instructions for the exercise of voting
rights at any such meeting, or to give or withhold such consent, or to
receive such notice or solicitation or to otherwise take action, or to
exercise the rights of Holders with respect to such changed number of
Shares represented by each ADS. Subject to applicable law and the
provisions of Section 6.1 through 6.5 and to the other terms and
conditions of this Agreement, only the Holders of record at the close of
business in New York on such ADS Record Date shall be entitled to receive
such distribution, to give such voting instructions, to receive such
notice or solicitation, or otherwise take action.
6.7 VOTING OF DEPOSITED SHARES
Subject to the next sentence, as soon as practicable after receipt of
notice of any meeting at which the holders of Shares are entitled to vote,
or of solicitation of consents or proxies from holders of Shares or other
Deposited Securities, the Depositary shall fix the ADS Record Date in
respect of such meeting or solicitation of consent or proxy. The
Depositary shall, if requested by the Company in writing in a timely
manner (the Depositary having no obligation to take any further action if
the request shall not have been received by the Depositary at least 30
days prior to the date of such vote or meeting) and at the Company's
expense and provided no U.S. legal prohibitions exist, which may in the
reasonable discretion of the Depositary be supported by an opinion of
counsel with respect to U.S. law in a form and substance acceptable to the
Depositary (furnished at the Depositary's written request and the expense
of the Company), mail by regular, ordinary mail delivery or otherwise
distribute to Holders as of the ADS Record Date: (a) such notice of
meeting or solicitation of consent or proxy; (b) a statement that the
Holders at the close of business on the ADS Record Date will be entitled,
subject to any applicable law, the Company's Articles of Association and
the provisions of or governing the Deposited Securities (which provisions,
if any, shall be summarized in pertinent part by the Company), to instruct
the Depositary as to the exercise of the voting rights, if any, pertaining
to the Shares or other Deposited Securities represented by such Holder's
ADSs; and (c) a brief statement as to the manner in which such
instructions may be given, including an express indication that such
instructions may be given or deemed given, in accordance with the second
paragraph of this Section 6.7 if no instruction is received, to the
Depositary to give a discretionary proxy to a person designated by the
Company. Voting instructions may be given only in respect of a number of
ADSs representing an integral number of Shares or other Deposited
Securities. Upon the timely receipt of written instructions of a Holder of
ADSs on the ADS Record Date of voting instructions in the manner specified
by the Depositary, the Depositary shall endeavor, insofar as practicable
and permitted under applicable law, the provisions of this Agreement, the
Company's Articles of Association and the provisions of or governing the
Deposited Securities, to vote or cause the Custodian to vote the Shares
and/or other Deposited Securities (in person or by proxy) represented by
ADSs evidenced by such Receipt in accordance with such voting
instructions.
Neither the Depositary nor the Custodian shall, under any circumstances
exercise any discretion as to voting, and neither the Depositary nor the
Custodian shall vote, attempt to exercise the
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right to vote, or in any way make use of for purposes of establishing a
quorum or otherwise, the Shares or other Deposited Securities represented
by ADSs except pursuant to and in accordance with such written
instructions from Holders or deemed instructions. For all Shares or other
Deposited Securities represented by ADSs for which no specific voting
instructions are received by the Depositary in a timely fashion from the
Holder the Depositary shall deem such Holder to have instructed the
Depositary to give a discretionary proxy to a person designated by the
Company with respect to such Shares or other Deposited Securities and the
Depositary shall give a discretionary proxy to a person designated by the
Company to vote such Deposited Securities, provided that no such
instruction shall be given with respect to any matter as to which the
Company informs the Depositary (and the Company agrees to provide such
information as promptly as practicable in writing) that (x) the Company
does not wish such proxy given, (y) substantial solicitation of proxies in
opposition exists or (z) such matter materially and adversely affects the
rights of holders of such Shares or other Deposited Securities. The
Company agrees to provide written notice to the Depositary of any changes
to the relevant governing laws related to the granting of a discretionary
proxy, including an outright prohibition on the granting of such proxies,
promptly upon becoming aware of such changes.
Notwithstanding the above, save for applicable provisions of Irish law,
and in accordance with the terms of Section 10, the Depositary shall not
be liable for any failure to carry out any instructions to vote any of the
Deposited Securities.
6.8 CONVERSION OF FOREIGN CURRENCY
Upon receipt by the Depositary or the Custodian of any Foreign Currency,
if at the time of its receipt such Foreign Currency can in the judgment of
the Depositary be converted on a reasonably basis into Dollars and the
resulting Dollars transferred to the United States, the Depositary shall
as promptly as practicable (and in any event within one (1) business day)
convert or cause to be converted, such Foreign Currency into Dollars, and
shall distribute such Dollars to the Holders entitled thereto in
accordance with Sections 6.1 through 6.5. If such conversion or
distribution can be effected only with the approval or license of any
government or agency thereof, the Depositary shall file such application
for approval or license as it may deem in its reasonable judgment
desirable. If the Depositary determines that such Foreign Currency is not
convertible, in whole or in part, on a reasonable basis into Dollars
transferable to the United States, or if any approval or license which is
required for such conversion is denied or in the opinion of the Depositary
is not obtainable or is not obtained within a reasonable period or at a
reasonable costs, the Depositary may distribute all or part of the foreign
currency (or an appropriate document evidencing the right to receive such
foreign currency) to, or in its discretion may hold such foreign currency
uninvested and without liability for interest thereon for the respective
accounts of the Holders entitled thereto. Each holder agrees that in
converting Foreign Currency, amounts received on conversion are calculated
at a rate which may exceed the number of decimal places used by the
Depositary to report distribution rates (which in any case will not be
less than two decimal places). Any excess amount may be retained by the
Depositary as an additional cost of conversion, irrespective of any other
fees and expenses payable or owing hereunder and shall not be subject to
escheatment. All expenses of any such conversion shall be deducted from
the proceeds thereof.
6.9 WITHHOLDING
In connection with any distribution on the Deposited Securities, each of
the Company, the Depositary and the Custodian shall remit to the
appropriate governmental authority such amounts (if any) as may be
required by law to withhold and pay to such authority. The Depositary
shall forward to the Company in a timely fashion such information from its
records as the Company may reasonably request to enable the Company to
file necessary reports with
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governmental authorities. The Depositary shall make reasonable efforts to
establish and maintain arrangements that assist Beneficial Owners in
claiming any tax refunds, credits or other benefits (pursuant to treaty or
otherwise) relating to distributions on the ADSs. The Depositary shall
provide copies of any filing that it makes in conjunction with any such
arrangements to the Company. The Company shall provide such cooperation in
establishing and maintaining any such arrangements as the Depositary may
reasonably request.
If any present or future tax or other governmental charge shall become
payable by the Depositary or the Custodian with respect to any ADR or any
Deposited Securities or ADSs, such tax or other governmental charge shall
be payable by the Holders and Beneficial Owners to the Depositary and such
Holders and Beneficial Owners shall be deemed liable therefor. The
Company, the Custodian and/or the Depositary may withhold or deduct from
any distributions made in respect of Deposited Securities and may sell for
the account of a Holder and/or Beneficial Owner any or all of the
Deposited Securities and apply such distributions and sale proceeds in
payment of such taxes (including applicable interest and penalties) or
charges, with the Holder and the Beneficial Owner remaining fully liable
for any deficiency. In addition to any other remedies available to it, the
Depositary and the Custodian may refuse the deposit of Shares, and the
Depositary may refuse to issue ADSs, to deliver ADRs, register the
transfer, split-up or combination of ADRs and (subject to Section 16) the
withdrawal of Deposited Securities, until payment in full of such tax,
charge, penalty or interest is received. To the maximum extent permitted
by applicable law, every Holder and Beneficial Owner agrees to indemnify
the Depositary, the Company, the Custodian, and each of their respective
agents, officers, directors, employees and Affiliates for, and to hold
each of them harmless from, any claims with respect to taxes (including
applicable interest and penalties thereon) arising from any tax benefit
obtained for such Holder and/or Beneficial Owner. The obligations of
Holders and Beneficial Owners of Receipts under this Section 6.9 shall
survive any transfer of Receipts, any surrender of Receipts and withdrawal
of Deposited Securities, or the termination of this Agreement.
7. CUSTODIAN
The Depositary shall procure that there is at all times a Custodian. Any
Custodian in acting hereunder shall be subject to the direction of the
Depositary and shall be responsible solely to it. The Depositary shall be
responsible for the compliance by each Custodian with the provisions
hereof. The Depositary may, from time to time, appoint one or more agents
to act for it as Custodian hereunder in addition to or in lieu of the
Custodian named in the Form of ADR. Any Custodian may resign from its
duties hereunder upon 30 days' written notice to the Depositary. The
Depositary may discharge any Custodian at any time upon notice to such
Custodian. The Depositary shall promptly instruct any Custodian ceasing to
act as Custodian to deliver all Deposited Securities held by it to a
Custodian continuing to act hereunder and the resignation of discharge of
any Custodian shall not be effective until such Custodian shall have so
delivered all Deposited Securities held by it. Upon the appointment of any
successor depositary, any Custodian then acting hereunder shall, unless
otherwise instructed by the Depositary, continue to be the Custodian of
the Deposited Securities without any further act or writing and shall be
subject to the direction of the successor depositary. The successor
depositary so appointed shall, nevertheless, on the written request of any
Custodian, execute and deliver to such Custodian all such instruments as
may be proper to give to such Custodian full and complete power and
authority to act on the direction of such successor depositary.
8. DEPOSITARY'S AGENTS
The Depositary may perform its obligations hereunder through any agent
appointed by it including, but not limited to, a co-register to register
ADRs and transfers, combinations and split-ups of ADRs and to countersign
ADRs and/or a co-transfer agent for the purpose of effecting transfers,
combinations or split-ups of ADRs at designated offices in addition to the
-16-
Depositary's Office. Each agent so appointed by the Depositary shall give
written notice to the Depositary accepting such appointment and shall
agree in writing to be bound by the provision hereof. Notwithstanding the
foregoing, the Depositary shall remain responsible for the performance of
its obligations hereunder as if no agent were appointed.
9. MAINTENANCE OF OFFICE
Until termination of this Agreement in accordance with its terms, the
Depositary or if a Registrar for the Receipts shall have been appointed,
the Registrar shall maintain in the Borough of Manhattan, the City of New
York, an office and facilities for the execution and delivery,
registration, registration of transfers, combination and split-up of
Receipts, the surrender of Receipts and the delivery and withdrawal of
Deposited Securities in accordance with the provisions of this Agreement.
10. STANDARD OF CARE
The Company and the Depositary and their respective agents assume no
obligation and shall not be subject to any liability under this Agreement
or any Receipts to any Holder(s) or Beneficial Owner(s) or other persons,
except in accordance with Section 15, provided, that the Company and the
Depositary and their respective agents agree to perform their respective
obligations specifically set forth in this Agreement or the applicable
ADRs without gross negligence or willful misconduct. Without limitation of
the foregoing, neither the Depositary, nor the Company, nor any of their
respective controlling persons, or agents, shall be under any obligation
to appear in, prosecute or defend any action, suit or other proceeding in
respect of any Deposited Securities or in respect of the Receipts, which
in its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expenses (including fees and disbursements
of counsel) and liabilities be furnished as often as may be required (and
no Custodian shall be under any obligation whatsoever with respect to such
proceedings, the responsibility of the Custodian being solely to the
Depositary).
The Depositary and its agents shall not be liable for any failure to carry
out any instructions to vote any of the Deposited Securities, or for the
manner in which any vote is cast or the effects of any vote. The
Depositary shall not incur any liability for any failure to determine that
any distribution or action may be lawful or reasonably practicable, for
the content of any information submitted to it by the Company for
distribution to the Holders or for any inaccuracy of any translation
thereof, for any investment risk associated with acquiring an interest in
the Deposited Securities, for the validity or worth of the Deposited
Securities or for any tax consequences that may result from the ownership
of ADSs, Shares or Deposited Securities, for the credit-worthiness of any
third party, for allowing any rights to lapse upon the terms of this
Agreement or for the failure or timeliness of any notice from the Company,
or for any action or non-action by it in reliance upon the opinion, advice
of or information from legal counsel, accountants, any person presenting
Shares for deposit, any Holder or any other person believed by it in good
faith to be competent to give such advice or information. The Depositary
and its agents shall not be liable for any acts or omissions made by a
successor depositary whether in connection with a previous act or omission
of the Depositary or in connection with any matter arising wholly after
the removal or resignation of the Depositary, provided that in connection
with the issue out of which such potential liability arises the Depositary
performed its obligations without gross negligence or willful misconduct
while it acted as Depositary.
11. RESIGNATION AND REMOVAL OF THE DEPOSITARY: SUCCESSOR DEPOSITARY
The Depositary may resign as Depositary by written notice of resignation
delivered to the Company, subject to such limitations as may be agreed by
the Company and the Depositary in writing from time to time, such
resignation to be effective on the earlier of (i) the 90th day after
delivery thereof to the Company (whereupon the Depositary shall be
entitled to take the actions contemplated in Section 13), or (ii) upon the
appointment by the Company of a successor
-17-
depositary and its acceptance of such appointment as hereinafter provided.
The Depositary may be removed the Company by written notice of removal
delivered to the Depositary, subject to such limitations as may be agreed
by the Company and the Depositary in writing from time to time, which
removal shall be effective on the later to occur of (i) the 90th day after
delivery thereof to the Depositary (whereupon the Depositary shall be
entitled to take the actions contemplated in Section 13), or (ii) upon the
appointment by the Company of a successor depositary and its acceptance of
such appointment as hereinafter provided. At any time in which the
Depositary may resign or be removed hereunder, the Company shall be
subject to prior payment of any amounts, fees, costs or expenses owed to
the Depositary hereunder or in accordance with any other agreements
otherwise agreed to in writing between the Company and the Depositary,
prior to such resignation or removal taking effect. If the Depositary
shall resign or be removed, the Company shall use its best efforts to
appoint a bank or trust company having an office in The City of New York,
as successor depositary hereunder. Every successor depositary shall
execute and deliver to its predecessor and to the Company written
acceptance of its appointment hereunder, and thereupon such successor
depositary shall execute and deliver to its predecessor and to the Company
written acceptance of its appointment hereunder, and thereupon such
successor depositary, shall become Depositary hereunder; but such
predecessor, upon payment of all sums due it hereunder and on the written
request of the Company, shall execute and deliver an instrument
transferring all rights and powers hereunder, shall duly assign, transfer
and deliver all of its right, title and interest in the Deposited
Securities to such successor, and shall deliver to such successor a list
of the names and addresses of, and holdings of ADSs by, all Holders. Any
bank or trust company into or with which the Depositary may be merged or
consolidated, or to which the Depositary shall transfer substantially all
its American depositary receipt business (including the ADR facility
created pursuant to this Agreement), shall be the successor depositary
hereunder without any further action. Upon the appointment or accession of
any successor depositary hereunder, any Custodian then acting hereunder
shall forthwith become the agent hereunder of such successor depositary
and such successor depositary shall, on the written request of such
Custodian, execute and deliver to such Custodian any instruments necessary
to give such Custodian authority as the agent hereunder of such successor
depositary.
12. AMENDMENT
The ADRs and this Agreement may be amended by the Company and the
Depositary without consent of the Holders, provided that any amendment
that imposes or increases any fees or charge, or that shall otherwise
prejudice any substantial existing right of Holders, shall become
effective 30 days after notice of such amendment shall have been given to
the Holders. Every Holder, at the time any amendment so becomes effective,
shall be deemed, by continuing to hold any ADR, to consent and agree to
such amendment and to be bound by the ADRs and this Agreement as amended
thereby.
13. TERMINATION
The Depositary shall, at the written direction of the Company, terminate
this Agreement and the ADRs by mailing notice of such termination to the
Holders at least 30 days prior to the date fixed in such notice for such
termination. The Depositary may terminate this Agreement, after giving
notice to the Holders as set forth in the preceding sentence of this
Section 13 at any time 45 days or more after the Depositary shall have
delivered to the Company its written resignation, provided that no
successor depositary shall have been appointed and accepted its
appointment as provided in Section 11 before the end of such 45 days.
After the date so fixed for termination, the Depositary and its agents
shall perform no further acts under this Agreement and the ADRs, except to
advise Holders to such termination, receive and hold (or sell)
distributions on Deposited Securities and deliver Deposited Securities
being withdrawn together with any such distributions on Deposited
Securities. As soon as practicable after the expiration of one year from
the date so fixed for termination, the Depositary shall, to the extent
-18-
practicable, sell the Deposited Securities and shall thereafter (as long
as it may lawfully do so) hold the net proceeds of such sales, together
with any other cash then held by it under this Agreement, without
liability for interest, for the pro rata benefit of the Holders of ADRs
not theretofore surrendered. After making such sale, the Depositary shall
be discharged from all obligations in respect of this Agreement and the
ADRs, except to account for such net proceeds and other cash and its
indemnification obligations to the Company. After the date so fixed for
termination, the Company shall be discharged from all obligations under
the Agreement except for its indemnification and payment obligations to
the Depositary.
14. INFORMATION
14.1 AVAILABLE INFORMATION
This Agreement, the Company's Articles of Association, and written
communications from the Company that are received by the Custodian or the
Depositary in accordance with Section 14.6 of the Agreement, are available
for inspection by Holders at the Depositary's Office and the office of the
Custodian during normal business hours on any Business Day. The Company is
subject to the periodic reporting requirements of the Securities Exchange
Act and accordingly files certain reports with the Commission. Such
reports and documents may be inspected and copied at the public reference
facilities maintained by the Commission located at the date of the
Agreement at Judiciary Plaza, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇.
14.2 ARTICLES OF ASSOCIATION
The Company has delivered to the Depositary and the Custodian, a copy of
its Articles of Association (in English or with an English translation)
and, promptly upon any amendment thereto, the Company shall deliver to the
Depositary and the Custodian a copy (in English or with an English
translation) of such amendment.
14.3 COMPLIANCE WITH INFORMATION REQUESTS
Notwithstanding any other provision of this Agreement, the Receipts, the
Articles of Association and applicable law, each Holder and Beneficial
Owner agrees to (a) provide such information as the Company or the
Depositary may request pursuant to law (including, without limitation,
relevant Irish law, any applicable law of the United States, the Articles
of Association, any resolutions of the Company's Board of Directors, the
requirements of any markets or exchanges upon which the Shares, ADSs or
Receipts are listed or traded or to any requirements of any electronic
book-entry system by which the ADSs or Receipts may be transferred and (b)
be bound by and subject to applicable provisions of the laws of Ireland,
the Articles of Association and the requirements of any markets or
exchanges upon which the ADSs, Receipts or Shares are listed or traded, or
pursuant to any requirements of any electronic book-entry system by which
the ADSs, Receipts or Shares may be transferred, to the same extent as if
such Holder and Beneficial Owner held Shares directly, in each case
irrespective of whether or not they are Holders or Beneficial Owners at
the time such request is made, and (c) without limiting the generality of
the foregoing, comply with all applicable provisions of Irish law, the
rules and requirements of the Irish Stock Exchange Limited and any other
stock exchange on which the Shares are, or will be registered, traded or
listed and the Company's Articles of Association regarding any such Holder
or Beneficial Owner's interest in Shares (including the aggregate of ADSs
and Shares held by each such Holder or Beneficial Owner), in compliance
with applicable Irish law in force at the relevant time. Each Holder and
Beneficial Owner acknowledge that failure to provide on a timely basis any
required notification of an interest in Shares may result in withholding
of certain rights, including voting and dividend rights, in respect of the
Shares in which such Beneficial Owner has an interest. Each Holder and
Beneficial Owner of ADSs further agrees to furnish the Company with any
such notification made in accordance with this Section 14.3 and to comply
with requests from the Company pursuant to the laws of Ireland, the rules
and requirements of the Irish Stock
-19-
Exchange Limited and any other stock exchange on which the Shares are, or
will be registered, traded or listed, and the Articles of Association,
whether or not they are Holders and/or Beneficial Owner at the time of
such request. The Depositary agrees to use its reasonable efforts to
forward upon the request of the Company, and at the Company's expense, any
such request from the Company to the Holders and to forward to the Company
any such responses to such requests received by the Depositary.
14.4 LISTS OF HOLDERS
The Company shall, to the extent permitted by applicable law, have the
right to inspect the Register and the transfer records of the Depositary
to supply copies of such records as the Company may reasonably request.
The Depositary shall, to the extent permitted by applicable law, furnish
to the Company, promptly upon the receipt of a written request from the
Company, a list of the names and addresses of, and holdings of ADSs by,
all Holders. The Depositary shall provide copies to the Company, promptly
upon receipt of a written request from the Company, of any information
received by the Depositary in accordance with Section 5.6 unless such
disclosure is prohibited by applicable law.
14.5 PROOFS, CERTIFICATES AND OTHER INFORMATION
Any person presenting Shares for deposit, any Holder and any Beneficial
Owner may be required, and every Holder and Beneficial Owner agrees, from
time to time to provide to the Depositary or the Custodian such proof of
citizenship or residence, taxpayer status, payment of all applicable taxes
or other governmental charges, exchange control approval, legal or
beneficial ownership of ADSs and Deposited Securities, compliance with
applicable laws and the terms of this Agreement and the provisions of, or
governing, the Deposited Securities or other information; to execute such
certifications and to make such representations and warranties, and to
provide such other information and documentation as the Depositary may
deem necessary or proper or as the Company may reasonably require by
written request to the Depositary consistent with its obligations
hereunder. The Depositary and the Registrar, as applicable, may withhold
the execution or delivery or registration of transfer of any Receipt or
the distribution or sale of any dividend or distribution of rights or of
the proceeds thereof, or to the extent not limited by the terms of Section
16, the delivery of any Deposited Securities, until such proof or other
information is filed or such certifications are executed, or such
representations and warranties are made, or such other documentation or
information provided, in each case to the Depositary's and the Company's
satisfaction. The Depositary shall from time to time on the written
request advise the Company of the availability of any such proofs,
certificates or other information and shall, at the Company's sole
expense, provide or otherwise make available copies thereof to the Company
upon written request thereof by the Company, unless such disclosure is
prohibited by law. Each Holder and Beneficial Owner agrees to provide any
information requested by the Company or the Depositary pursuant to this
paragraph. Nothing herein shall obligate the Depositary to (i) obtain any
information for the Company if not provided by the Holders or Beneficial
Owners or (ii) verify or vouch for the accuracy of the information so
provided by the Holders or Beneficial Owners.
14.6 NOTICES
Notice to any Holder shall be deemed to be given when first mailed, first
class postage prepaid, or sent via telex or facsimile transmission to such
Holder to the address or telex or facsimile number, as the case may be, of
such Holder in the Register. Notice to the Depositary or the Company shall
be deemed to be given when first received by it at the address or
facsimile transmission number set forth in (a) or (b) below, respectively,
or at such other address or facsimile transmission number as either may
specify to the other by written notice:
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(a) Deutsche Bank Trust Company Americas
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
Attention: ADR Department
Fax: ▇▇-▇▇▇-▇▇▇-▇▇▇▇
(b) IONA Technologies PLC
The IONA Building
Shelbourne Road
Ballsbridge
Dublin 4
Ireland
Attention: Legal Department
Fax: ▇▇▇-▇-▇▇▇-▇▇▇▇
Notices to the Depositary must be in English.
14.7 REPORTS
The Depositary will, at the expense of the Company and in accordance with
Section 14.6, mail by regular, ordinary mail delivery or by electronic
transmission (if agreed between the Company and the Depositary) and unless
otherwise agreed in writing, copies of such communications (or English
translations or summaries thereof) to Holders when requested and furnished
by the Company.
15. INDEMNIFICATION
15.1 INDEMNIFICATION BY THE COMPANY
The Company agrees to indemnify the Depositary against any loss, liability
or expense (including reasonable fees and expenses of counsel) that may
arise out of a (a) its acceptance and performance of its powers and duties
in respect of this Agreement, except to the extent such loss, liability or
expense (i) is due to the gross negligence or bad faith of the Depositary
or its agents or (ii) arises out of a Pre-Release of an ADR and would not
have arisen had such ADR not been the subject of a Pre-Release, or (b) any
offer or sale of ADRs, ADSs, Shares or other Deposited Securities or any
registration statement under the Securities Act in respect thereof, except
to the extent such loss, liability or expense arises out of information
(or omissions from such information) relating to the Depositary furnished
in writing to the Company by the Depositary expressly for use in such
registration statement.
15.2 INDEMNIFICATION BY THE DEPOSITARY
The Depositary agrees to indemnify the Company against any loss, liability
or expense (including reasonable fees and expenses of counsel) incurred by
the Company in respect of this Agreement to the extent such loss,
liability or expense (a) is due to the gross negligence or bad faith of
the Depositary or its agents, (b) arises out of a Pre-Release of an ADR
and would not have arisen had such ADR not been the subject of a
Pre-Release, or (c) arises out of information (or omissions from such
information) relating to the Depositary furnished in writing to the
Company by the Depositary for use in a registration statement under the
Securities Act.
-21-
15.3 NOTIFICATION AND SETTLEMENT
Any person seeking indemnification hereunder (an "indemnified person")
shall notify the person from whom it is seeking indemnification (the
"indemnifying person") of the commencement of any indemnifiable action or
claim promptly after such indemnified person becomes aware of such
commencement (provided that the failure to make such notification shall
not affect such indemnified person's rights otherwise than under this
Section 15.3) and shall consult in good faith with the indemnifying person
as to the conduct of the defense of such action or claim, which shall be
reasonable in the circumstances. No indemnified person shall compromise or
settle any indemnifiable action or claim without the prior written consent
of the indemnifying person (which consent shall not be unreasonably
withheld).
15.4 SURVIVAL
The obligations set forth in this Section 15 shall survive the termination
of this Agreement.
16. COMPLIANCE WITH U.S. SECURITIES LAWS
Notwithstanding anything in this Agreement to the contrary, the withdrawal
or delivery of Deposited Securities will not be suspended by the Company
or the Depositary except as would be permitted by Instruction I.A.(1) of
the General Instructions to Form F-6 Registration Statement, as amended
from time to time, under the Securities Act.
17. MISCELLANEOUS
This Agreement is for the exclusive benefit of the Company, the
Depositary, the Holders, the Beneficial Owners, and their respective
successors hereunder, and shall not give any legal or equitable right,
remedy or claim whatsoever to any other person. The Holders and Beneficial
Owners shall be parties to this Agreement and shall be bound by the
provisions hereof. If any such provision is invalid, illegal or
unenforceable in any respect, the remaining provisions shall in no way be
affected thereby. This Agreement may be executed in two counterparts, each
of which shall be deemed an original and both of which shall constitute
one instrument. Subject to the provisions of Section 11, this Agreement
may not be assigned by either the Company or the Depositary. The Company
agrees not to appoint any other depositary for the issuance or
administration of depositary receipts evidencing any class of stock of the
Company so long as Deutsche Bank Trust Company Americas is acting as
Depositary hereunder.
18. GOVERNING LAW
This Agreement and the Receipts shall be interpreted in accordance with,
and all rights hereunder and thereunder and provisions hereof and thereof
shall be governed by, the laws of the State of New York without reference
to the principles of choice of law thereof. Except as set forth in the
following paragraph of this Section 18, the Company and the Depositary
agree that the federal or state courts in the City of New York shall have
jurisdiction to hear and determine any suit, action or proceeding and to
settle any dispute between them that may arise out of or in connection
with this Agreement and, for such purposes, each irrevocably submits to
the non-exclusive jurisdiction of such courts. The Company hereby
irrevocably designates, appoints and empowers ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Esq. (the "Agent") now at IONA Technologies, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as its authorized agent to receive and
accept for and on its behalf, and on behalf of its properties, assets and
revenues, service by mail of any and all legal process, summons, notices
and documents that may be served in any suit, action or proceeding brought
against the Company in any federal or state court as described in the
preceding sentence or in the next paragraph of this Section 18. If for any
reason the Agent shall cease to be available to act as such, the Company
agrees to designate a new agent in the City of New York on the terms and
for the purposes of this Section 18 reasonably satisfactory to the
Depositary. The Company further hereby irrevocably consents
-22-
and agrees to the service of any and all legal process, summons, notices
and documents in any suit, action or proceeding against the Company, by
service by mail of a copy thereof upon the Agent (whether or not the
appointment of such Agent shall for any reason prove to be ineffective or
such Agent shall fail to accept or acknowledge such service), with a copy
mailed to the Company by registered or certified air mail, postage
prepaid, to its address provided in Section 14.6. The Company agrees that
the failure of the Agent to give any notice of such service to it shall
not impair or affect in any way the validity of such service or any
judgment rendered in any action or proceeding based thereon.
Notwithstanding the foregoing, the Depositary and the Company
unconditionally agree that in the event that a Holder or Beneficial Owner
brings a suit, action or proceeding against (a) the Company, (b) the
Depositary in its capacity as Depositary under this Agreement or (c)
against both the Company and the Depositary, in any state or federal court
of the United States, and the Depositary or the Company have any claim,
for indemnification or otherwise, against each other arising out of the
subject matter of such suit, action or proceeding, then the Company and
the Depositary may pursue such claim against each other in the state or
federal court in the United States in which such suit, action, or
proceeding is pending, and for such purposes, the Company and the
Depositary irrevocably submit to the non-exclusive jurisdiction of such
courts. The Company agrees that service of process upon the Agent in the
manner set forth in the preceding paragraph shall be effective service
upon it for any suit, action or proceeding brought against it as described
in this paragraph.
The Company irrevocably and unconditionally waives, to the fullest extent
permitted by law, any objection that it may now or hereafter have to the
laying of venue of any actions, suits or proceedings brought in any court
as provided in this Section 18, and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court
that any such action, suit or proceeding brought in any such court has
been brought in an inconvenient forum.
-23-
IONA TECHNOLOGIES PLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: CFO
DEUTSCHE BANK TRUST COMPANY AMERICAS
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice-President
-24-
EXHIBIT A
ANNEXED TO AND INCORPORATED IN DEPOSIT AGREEMENT
[FORM OF ADR]
CERTAIN RIGHTS OF THE HOLDER OF THIS AMERICAN DEPOSITARY RECEIPT MAY BE WITHHELD
IN ACCORDANCE WITH THE PROVISIONS OF SECTION 14 OF THE DEPOSIT AGREEMENT,
INCLUDING, WITHOUT LIMITATION, VOTING RIGHTS AND THE RIGHT TO RECEIVE DIVIDENDS
AND OTHER DISTRIBUTIONS
[Number] No. of ADSs: __________
Each ADS represents
One Share
CUSIP: ▇▇▇▇▇▇▇▇▇
AMERICAN DEPOSITARY RECEIPT
evidencing
AMERICAN DEPOSITARY SHARES
representing
ORDINARY SHARES, PAR VALUE EUR 0.0025 EACH
of
IONA TECHNOLOGIES PLC
(Organized under the laws of Ireland)
DEUTSCHE BANK TRUST COMPANY AMERICAS, as depositary hereunder (the
"DEPOSITARY"), hereby certifies that ____________________ is the registered
owner (a "HOLDER") of _____ American Depositary Shares ("ADSS"), each
representing one ordinary share, par value EUR 0.0025 each, including rights to
receive Shares (together "SHARES" and, together with any additional securities
or cash from time to time held by the Depositary or the Custodian referred to
below in respect or in lieu, thereof, the "DEPOSITED SECURITIES"), of IONA
TECHNOLOGIES PLC, a public limited company organized under the laws of the
Ireland (the "COMPANY"), deposited at New Century House, International Financial
Services Center, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇ office of The Governer
and Company of the Bank of Ireland, as custodian (the "CUSTODIAN"). This ADR is
issued pursuant to the Amended and Restated Deposit Agreement dated as of 26
April 2004 (as amended from time to time, the "AGREEMENT") among the Company,
the Depositary and the owner from time to time of American Depositary Receipts
issued thereunder ("ADRS"), each of whom by accepting an ADR agrees to become a
party thereto and to be bound by all of the terms and conditions thereof and
hereof. Copies of the Agreement are on file at the Depositary's Office at ▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ and at the office of the Custodian at New Century
House, International Financial Services Center, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇,
▇▇▇▇▇▇▇. This ADR shall be governed by and construed in accordance with the laws
of the State of New York. The terms and conditions of the Agreement are hereby
incorporated by reference into this ADR and terms defined in the Agreement are
used herein as so defined. In particular, the Agreement provides as follows:
1. Voting of Deposited Shares
Subject to the next sentence, as soon as practicable after receipt of
notice of any meeting at which the holders of Shares are entitled to vote,
or of solicitation of consents or proxies from holders of Shares or other
Deposited Securities, the Depositary shall fix the ADS Record Date
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in respect of such meeting or solicitation of consent or proxy. The
Depositary shall, if requested by the Company in writing in a timely
manner (the Depositary having no obligation to take any further action if
the request shall not have been received by the Depositary at least 30
days prior to the date of such vote or meeting) and at the Company's
expense and provided no U.S. legal prohibitions exist, which may in the
reasonable discretion of the Depositary be supported by an opinion of
counsel with respect to U.S. law in a form and substance acceptable to the
Depositary (furnished at Depositary's written request and the expense of
the Company), mail by regular, ordinary mail delivery or otherwise
distribute to Holders as of the ADS Record Date: (a) such notice of
meeting or solicitation of consent or proxy; (b) a statement that the
Holders at the close of business on the ADS Record Date will be entitled,
subject to any applicable law, the Articles of Association and the
provisions of or governing the Deposited Securities (which provisions, if
any, shall be summarized in pertinent part by the Company), to instruct
the Depositary as to the exercise of the voting rights, if any, pertaining
to the Shares or other Deposited Securities represented by such Holder's
ADSs; and (c) a brief statement as to the manner in which such
instructions may be given, including an express indication that such
instructions may be given or deemed given, in accordance with the
paragraph immediately below if no instruction is received, to the
Depositary to give a discretionary proxy to a person designated by the
Company. Voting instructions may be given only in respect of a number of
ADSs representing an integral number of Shares or other Deposited
Securities. Upon the timely receipt of written instructions of a Holder of
ADSs on the ADS Record Date of voting instructions in the manner specified
by the Depositary, the Depositary shall endeavor, insofar as practicable
and permitted under applicable law, the provisions of this Agreement, the
Company's Articles of Association and the provisions of or governing the
Deposited Securities, to vote or cause the Custodian to vote the Shares
and/or other Deposited Securities (in person or by proxy) represented by
ADSs evidenced by such Receipt in accordance with such voting
instructions.
Neither the Depositary nor the Custodian shall, under any circumstances
exercise any discretion as to voting, and neither the Depositary nor the
Custodian shall vote, attempt to exercise the right to vote, or in any way
make use of for purposes of establishing a quorum or otherwise, the Shares
or other Deposited Securities represented by ADSs except pursuant to and
in accordance with such written instructions from Holders or deemed
instructions. For all Shares or other Deposited Securities represented by
ADSs for which no specific voting instructions are received by the
Depositary in a timely fashion from the Holder the Depositary shall deem
such Holder to have instructed the Depositary to give a discretionary
proxy to a person designated by the Company with respect to such Shares or
other Deposited Securities and the Depositary shall give a discretionary
proxy to a person designated by the Company to vote such Deposited
Securities, provided that no such instruction shall be given with respect
to any matter as to which the Company informs the Depositary (and the
Company agrees to provide such information as promptly as practicable in
writing) that (x) the Company does not wish such proxy given, (y)
substantial solicitation of proxies in opposition exists or (z) such
matter materially and adversely affects the rights of holders of such
Shares or other Deposited Securities. The Company agrees to provide
written notice to the Depositary of any changes to the relevant governing
laws related to the granting of a discretionary proxy, including an
outright prohibition on the granting of such proxies, promptly upon
becoming aware of such changes.
Notwithstanding the above, save for applicable provisions of Irish law,
and in accordance with the terms of Section 10 of the Agreement, the
Depositary shall not be liable for any failure to carry out any
instructions to vote any of the Deposited Securities.
2. Distributions
2.1 Cash Distributions
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Whenever the Depositary receives confirmation from the Custodian of
receipt of any cash dividend or other cash distribution on any Deposited
Securities, or receives proceeds from the sale of any Shares, rights,
securities or other entitlements under the terms hereof, the Depositary
will, if at the time of receipt thereof any amounts received in a Foreign
Currency can in the judgment of the Depositary (pursuant to Section 6.8 of
the Agreement) be converted on a practicable basis into Dollars
transferable to the United States, promptly convert or cause to be
converted such cash dividend, distribution or proceeds into Dollars (on
the terms described in Section 6.8) and will distribute promptly the
amount thus received (net of (a) the applicable fees and charges of, and
expenses incurred by, the Depositary and (b) taxes withheld) to the
Holders of record as of the ADS Record Date in proportion to the number of
ADSs held by such Holders respectively as of the ADS Record Date. The
Depositary shall distribute only such amount, however, as can be
distributed without attributing to any Holder a fraction of one cent. Any
such fractional amounts shall be rounded to the nearest whole cent and so
distributed to Holders entitled thereto. Holders and Beneficial Owners
understand that in converting Foreign Currency, amounts received on
conversion are calculated at a rate which exceeds three or four decimal
places (the number of decimal places used by the Depositary to report
distribution rates). Any excess amount may be retained by the Depositary
as an additional cost of conversion, irrespective of any other fees and
expenses payable or owing hereunder and shall not be subject to
escheatment. If the Company, the Custodian or the Depositary is required
to withhold and does withhold from any cash dividend or other cash
distribution in respect of any Deposited Securities an amount on account
of taxes, duties or other governmental charges, the amount distributed to
Holders on the ADSs representing such Deposited Securities shall be
reduced accordingly. Such withheld amounts shall be forwarded by the
Company, the Custodian or the Depositary to the relevant governmental
authority. Evidence of payment thereof by the Company shall be forwarded
by the Company to the Depositary upon request. The Depositary will forward
to the Company or its agent such information from its records as the
Company may reasonably request to enable the Company or its agent to file
necessary reports with governmental agencies, such reports necessary to
obtain benefits under the applicable tax treaties for the Holders and
Beneficial Owners of Receipts.
2.2 Distribution in Shares
If any distribution upon any Deposited Securities consists of a dividend
in, or free distribution of, Shares, the Company shall cause such Shares
to be deposited with the Custodian and registered, as the case may be, in
the name of the Depositary, the Custodian or any of their nominees. Upon
receipt of confirmation of such deposit from the Custodian, the Depositary
shall establish the ADS Record Date upon the terms described in Section
6.6 of the Agreement and shall, subject to Exhibit B to the Agreement,
either (i) distribute to the Holders as of the ADS Record Date in
proportion to the number of ADRs held as of the ADS Record Date,
additional ADRs evidencing ADSs, which represent in the aggregate the
number of Shares received as such dividend, or free distribution, subject
to the other terms of this Agreement (including, without limitation, (a)
the applicable fees and charges of, and expenses incurred by, the
Depositary and (b) taxes), or (ii) if additional ADRs are not so
distributed, each ADR issued and outstanding after the ADS Record Date
shall, to the extent permissible by law, thenceforth also represent rights
and interests in the additional Shares distributed upon the Deposited
Securities represented thereby (net of (a) the applicable fees and charges
of, and expenses incurred by, the Depositary and (b) taxes). In lieu of
delivering fractional ADSs, the Depositary shall sell the number of Shares
represented by the aggregate of such fractions and distribute the proceeds
upon the terms described in Section 6.1 of the Agreement. The Depositary
may withhold any such distribution of Receipts if it has not received
satisfactory assurances from the Company (including, at the written
request of the Depositary, an opinion of counsel to the Company furnished
at the Company's expense) that such distribution does not require
registration under the Securities Act or is exempt from registration under
the provisions of the Securities Act. To the extent such distribution may
be withheld, the Depositary may dispose of all or a portion of such
distribution in such amounts and in such manner, including
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by public or private sale, as the Depositary deems necessary and
practicable, and the Depositary shall distribute the net proceeds of any
such sale (after deduction of applicable (a) taxes and (b) fees and
charges of, and expenses incurred by, the Depositary) to Holders entitled
thereto upon the terms described in Section 6.1.
2.3 Elective Distributions in Cash or Shares
Whenever the Company intends to distribute a dividend payable at the
election of the holders of Shares in cash or in additional Shares, the
Company shall give notice thereof to the Depositary at least 30 days prior
to the proposed distribution stating whether or not it wishes such
elective distribution to be made available to Holders. Upon receipt of
notice indicating that the Company wishes such elective distribution to be
made available to Holders, the Depositary shall consult with the Company
to determine, and the Company shall assist the Depositary in its
determination, whether it is lawful and reasonably practicable to make
such elective distribution available to the Holders. The Depositary shall
make such elective distribution available to Holders only if (i) the
Company shall have timely requested that the elective distribution is
available to Holders, (ii) the Depositary shall have determined that such
distribution is reasonably practicable and (iii) the Depositary shall have
received satisfactory documentation within the terms of Section 4.2 of the
Agreement. If the above conditions are not satisfied, the Depositary
shall, to the extent permitted by law, distribute to the Holders, on the
basis of the same determination as is made in the local market in respect
of the Shares for which no election is made, either (x) cash upon the
terms described in Section 6.1 of the Agreement or (y) additional ADSs
representing such additional Shares upon the terms described in Section
6.2 of the Agreement. If the above conditions are satisfied, the
Depositary shall establish an ADS Record Date (on the terms described in
Section 6.6 of the Agreement) and establish procedures to enable Holders
to elect the receipt of the proposed dividend in cash or in additional
ADSs. The Company shall assist the Depositary in establishing such
procedures to the extent necessary. Subject to Exhibit B to the Agreement,
if a Holder elects to receive the proposed dividend (x) in cash, the
dividend shall be distributed upon the terms described in Section 6.1 of
the Agreement, or (y) in ADSs, the dividend shall be distributed upon the
terms described in Section 6.2 of the Agreement. Nothing herein shall
obligate the Depositary to make available to Holders a method to receive
the elective dividend in Shares (rather than ADSs). There can be no
assurance that Holders generally, or any Holder in particular, will be
given the opportunity to receive elective distributions on the same terms
and conditions as the holders of Shares.
2.4 Distribution of Rights to Purchase Shares
(a) Distribution to ADS Holders. Whenever the Company intends to
distribute to the holders of the Deposited Securities rights to
subscribe for additional Shares, the Company shall give notice
thereof to the Depositary at least 60 days prior to the proposed
distribution stating whether or not it wishes such rights to be made
available to Holders. Upon receipt of a notice indicating that the
Company wishes such rights to be made available to Holders, the
Depositary shall consult with the Company to determine, and the
Company shall determine, whether it is lawful and reasonably
practicable to make such rights available to the Holders. The
Depositary shall make such rights available to Holders only if (i)
the Company shall have timely requested that such rights be made
available to Holders, (ii) the Depositary shall have received
satisfactory documentation within the terms of Section 4.2 of the
Agreement, and (iii) the Depositary shall have determined that such
distribution of rights is lawful and reasonably practicable. In the
event any of the conditions set forth above are not satisfied, the
Depositary shall proceed with the sale of the rights as contemplated
in Section 6.4(b) to the Agreement or, if timing or market
conditions may not permit, do nothing thereby allowing such rights
to lapse. In the event all conditions set forth above are satisfied,
the Depositary shall establish an ADS Record Date (upon the terms
described in Section 6.6 of the Agreement) and establish procedures
(x) to distribute such rights (by means of warrants or otherwise)
and (y) to enable the Holders to exercise the rights (upon payment
of applicable (a) fees and charges of, and expenses incurred by, the
Depositary and (b) taxes and other
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governmental charges). Nothing herein shall obligate the Depositary
to make available to the Holders a method to exercise such rights to
subscribe for Shares (rather than ADSs).
(b) Sale of Rights. If (i) the Company does not timely request the
Depositary to make the rights available to Holders or requests that
the rights not be made available to Holders, (ii) the Depositary
fails to receive satisfactory documentation within the terms of
Section 4.2 of the Agreement or determines it is not lawful or
reasonably practicable to make the rights available to Holders, or
(iii) any rights made available are not exercised and appear to be
about to lapse, the Depositary shall determine whether it is lawful
and reasonably practicable to sell such rights, in a riskless
principal capacity or otherwise, at such place and upon such terms
(including public or private sale) as it may deem proper. The
Company shall assist the Depositary to the extent necessary to
determine such legality and practicability. The Depositary shall,
upon such sale, convert and distribute proceeds of such sale (net of
applicable (a) fees and charges of, and expenses incurred by, the
Depositary and (b) taxes) upon the terms set forth in Section 6.1 of
the Agreement.
(c) Lapse of Rights. If the Depositary is unable to make any rights
available to Holders upon the terms described in Section 6.4(a) of
the Agreement or to arrange for the sale of the rights upon the
terms described in Section 6.4(b) of the Agreement, the Depositary
shall allow such rights to lapse.
The Depositary shall not be responsible for (i) any failure to determine
that it may be lawful or practicable to make such rights available to
Holders in general or any Holders in particular, (ii) any foreign exchange
exposure or loss incurred in connection with such sale, or exercise, or
(iii) the content of any materials forwarded to the Holders on behalf of
the Company in connection with the rights distribution.
Notwithstanding anything to the contrary in this Section 6.4 of the
Agreement, if registration (under the Securities Act or any other
applicable law) of the rights or the securities to which any rights relate
may be required in order for the Company to offer such rights or such
securities to Holders and to sell the securities represented by such
rights, the Depositary will not distribute such rights to the Holders (i)
unless and until a registration statement under the Securities Act
covering such offering is in effect or (ii) unless the Company furnishes
to the Depositary, at the Depositary's written request and the Company's
expense opinion(s) of counsel to the Company in the U.S. and counsel to
the Company in any other applicable country in which rights would be
distributed, in each case satisfactory to the Depositary, to the effect
that the offering and sale of such securities to Holders and Beneficial
Owners are exempt from, or do not require registration under, the
provisions of the Securities Act or any other applicable laws. In the
event that the Company, the Depositary or the Custodian shall be required
to withhold and does withhold from any distribution of property (including
rights) an amount on account of taxes or other governmental charges, the
amount distributed to the Holders shall be reduced accordingly. In the
event that the Depositary determines that any distribution in property
(including Shares and rights to subscribe therefor) is subject to any tax
or other governmental charges which the Depositary is obligated to
withhold, the Depositary may dispose of all or a portion of such property
(including Shares and rights to subscribe therefor) in such amounts and in
such manner, including by public or private sale, as the Depositary deems
necessary and practicable to pay any such taxes or charges.
There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to exercise rights on the same
terms and conditions as the holders of Shares or be able to exercise such
rights. Nothing herein shall obligate the Company to file any registration
statement in respect of any rights or Shares or other securities to be
acquired upon the exercise of such rights.
2.5 Distributions Other Than Cash, Shares or Rights to Purchase Shares
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(a) Whenever the Company intends to distribute to the holders of
Deposited Securities property other than cash, Shares or rights to
purchase additional Shares, the Company shall give notice thereof to
the Depositary at least 30 days prior to the proposed distribution
and shall indicate whether or not it wishes such distribution to be
made to Holders. Upon receipt of a notice indicating that the
Company wishes such distribution be made to Holders, the Depositary
shall determine whether such distribution to Holders is lawful and
practicable. The Depositary shall not make such distribution unless
(i) the Company shall have timely requested the Depositary to make
such distribution to Holders, (ii) the Depositary shall have
received satisfactory documentation within the terms of Section 4.2
of the Agreement, and (iii) the Depositary shall have determined
that such distribution is reasonably practicable.
(b) Upon receipt of satisfactory documentation and the request of the
Company to distribute property to Holders and after making the
requisite determinations set forth in (a) above, the Depositary may
distribute the property so received to the Holders of record as of
the ADS Record Date, in proportion to the number of ADRs held by
such Holders respectively and in such manner as the Depositary may
deem practicable for accomplishing such distribution (i) upon
receipt of payment or net of the applicable fees and charges of, and
expenses incurred by, the Depositary, and (ii) net of any taxes and
other governmental charges withheld. The Depositary may dispose of
all or a portion of the property so distributed and deposited, in
such amounts and in such manner (including public or private sale)
as the Depositary may deem practicable or necessary to satisfy any
taxes (including applicable interest and penalties) or other
governmental charges applicable to the distribution.
(c) If (i) the Company does not request the Depositary to make such
distribution to Holders or requests not to make such distribution to
Holders, (ii) the Depositary does not receive satisfactory
documentation within the terms of Section 4.2 of the Agreement, or
(iii) the Depositary determines that all or a portion of such
distribution is not reasonably practicable or feasible, the
Depositary shall endeavor to sell or cause such property to be sold
in a public or private sale, at such place or places and upon such
terms as it may deem proper and shall distribute the net proceeds,
if any, of such sale received by the Depositary (net of applicable
(a) fees and charges of, and expenses incurred by, the Depositary
and (b) taxes) to the Holders as of the ADS Record Date upon the
terms of Section 6.1 of the Agreement. If the Depositary is unable
to sell such property, the Depositary may dispose of such property
in any way it deems reasonably practicable under the circumstances
for nominal or no consideration and Holders and Beneficial Owners
shall have no rights thereto or arising therefrom.
3. Fixing of Record Date
Whenever necessary in connection with any distribution (whether in cash,
Shares, rights, or other distribution), or whenever for any reason the
Depositary causes a change in the number of Shares that are represented by
each ADS, or whenever the Depositary shall receive notice of any meeting
of or solicitation of holders of Shares or other Deposited Securities, or
whenever the Depositary shall find it necessary or convenient, the
Depositary shall fix a record date (the "ADS Record Date"), as close as
practicable to the record date fixed by the Company with respect to the
Shares, for the determination of the Holders who shall be entitled to
receive such distribution, to give instructions for the exercise of voting
rights at any such meeting, or to give or withhold such consent, or to
receive such notice or solicitation or to otherwise take action, or to
exercise the rights of Holders with respect to such changed number of
Shares represented by each ADS. Subject to applicable law and the
provisions of Section 6.1 through 6.5 of the Agreement and to the other
terms and conditions of the Agreement, only the Holders of record at the
close of business in New York on such ADS Record Date shall be entitled to
receive such
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distribution, to give such voting instructions, to receive such notice or
solicitation, or otherwise take action.
4. Available Information
The Agreement, the Articles of Association, and written communications
from the Company that are received by the Custodian or the Depositary in
accordance with Section 14.6 of the Agreement, are available for
inspection by Holders at the Depositary's Office and the office of the
Custodian during normal business hours on any Business Day. The Company is
subject to the periodic reporting requirements of the Securities Exchange
Act and accordingly files certain reports with the Commission. Such
reports and documents may be inspected and copied at the public reference
facilities maintained by the Commission located at the date of the
Agreement at Judiciary Plaza, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇.
5. Reports
The Depositary will, at the expense of the Company and in accordance with
Section 14.6, mail by regular, ordinary mail delivery or by electronic
transmission (if agreed between the Company and the Depositary) and unless
otherwise agreed in writing, copies of such communications (or English
translations or summaries thereof) to Holders when requested and furnished
by the Company.
6. Notices
Notice to any Holder shall be deemed to be given when first mailed, first
class postage prepaid, or sent via telex or facsimile transmission to such
Holder to the address or telex or facsimile number, as the case may be, of
such Holder in the Register. Notice to the Depositary or the Company shall
be deemed to be given when first received by it at the address or
facsimile transmission number set forth in (a) or (b) below, respectively,
or at such other address or facsimile transmission number as either may
specify to the other by written notice:
Deutsche Bank Trust Company Americas
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
Attention: ADR Department
Fax: ▇▇-▇▇▇-▇▇▇-▇▇▇▇
IONA Technologies PLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
Attention: Legal Department
Fax: ▇▇▇-▇-▇▇▇-▇▇▇▇
Notices to the Depositary must be in English.
7. Lists of Holders
The Company shall, to the extent permitted by applicable law, have the
right to inspect the Register and the transfer records of the Depositary
to supply copies of such records as the Company may reasonably request.
The Depositary shall, to the extent permitted by applicable
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law, furnish to the Company, promptly upon the receipt of a written
request from the Company, a list of the names and addresses of, and
holdings of ADSs by, all Holders. The Depositary shall provide copies to
the Company, promptly upon receipt of a written request from the Company,
of any information received by the Depositary in accordance with Section
5.6 of the Agreement unless such disclosure is prohibited by applicable
law.
8. Transfer, Combination and Split-up of ADRs
Subject to the terms and conditions of the Agreement, the Depositary
shall, upon surrender of an ADR or ADRs in form satisfactory to the
Depositary at the Depositary's Office (a) for the purpose of transfer, if
such ADRs are accompanied by such instruments of transfer as the
Depositary may require and are stamped as may be required by law, register
the transfer of such ADRs on the Register and execute and deliver new ADRs
to or upon the order of the person entitled thereto; and (b) for the
purpose of effecting a split-up or combination, execute and deliver a new
ADR or ADRs in such denominations as may be requested, evidencing the same
aggregate number of ADRs as the ADRs surrendered.
9. Amendment
The ADRs and the Agreement may be amended by the Company and the
Depositary without consent of the Holders, provided that any amendment
that imposes or increases any fees or charge, or that shall otherwise
prejudice any substantial existing right of Holders, shall become
effective 30 days after notice of such amendment shall have been given to
the Holders. Every Holder, at the time any amendment so becomes effective,
shall be deemed, by continuing to hold any ADR, to consent and agree to
such amendment and to be bound by the ADRs and the Agreement as amended
thereby.
10. Termination
The Depositary shall, at the written direction of the Company, terminate
the Agreement and this ADR by mailing notice of such termination to the
Holders at least 30 days prior to the date fixed in such notice for such
termination. The Depositary may terminate the Agreement, after giving
notice to the Holders as set forth in the preceding sentence of this
Section 13 at any time 45 days or more after the Depositary shall have
delivered to the Company its written resignation, provided that no
successor depositary shall have been appointed and accepted its
appointment as provided in Section 11 before the end of such 45 days.
After the date so fixed for termination, the Depositary and its agents
shall perform no further acts under the Agreement and this ADR, except to
advise Holders to such termination, receive and hold (or sell)
distributions on Deposited Securities and deliver Deposited Securities
being withdrawn together with any such distributions on Deposited
Securities. As soon as practicable after the expiration of one year from
the date so fixed for termination, the Depositary shall, to the extent
practicable, sell the Deposited Securities and shall thereafter (as long
as it may lawfully do so) hold the net proceeds of such sales, together
with any other cash then held by it under the Agreement, without liability
for interest, for the pro rata benefit of the Holders of ADRs not
theretofore surrendered. After making such sale, the Depositary shall be
discharged from all obligations in respect of the Agreement and this ADR,
except to account for such net proceeds and other cash and its
indemnification obligations to the Company. After the date so fixed for
termination, the Company shall be discharged from all obligations under
the Agreement except for its indemnification and payment obligations to
the Depositary.
11. Surrender of Receipts and Withdrawal of Securities
Upon surrender, at the Principal Office of the Depositary, of ADSs for the
purpose of withdrawal of the Deposited Securities represented thereby, and
upon payment of (i) the fees and charges of the Depositary for the making
of withdrawals of Deposited Securities and
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cancellation of ADRs (as set forth in Exhibit B) and (ii) all applicable
taxes and governmental charges payable in connection with such surrender
and withdrawal, including any applicable Irish stamp duty, and subject to
the terms and conditions of this Agreement, the Articles of Association,
and any other provisions of or governing the Deposited Securities and
other applicable laws, the Holder of such ADSs shall be entitled to
Delivery, to him or upon his order, of the Deposited Securities at the
time represented by the ADSs so surrendered. ADSs may be surrendered for
the purpose of withdrawing Deposited Securities by delivery of an ADR
evidencing such ADSs (if held in certificated form) or by book-entry
delivery of such ADSs to the Depositary.
A Receipt surrendered for such purposes shall, if so required by the
Depositary, be properly endorsed in blank or accompanied by proper
instruments of transfer in blank, and if the Depositary so requires, the
Holder thereof shall execute and deliver to the Depositary a written order
directing the Depositary to cause the Deposited Securities being withdrawn
to be delivered to or upon the written order of a person or persons
designated in such order. Thereupon, the Depositary shall direct the
Custodian to deliver (without unreasonable delay) at the designated office
of the Custodian or through a book entry delivery of the Shares (in either
case, subject to Section 5.6 of the Agreement, Exhibit B to the Agreement,
and to the other terms and conditions of this Agreement, to the Articles
of Association, to the provisions of or governing the Deposited Securities
and to applicable laws, now or hereafter in effect) to or upon the written
order of the person or persons designated in the order delivered to the
Depositary as provided above, the Deposited Securities represented by such
ADSs, together with any certificate or other proper documents of or
relating to title of the Deposited Securities as may be legally required,
as the case may be, to or for the account of such person.
The Depositary may, in its discretion, refuse to accept for surrender a
number of ADSs representing a number other than a whole number of Shares.
In the case of surrender of an ADR evidencing a number of ADSs
representing other than a whole number of Shares, the Depositary shall
cause ownership of the appropriate whole number of Shares to be delivered
in accordance with the terms hereof, and shall, at the discretion of the
Depositary, either (i) issue and deliver to the person surrendering such
Receipt a new Receipt evidencing ADSs representing any remaining
fractional Share, or (ii) sell or cause to be sold the fractional Shares
represented by the Receipt surrendered and remit the proceeds of such sale
(net of (a) applicable fees and charges of, and expenses incurred by, the
Depositary and (b) taxes withheld) to the person surrendering the Receipt.
At the request, risk and expense of any Holder so surrendering an ADR, and
for the account of such Holder, the Depositary shall direct the Custodian
to forward (to the extent permitted by law) any cash or other property
(other than securities) held in respect of, and any certificate or
certificates and other proper documents of or relating to title to, the
Deposited Securities represented by such ADR to the Depositary for
delivery at the Principal Office of the Depositary, and for further
delivery to such Holder. Such direction shall be given by letter or, at
the request, risk and expense of such Holder, by cable, telex or facsimile
transmission. Upon receipt by the Depositary, the Depositary may make
delivery to such person or persons entitled thereto at the Principal
Office of the Depositary of any dividends or cash distributions with
respect to the Deposited Securities represented by such ADSs, or of any
proceeds of sale of any dividends, distributions or rights, which may at
the time be held by the Depositary.
12. Limitations on Execution and Delivery, Transfer, Etc. of Receipts;
Suspension of Delivery, Transfer, Etc.
As a condition precedent to the execution and delivery, registration,
registration of transfer, split-up, combination or surrender of any ADR,
the delivery of any distribution thereon or withdrawal of any Deposited
Securities, the Depositary or the Custodian may require (i) payment from
the depositor of Shares or presenter of the ADR of a sum sufficient to
reimburse
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it for any tax or other governmental charge, including any applicable
Irish stamp duty, and any stock transfer or registration fee with respect
thereto (including any such tax or charge and fee with respect to Shares
being deposited or withdrawn) and payment of any applicable fees and
charges of the Depositary as provided in Exhibit B to the Agreement, (ii)
the production of proof satisfactory to it as to the identity and
genuineness of any signature or any other matter contemplated by Section
14.5 of the Agreement and (iii) compliance with (A) any laws or
governmental regulations relating to the execution and delivery of ADRs or
ADSs or to the withdrawal or delivery of Deposited Securities and (B) such
reasonable regulations as the Depositary may establish consistent with the
provisions of this Agreement and applicable law.
The issuance of ADSs against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the issuance of ADSs
against the deposit of particular Shares may be withheld, or the
registration of transfer of ADRs in particular instances may be refused,
or the registration of transfers of ADRs generally may be suspended,
during any period when the transfer books of the Depositary are closed or
if any such action is deemed necessary or advisable by the Depositary or
the Company, in good faith, at any time or from time to time because of
any requirement of law, any government or governmental body or commission
or any securities exchange on which the Receipts or Shares are listed, or
under any provision of this Agreement or provisions of, or governing, the
Deposited Securities, or any meeting of shareholders of the Company or for
any other reason, subject, in all cases, to Section 16 of the Agreement.
13. Proofs, Certificates and Other Information
Any person presenting Shares for deposit, any Holder and any Beneficial
Owner may be required, and every Holder and Beneficial Owner agrees, from
time to time to provide to the Depositary or the Custodian such proof of
citizenship or residence, taxpayer status, payment of all applicable taxes
or other governmental charges, exchange control approval, legal or
beneficial ownership of ADSs and Deposited Securities, compliance with
applicable laws and the terms of this Agreement and the provisions of, or
governing, the Deposited Securities or other information; to execute such
certifications and to make such representations and warranties, and to
provide such other information and documentation as the Depositary may
deem necessary or proper or as the Company may reasonably require by
written request to the Depositary consistent with its obligations
hereunder. The Depositary and the Registrar, as applicable, may withhold
the execution or delivery or registration of transfer of any Receipt or
the distribution or sale of any dividend or distribution of rights or of
the proceeds thereof, or to the extent not limited by the terms of Section
16 of the Agreement, the delivery of any Deposited Securities, until such
proof or other information is filed or such certifications are executed,
or such representations and warranties are made, or such other
documentation or information provided, in each case to the Depositary's
and the Company's satisfaction. The Depositary shall from time to time on
the written request advise the Company of the availability of any such
proofs, certificates or other information and shall, at the Company's sole
expense, provide or otherwise make available copies thereof to the Company
upon written request thereof by the Company, unless such disclosure is
prohibited by law. Each Holder and Beneficial Owner agrees to provide any
information requested by the Company or the Depositary pursuant to this
paragraph. Nothing herein shall obligate the Depositary to (i) obtain any
information for the Company if not provided by the Holders or Beneficial
Owners or (ii) verify or vouch for the accuracy of the information so
provided by the Holders or Beneficial Owners.
14. Indemnification by the Company
The Company agrees to indemnify the Depositary against any loss, liability
or expense (including reasonable fees and expenses of counsel) that may
arise out of a (a) its acceptance and performance of its powers and duties
in respect of this Agreement, except to the extent
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such loss, liability or expense (i) is due to the gross negligence or bad
faith of the Depositary or its agents or (ii) arises out of a Pre-Release
of an ADR and would not have arisen had such ADR not been the subject of a
Pre-Release, or (b) any offer or sale of ADRs, ADSs, Shares or other
Deposited Securities or any registration statement under the Securities
Act in respect thereof, except to the extent such loss, liability or
expense arises out of information (or omissions from such information)
relating to the Depositary furnished in writing to the Company by the
Depositary expressly for use in such registration statement.
15. Additional Information
This Agreement, the Company's Articles of Association, and written
communications from the Company that are received by the Custodian or the
Depositary in accordance with Section 14.6 of the Agreement, are available
for inspection by Holders at the Depositary's Office and the office of the
Custodian during normal business hours on any Business Day. The Company is
subject to the periodic reporting requirements of the Securities Exchange
Act and accordingly files certain reports with the Commission. Such
reports and documents may be inspected and copied at the public reference
facilities maintained by the Commission located at the date of the
Agreement at Judiciary Plaza, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇.
16. Fees and Charges of the Depositary
The fees and charges of the Depositary are set out in Exhibit B to the
Agreement and are hereby incorporated by reference.
Dated: DEUTSCHE BANK TRUST
COMPANY AMERICAS as Depositary
By: __________________________
Vice President
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EXHIBIT B
FEES AND CHARGES OF THE DEPOSITARY
The Company, the Holders, the Beneficial Owners, and persons depositing Shares
or surrendering ADSs for cancellation and withdrawal of Deposited Securities
shall be required to pay to the Depositary the Depositary's fees and related
charges identified as payable by them respectively as set forth below.
The Depositary shall charge the following fees for the services performed under
the terms of the Agreement:
(i) to any person to whom ADSs are issued upon the deposit of Shares or
to any person to whom a distribution is made in respect of ADS
distributions pursuant to stock dividends or other free
distributions of stock, bonus distributions, stock splits or other
distributions (except where converted to cash), a fee not in excess
of U.S.$5.00 per 100 ADSs (or fraction thereof) so issued under the
terms of the Agreement to be determined by the Depositary;
(ii) to any person surrendering ADSs for cancellation and withdrawal of
Deposited Securities including, inter alia, cash distributions made
pursuant to a cancellation or withdrawal, a fee not in excess of
U.S.$5.00 per 100 ADSs (or fraction thereof) so surrendered;
(iii) to any Holder of ADSs, a fee not in excess of U.S.$2.00 per 100 ADS
held for the distribution of cash proceeds, including cash dividends
or sale of rights and other entitlements, not made pursuant to a
cancellation or withdrawal;
(iv) to any Holder of ADSs, a fee not in the excess of U.S.$5.00 per 100
ADSs (or portion thereof) issued upon the exercise of rights.
In addition, Holders, Beneficial Owners, persons depositing Shares for deposit
and persons surrendering ADSs for cancellation and withdrawal of Deposited
Securities will be required to pay the following charges:
(i) taxes (including applicable interest and penalties) and other
governmental charges;
(ii) such registration fees as may from time to time be in effect for the
registration of Shares or other Deposited Securities with the
Foreign Registrar and applicable to transfers of Shares or other
Deposited Securities to or from the name of the Custodian, the
Depositary or any nominees upon the making of deposits and
withdrawals, respectively;
(iii) such cable, telex , facsimile and electronic transmission and
delivery expenses as are expressly provided in the Agreement to be
at the expense of the person depositing or withdrawing Shares or
Holders and Beneficial Owners of ADSs;
(iv) the expenses and charges incurred by the Depositary in the
conversion of foreign currency;
(v) such fees and expenses as are incurred by the Depositary in
connection with compliance with exchange control regulations and
other regulatory requirements applicable to Shares, Deposited
Securities, ADSs and ADRs;
(vi) the fees and expenses incurred by the Depositary in connection with
the delivery of Deposited Securities, including any fees of a
central depository for securities in the local market, where
applicable; and
(vii) any additional fees, charges, costs or expenses that may be incurred
by the Depositary or its agents, or the Custodian, or its agents
from time to time.
Any other charges and expenses of the Depositary under the Agreement will be
paid by the Company upon agreement between the Depositary and the Company.
All fees and charges so payable may, at any time and from time to time, be
changed by agreement between the Depositary and the Company, but, in the case of
fees and charges payable by Holders and Beneficial Owners, only in the manner
contemplated in Section 12. The Depositary shall provide, without charge, a copy
of its latest fee schedule to anyone upon request.
The Depositary and the Company may reach separate agreement in relation to the
payment of any additional remuneration to the Depositary in respect of any
exceptional duties which the Depositary finds necessary or desirable and agreed
by both parties in the performance of its obligations hereunder and in respect
of the actual costs and expenses of the Depositary in respect of any notices
required to be given to the Holders in accordance with Section 14.6.
In connection with any payment by the Company to the Depositary:
(i) all fees, taxes, duties, charges, costs and expenses which are
payable by the Company shall be paid or be procured to be paid by
the Company (and any such amounts which are paid by the Depositary
shall be reimbursed to the Depositary by the Company upon demand
therefor); and
(ii) such payment shall be subject to all necessary exchange control
regulations, where applicable, and other consents and approvals
having been obtained. The Company undertakes to use its reasonable
endeavours to obtain all necessary approvals that are required to be
obtained by it in this connection.
(iii) the Depositary may request, in its sole but reasonable discretion
after reasonable consultation with the Company, an opinion of
counsel regarding New York law, the laws of Ireland, or the laws of
any other applicable jurisdiction, to be furnished at the expense of
the Company, if at any time it deems it necessary to seek such an
opinion of counsel regarding the validity of any action to be taken
or instructed to be taken under this Agreement.
The Company agrees to promptly pay to the Depositary such other fees and charges
and to reimburse the Depositary for such out-of-pocket expenses as the
Depositary and the Company may agree to in writing from time to time.
Responsibility for payment of such charges may at any time and from time to time
be changed by agreement between the Company and the Depositary.
All payments by the Company to the Depositary under this Exhibit B shall be paid
without set-off or counterclaim, and free and clear of and without deduction or
withholding for or on account of, any present or future taxes, levies, imports,
duties, fees, assessments or other charges of whatever nature, imposed by
Ireland or by any department, agency or other political subdivision or taxing
authority thereof or therein, and all interest, penalties or similar liabilities
with respect thereto.
The right of the Depositary to receive payment of fees, charges and expenses as
provided above shall survive the termination of this Agreement. As to any
Depositary, upon the resignation or removal of such Depositary as described in
Section 11 of the Agreement, such right shall extend for those fees, charges and
expenses incurred prior to the effectiveness of such resignation or removal.