EXHIBIT 4.2
AMENDMENT NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT TO DEPOSIT AGREEMENT dated as of February 17, 2005 (this
"Amendment"), among INFICON HOLDING AG (the "Company"), THE BANK OF NEW YORK, as
depositary (the "Depositary"), and all owners and beneficial owners from time to
time of American Depositary Receipts issued under the Existing Deposit Agreement
referred to herein.
W I T N E S S E T H :
WHEREAS, the Company and the Depositary entered into an Amended and
Restated Deposit Agreement dated as of November 8, 2000 (the "Existing Deposit
Agreement") for the purposes set forth in that agreement; and
WHEREAS, pursuant to Section 6.01 of the Existing Deposit Agreement,
the Company and the Depositary wish to amend the Existing Deposit Agreement;
NOW, THEREFORE, the Company and the Depositary hereby agree as
follows:
1. Section 6.02 of the Existing Deposit Agreement is hereby amended by replacing
the fifth sentence of that Section with the following:
"After the expiration of 60 days from the date of termination, the Depositary
shall use reasonable efforts to sell the Deposited Securities then held under
this Deposit Agreement and shall hold uninvested the net proceeds of any such
sale, together with any other cash then held by it hereunder, without liability
for interest, for the pro rata benefit of the Owners of Receipts that have not
theretofore been surrendered, such Owners thereupon becoming general creditors
of the Depositary with respect to such net proceeds."
2. Article 21 of the form of Receipt attached as Exhibit A to the Deposit
Agreement is hereby amended by replacing the fifth sentence of that Article with
the following:
"After the expiration of 60 days from the date of termination, the Depositary
shall use reasonable efforts to sell the Deposited Securities then held under
this Deposit Agreement and shall hold uninvested the net proceeds of any such
sale, together with any other cash then held by it hereunder, without liability
for interest, for the pro rata benefit of the Owners of Receipts that have not
theretofore been surrendered, such Owners thereupon becoming general creditors
of the Depositary with respect to such net proceeds."
3. The Depositary shall give the Owners notice of this Amendment as soon as
practicable and concurrently with notice of termination of the Deposit
Agreement. The foregoing amendments shall be effective 30 days after the date of
that notice.
4. Except for the foregoing amendments, the Deposit Agreement shall remain in
full force and effect until termination in accordance with the terms thereof.
5. This Amendment shall be governed by and construed in accordance with the laws
of the State of New York.
6. This Amendment may be executed in one or more counterparts, and all those
counterparts together shall constitute one original document.
IN WITNESS WHEREOF, INFICON HOLDING AG and THE BANK OF NEW YORK have
duly executed this Amendment as of the date first above written.
INFICON HOLDING AG
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President and Chief Executive Officer
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice-President and Chief Financial Officer
THE BANK OF NEW YORK
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: