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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
0-00 Xxxxxxxx
Xxxxxx XX0X 0XX
TABLE OF CONTENTS
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...................................................17
9. MAINTENANCE OF OFFICE.................................................17
10. STANDARD OF CARE......................................................17
11. RESIGNATION AND REMOVAL OF THE DEPOSITARY:
SUCCESSOR DEPOSITARY................................................18
12. AMENDMENT.............................................................19
13. TERMINATION...........................................................19
14. INFORMATION...........................................................19
15. INDEMNIFICATION.......................................................22
16. COMPLIANCE WITH U.S. SECURITIES LAWS..................................22
17. MISCELLANEOUS.........................................................22
18. GOVERNING LAW.........................................................23
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:
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WHEREAS, the Company and XX Xxxxxx Xxxxx Bank (as successor to Xxxxxx
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 00 Xxxx Xxxxxx, Xxx Xxxx, XX 00000, Xxxxxx Xxxxxx.
"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).
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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 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
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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 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
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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 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
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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 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
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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 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.
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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.
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,
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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.
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
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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.
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
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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 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.
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(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 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.
6.5 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
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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 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
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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 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
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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 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
-16-
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
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
-17-
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 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.
-18-
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 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, 000 Xxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X.
00000.
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.
-19-
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 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
-20-
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:
(a) Deutsche Bank Trust Company Americas
00 Xxxx Xxxxxx
Xxx Xxxx
XX 00000
Xxxxxx Xxxxxx
Attention: ADR Department
Fax: x0-000-000-0000
(b) IONA Technologies PLC
The IONA Building
Shelbourne Road
Ballsbridge
Dublin 4
Ireland
Attention: Legal Department
Fax: 000-0-000-0000
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.
-21-
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.
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
-22-
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 Xxxxxxxxxxx X. Xxxxxxxx, Esq. (the
"Agent") now at IONA Technologies, Inc., 000 Xxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxxxxx 00000, 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 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/ Xxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
DEUTSCHE BANK TRUST COMPANY AMERICAS
By: /s/ Xxxx X. Xxxxxx
----------------------------
Name: Xxxx X. Xxxxxx
Title: Director
By: /s/ Xxxxx X. Xxxxxx
----------------------------
Name: Xxxxx X. Xxxxxx
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: 00000X000
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, Xxxxx Xxxxx Xxxxxx, Xxxxxx 0, Xxxxxxx 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 00
Xxxx Xxxxxx, Xxx Xxxx XX 00000 and at the office of the Custodian at New Century
House, International Financial Services Center, Xxxxx Xxxxx Xxxxxx, Xxxxxx 0,
Xxxxxxx. 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
A-1
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
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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 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
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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
(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
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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 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, 000 Xxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.
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:
(d) Deutsche Bank Trust Company Americas
00 Xxxx Xxxxxx
Xxx Xxxx
XX 00000
Xxxxxx Xxxxxx
Attention: ADR Department
Fax: x0-000-000-0000
(e) IONA Technologies PLC
Xxx XXXX Xxxxxxxx
Xxxxxxxxxx Xxxx
Xxxxxxxxxxx
Xxxxxx 0 Xxxxxxx
Attention: Legal Department
Fax: 000-0-000-0000
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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 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
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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 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.
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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 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
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(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 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, 000 Xxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X.
00000.
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;
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(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.
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