IONA Technologies PLC
5,150,000 American Depositary Shares
representing
5,150,000 Ordinary Shares
UNDERWRITING AGREEMENT
_______________, 2002
Xxxxxx Brothers Inc.
XX Xxxxx Securities Corporation
Prudential Securities Incorporated
As Representatives of the several
Underwriters named in Schedule 1,
c/x Xxxxxx Brothers Inc.
000 0xx Xxxxxx
Xxx Xxxx, XX 00000
Dear Sirs:
IONA Technologies PLC, a public limited company organized
under the laws of Ireland (the "Company"), and the shareholder of the Company
listed on Schedule 2 (the "Selling Shareholder") propose to sell an aggregate of
5,150,000 American Depositary Shares (the "Firm ADSs"), representing 5,150,000
Ordinary Shares, par value (euro)0.0025 per share (the "Shares"), of the
Company, of which the Company proposes to sell 5,000,000 Firm ADSs and the
Selling Shareholder proposes to sell 150,000 Firm ADSs. In addition, the Company
proposes to grant to the Underwriters named in Schedule 1 hereto (the
"Underwriters") an option to purchase up to an additional 772,500 American
Depositary Shares representing 772,500 Shares on the terms and for the purposes
set forth in Section 3 (the "Option ADSs" and the "Option Shares",
respectively). The Firm ADSs and the Option ADSs, if and to the extent
purchased, are hereinafter collectively called the "ADSs." The Firm Shares will
be deposited with Xxxxxx Guaranty Trust Company of New York (the "Custodian") on
the First Delivery Date (as hereinafter defined) or, in the case of the Option
Shares, on the date on which Option ADSs purchased in respect of the
over-allotment option are purchased, if such date is not the First Delivery
Date, pursuant to a deposit agreement in the form previously delivered to you
(the "Deposit Agreement"), dated as of February 24, 1997 among the Company,
Xxxxxx Guaranty Trust Company of New York as depositary (the "Depositary") and
the holders from time to time of American Depositary Receipts (the "ADRs")
issued by the Depositary and evidencing the ADSs. This is to confirm the
agreement concerning the purchase of the ADSs from the Company and the Selling
Shareholder by the Underwriters.
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1. Representations, Warranties and Agreements of the Company. The Company
represents and warrants to and agrees with the Underwriters that:
(a) A registration statement on Form F-3 (File No. 333-81212) with
respect to the Firm Shares and Option Shares has (i) been prepared by the
Company in conformity with the requirements of the United States Securities
Act of 1933, as amended (the "Securities Act") and the rules and
regulations (the "Rules and Regulations") of the United States Securities
and Exchange Commission (the "Commission") thereunder, (ii) been filed with
the Commission under the Securities Act and (iii) become effective under
the Securities Act; and a second registration statement on Form F-3 with
respect to the Firm Shares and the Option Shares (i) may also be prepared
by the Company in conformity with the requirements of the Securities Act
and the Rules and Regulations and (ii) if to be so prepared, will be filed
with the Commission on the date hereof under the Securities Act pursuant to
Rule 462(b) of the Rules and Regulations. Copies of the first registration
statement, including all amendments thereto, and all documents incorporated
by reference in the prospectus contained therein, together with the form of
any such second registration statement have been delivered by the Company
to you as the representatives (the "Representatives") of the Underwriters.
As used in this Agreement, "Effective Time" means (i) with respect to the
first such registration statement, the date and the time as of which such
registration statement, or the most recent post-effective amendment
thereto, if any, was declared effective by the Commission and (ii) with
respect to any second registration statement, the date and time as of which
such second registration statement is filed with the Commission, and
"Effective Times" is the collective reference to both Effective Times;
"Effective Date" means (i) with respect to the first such registration
statement, the date of the Effective Time of such registration statement
and (ii) with respect to any second registration statement, the date of the
Effective Time of such second registration statement, and "Effective Dates"
is the collective reference to both Effective Dates; "Preliminary
Prospectus" means each prospectus included in any such registration
statement, or amendments thereto, before it became effective under the
Securities Act and any prospectus filed with the Commission by the Company
with the consent of the Representatives in accordance with this Agreement
pursuant to Rule 424(a) of the Rules and Regulations; "Primary Registration
Statement" means the first registration statement referred to in this
Section l(a), as amended at its Effective Time, "Rule 462(b) Registration
Statement" means the second registration statement, if any, referred to in
this Section 1(a), as filed with the Commission, and "Registration
Statements" means both the Primary Registration Statement and any Rule
462(b) Registration Statement, including in each case all information
contained in the final prospectus filed with the Commission pursuant to
Rule 424(b) of the Rules and Regulations in accordance with Section 6(a)
hereof and deemed to be a part of the Registration Statements as of the
Effective Time of the Primary Registration Statement pursuant to paragraph
(b) of Rule 430A of the Rules and Regulations and the documents
incorporated by reference in the prospectus contained in the Registration
Statements at the time such parts of the Registration Statements became
effective; and "Prospectus" means such final prospectus, as first filed
with the Commission pursuant to paragraph (1) or (4) of Rule 424(b) of the
Rules and Regulations; and any reference herein to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 6 of Form F-3
under the
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Act, as of the date of such Preliminary Prospectus or Prospectus, as the case
may be; any reference to any amendment or supplement to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include any
documents filed after the date of such Preliminary Prospectus or Prospectus, as
the case may be, under the United States Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be; and any reference to any amendment
to the Registration Statements shall be deemed to refer to and include any
annual report of the Company filed pursuant to Section 13(a) or 15(d) of the
Exchange Act after the effective date of the Registration Statement that is
incorporated by reference in the Registration Statement. The Commission has not
issued any order preventing or suspending the use of any Preliminary Prospectus.
(b) A registration statement on Form F-6 under the Securities Act in
respect of the ADSs evidenced by the ADRs has (i) been prepared by the
Depositary in conformity with the requirements of the Securities Act and the
Rules and Regulations, (ii) been filed with the Commission under the Securities
Act and (iii) become effective under the Securities Act. Copies of such
registration statement, including all amendments thereto, have been delivered by
the Company to you as the Representatives of the Underwriters. As used in this
Agreement, "ADS Registration Statement" means such registration statement,
including all exhibits thereto, as amended at the time such registration
statement shall have become effective.
(c) The Primary Registration Statement and the ADS Registration Statemen
conform (and the Rule 462(b) Registration Statement, if any, the Prospectus and
any further amendments or supplements to the Registration Statements, the ADS
Registration Statement or the Prospectus, when they become effective or are
filed with the Commission, as the case may be, will conform) in all respects to
the requirements of the Securities Act and the Rules and Regulations and do not
and will not, as of the applicable effective date (as to the Registration
Statements and the ADS Registration Statement and any amendment thereto) and as
of the applicable filing date (as to the Prospectus and any amendment or
supplement thereto) contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this representation
and warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company (i)
by an Underwriter through Xxxxxx Brothers Inc. expressly for use therein or (ii)
by or on behalf of any Selling Shareholder specifically for inclusion therein
and described on Schedule 3 hereof.
(d) The documents incorporated by reference in the Prospectus, when they
were filed with the Commission, conformed in all material respects to the
requirements of the Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder, and did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and any further
documents so filed and incorporated by reference in the Prospectus or any
further amendment or supplement thereto, when such documents are filed with the
Commission, will conform in all material respects to the requirements of the Act
or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder
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and will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter through Xxxxxx Brothers Inc. expressly for use therein.
(e) The Company and each of its subsidiaries (as defined in Section 17)
have been duly incorporated and are validly existing as corporations in good
standing under the laws of their respective jurisdictions of incorporation; the
Company and each of its subsidiaries are duly qualified to do business and are
in good standing as foreign corporations in each jurisdiction in which their
respective ownership or lease of property or the conduct of their respective
businesses requires such qualification, and have all power and authority
necessary to own or hold their respective properties and to conduct the
businesses in which they are engaged, except for such failures to so qualify and
be in good standing or to have such power and authority which in the aggregate
do not constitute a material adverse effect on the Company and its subsidiaries
taken as a whole; and, except for Netfish Technologies, Inc. and Object-Oriented
Concepts, Inc., none of the subsidiaries of the Company is a "significant
subsidiary", as such term is defined in Rule 405 of the Rules and Regulations.
(f) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company have
been duly authorized and validly issued, are fully paid and credited as fully
paid and conform to the description thereof contained in the Prospectus; and all
of the issued shares of capital stock of each subsidiary of the Company have
been duly and validly authorized and issued and are fully paid and credited as
fully paid and are owned directly or indirectly by the Company, free and clear
of all liens, encumbrances, equities or claims.
(g) The unissued Shares represented by ADSs to be issued and sold by the
Company to the Underwriters hereunder have been duly and validly authorized and,
when issued and deposited as contemplated herein and in the Deposit Agreement,
and when the ADSs have been issued and delivered against payment therefor as
provided herein, the Shares, when so deposited and the ADSs, when so issued and
sold, will be duly and validly issued and credited as fully paid; and the ADSs
and the underlying Shares will conform in all material respects to the
descriptions thereof contained in the Prospectus; and except for a resolution of
the Board of Directors or any committee thereof allotting the exact number of
Option Shares and Option ADSs, if any, no further approval or authority of the
shareholders or the Board of Directors of the Company will be required for the
issuance and sale of the ADSs or the issuance and deposit of the Shares as
contemplated herein and in the Deposit Agreement.
(h) Upon the valid issuance by the Depositary of ADRs evidencing ADSs
against deposit of Shares in respect thereof and against payment therefor in
accordance with the provisions hereof and of the Deposit Agreement, the persons
in whose names the ADRs are registered will be entitled to the rights specified
in the ADRs and in the Deposit
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Agreement; and the Deposit Agreement conforms in all material respects to the
description thereof contained in the Prospectus.
(i) This Agreement has been duly authorized, executed and delivered by
the Company.
(j) The execution, delivery and performance of this Agreement by the
Company and the consummation of the transactions contemplated hereby and thereby
will not conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the Company
or any of its subsidiaries is subject, nor will such actions result in any
violation of the provisions of the memorandum and articles of association or
by-laws or other constituent documents of the Company or any of its subsidiaries
or any statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any of its subsidiaries
or any of their properties or assets; and except for registration of the Shares
and the ADSs under the Securities Act and such consents, approvals,
authorizations, filings, registrations or qualifications as may be required
under the Exchange Act, the Irish Companies Acts 1963-2001 or the Listing Rules
of the Irish Stock Exchange, and applicable state or foreign securities laws in
connection with the Company's execution and delivery of this Agreement or the
purchase and distribution of the ADSs by the Underwriters, no consent, approval,
authorization or order of, or filing or registration with, any such court or
governmental agency or body is required for the execution, delivery and
performance of this Agreement by the Company and the consummation of the
transactions contemplated hereby.
(k) Except as may be disclosed in the Prospectus, no stamp or other
issuance or transfer taxes or duties and no capital gains, income, withholding
or other taxes are payable by or on behalf of the Underwriters to the government
of the United States or Ireland or any political subdivision or taxing authority
thereof or therein in connection with (i) the issuance of the Shares as
contemplated by the Company hereunder, (ii) the deposit of the Shares by the
Company with the Custodian for the Depositary against issuance of ADRs
evidencing ADSs registered in the names as instructed by the Underwriters, (iii)
the sale of the ADSs by the Company to the Underwriters in the manner
contemplated herein or (iv) the resale and delivery of such ADSs (evidenced by
ADRs) by the Underwriters to the initial purchasers thereof as contemplated by
the Prospectus.
(l) Except as set forth in the Prospectus under Section 7(b) of
"Additional Information and Reports Required Pursuant to Applicable Legal
Requirements of Ireland," there are no contracts, agreements or understandings
between the Company and any person granting such person the right to require the
Company to file a registration statement under the Securities Act with respect
to any securities of the Company owned or to be owned by such person or to
require the Company to include such securities in the securities registered
pursuant to the Registration Statements or the ADS Registration
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Statement or in any securities being registered pursuant to any other
registration statement filed by the Company under the Securities Act.
(m) Except as described in the Prospectus, the Company has not sold or
issued any Shares during the six-month period preceding the date of the
Prospectus, including any sales pursuant to Rule 144A under, or Regulations D or
S of, the Securities Act, other than Shares issued pursuant to employee benefit
plans, qualified stock options plans or other employee compensation plans or
pursuant to outstanding options, rights or warrants.
(n) Neither the Company nor any of its subsidiaries has sustained, since
the date of the latest audited financial statements included in the Prospectus,
any material loss or interference with its business from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus; and, except as set forth or
contemplated in the Prospectus, since such date, there has not been any change
in the capital stock or increase in long-term debt of the Company or any of its
subsidiaries or any material adverse change, or any development known to the
Company to involve a prospective material adverse change, in or affecting the
business, consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole.
(o) The financial statements (including the related notes and supporting
schedules) filed as part of the Registration Statements or included in the
Prospectus present fairly the consolidated financial condition and results of
operations of the entities purported to be shown thereby, at the dates and for
the periods indicated, and have been prepared in conformity with United States
generally accepted accounting principles applied on a consistent basis
throughout the periods involved.
(p) Ernst & Young, who have certified certain financial statements of the
Company, whose report appears in the Prospectus and who have delivered the
initial letter referred to in Section 9(h) hereof, are independent public
accountants as required by the Securities Act and the Rules and Regulations.
(q) The Company and each of its subsidiaries have good and marketable
title in fee simple to all real property and good and marketable title to all
personal property owned by them, in each case free and clear of all liens,
encumbrances and defects except such as are described in the Prospectus or such
as do not materially affect the value of such property and do not materially
interfere with the use made or proposed to be made of such property by the
Company and its subsidiaries; and all real property and buildings held under
lease by the Company and its subsidiaries are held by them under valid,
subsisting and enforceable leases, with such exceptions as are not material and
do not materially interfere with the use made and proposed to be made of such
property and buildings by the Company and its subsidiaries.
(r) The Company and each of its subsidiaries carry, or are covered by,
insurance in such amounts and covering such risks as is reasonably adequate for
the conduct of
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their respective businesses and the value of their respective properties
and as is customary for companies engaged in similar businesses in similar
industries.
(s) The Company and each of its subsidiaries own or possess adequate
rights to use all material patents, patent applications, trademarks, service
marks, trade names, trademark registrations, service xxxx registrations,
copyrights, licenses, trade secrets, technology, know-how and other patented
and/or unpatentable proprietary or confidential information, systems,
procedures and materials necessary for the conduct of their respective
businesses; to the knowledge of the Company, neither the Company nor any of
its subsidiaries is infringing or otherwise violating any such rights of
others; and the Company and each of its subsidiaries have no reason to
believe that the conduct of their respective businesses will conflict with,
and, except as may be disclosed in the Prospectus, have not received any
notice of any claim of conflict or infringement with, any such rights of
others.
(t) Except as may be disclosed in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property or asset of the Company or
any of its subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would have a material adverse effect on
the business, consolidated financial position, shareholders' equity or
results of operations of the Company and its subsidiaries; and to the
knowledge of the Company, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others.
(u) Except as may be disclosed in the Prospectus, no labor disturbance
by the employees of the Company exists or, to the knowledge of the Company,
is imminent; and no collective bargaining agreement exists with any of the
Company's employees and, to the knowledge of the Company, no such agreement
is imminent.
(v) The Company has filed all income and franchise tax returns required
to be filed through the date hereof and has paid all taxes due thereon,
other than amounts being contested in good faith for which appropriate
reserves have been made, and no tax deficiency has been determined adversely
to the Company or any of its subsidiaries which has had (nor does the
Company have any knowledge of any tax deficiency which, if determined
adversely to the Company or any of its subsidiaries, would have) a material
adverse effect on the business, consolidated financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries.
(w) Since the respective dates as of which information is given in the
Prospectus through the date hereof, and except as may otherwise be disclosed
in the Prospectus, the Company has not (i) issued or granted any securities
other than pursuant to its share option schemes, (ii) incurred any liability
or obligation, direct or contingent, other than liabilities and obligations
which were incurred in the ordinary course of business, (iii) entered into
any transaction not in the ordinary course of business or (iv) declared or
paid any dividend on its capital stock.
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(x) The Company (i) makes and keeps accurate books and records and (ii)
maintains Internal accounting controls which provide reasonable assurance
that (A) transactions are executed in accordance with management's
authorization, (B) transactions are recorded as necessary to permit
preparation of its financial statements and to maintain accountability for
its assets, (C) access to its assets is permitted only in accordance with
management's authorization and (D) the reported accountability for its
assets is compared with existing assets at reasonable intervals.
(y) Neither the Company nor any of its subsidiaries (i) is in violation
of its memorandum and articles of association, by-laws or other constituent
documents, (ii) is in default in any material respect, and no event has
occurred which, with notice or lapse of time or both, would constitute such
a default, in the due performance or observance of any term, covenant or
condition contained in any material indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which it is a party or by
which it is bound or to which any of its properties or assets is subject,
except for such events which in the aggregate do not constitute a material
adverse effect on the Company and its subsidiaries taken as a whole, or
(iii) is in violation in any material respect of any law, ordinance,
governmental rule, regulation or court decree to which it or its properties
or assets may be subject or has failed to obtain any material license,
permit, certificate, franchise or other governmental authorization or permit
necessary to the ownership of its property or to the conduct of its
business, except for such failures which in the aggregate do not constitute
a material adverse effect on the Company and its subsidiaries taken as a
whole.
(z) Neither the Company nor any of its subsidiaries, nor any director,
officer, agent, employee or other person associated with or acting on behalf
of the Company or any of its subsidiaries, has used any corporate funds for
any unlawful contribution, gift, entertainment or other unlawful expense
relating to political activity; made any direct or indirect unlawful payment
to any foreign or domestic government official or employee from corporate
funds; violated or is in violation of any provision of the United States
Foreign Corrupt Practices Act of 1977; or made any bribe, rebate, payoff,
influence payment, kickback or other unlawful payment.
(aa) There has been no storage, disposal, generation, manufacture,
refinement, transportation, handling or treatment of toxic wastes, hazardous
wastes or hazardous substances by the Company or any of its subsidiaries
(or, to the knowledge of the Company, any of their predecessors in interest)
at, upon or from any of the properties now or previously owned or leased by
the Company or its subsidiaries in violation of any applicable law,
ordinance, rule, regulation, order, judgment, decree or permit or which
would require remedial action under any applicable law, ordinance, rule,
regulation, order, judgment, decree or permit, except for any violation or
remedial action which would not have singly or in the aggregate with all
such violations and remedial actions, a material adverse effect on the
business, financial position, stockholders' equity or results of operations
of the Company and its subsidiaries taken as a whole; there has been no
material spill, discharge, leak, emission, injection, escape, dumping or
release of any kind onto any of the properties now or previously owned or
leased by the Company or its subsidiaries or into the environment
surrounding such property of any toxic wastes,
8
hazardous wastes or hazardous substances due to or caused by the Company or
any of its subsidiaries or with respect to which the Company or any of its
subsidiaries have knowledge, except for any such spill, discharge, leak,
emission, injection, escape, dumping or release which would not have,
singularly or in the aggregate with all such spills, discharges, leaks,
emissions, injections, escapes, dumpings and releases, a material adverse
effect on the business, financial position, stockholders' equity or results
of operations of the Company and its subsidiaries taken as a whole; and the
terms "hazardous wastes", "toxic wastes" and "hazardous substances" shall
have the meanings specified in any applicable laws or regulations with
respect to environmental protection.
(ab) Neither the Company nor any subsidiary of the Company is an
"investment company" within the meaning of such term under the United States
Investment Company Act of 1940, as amended, and the rules and regulations of
the Commission thereunder.
(ac) The Company's ordinary shares are registered pursuant to Section
12(g) of the Exchange Act and, when issued, the ADSs will be listed on the
Nasdaq National Market. The Company has taken no action designed to, or
likely to have the effect of terminating the registration of the Company's
ordinary shares under the Exchange Act, nor has the Company received any
notification that the Commission is contemplating terminating such
registration.
(ad) Except as disclosed in the Registration Statement, the Company is
not, and upon the consummation of the transactions contemplated hereby and
the application of the net proceeds as described in the Registration
Statement under the caption "Use of Proceeds" will not become a "passive
foreign investment company" as defined in Section 1297(a) of the Internal
Revenue Code of 1986, as amended.
2. Representations, Warranties and Agreements of the Selling
Shareholder. The Selling Shareholder represents and warrants to and agrees with
the Underwriters that:
(a) The Selling Shareholder has, and immediately prior to the First
Delivery Date (as defined in Section 5 hereof), the Selling Shareholder will
have, good and valid title to the Shares represented by the ADSs to be sold
by the Selling Shareholder hereunder on such date, free and clear of all
liens, encumbrances, equities or claims; and upon deposit of the Shares as
contemplated herein and in the Deposit Agreement and upon delivery of the
ADSs representing such Shares and payment therefor pursuant hereto and
thereto, good and valid title to such ADSs, free and clear of all liens,
encumbrances, equities or claims, will pass to the several Underwriters.
(b) The Selling Shareholder has placed in custody under a custody
agreement (the "Custody Agreement") with Xxxxxx Brothers Inc., as custodian
(the "Custodian"), Shares to be deposited with the Depositary in respect of
the ADSs to be sold by the Selling Shareholder hereunder.
(c) The Selling Shareholder has duly executed and delivered an
irrevocable power of attorney (the "Power of Attorney") appointing the
Company and one or more other persons, as attorneys, with full power of
substitution, and with full authority
9
(exercisable by any one or more of them) to execute and deliver this
Agreement and to take such other action as may be necessary or desirable to
carry out the provisions hereof on behalf of such Selling Shareholder.
(d) The Selling Shareholder has full right, power and authority to
enter into this Agreement, the Power of Attorney and the Custody Agreement;
the execution, delivery and performance of this Agreement, the Power of
Attorney and the Custody Agreement by the Selling Shareholder and the
consummation by the Selling Shareholder of the transactions contemplated
hereby and thereby will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under, any
material indenture, mortgage, deed of trust, loan agreement or other
material agreement or instrument to which the Selling Shareholder is a party
or by which the Selling Shareholder is bound or to which any of the property
or assets of the Selling Shareholder is subject, or, to the knowledge of the
Selling Shareholder, any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the Selling
Shareholder or the property or assets of the Selling Shareholder; and,
except for registration of the Shares and the ADSs under the Securities Act
and such consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and applicable
state or foreign securities laws in connection with the purchase and
distribution of the ADSs by the Underwriters, no consent, approval,
authorization or order of, or filing or registration with, any such court or
governmental agency or body is required for the execution, delivery and
performance of this Agreement, the Power of Attorney or the Custody
Agreement by the Selling Shareholder and the consummation by the Selling
Shareholder of the transactions contemplated hereby and thereby.
(e) The Selling Shareholder has not taken and will not take, directly
or indirectly, any action which is designed to or which has constituted or
which might reasonably be expected to cause or result in the stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the ADSs.
(f) Except as may be disclosed in the Prospectus, including, without
limitation, Irish stamp duty payable upon the deposit by the Selling
Shareholder of the Shares with the Depositary (which is to be discharged by
the Selling Shareholder), no stamp or other issuance or transfer taxes or
duties and no capital gains, income, withholding or other taxes are payable
by or on behalf of the Underwriters to the government of the United States
or Ireland or any political subdivision or taxing authority thereof or
therein in connection with (i) the deposit of Shares by the Selling
Shareholder with the Custodian for the Depositary against issuance of ADRs
evidencing ADSs to be sold to the Underwriters, (ii) the sale of such ADSs
by the Selling Shareholder to the Underwriters in the manner contemplated
herein or (iii) the resale and delivery of such ADSs (evidenced by ADRs) by
the Underwriters to the initial purchasers thereof as contemplated by the
Prospectus.
(g) The information pertaining to the Selling Shareholder under the
caption "Principal and Selling Shareholders" in the Prospectus is complete
and accurate in all material respects.
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3. Purchase of the ADSs by the Underwriters. On the basis of the
representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to sell 5,000,000 Firm
ADSs, and the Selling Shareholder hereby agrees to sell 150,000 Firm ADSs,
severally and not jointly to the several Underwriters and each of the
Underwriters, severally and not jointly, agrees to purchase the number of
Firm ADSs set opposite that Underwriter's name in Schedule 1 hereto. Each
Underwriter shall be obligated to purchase from the Company and the Selling
Shareholder that number of Firm ADSs which represents the same proportion of
the number of Firm ADSs to be sold by the Company, and by the Selling
Shareholder, as the number of Firm ADSs set forth opposite the name of such
Underwriter in Schedule 1 represents of the total number of Firm ADSs to be
purchased by all of the Underwriters pursuant to this Agreement. The
respective purchase obligations of the Underwriters with respect to the Firm
ADSs shall be rounded among the Underwriters to avoid fractional shares, as
the Representatives may determine.
In addition, the Company grants to the Underwriters an option to
purchase up to 772,500 Option ADSs. Such option is granted solely for the
purpose of covering over-allotments in the sale of Firm ADSs and are
exercisable as provided in Section 5 hereof. Option ADSs shall be purchased
severally for the account of the Underwriters in proportion to the number of
Firm ADSs set opposite the name of such Underwriters in Schedule 1 hereto.
Each Underwriter shall be obligated to purchase from the Company that number
of Option ADSs which represents the same proportion of the number of Option
ADSs to be sold by the Company as the number of Firm ADSs set forth opposite
the name of such Underwriter in Schedule I represents of the total number of
Firm ADSs to be purchased by all of the Underwriters pursuant to this
Agreement. The respective purchase obligations of each Underwriter with
respect to the Option ADSs shall be adjusted by the Representatives so that
no Underwriter shall be obligated to purchase Option ADSs other than in 100
share amounts.
The price of both the Firm ADSs and any Option ADSs shall be US $______
per ADS.
The Company and the Selling Shareholder shall not be obligated to
deliver any of the ADSs to be delivered on the First Delivery Date or the
Second Delivery Date (as hereinafter defined), as the case may be, except
upon payment for all the ADSs to be purchased on such Delivery Date as
provided herein.
4. Offering of ADSs by the Underwriters. Upon authorization by the
Representatives of the release of the Firm ADSs, the several Underwriters
propose to offer the Firm ADSs for sale upon the terms and conditions set
forth in the Prospectus; provided, however, that no ADSs registered pursuant
to the Rule 462(b) Registration Statement, if any, shall be offered prior to
the Effective Time thereof.
5. Delivery of and Payment for the ADSs. Delivery of and payment for
the Firm ADSs shall be made at the office of Xxxxxx Brothers Inc., 000 Xxxx
Xxxxxx, Xxx Xxxx, XX 00000, Xxxxxx Xxxxxx at 10:00 A.M., New York City time,
on the third full business day following the date of this Agreement or at
such other date or place as shall be determined by agreement between the
Representatives and the Company. This date and time are sometimes referred
to as the "First Delivery Date." On or prior to the First Delivery Date, the
Company and
11
the Selling Shareholder shall deliver or cause to be delivered in definitive
form its respective Firm Shares representing the Firm ADSs to the Depositary
and ADRs evidencing the Firm ADSs shall be delivered to the Representatives
for the account of each Underwriter against payment to or upon the order of
the Company and the Selling Shareholder of the purchase price by wire
transfer of same day funds. Time shall be of the essence, and delivery at
the time and place specified pursuant to this Agreement is a further
condition of the obligation of each Underwriter hereunder. Upon delivery,
the ADRs evidencing the Firm ADSs shall be registered in such names and in
such denominations as the Representatives shall request in writing not less
than two full business days prior to the First Delivery Date. For the
purpose of expediting the checking and packaging of the ADRs evidencing the
Firm ADSs, the Company and the Selling Shareholder shall cause such ADRs to
be available for inspection by the Representatives in New York, New York,
not later than 2:00 P.M., New York City time, on the business day prior to
the First Delivery Date.
At any time on or before the 30th day after the date of this Agreement
the option granted in Section 3 may be exercised by written notice being
given to the Company. Such notice shall set forth the aggregate number of
ADSs as to which the option is being exercised, the names in which the ADRs
evidencing such Option ADSs are to be registered, the denominations in which
such ADRs are to be issued and the date and time, as determined by the
Representatives, when such ADRs are to be delivered; provided, however, that
this date and time shall not be earlier than the First Delivery Date nor
earlier than the second business day after the date on which the option
shall have been exercised nor later than the fifth business day after the
date on which the option shall have been exercised. The date and time the
ADRs evidencing the Option ADSs are delivered are sometimes referred to as
the "Second Delivery Date" and the First Delivery Date and the Second
Delivery Date are sometimes each referred to as a "Delivery Date").
Delivery of and payment for the Option ADSs shall be made at the place
specified in the first sentence of the first paragraph of this Section 5 (or
at such other place as shall be determined by agreement between the
Representatives and the Company) at 10:00 A.M., New York City time, on the
Second Delivery Date. On the Second Delivery Date, the Company shall deliver
or cause to be delivered the Shares representing the Option ADSs to the
Depositary and the ADRs evidencing the Option ADSs to be delivered to the
Representatives for the account of each Underwriter against payment to or
upon the order of the Company, as the case may be, of the purchase price by
wire transfer of same day funds. Time shall be of the essence, and delivery
at the time and place specified pursuant to this Agreement is a further
condition of the obligation of each Underwriter hereunder. Upon delivery,
the ADRs evidencing the Option ADSs shall be registered in such names and in
such denominations as the Representatives shall request in the aforesaid
written notice. For the purpose of expediting the checking and packaging of
the ADRs evidencing the Option ADSs, the Company shall make such ADRs
available for inspection by the Representatives in New York, New York, not
later than 2:00 P.M., New York City time, on the business day prior to the
Second Delivery Date.
12
6. Further Agreements of the Company. The Company agrees with the
Underwriters:
(a) To prepare any Rule 462(b) Registration Statement, if necessary,
in a form approved by the Representatives and to file such Rule 462(b)
Registration Statement with the Commission on the date hereof; to prepare
the Prospectus in a form approved by the Representatives and to file such
Prospectus pursuant to Rule 424(b) under the Securities Act not later than
10:00 A.M., New York City time, on the day following the execution and
delivery of this Agreement; to make no further amendment or any supplement
to the Registration Statements, the ADS Registration Statement or to the
Prospectus except as permitted herein; to file promptly all reports and
other information required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 and 15(d) of the Exchange Act
subsequent to the date of the Prospectus and for so long as the delivery of
the prospectus is required in connection with the offering or sale of the
ADSs; to advise the Representatives, promptly after it receives notice
thereof, of the time when any amendment to either Registration Statement or
the ADS Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed and
to furnish the Representatives with copies thereof; to advise the
Representatives, promptly after it receives notice thereof, of the issuance
by the Commission of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus, of the
suspension of the qualification of the ADSs for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any
such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statements, the ADS Registration
Statement or the Prospectus or for additional information; and, in the
event of the issuance of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus or
suspending any such qualification, to use promptly its best efforts to
obtain its withdrawal;
(b) To furnish promptly to each of the Representatives (on behalf of
the Underwriters) and to counsel for the Underwriters a signed copy of each
of the Registration Statements and a photocopy of the ADS Registration
Statement as originally filed with the Commission, and each amendment
thereto filed with the Commission, including all consents and exhibits
filed therewith;
(c) To deliver promptly to the Representatives such number of the
following documents as the Representatives shall reasonably request: (i)
conformed copies of the Registration Statements and the ADS Registration
Statement as originally filed with the Commission and each amendment
thereto (in each case excluding exhibits other than this Agreement) and
(ii) each Preliminary Prospectus, the Prospectus (not later than 10:00
A.M., New York City time, on the day following the execution and delivery
of this Agreement) and any amended or supplemented Prospectus (not later
than 10:00 A.M., New York City time, on the day following the date of such
amendment or supplement); and, if the delivery of a prospectus is required
at any time after the Effective Time of the Primary Registration Statement
in connection with the offering or sale of the ADSs and if at such time any
event shall have occurred as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a material
fact or omit to
13
state any material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other reason it
shall be necessary during the same such period to amend or supplement the
Prospectus, or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Securities Act or
the Exchange Act, to notify the Representatives and, upon their request, to
file such document and to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many copies as the
Representatives may from time to time reasonably request of an amended or
supplemented Prospectus which will correct such statement or omission or
effect such compliance;
(d) To file promptly with the Commission any amendment to the
Registration Statements, the ADS Registration Statement or the Prospectus
or any supplement to the Prospectus that may, in the judgment of the
Company or the Representatives, be required by the Securities Act or
requested by the Commission;
(e) Prior to filing with the Commission any (i) amendment to either of
the Registration Statements or the ADS Registration Statement or supplement
to the Prospectus or (ii) any Prospectus pursuant to Rule 424 of the Rules
and Regulations, to furnish a copy thereof to the Representatives and
counsel for the Underwriters and obtain the consent (which need not be in
writing) of the Representatives to the filing;
(f) As soon as practicable after the Effective Date of the Primary
Registration Statement, to make generally available to the Company's
security holders and to deliver to the Representatives an earnings
statement of the Company and its subsidiaries (which need not be audited)
complying with Section 11(a) of the Securities Act and the Rules and
Regulations (including, at the option of the Company, Rule 158);
(g) To the extent any such materials are not available through the
Commission's Electronic Data Gathering and Retrieval System (XXXXX), for a
period of five years following the Effective Date of the Primary
Registration Statement, to furnish to the Representatives copies of all
materials furnished by the Company to its shareholders and all public
reports and all reports and financial statements furnished by the Company
to the principal national securities exchange upon which the ADSs or Shares
may be listed pursuant to requirements of or agreements with such exchange
or to the Commission pursuant to the Exchange Act or any rule or regulation
of the Commission thereunder;
(h) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the ADSs for offering and
sale under the securities laws of such jurisdictions as the Representatives
may reasonably request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for as long
as may be necessary to complete the distribution of the ADSs;
(i) For a period of 90 days from the date of the Prospectus, not to,
directly or indirectly, offer for sale, sell or otherwise dispose of (or
enter into any transaction or device which is designed to, or could be
expected to, result in the disposition or purchase by any person at any
time in the future of), any Shares or ADSs or securities convertible
14
into or exchangeable for Shares or ADSs (other than the ADSs and Shares
issued pursuant to employee stock option plans existing on the date hereof
or contractual obligations of the Company existing as of the date hereof),
or sell or grant options, rights or warrants with respect to any Shares
(other than the grant of options pursuant to option plans existing on the
date hereof), or register for sale any outstanding Shares or ADSs (other
than Shares or ADSs to be registered pursuant to a registration statement
on Form S-8), in each case without the prior written consent of Xxxxxx
Brothers Inc., except for the ADSs to be sold pursuant to this Agreement;
and to cause each officer and director of the Company to furnish to the
Representatives, prior to the First Delivery Date, a letter or letters, in
form and substance satisfactory to counsel for the Underwriters, pursuant
to which each such person shall agree not to, directly or indirectly, offer
for sale, sell or otherwise dispose of (or enter into any transaction or
device which is designed to, or could be expected to, result in the
disposition or purchase by any person at any time in the future of), any
Shares or ADSs or securities convertible into or exchangeable for Shares or
ADSs, or sell or grant options, rights or warrants with respect to any
Shares, or register for sale any outstanding Shares or ADSs, in each case
for a period of 90 days from the date of the Prospectus, without the prior
written consent of Xxxxxx Brothers Inc., except for (i) the ADSs to be sold
pursuant to this Agreement, (ii) ADSs purchased from the Underwriters as
part of the offering contemplated by this Agreement or in the public market
pursuant to brokers' transactions and (iii) in the case of each officer and
director of the Company who is not a Selling Shareholder, up to 25,000
Shares or ADSs;
(j) To apply the net proceeds from the sale of the ADSs being sold by
the Company as set forth in the Prospectus;
(k) To take such steps as shall be necessary to ensure that neither
the Company nor any subsidiary shall become an "investment company" within
the meaning of such term under the United States Investment Company Act of
1940 and the rules and regulations of the Commission thereunder;
(l) To take such steps as shall be necessary to maintain the listing
of the ADSs on the Nasdaq National Market; and
(m) Not to take, directly or indirectly, any action which is designed
to or which has constituted or which might reasonably be expected to cause
or result in the stabilization or manipulation of the price of any security
of the Company to facilitate the sale or resale of the ADSs.
7. Further Agreements of the Selling Shareholder. The Selling
Shareholder agrees with the Underwriters:
(a) For a period of 90 days from the date of the Prospectus, not to,
directly or indirectly, offer for sale, sell or otherwise dispose of (or
enter into any transaction or device which is designed to, or could be
expected to, result in the disposition or purchase by any person at any
time in the future of) any Shares or ADSs or securities convertible into or
exchangeable for Shares or ADSs, or sell or grant options, rights or
warrants with respect to any Shares, or register for sale any outstanding
Shares or ADSs (other than
15
Shares or ADSs to be registered pursuant to a registration statement on
Form S-8), in each case, without the prior written consent of Xxxxxx
Brothers Inc., except for (i) the ADS to be sold pursuant to this Agreement
and (ii) ADSs purchased from the Underwriters as part of the offering
contemplated by this Agreement or in the public market pursuant to brokers'
transactions.
(b) That the Shares to be deposited with the Depositary by the Selling
Shareholder hereunder against issuance of ADSs, which are represented in
definitive form and held in custody for the Selling Shareholder, are
subject to the interest of the Underwriters and the Selling Shareholder
thereunder, that the arrangements made by the Selling Shareholder for such
custody are to that extent irrevocable, and that the obligations of the
Selling Shareholder hereunder shall not be terminated by any act of the
Selling Shareholder, by operation of law, by the death or incapacity of the
Selling Shareholder or, in the case of a trust, by the death or incapacity
of any executor or trustee or the termination of such trust, or by the
occurrence of any other event.
(c) To deliver to the Representatives prior to the First Delivery Date
a properly completed and executed United States Treasury Department Form
W-8 BEN.
8. Expenses. The Company agrees to pay (a) the costs incident to the
authorization, issuance, sale and delivery of the ADSs sold by the Company and
any transfer or other taxes payable in that connection, including without
limitation any Irish capital duty; (b) the costs incident to the preparation,
printing and filing under the Securities Act of the Registration Statements and
the ADS Registration Statement and any amendments and exhibits thereto; (c) the
costs of distributing the Registration Statements and the ADS Registration
Statement as originally filed and each amendment thereto and any post-effective
amendments thereof (including, in each case, exhibits), any Preliminary
Prospectus, the Prospectus and any amendment or supplement to the Prospectus,
all as provided in this Agreement; (d) the costs of reproducing and distributing
this Agreement; (e) the costs of distributing the terms of agreement relating to
the organization of the underwriting syndicate and selling group to the members
thereof by mail, telex or other means of communication; (f) the costs of
delivering and distributing the Custody Agreement and the Power of Attorney; (g)
the filing fees incident to securing any required review by the National
Association of Securities Dealers, Inc. of the terms of sale of the ADSs; (h)
any applicable listing or other fees (including, without limitation, costs
incident to listing the Shares on the Official List of the Irish Stock
Exchange); (i) the fees and expenses of qualifying the ADSs under the securities
laws of the several jurisdictions as provided in Section 6(h) and of preparing,
printing and distributing a Blue Sky Memorandum (including related fees and
expenses of counsel to the Underwriters); and (j) all other costs and expenses
incident to the performance of the obligations of the Company under this
Agreement, including, without limitation, the fees and expenses of Ernst &
Young, the Company's independent accountants, and the fees and expenses of
counsel to the Company; provided that, except as provided in this Section 8 and
in Section 13, the Underwriters shall pay their own costs and expenses,
including the costs and expenses of their counsel and the expenses of
advertising any offering of the ADSs made by the Underwriters; the Selling
Shareholder shall pay the fees and expenses of its counsel and the fees and
expenses of the Custodian; and the Selling Shareholder shall pay any transfer or
other taxes payable in connection with the deposit of Shares by it with the
Depositary against the issuance of ADRs evidencing ADSs to be sold to the
Underwriters
16
and otherwise in connection with ADSs sold by it, including, without limitation,
any Irish stamp duty.
9. Conditions of Underwriters' Obligations. The respective
obligations of the Underwriters hereunder are subject to the accuracy, when made
and on each Delivery Date, of the representations and warranties of the Company
and the Selling Shareholder contained herein, to the performance by the Company
and the Selling Shareholder of their respective obligations hereunder, and to
each of the following additional terms and conditions:
(a) The Rule 462(b) Registration Statement, if any, and the Prospectus
shall have been timely filed with the Commission in accordance with Section
6(a); no stop order suspending the effectiveness of either of the
Registration Statements or the ADS Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and any request of the
Commission for inclusion of additional information in either of the
Registration Statements, the ADS Registration Statement or the Prospectus
or otherwise shall have been complied with.
(b) No Underwriter shall have discovered and disclosed to the Company
on or prior to such Delivery Date that either of the Registration
Statements, the ADS Registration Statement or the Prospectus, any document
incorporated by reference into the Prospectus or any amendment or
supplement thereto contains any untrue statement of a fact which, in the
opinion of Xxxx and Xxxx LLP, counsel for the Underwriters, is material or
omits to state any fact which, in the opinion of such counsel, is material
and is required to be stated therein or is necessary to made the statements
therein not misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Custody Agreement,
the Power of Attorney, the ADSs, the Registration Statements, the ADS
Registration Statement, the Prospectus, and any document incorporated by
reference into the Prospectus and all other legal matters relating to this
Agreement and the transactions contemplated hereby shall be satisfactory to
counsel for the Underwriters, and the Company and the Selling Shareholder
shall have furnished to such counsel all documents and information that
they may reasonably request to enable them to pass upon such matters.
(d) Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP shall have furnished to the
Representatives their written opinion, as U.S. counsel to the Company,
addressed to the Underwriters and dated such Delivery Date, in form and
substance reasonably satisfactory to the Representatives, to the effect set
forth in Exhibit A hereto.
---------
(e) Xxxxxxx Xxx, Solicitors, shall have furnished to the
Representatives their written opinion, as Irish counsel to the Company,
addressed to the Underwriters and dated such Delivery Date, in form and
substance reasonably satisfactory to the Representatives, to the effect set
forth in Exhibit B-1 hereto. Xxxxxxx Xxx Tax Advisors Limited shall have
-----------
furnished to the Representatives their written opinion, as Irish tax
counsel to the Company, addressed to the Underwriters and dated such
Delivery Date, in
17
form and substance reasonably satisfactory to the Representatives, to the
effect set forth in Exhibit B-2 hereto.
-----------
(f) Counsel to the Selling Shareholder shall have furnished to the
Representatives their written opinion, as counsel to the Selling
Shareholder, addressed to the Underwriters and dated such Delivery Date, in
form and substance reasonably satisfactory to the Representatives, to the
effect set forth in Exhibit C hereto.
---------
(g) Xxxxxxx, Xxxxxxx & Xxxxxx, counsel for the Depositary, shall have
furnished to the Representatives their written opinion, addressed to the
Underwriters and dated such Delivery Date, in form and substance reasonably
satisfactory to the Representatives, to the effect set forth in Exhibit D
---------
hereto.
(h) With respect to the letter of Ernst & Young delivered to the
Representatives concurrently with the execution of this Agreement, (the
"initial letter"), the Company shall have furnished to the Representatives
a letter (the "bring-down letter") of such accountants, addressed to the
Underwriters and dated such Delivery Date (i) confirming that they are
independent public accountants within the meaning of the Securities Act and
are in compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of the
Commission, (ii) stating, as of the date of the bring-down letter (or, with
respect to matters involving changes or developments since the respective
dates as of which specified financial information is given in the
Prospectus, as of a date not more than five days prior to the date of the
bring-down letter), the conclusions and findings of such firm with respect
to the financial information and other matters covered by the initial
letter and (iii) confirming in all material respects the conclusions and
findings set forth in the initial letter.
(i) The Company shall have furnished to the Representatives a
certificate, dated such Delivery Date, of its Chief Executive Officer and
its Chief Financial Officer, on behalf of the Company, stating that:
(i) The representations, warranties and agreements of the
Company in Section 1 are true and correct as of such Delivery
Date; the Company has complied with all its agreements
contained herein; and the conditions set forth in Section 9(a)
have been fulfilled;
(ii) (A) Neither the Company nor any of its subsidiaries
has sustained since the date of the latest audited financial
statements included in the Prospectus any material loss or
interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the
Prospectus or (B) since such date there has not been any
change in the capital stock or increase in long-term debt of
the Company or any of its subsidiaries or any change, or any
development known to the Company to involve a prospective
change, in or affecting the business, consolidated financial
position, stockholders' equity or results of operations of the
Company and its subsidiaries, otherwise than as set forth or
contemplated in the Prospectus; and
18
(iii) They have carefully examined the Registration Statements, the
ADS Registration Statement and the Prospectus and, in their opinion
(A) the Registration Statements and the ADS Registration Statement, as
of their respective Effective Dates, and the Prospectus, as of each of
the Effective Dates, did not include any untrue statement of a
material fact and did not omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading, and (B) since the Effective Date of the Primary
Registration Statement no event has occurred which should have been
set forth in a supplement or amendment to either of the Registration
Statements or the ADS Registration Statement or the Prospectus which
has not been so set forth in such supplement or amendment.
(j) The Selling Shareholder (or one or more attorneys on behalf of the
Selling Shareholder) shall have furnished to the Representatives on the
First Delivery Date a certificate, dated such Delivery Date, signed by, or
on behalf of, the Selling Shareholder (or one or more attorneys) stating
that the representations, warranties and agreements of the Selling
Shareholder contained herein are true and correct as of such Delivery Date
and that the Selling Shareholder has complied with all agreements contained
herein to be performed by the Selling Shareholder at or prior to such
Delivery Date.
(k) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included
in the Prospectus any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus or (ii) since
such date there shall not have been any change in the capital stock or
increase in long-term debt of the Company or any of its subsidiaries or any
change, or any development involving a prospective change, in or affecting
the business, consolidated financial position, stockholders' equity or
results of operations of the Company and its subsidiaries, otherwise than as
set forth or contemplated in the Prospectus, the effect of which, in any
such case described in clause (i) or (ii), is, in the judgment of the
Representatives, so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the ADSs
being delivered on such Delivery Date on the terms and in the manner
contemplated in the Prospectus.
(l) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange, the Nasdaq National Market or the
American Stock Exchange or in the over-the-counter market, or trading in any
securities of the Company on any exchange or in the over-the-counter market,
shall have been suspended or minimum prices shall have been established on
any such exchange or such market by the Commission, by such exchange or by
any other regulatory body or governmental authority having jurisdiction,
(ii) a banking moratorium shall have been declared by U.S. federal or state
or Irish authorities, (iii) the United States or Ireland shall have become
engaged in hostilities, there shall have been an escalation in hostilities
involving the United States or Ireland or there shall have been a
declaration of a national emergency or war by the United States or Ireland
or (iv) there shall have occurred such a material adverse change in general
19
economic, political or financial conditions (or the effect of international
conditions on the financial markets in the United States or Ireland shall be
such) as to make it, in the judgment of a majority in interest of the
several Underwriters, impracticable or inadvisable to proceed with the
public offering or delivery of the ADSs being delivered on such Delivery
Date on the terms and in the manner contemplated in the Prospectus.
(m) The ADSs shall be listed on the Nasdaq National Market.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
10. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each Underwriter,
its officers and employees and each person, if any, who controls any
Underwriter within the meaning of the Securities Act, from and against any
loss, claim, damage or liability, joint or several, or any action in
respect thereof (including, but not limited to, any loss, claim, damage,
liability or action relating to purchases and sales of ADSs), to which that
Underwriter, officer, employee or controlling person may become subject,
under the Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained (A) in
any Preliminary Prospectus, either of the Registration Statements, the ADS
Registration Statement or the Prospectus, or in any amendment or supplement
thereto, or (B) in any blue sky application or other document prepared or
executed by the Company (or based upon any written information furnished by
the Company) specifically for the purpose of qualifying any or all of the
ADSs under the securities laws of any state or other jurisdiction (any such
application, document or information being hereinafter called a "Blue Sky
Application"), (ii) the omission or alleged omission to state in any
Preliminary Prospectus, either of the Registration Statements, the ADS
Registration Statement or the Prospectus, or in any amendment or supplement
thereto, or in any Blue Sky Application any material fact required to be
stated therein or necessary to make the statements therein not misleading
or (iii) any act or failure to act, or any alleged act or failure to act,
by any Underwriter in connection with, or relating in any manner to, the
ADSs or the Shares or the offering contemplated hereby, and which is
included as part of or referred to in any loss, claim, damage, liability or
action arising out of or based upon matters covered by clause (i) or (ii)
above (provided that the Company shall not be liable in the case of any
matter covered by this clause (iii) to the extent that it is determined in
a final judgment by a court of competent jurisdiction that such loss,
claim, damage, liability or action resulted directly from any such act or
failure to act undertaken or omitted to be taken by such Underwriter
through its gross negligence or willful misconduct), and shall reimburse
each Underwriter and each such officer, employee and controlling person
promptly upon demand for any legal or other expenses reasonably incurred by
that Underwriter or officer, employee or controlling person in connection
with investigating or defending or preparing to defend against any such
loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Company shall not be liable in any such case to
the extent that any such loss, claim, damage, liability or action
20
arises out of, or is based upon, any untrue statement or alleged untrue
statement or omission or alleged omission made in any Preliminary
Prospectus, either of the Registration Statements, the ADS Registration
Statement or the Prospectus, or in any such amendment or supplement thereto,
or in any Blue Sky Application in reliance upon and in conformity with
written information furnished to the Company (i) through the Representatives
by or on behalf of any Underwriter specifically for inclusion therein and
described in Section 10(h) or (ii) by or on behalf of any Selling
Shareholder specifically for inclusion therein and described in Schedule 3
hereof; and provided further that as to any Preliminary Prospectus this
indemnity agreement shall not inure to the benefit of any Underwriter, its
officers or employees or any person controlling that Underwriter on account
of any loss, claim, damage, liability or action arising from the sale of
ADSs to any person by that Underwriter if that Underwriter failed to send or
give a copy of the Prospectus, as the same may be amended or supplemented,
to that person within the time required by the Securities Act, and the
untrue statement or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact in such Preliminary Prospectus
was corrected in the Prospectus, unless such failure resulted from
non-compliance by the Company with Section 6(c) hereof. The foregoing
indemnity agreement is in addition to any liability which the Company may
otherwise have to any Underwriter or to any officer, employee or controlling
person of that Underwriter.
(b) The Selling Shareholder shall indemnify and hold harmless each
Underwriter, its officers and employees and each person, if any, who
controls any Underwriter within the meaning of the Securities Act, from and
against any loss, claim, damage or liability, joint or several, or any
action in respect thereof (including but not limited to, any loss, claim,
damage, liability or action relating to purchases and sales of ADSs), to
which that Underwriter, officer, employee or controlling person may become
subject, under the Securities Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, either of the Registration Statements, the ADS
Registration Statement or the Prospectus, or in any amendment or supplement
thereto, or in any Blue Sky Application, or (ii) the omission or alleged
omission to state in any Preliminary Prospectus, either of the Registration
Statements, the ADS Registration Statement or the Prospectus, or in any
amendment or supplement thereto, or in any Blue Sky Application any material
fact required to be stated therein or necessary to make the statements
therein not misleading, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished
to the Company by or on behalf of the Selling Shareholder specifically for
inclusion therein and described in Schedule 3 hereof, and shall reimburse
each Underwriter, its officers, employees and each such controlling person
for any legal or other expenses reasonably incurred by that Underwriter, its
officers, employees, or controlling person in connection with investigating
or defending or preparing to defend against any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that
as to any Preliminary Prospectus this indemnity agreement shall not inure to
the benefit of any Underwriter, its officers or employees or any person
controlling that Underwriter on account of any loss, claim, damage,
liability or action arising from the sale of ADSs to any person by that
Underwriter if that Underwriter failed to send or give a copy of the
21
Prospectus, as the same may be amended or supplemented, to that person
within the time required by the Securities Act, and the untrue statement or
alleged untrue statement of a material fact or omission or alleged omission
to state a material fact in such Preliminary Prospectus was corrected in the
Prospectus, unless such failure resulted from non-compliance by the Company
with Section 6(c). The foregoing indemnity agreement is in addition to any
liability which the Selling Shareholder may otherwise have to any
Underwriter or any officer, employee or controlling person of that
Underwriter.
(c) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company, the Selling Shareholder, each of their officers
and employees, each of their directors and each person, if any, who controls
the Company or the Selling Shareholder within the meaning of the Securities
Act, from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof, to which the Company or the
Selling Shareholder or any such director, officer or controlling person may
become subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material fact contained
(A) in any Preliminary Prospectus, either of the Registration Statements,
the ADS Registration Statement or the Prospectus, or in any amendment or
supplement thereto, or (B) in any Blue Sky Application or (ii) the omission
or alleged omission to state in any Preliminary Prospectus, either of the
Registration Statements, the ADS Registration Statement or the Prospectus,
or in any amendment or supplement thereto, or in any Blue Sky Application
any material fact required to be stated therein or necessary to make the
statements therein not misleading, but in each case only to the extent that
the untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written
information furnished to the Company through the Representatives by or on
behalf of that Underwriter specifically for inclusion therein and described
in Section 10(h), and shall reimburse the Company, the Selling Shareholder
and any such director, officer or controlling person for any legal or other
expenses reasonably incurred by the Company or the Selling Shareholder or
any such director, officer or controlling person in connection with
investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred. The
foregoing indemnity agreement is in addition to any liability which any
Underwriter may otherwise have to the Company, the Selling Shareholder or
any such director, officer or controlling person.
(d) Promptly after receipt by an indemnified party under this Section
10 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 10, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however,
that the failure to notify the indemnifying party shall not relieve it from
any liability which it may have under this Section 10 except to the extent
it has been materially prejudiced by such failure and, provided, further,
that the failure to notify the indemnifying party shall not relieve it from
any liability which it may have to an indemnified party otherwise than under
this Section 10. If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein. and, to the
extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the
22
defense thereof with counsel reasonably satisfactory to the indemnified
party. After notice from the indemnifying party to the indemnified party of
its election to assume the defense of such claim or action, the indemnifying
party shall not be liable to the indemnified party under this Section 10 for
any legal or other expenses subsequently incurred by the indemnified party
in connection with the defense thereof other than reasonable costs of
investigation; provided, however, that any indemnified party shall have the
right to employ separate counsel in any such action and to participate in
the defense thereof but the fees and expenses of such counsel shall be at
the expense of such indemnified party unless (i) the employment thereof has
been specifically authorized by the indemnifying party in writing, (ii) such
indemnified party shall have been advised by such counsel that there may be
one or more legal defenses available to it which are different from or
additional to those available to the indemnifying party and in the
reasonable judgment of such counsel it is advisable for such indemnified
party to employ separate counsel or (iii) the indemnifying party has failed
to assume the defense of such action with counsel reasonably satisfactory to
the indemnified party, in which case, if such indemnified party notifies the
indemnifying party in writing that it elects to employ separate counsel at
the expense of the indemnifying party, the indemnifying party shall not have
the right to assume the defense of such action on behalf of such indemnified
party, it being understood, however, that the indemnifying party shall not,
in connection with any one such action or separate but substantially similar
or related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses
of more than one separate firm of attorneys at any time for all such
indemnified parties, which firm shall be designated in writing by the
Representatives, if the indemnified parties under this Section 10 consist of
any Underwriter or any of their respective officers, employees or
controlling persons, or by the Company, if the indemnified parties under
this Section 10 consist of the Company or any of the Company's directors,
officers, employees or controlling persons. Each indemnified party, as a
condition of the indemnity agreements contained in this Section 10, shall
use its best efforts to cooperate with the indemnifying party in the defense
of any such action or claim. No indemnifying party shall (i) without the
prior written consent of the indemnified parties (which consent shall not be
unreasonably withheld), settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding, or (ii) be
liable for any settlement of any such action effected without its written
consent (which consent shall not be unreasonably withheld), but if settled
with its written consent or if there be a final judgment of the plaintiff in
any such action, the indemnifying party agrees to indemnify and hold
harmless any indemnified party from and against any loss or liability by
reason of such settlement or judgment.
(e) If the indemnification provided for in this Section 10 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party in respect of any loss, claim, damage or liability, or any action in
respect thereof, referred to therein, then each indemnifying party shall, in
lieu of indemnifying such indemnified party, contribute to
23
the amount paid or payable by such indemnified party as a result of such
loss, claim, damage or liability, or action in respect thereof, (i) in such
proportion as shall be appropriate to reflect the relative benefits received
by the Company and the Selling Shareholder on the one hand and the
Underwriters on the other from the offering of the ADSs or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company and the Selling Shareholder on the one hand and the Underwriters on
the other with respect to the statements or omissions which resulted in such
loss, claim, damage or liability, or action in respect thereof, as well as
any other relevant equitable considerations. The relative benefits received
by the Company and the Selling Shareholder on the one hand and the
Underwriters on the other with respect to such offering shall be deemed to
be in the same proportion as the total net proceeds from the offering of the
ADSs purchased under this Agreement (before deducting expenses) received by
the Company and the Selling Shareholder on the one hand, and the total
underwriting discounts and commissions received by the Underwriters with
respect to the ADSs purchased under this Agreement, on the other hand, bear
to the total gross proceeds from the offering of the ADSs under this
Agreement, in each case as set forth in the table on the cover page of the
Prospectus. Relative fault shall be determined by reference to whether the
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the
Company and the Selling Shareholder or the Underwriters, the intent of the
parties and their relative knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company and the
Selling Shareholder and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 10(e) were to be
determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which does
not take into account the equitable considerations referred to herein. The
amount paid or payable by an indemnified party as a result of the loss,
claim, damage or liability, or action in respect thereof, referred to above
in this Section 10(e) shall be deemed to include, for purposes of this
Section 10(e), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 10(e), no
Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the ADSs underwritten by it and
distributed to the public was offered to the public exceeds the amount of
any damages which such Underwriter has otherwise paid or become liable to
pay by reason of any untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11 (f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute as provided
in this Section 10(e) are several in proportion to their respective
underwriting obligations and not joint.
(f) The Underwriters severally confirm that the statements with respect
to the public offering of the ADSs set forth on the cover page and the back
cover of, and under the caption "Underwriting" in, the Prospectus are
correct and constitute the only information furnished in writing to the
Company by or on behalf of the Underwriters specifically for inclusion in
the Registration Statements and the Prospectus.
24
(g) The liability of the Selling Shareholder under the
representations, warranties and agreements contained herein and under the
indemnity and contribution agreements contained in this Section 10 shall be
limited to an amount equal to the public offering price of the ADSs sold by
the Selling Shareholder to the Underwriters minus the amount of the
underwriting discounts and commissions paid thereon to the Underwriters by
such Selling Shareholder. Notwithstanding anything to the contrary in this
Section 10, no Underwriter or officer, employee or controlling person of
such Underwriter shall seek indemnification or contribution from the
Selling Shareholder pursuant to this Section 10 unless the Company has not
paid and performed in full its obligations to such Underwriter, officer,
employee or controlling person under this Section 10 and such Underwriter,
officer, employee or controlling person shall have proceeded first against
the Company.
11. Defaulting Underwriters. If, on either Delivery Date, any
Underwriter defaults in the performance of its obligations under this Agreement,
the remaining non-defaulting Underwriters shall be obligated to purchase the
ADSs which the defaulting Underwriter agreed but failed to purchase on the such
Delivery Date in the respective proportions which the number of Firm ADSs set
opposite the name of each remaining non-defaulting Underwriter in Schedule 1
hereto bears to the total number of Firm ADSs set opposite the names of all the
remaining non-defaulting Underwriters in Schedule 1 hereto; provided, however,
that the remaining non-defaulting Underwriters shall not be obligated to
purchase any of the ADSs on such Delivery Date if the total number of ADSs which
the defaulting Underwriter or Underwriters agreed but failed to purchase on such
date exceeds 9.09% of the total number of ADSs to be purchased on such Delivery
Date, and any remaining non-defaulting Underwriter shall not be obligated to
purchase more than 110% of the number of ADSs which it agreed to purchase on
such Delivery Date pursuant to the terms of Section 3. If the foregoing maximums
are exceeded, the remaining non-defaulting Underwriters, or those other
underwriters satisfactory to the Representatives who so agree, shall have the
right, but shall not be obligated, to purchase, in such proportion as may be
agreed upon among them, all the ADSs to be purchased on such Delivery Date. If
the remaining Underwriters or other underwriters satisfactory to the
Representatives do not elect to purchase the ADSs which the defaulting
Underwriter or Underwriters agreed but failed to purchase on such Delivery Date,
this Agreement (or, with respect to the Second Delivery Date, the obligation of
the Underwriters to purchase, and of the Company to sell, the Option ADSs) shall
terminate without liability on the part of any non-defaulting Underwriter or the
Company or the Selling Shareholder, except that the Company will continue to be
liable for the payment of expenses to the extent set forth in Section 8. As used
in this Agreement, the term "Underwriter" includes, for all purposes of this
Agreement unless the context requires otherwise, any party not listed in
Schedule 1 hereto who, pursuant to this Section 11, purchases Firm ADSs which a
defaulting Underwriter agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have to the Company and the Selling Shareholder for damages
caused by its default. If other underwriters are obligated or agree to purchase
the ADSs of a defaulting or withdrawing Underwriter, either the Representatives
or the Company may postpone the First Delivery Date for up to seven full
business days in order to effect any changes that in the opinion of counsel for
25
the Company or counsel for the Underwriters may be necessary in the Registration
Statements, the ADS Registration Statement, the Prospectus or in any other
document or arrangement.
12. Termination. The obligations of the Underwriters hereunder may be
terminated by the Representatives by notice given to and received by the Company
and the Selling Shareholder prior to delivery of and payment for the Firm ADSs
if, prior to that time, any of the events described in Sections 9(1) or 9(m)
shall have occurred or if the Underwriters shall decline to purchase the ADSs
for any reason permitted under this Agreement.
13. Reimbursement of Underwriters' Expenses. If either the Company or
the Selling Shareholder shall fail to deposit the Shares pursuant to the terms
of the Deposit Agreement and tender the ADSs for delivery to the Underwriters
for any reason permitted under this Agreement or if the Underwriters shall
decline to purchase the ADSs for any reason permitted under this Agreement
(other than the termination of this Agreement pursuant to Section 9(m) or 11),
the Company shall reimburse the Underwriters for the fees and expenses of their
counsel and for such other reasonable out-of-pocket expenses as shall have been
incurred by them in connection with this Agreement and the proposed purchase of
the ADSs, and upon demand the Company shall pay the full amount thereof to the
Representatives. If this Agreement is terminated pursuant to Section 11 by
reason of the default of one or more Underwriters, the Company shall not be
obligated to reimburse any Underwriter on account of those expenses.
14. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail, telex
or facsimile transmission to Xxxxxx Brothers Inc., 000 Xxxx Xxxxxx, Xxx
Xxxx, XX 00000, Attention: Syndicate Registration Department (Fax: (212)
000-0000), with a copy to the Office of the General Counsel (Fax: (212)
000-0000);
(b) if to the Company, shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Chairman of the Board (Fax:
000-000-0-000-0000), with a copy to the Company's agent for service set
forth in the Registration Statement (Fax: (000) 000-0000);
(c) if to the Selling Shareholder, shall be delivered or sent by mail,
telex or facsimile transmission to the Selling Shareholder at the address
set forth on Schedule 2 hereto;
provided, however, that any notice to an Underwriter pursuant to Section 10(d)
shall be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its acceptance telex to the
Representatives, which address will be supplied to any other party hereto by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof. The Company and the
Selling Shareholder shall be entitled to act and rely upon any request, consent,
notice or agreement given or made on behalf of the Underwriters by Xxxxxx
Brothers Inc. on behalf of the Representatives, and the Company, and the
Underwriters shall be entitled to act and rely upon any request, consent, notice
26
or agreement given or made on behalf of the Selling Shareholder by one or more
attorneys set forth in the Power of Attorney.
15. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Underwriters, the Company, the
Selling Shareholder and their respective personal representatives and
successors. This Agreement and the terms and provisions hereof are for the sole
benefit of only those persons, except that (A) the representations, warranties,
indemnities and agreements of the Company and the Selling Shareholder contained
in this Agreement shall also be deemed to be for the benefit of the officers and
employees of each Underwriter and the person or persons, if any, who control
each Underwriter within the meaning of Section 15 of the Securities Act and (B)
the indemnity agreement of the Underwriters contained in Section 10(c) of this
Agreement shall be deemed to be for the benefit of directors, officers and
employees of the Company and the Selling Shareholder and any person controlling
the Company or the Selling Shareholder within the meaning of Section 15 of the
Securities Act. Nothing in this Agreement is intended or shall be construed to
give any person, other than the persons referred to in this Section 15, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein.
16. Survival. The respective indemnities, representations, warranties
and agreements of the Company and the Selling Shareholder and the Underwriters
contained in this Agreement or made by or on behalf on them, respectively,
pursuant to this Agreement, shall survive the delivery of and payment for the
ADSs and shall remain in full force and effect, regardless of any investigation
made by or on behalf of any of them or any person controlling any of them.
17. Definition of the Terms "Business Day"; "Subsidiary" and
"Ireland". For purposes of this Agreement, (a) "business day" means any day on
which the New York Stock Exchange, Inc. is open for trading, (b) "subsidiary"
has the meaning set forth in Rule 405 of the Rules and Regulations and (c)
"Ireland" means the island of Ireland and its islands and territorial seas
(other than the portion thereof (i.e. Northern Ireland) which is part of the
United Kingdom).
18. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
19. Submission to Jurisdiction; Appointment of Agent for Service;
Currency Indemnity
(a) To the fullest extent permitted by applicable law, the Company and
the Selling Shareholder irrevocably submits to the jurisdiction of any
federal or state court in the Borough of Manhattan in the City of Xxx Xxxx,
Xxxxxx xxx Xxxxx xx Xxx Xxxx, Xxxxxx Xxxxxx of America, in any suit or
proceeding based on or arising under this Agreement, and irrevocably agrees
that all claims in respect of such suit or proceeding may be determined in
any such court. The Company and the Selling Shareholder, to the fullest
extent permitted by applicable law, irrevocably and fully waives the
defense of an inconvenient forum to the maintenance of such suit or
proceeding and hereby irrevocably designates and appoints CT Corporation
System located at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Process
Agent"), as the authorized agent of the Company, the
27
Selling Shareholder, respectively, upon whom process may be served in any
such suit or proceeding. The Company and the Selling Shareholder represents
that it has notified the Process Agent of such designation and appointment
and that the Process Agent has accepted the same in writing. The Company
and the Selling Shareholder hereby irrevocably authorizes and directs the
Process Agent to accept such service. The Company and the Selling
Shareholder further agree that service of process upon the Process Agent
and written notice of said service to the Company, the Selling Shareholder,
as the case may be, mailed by first class mail or delivered to the Process
Agent shall be deemed in every respect effective service of process upon
the Company or the Selling Shareholder, as the case may be, in any such
suit or proceeding. Nothing herein shall affect the right of any person to
serve process in any other manner permitted by law. The Company and the
Selling Shareholder agree that a final action in any such suit or
proceeding shall be conclusive and may be enforced in other jurisdictions
by suit on the judgment or in any other lawful manner.
(b) To the fullest extent permitted by applicable law, the obligations
of the parties to make payments hereunder is in United States dollars (the
"Obligation Currency") and such obligations shall not be discharged or
satisfied by any tender or recovery pursuant to any judgment expressed in
or converted into any currency other than the Obligation Currency or any
other realization in such other currency, whether as proceeds of set-off,
security, guarantee, distributions or otherwise, except to the extent to
which such tender, recovery or realization shall result in the effective
receipt by the party which is to receive such payment of the full amount of
the Obligation Currency expressed to be payable hereunder, and the party
liable to make such payment agrees to indemnify the party which is to
receive such payment (as an additional, separate and independent cause of
action) in United States dollars for the amount (if any) by which such
effective receipt shall be less than the full amount of the Obligation
Currency expressed to be payable hereunder and such obligation to indemnify
shall not be affected by judgment being obtained for any other sums due
under this Agreement.
20. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
21. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
28
If the foregoing correctly sets forth the agreement among the Company,
the Selling Shareholder and the Underwriters, please indicate your acceptance in
the space provided for that purpose below.
Very truly yours,
IONA Technologies PLC
By:_______________________________
Xxxxx X. Xxxxxx
Chief Executive Officer
The Selling Shareholder Named In Schedule 2
To This Agreement
By:________________________________________
Attorney
Accepted:
XXXXXX BROTHERS INC.
XX XXXXX SECURITIES CORPORATION
PRUDENTIAL SECURITIES INCORPORATED
For themselves and as Representatives
of the several Underwriters named
in Schedule I hereto
By: XXXXXX BROTHERS INC.
By:_________________________________
Authorized Representative
SCHEDULE 1
Number of
ADSs
Underwriters -----------
------------
Xxxxxx Brothers Inc....................................
XX Xxxxx Securities Corporation .......................
Prudential Securities Incorporated ....................
Total....................................................... 5,150,000
=========
SCHEDULE 2
Names and Address of Selling Shareholder Number of Firm ADS
---------------------------------------- ------------------
Annrai X'Xxxxx 150,000
c/o IONA Technologies PLC
The IONA Building
Xxxxxxxxxx Xxxx, Xxxxxxxxxxx
Xxxxxx 0, Xxxxxxx
SCHEDULE 3
Information Provided by or on behalf of Selling Shareholder
-----------------------------------------------------------
The information furnished to the Company by or on behalf of the Selling
Shareholder specifically for use in the preparation of the Registration
Statements, the ADS Registration Statement or the Prospectus, or any amendments
or supplements hereto, consists of (i) the names of the Selling Shareholder
(including the respective footnotes thereto) and (ii) the number of Shares owned
by the Selling Shareholder, in each case as set forth under the caption
"Principal and Selling Shareholders."
EXHIBIT A
The opinion of Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP shall be substantially
to the following effect:
(i) This Agreement has been duly executed and delivered by the
Company;
(ii) The issue and sale of the ADSs being delivered on such Delivery
Date in the manner contemplated hereby will not conflict with, result in the
creation or imposition of any lien, charge or encumbrance upon any of the
property or assets of the Company pursuant to the terms of, result in a breach
or violation of any of the terms or provisions of, or constitute a default
under, (A) any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the Company is a party or
by which the Company is bound or to which any of the property or assets of the
Company are subject; or (B) any statute, rule or regulation, or any order known
to such counsel, of any U.S. court or governmental agency or body having
jurisdiction over the Company or any of its property or assets;
(iii) The issuance and delivery of the Shares by the Company, the
deposit of the Shares and the issuance of the ADRs evidencing ADSs pursuant to
the Deposit Agreement and the performance by the Company of its obligations
under the Deposit Agreement and this Agreement, do not require any consent,
approval, authorization, registration or qualification of or with any
governmental authority of the United States or the Commonwealth of Massachusetts
except for (A) compliance with Blue Sky and state securities laws applicable to
the offering and sale of the ADSs contemplated by the Underwriting Agreements
and the clearance of the underwriting arrangements relating to such offering and
sale by the National Association of Securities Dealers, Inc., (B) orders of the
Commission declaring the Registration Statement and the ADS Registration
Statement effective under the Securities Act and (C) such consents, approvals,
authorizations, orders, qualifications and registrations that have been
obtained;
(iv) The statements in the Prospectus under the heading "Description
of American Depositary Receipts", insofar as such statements purport to
summarize certain provisions of the Deposit Agreement, constitute a fair summary
of such provisions;
(v) The statements in the Prospectus under the heading "Certain U.S.
Federal Income Tax Considerations", insofar as such statements purport to
summarize certain federal income tax laws of the United States, constitute a
fair summary thereof;
(vi) Based solely upon telephonic inquiry of the Commission, the
Registration Statement has become effective under the Securities Act, any
required filing of the Prospectus filed with the Commission has been made within
the time period required by Rule 424(b) and, to the knowledge of such counsel,
no stop order suspending the effectiveness of the Registration Statement has
been issued and, to the knowledge of such counsel, no proceeding for that
purpose is pending or threatened by the Commission;
(vii) Upon the due and valid issuance by the Depositary of ADRs
evidencing ADSs against deposit of Shares in respect thereof and against payment
therefor in accordance with the provisions of this Agreement and the Deposit
Agreement, the persons in whose names
the ADRs are registered will be entitled to the rights of registered holders of
ADRs specified in the ADRs and in the Deposit Agreement;
(viii) To the knowledge of such counsel, there is no legal or
governmental proceeding pending or threatened to which the Company or any of its
subsidiaries is a party or to which the Company or any of its subsidiaries is
subject which is required to be described in the Registration Statement or the
Prospectus and is not so described, and there are no contracts or other
documents which are required to be described in the Prospectus or filed as
exhibits to the Registration Statement by the Securities Act or by the Rules and
Regulations which have not been described or filed as exhibits to the
Registration Statement or incorporated therein by reference as permitted by the
Rules and Regulations;
(ix) To the knowledge of such counsel, except for contracts,
agreements and understandings filed by the Company with the Commission, there
are no contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Securities Act with respect to any securities
of the Company owned or to be owned by such person or to require the Company to
include such securities in the securities registered pursuant to the
Registration Statement;
(x) IONA Technologies, Inc. is duly qualified as a foreign
corporation to do business in the State of California, the Commonwealth of
Massachusetts and the Commonwealth of Virginia;
(xi) The Company is not an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in the U.S.
Investment Company Act of 1940, as amended;
(xii) The Registration Statement, as of its Effective Date, and the
Prospectus, as of its date, and any further amendments or supplements thereto,
as of their respective dates, made by the Company prior to such Delivery Date
(other than the financial statements and schedules and other financial data (and
statistical data derived therefrom) therein, as to which such counsel need
express no opinion) complied as to form in all material respects with the
requirements of the Securities Act and the Rules and Regulations; and
(xiii) No information has come to the attention of such counsel which
causes them to believe that as of the Effective Date, the Registration Statement
(other than the financial statements and schedules and other financial data (and
statistical data derived therefrom) therein, as to which such counsel need
express no opinion or belief) contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
in order to make the statements therein not misleading, or that, as of the date
of the Prospectus and such Delivery Date, the Prospectus (other than the
financial statements and schedules and other financial data (and statistical
data derived therefrom) therein, as to which such counsel need express no
opinion or belief) contained an untrue statement of a material fact or omitted
to state a material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may (i) state that their
opinion is limited to matters governed by the federal laws of the United States
and the laws of the Commonwealth of Massachusetts; (ii) rely as to matters of
fact, to the extent they deem proper, on certificates of responsible officers of
the Company, (iii) rely, as to matters of Irish law, on the opinion of Xxxxxxx
Xxx, Irish counsel for the Company, (iv) rely, as to matters of New York law, on
the opinion of Xxxx and Xxxx LLP, (v) state that their opinion is subject to the
effect of judicial application of foreign laws or foreign governmental actions
affecting such creditors' rights. Such opinion also may state that (A) such
counsel expresses no opinion as to the subject matter jurisdiction of the
federal courts of the United States of America over any action between two
parties neither of which is a "citizen" of any state for purposes of 28 U.S.C.
(S) 1332 and (B) such counsel expresses no opinion as to the enforceability
of Section 19(b) of this Agreement relating to currency indemnity, and (vi)
rely, with respect to matters set forth in opinion clause (x) above, on a
certificate from the Secretary of the Commonwealth for the Commonwealth of
Virginia, a certificate from the Secretary of the Commonwealth for the
Commonwealth of Massachusetts and a certificate from the Secretary of State for
the State of California. Such opinion also may state that such counsel does not
assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus (except to
the extent expressly set forth in opinion clauses (iv) and (v) above) and makes
no representation that they have independently verified the accuracy,
completeness or fairness of such statements (except as aforesaid).
EXHIBIT B-1
The opinion of Xxxxxxx Xxx, Solicitors shall be substantially to the
following effect:
(i) The Company is a public limited company and each of its
Irish-incorporated subsidiaries (the "Irish Subsidiaries" are private limited
liability companies. Each of the Company and the Irish Subsidiaries has been
duly incorporated and is validly existing as a legal entity under the laws of
Ireland and has corporate power and authority to own or lease its Irish
properties and conduct the businesses in which it is engaged as described in the
Prospectus;
(ii) The Company has an authorized share capital as set forth on
page A-1 of the Prospectus under the caption "Share Capital", and all of the
issued shares in the capital of the Company (including the Shares to be sold by
the Selling Shareholder) have been duly authorized and validly issued, are fully
paid (i.e. not subject to further calls thereon by the Company) and conform to
the description thereof contained in the Prospectus; all of the issued shares of
each Irish subsidiary of the Company have been duly authorized and validly
issued and are fully paid and the Shares underlying the ADSs to be sold by the
Company under this Agreement will, when issued, be validly issued and authorized
and be fully paid (i.e. not subject to further calls thereon by the Company);
(iii) Except as disclosed in the Prospectus, all dividends and other
distributions validly declared and payable on the Shares represented by the ADSs
may, under Irish laws and regulations current at the date of such opinion, be
paid to the Depositary and freely transferred out of Ireland (provided that no
opinion is hereby expressed as to the tax consequences of any such dividend or
distribution);
(iv) Except as disclosed in the Prospectus, there are no preemptive
or other rights to subscribe for or to purchase, nor any restriction upon the
voting or transfer of, any Shares pursuant to the Company's Memorandum and
Articles of Association or pursuant to Irish law;
(v) The issue and sale of the Shares to be sold by the Company and
consummation by the Company and the Selling Shareholder of the transactions
contemplated by the Agreement will not result in any violation of the provisions
of (A) the Memorandum or Articles of Association of the Company, (B) any Irish
statute or statutory instrument, (C) any order thereunder known to us which is
addressed to the Company or the Irish Subsidiaries, (D) any published Irish rule
or regulation known to us of any Irish governmental agency having jurisdiction
over the Company or any of the Irish Subsidiaries or any of their Irish
properties, or (E) any order known to us of an Irish governmental agency
specifically naming the Company or any of the Irish Subsidiaries or any of their
properties. The opinions in clauses (C) and (E) above of this paragraph (v) are
given solely on the basis set out, and in reliance upon certificates of
responsible officers of the Company. Except for (A) the filing by the Company
with the Irish Registrar of Companies of a return of allotments and the payment
by the Company of capital duty, in respect of the issue of the Shares underlying
the ADSs to be sold by the Company under this Agreement (neither of which
actions is required in order for the issue of such Shares to be valid and
effective)), (B) the registration of the Prospectus and related
documents with the Irish Registrar of Companies as required by the Irish
Companies Acts 1963-2001, (C) the filing of a listing particulars and other
documents required by the Listing Rules of the Irish Stock Exchange Limited, no
consent, approval, authorization or order of, or any filing or declaration with,
any such court or governmental agency or body is required in connection with the
execution, delivery and performance of this Agreement by the Company or in
connection with the taking by or on behalf of the Company of any action
contemplated hereby;
(vi) The statements contained in the Prospectus under the captions
(A) "Description of Share Capital", insofar as such statements describe statutes
or regulations of Ireland or certain Articles of the Articles of Association of
the Company, constitute accurate summaries of certain provisions thereof, and
(B) Additional Information and Reports Required Pursuant to Applicable Legal
Requirements of Ireland," insofar as such statements describe the Articles of
Association of the Company, constitute a fair summary thereof in all material
respects;
(vii) The Company has the corporate power and authority to enter
into and perform its obligations under the Agreement. All necessary corporate
action has been taken by the Company to authorize the signature or execution of
the Agreement. The Agreement has been duly signed on behalf of the Company;
(viii) Insofar as any requirements of Irish law are relevant thereto,
(A) the submission of the Company in the manner set forth in Section 19 hereof
to the nonexclusive jurisdiction of the State and Federal courts in the Borough
of Manhattan, The City or New York, New York (each a "New York court"), (B) the
waiver by the Company of any objection to the venue of a proceeding in a New
York court, and (C) the irrevocable appointment by the Company of CT Corporation
System as its agent in New York to accept service of any process which may be
instituted pursuant to the jurisdiction of any New York court, are each legal,
valid and binding on the Company;
(ix) The Company has the legal capacity to xxx and be sued in its
own name under the laws of Ireland;
(x) To enforce a judgment obtained in the courts of the State of
New York or any federal court in the State of New York in respect of an
agreement expressed to be governed by New York law (a "New York Judgment"),
legal process must be initiated before a court of competent jurisdiction in
Ireland. An Irish court will recognize and enforce a New York Judgment without
retrial or examination of the merits of the case provided that (A) the New York
Judgment was not obtained or alleged to have been obtained by fraud or
misconduct; (B) the process and decision of the New York court were not contrary
to natural or constitutional justice under the laws of Ireland and the
enforcement of the New York Judgment would not be contrary to public policy as
understood by the Irish courts or constitute the enforcement of a judgment of a
penal or taxation nature; (C) the New York Judgment is final and conclusive and
is for a debt or a definite sum of money; (D) the jurisdiction of the New York
court has been exercised in circumstances which, as a matter of Irish law, an
Irish court will recognize as justifying enforcement of the New York Judgment;
(E) the procedural rules of the New York court in relation to the obtaining of
the New York Judgment have been observed; and (F) the
New York Judgment is not inconsistent with a Judgment of an Irish court in
respect of the same matter;
(xi) If this Agreement was sued upon before a court in Ireland,
such court would recognize and give effect to the provisions of such agreements
whereby they are expressed to be governed by and construed in accordance with
the laws of the State of New York, provided that (A) it was duly pleaded that
such agreements are expressed to be governed by and construed in accordance with
such laws, (B) such laws were not chosen with the intention of evading the laws
of Ireland, and (C) the choice of such laws was not at variance with Irish
public policy in a sufficiently fundamental manner to make the Irish court
disregard such choice nor with any provision of an applicable Act of the
Oireachtas;
(xii) This Agreement is in proper legal form for enforcement against
the Company in Ireland; to ensure the legality, validity, enforceability of this
Agreement in accordance with its terms or the admissibility in evidence in
Ireland of this Agreement, it is not necessary under the laws of Ireland that
this Agreement be registered, recorded, filed with any court or other authority
in Ireland or be notarized or that any documentary, stamp or similar tax,
imposition or charge be paid on or in respect of such agreement; and
(xiii) [The Prospectus was, on or before the date of its publication,
duly delivered to the Registrar of Companies in the Republic of Ireland for the
registration in accordance with Sections 47 of the Irish Companies Act having
endorsed thereon, or attached thereto, all such matters as are required by the
said Section 47 to be endorsed on or attached to it.]
In rendering such opinion, such counsel may make such assumptions and
qualifications as shall be agreed by counsel and the Underwriters and rely, as a
matters of fact, to the extent such counsel and the Underwriters deem proper, on
the certificates of responsible officers of the Company. Such opinion may also
state that (A) such counsel expresses no opinion as to the enforceability of
Section 19(b) of this Agreement relating to currency indemnity in an insolvency
situation, and (B) such counsel does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus and makes no representations that they
have independently verified the accuracy, completeness or fairness of such
statements.
EXHIBIT B-2
The opinion of Xxxxxxx Xxx Tax Advisors Limited shall be
substantially to the following effect:
(a) The statements contained on pages 63 to 66 of the Prospectus
under the caption "Certain Irish Tax Considerations" (as annexed hereto as
Exhibit "A" and initialed for identification purposes only), insofar as such
statements purport to summarize certain tax laws of Ireland, constitute, subject
to the assumptions and qualifications stated therein, a fair summary of the
material Irish taxation consequences to Irish and U.S. holders of the
acquisition, ownership and disposition of Ordinary Shares or ADSs representing
Ordinary Shares in the Company.
(b) No stamp or other issuance duties are payable by or on behalf of
the Underwriters to the Irish Government or to any political subdivision or
taxing authority thereof or therein in connection with:
(i) The issuance and allotment of 5,000,000 ADSs to the
Underwriters representing 5,000,000 ordinary shares in the capital of the
Company issued by the Company to the Custodian in respect of the Offer;
(ii) The issuance and allotment of any Option ADSs to the
Underwriters representing Option Shares in the capital of the Company issued by
the Company to the Custodian in respect of the over-allotment option in favour
of the Underwriters;
(iii) The sale and delivery of ADSs outside Ireland by the
Underwriters to purchasers of ADSs.
(c) [Irish stamp duty at the rate of 1% of the consideration paid to
the Selling Shareholder by the Underwriters will be payable within 30 days of
the date of execution of the stock transfer forms transferring the Selling
Shareholder's shares to the Custodian.]
In rendering such opinion, such counsel may make such assumptions and
qualifications as shall be agreed by counsel and the Underwriters and rely, as a
matters of fact, to the extent they deem proper, on the certificates of
responsible officers of the Company.
EXHIBIT C
The opinion of counsel to the Selling Shareholder shall be
substantially to the following effect:
(i) This Agreement has been duly executed on behalf of the Selling
Shareholder;
(ii) Upon payment for, and delivery of, the ADSs in respect of the
Shares to be sold by the Selling Shareholder under this Agreement in
accordance with the terms hereof, the Underwriters will acquire all of the
rights of the Selling Shareholder in such Shares free and clear of all
liens, charges, encumbrances, security interests, restrictions and claims;
and
(iii) Except as set forth in the Prospectus, there are no transfer or
similar taxes payable in connection with the deposit of Shares by the
Selling Shareholder and the delivery of ADSs in respect of such Shares to
the several Underwriters.
In rendering such opinion, such counsel may make such assumptions and
qualifications as shall be agreed by counsel and the Underwriters.
EXHIBIT D
The opinion of Xxxxxxx, Xxxxxxx & Xxxxxx shall be substantially to
the following effect:
Upon due issuance by the Depositary of ADRs evidencing ADSs against
the deposit of Shares in respect thereof in accordance with the provisions
of the Deposit Agreement, such ADRs will be duly and validly issued and the
persons in whose names the ADRs are registered will be entitled to the
rights specified therein and in the Deposit Agreement.
In rendering such opinion, such counsel may state that they express
no opinion as to the laws of any jurisdiction outside the United States.
