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DEPOSIT AGREEMENT
by and among
C & C GROUP PLC
as Issuer
AND
DEUTSCHE BANK TRUST COMPANY AMERICAS
as Depositary
AND
HOLDERS AND BENEFICIAL OWNERS OF AMERICAN DEPOSITARY SHARES
EVIDENCED BY AMERICAN DEPOSITARY RECEIPTS ISSUED HEREUNDER
DATED 2005
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TABLE OF CONTENTS
PAGE
1. DEFINITIONS AND INTERPRETATION.......................................................................1
2. FORM OF ADR: INCORPORATION BY REFERENCE.............................................................3
3. DEPOSIT OF SHARES....................................................................................4
4. ISSUE OF ADRs........................................................................................6
5. TRANSFER, COMBINATION AND SPLIT-UP OF ADRS; SUBSTITUTION OF ADRS; CANCELLATION AND DESTRUCTION
OF ADRS; MAINTENANCE OF RECORDS......................................................................8
6. DISTRIBUTIONS: CONVERSION OF FOREIGN CURRENCY WITHHOLDING..........................................10
7. CUSTODIAN...........................................................................................16
8. DEPOSITARY'S AGENTS.................................................................................16
9. MAINTENANCE OF OFFICE...............................................................................16
10. STANDARD OF CARE....................................................................................17
11. RESIGNATION AND REMOVAL OF THE DEPOSITARY: SUCCESSOR DEPOSITARY....................................17
12. AMENDMENT...........................................................................................18
13. TERMINATION.........................................................................................18
14. INFORMATION.........................................................................................19
15. INDEMNIFICATION.....................................................................................21
16. COMPLIANCE WITH U.S. SECURITIES LAWS................................................................22
17. MISCELLANEOUS.......................................................................................22
18. GOVERNING LAW.......................................................................................22
EXHIBIT A TO DEPOSIT AGREEMENT: Form of ADR................................................................A-1
EXHIBIT B TO DEPOSIT AGREEMENT: Fees and Charges of the Depositary.........................................B-1
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of 2005 (the "AGREEMENT")
BETWEEN:
(1) C & C GROUP PLC (the "COMPANY");
(2) DEUTSCHE BANK TRUST COMPANY AMERICAS, as depositary hereunder (the
"DEPOSITARY"); and
(3) All holders and beneficial owners from time to time of American
Depositary Receipts issued hereunder.
THE PARTIES AGREE as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
The following definitions shall for all purposes, unless otherwise
clearly indicated, apply to the respective terms used in this
Agreement.
"ADR" or "RECEIPT" means an American depositary receipt evidencing
ADSs.
"ADS" means an American depositary share representing beneficial
interests in the Deposited Securities. Each ADS represents the right
to receive three (3) Shares.
"AFFILIATE" shall have the meaning assigned to such term by the
Commission under Regulation C promulgated under the Securities Act.
"ARTICLES OF ASSOCIATION" means the Memorandum and Articles of
Association of the Company, as the same may be amended or in force
from time to time.
"BENEFICIAL OWNER" means a person with a beneficial interest in ADSs;
provided that a Beneficial Owner need not be the Holder of the ADR
evidencing such ADSs and that a Beneficial Owner may exercise any
rights or receive any benefits hereunder solely through the Holder of
the ADR(s) evidencing the ADSs in which such Beneficial Owner has an
interest.
"BUSINESS DAY" shall mean each Monday, Tuesday, Wednesday, Thursday
and Friday which is not (a) a day on which banking institutions in the
Borough of Manhattan, The City of New York are authorized or obligated
by law or executive order to close and (b) a day on which the
market(s) in which ADRs are traded are closed.
"CLEARING AGENT" means any registrar, transfer agent, clearing agent
or other entity recording ownership of Shares or transactions in them
at the relevant time.
"COMMISSION" shall mean the Securities and Exchange Commission of the
United States or any successor governmental agency in the United
States.
"CUSTODIAN" means the agent or agents of the Depositary named as
Custodian in the Form of ADR and any additional or successor Custodian
which may be appointed pursuant to Section 7.
"DELIVERY ORDER" has the meaning set forth in Section 3.1.
"DEPOSITARY'S OFFICE" means at any particular time the office of the
Depositary in The City of New York at which its depositary receipt
business is then administered. At the date of this Agreement the
Depositary's Office is located at 00 Xxxx Xxxxxx, Xxx Xxxx, XX 00000,
Xxxxxx Xxxxxx.
"DEPOSITED SECURITIES" at any particular time means all Shares then
deposited or deemed to be deposited under this Agreement and any and
all additional securities and cash received by the Depositary or the
Custodian in respect or in lieu thereof and at such time held
hereunder.
"DOLLARS" AND "$" shall refer to the lawful currency of the United
States.
"DRS/PROFILE" means the system for the uncertificated registration of
ownership of securities pursuant to which ownership of ADSs is
maintained on the books of the Depositary without the issuance of a
physical certificate and transfer instructions may be given to allow
for the automated transfer of ownership between the books of DTC and
the Depositary. Ownership of ADSs held in DRS/Profile are evidenced by
periodic statements issued by the Depositary to the Holders entitled
thereto.
"FOREIGN REGISTRAR" shall mean any Clearing Agent and any other
appointed agent of the Company for the transfer and registration of
Shares.
"FORM OF ADR" has the meaning set out in Section 2.2.
"HOLDER" means the person or persons in whose name an ADR is
registered on the Register and if a Holder is not the Beneficial Owner
of the ADS(s) evidenced by the Receipt registered in its name, such
person shall be deemed to have all requisite authority to act on
behalf of the relevant Beneficial Owners.
"PRE-RELEASE" has the meaning set forth in Section 3.1.
"PRE-RELEASE TRANSACTION" has the meaning set forth in Section 4.3
"PRE-RELEASED ADR" has the meaning set forth in Section 3.1.
"REGISTER" means a register kept at the Depositary's office for the
registration, registration of transfer, combination and split-up of
ADRs.
"RESTRICTED SECURITIES" shall mean Shares, or ADSs representing such
Shares, which (i) have been acquired directly or indirectly from the
Company or any of its Affiliates in a transaction or chain of
transactions not involving any public offering and subject to resale
limitations under the Securities Act or the rules issued thereunder,
or (ii) are held by an officer or director (or persons performing
similar functions) or other Affiliate of the Company, or (iii) are
subject to other restrictions on sale or deposit under the laws of the
United States, Ireland, or under a shareholders' agreement or the
Company's Articles of Association or under the regulations of an
applicable securities exchange unless, in each case, such Shares are
being sold to persons other than an Affiliate of the Company in a
transaction (x) covered by an effective resale registration statement
or (y) exempt from the registration requirements of the Securities Act
(as hereinafter defined), and the Shares are not, when held by such
person, Restricted Securities.
"SECURITIES ACT" means the U.S. Securities Act of 1933, as amended.
"SECURITIES EXCHANGE ACT" means the U.S. Securities Exchange Act of
1934, as amended.
"SHARES" means the ordinary shares, par value EUR 0.01 each, of the
Company, having the same rights, including with respect to
distributions, as all other outstanding ordinary shares of the
Company, and, subject to Pre-Release, shall include the rights to
receive Shares.
1.2 INTERPRETATION
Unless the context of this Agreement otherwise clearly requires,
references to the plural include the singular and the plural and "or"
has the inclusive meaning represented by the phrase "and/or." The
words "include," "includes," and "including" shall be deemed to be
followed by the phrase "without limitation." The words "hereof,"
herein," "hereunder" and similar terms in this Agreement refer to this
Agreement as a whole and not to any particular provision of this
Agreement. References to Sections or Exhibits are references to
Sections in or Exhibits to this Agreement unless otherwise provided.
2. FORM OF ADR: INCORPORATION BY REFERENCE
2.1 APPOINTMENT OF DEPOSITARY
The Company hereby appoints the Depositary as depositary for the
Deposited Securities and hereby authorizes and directs the Depositary
to act in accordance with the terms set forth in this Agreement. Each
Holder and each Beneficial Owner, upon acceptance of any ADSs (or any
interest therein) issued in accordance with the terms of this
Agreement, shall be deemed for all purposes to (a) be a party to and
bound by the terms of this Agreement and (b) appoint the Depositary
its attorney-in-fact, with full power to delegate, to act on its
behalf and to take any and all actions contemplated in this Agreement,
to adopt any and all procedures necessary to comply with applicable
law and to take such action as the Depositary in its sole discretion
may deem necessary or appropriate to carry out the purposes of this
Agreement (the taking of such actions to be the conclusive determinant
of the necessity and appropriateness thereof).
2.2 FORM OF ADR
ADRs shall be substantially in the form of Exhibit A (the "FORM OF
ADR"), with such changes as may be required by the Depositary or the
Company to comply with their obligations hereunder, any applicable
law, regulation or usage or to indicate any special limitations or
restrictions to which any particular ADRs are subject. ADRs shall be
engraved or printed or otherwise reproduced in accordance with the
Depositary's customary practices or as may be required by any
securities exchange on which the ADSs are listed or admitted for
trading. ADRs shall be executed by the manual or facsimile signature
of a duly authorised signatory of the Depositary, which signature
shall bind the Depositary, notwithstanding that such signatory has
ceased to hold such authority prior to the delivery of such ADRs.
2.3 TRANSFERABILITY
Subject to the limitations contained herein and in the Form of ADR,
title to an ADR (and to the ADSs evidenced thereby), when properly
endorsed (in the case of certificated ADRs) or upon delivery to the
Depositary of proper instruments of transfer, shall be transferable by
delivery with the same effect as in the case of a negotiable
instrument under the laws of the State of New York; provided, however,
that the Depositary, notwithstanding any notice to the contrary, may
treat the Holder thereof as the absolute owner thereof for the purpose
of determining the person entitled to distribution of dividends or
other distributions or to any notice provided for in this Agreement
and for all other purposes and neither the Depositary nor the Company
will have any obligation or be subject to any liability under this
Agreement to any holder of a Receipt, unless such holder is the Holder
thereof.
3. DEPOSIT OF SHARES
3.1 DEPOSIT WITH CUSTODIAN
Subject to the terms and conditions of this Agreement, the Depositary
shall issue ADRs for delivery at the Depositary's Office against
delivery or transfer to the Custodian of: (a) Shares by credit to the
account of the Custodian with a Clearing Agent or as the Custodian may
otherwise specify; or (b) subject to the provisions of Section 4.3
below, rights to receive Shares. ADRs issued upon the deposit of
rights to receive Shares in accordance with clause (b) of this Section
3.1 are hereinafter referred to as "Pre-Released ADRs", and each such
issuance as a "Pre-Release", until such time as Shares are deposited
with the Custodian in accordance with clause (a) of this Section 3.1.
In connection with any such deposit, the Depositary or the Custodian
may require a written order from the person making such deposit
specifying the person or persons in whose name the ADRs are to be
issued (a "Delivery Order"). Every deposit of Shares shall be
accompanied by the following: (A) (i) in the case of Shares issued in
certificated form, such Shares or the certificates representing such
Shares and an executed instrument of transfer thereof in favour of
such person as the Custodian may direct and (ii) in the case of Shares
delivered by book-entry transfer, confirmation of such book-entry
transfer to the Custodian or that irrevocable instructions have been
given to cause such Shares to be so transferred, (B) such
certifications and payments (including, without limitation, any
applicable taxes and governmental charges and the Depositary's fees,
and related charges in accordance with Exhibit B) and evidence of such
payments (including, without limitation, stamping or otherwise marking
such Shares by way of receipt) as may be required by the Depositary,
Custodian or any Clearing Agent, as the case may be, in accordance
with the provisions of this Agreement, (C) if the Depositary so
requires, a written order directing the Depositary to execute and
deliver to, or upon the written order of, the person or persons stated
in such order an ADR or ADRs for the number of ADSs representing the
Shares so deposited, (D) evidence satisfactory to the Depositary
(which may include an opinion of counsel reasonably satisfactory to
the Depositary provided at the cost of the person seeking to deposit
Shares) that all conditions to such deposit have been met and all
necessary approvals have been granted by, and there has been
compliance with the rules and regulations of, any applicable
governmental agency in Ireland, and (E) if the Depositary so requires,
(i) an agreement, assignment or instrument satisfactory to the
Depositary or the Custodian which provides for the prompt transfer by
any person in whose name the Shares are or have been recorded to the
Custodian of any distribution, or right to subscribe for additional
Shares or to receive other property in respect of any such deposited
Shares or, in lieu thereof, such indemnity or other agreement as shall
be satisfactory to the Depositary or the Custodian and (ii) if the
Shares are registered in the name of the person on whose behalf they
are presented for deposit, a proxy or proxies entitling the Custodian
to exercise voting rights in respect of the Shares for any and all
purposes until the Shares so deposited are registered in the name of
the Depositary, the Custodian or any nominee. No Share shall be
accepted for deposit unless accompanied by confirmation or such
additional evidence, if any is required by the Depositary, that is
reasonably satisfactory to the Depositary or the Custodian that all
conditions to such deposit have been satisfied by the person
depositing such Shares under the laws and regulations of Ireland and
any necessary approval has been granted by any governmental body in
Ireland, if any, which is then performing the function of the
regulator of currency exchange. The Depositary may issue Receipts
against evidence of rights to receive Shares from the Company, any
Clearing Agent, the Foreign Registrar, any agent of the Company or any
custodian, registrar, transfer agent, clearing agency or other entity
involved in ownership or transaction records in respect of the Shares.
Without limitation of the foregoing, the Depositary shall not
knowingly accept for deposit under this Agreement any Shares required
to be registered under the provisions of the Securities Act, unless a
registration statement is in effect as to such Shares. The Depositary
will use commercially reasonable efforts to comply with reasonable
written instructions of the Company that the Depositary shall not
accept for deposit hereunder any Shares specifically identified in
such instructions at such times and under such circumstances as may
reasonably be specified in
such instructions in order to facilitate the Company's compliance with
the securities laws in the United States.
As soon as practicable after receipt of any permitted deposit
hereunder and compliance with the provisions of this Agreement, the
Custodian shall present the Shares so deposited, together with the
appropriate instrument or instruments of transfer or endorsement, duly
stamped, to the Foreign Registrar for transfer and registration of the
Shares (as soon as transfer and registration can be accomplished and
at the expense of the person for whom the deposit is made) in the name
of the Depositary, the Custodian or a nominee of either. Deposited
Securities shall be held by the Depositary or by a Custodian for the
account and to the order of the Depositary or a nominee, in each case
for the account of the Holders and Beneficial Owners, at such place or
places as the Depositary or the Custodian shall determine.
In the event any Shares are deposited which entitle the holders
thereof to receive a per-share distribution or other entitlement in an
amount different from the Shares then on deposit, the Depositary is
authorized to take any and all actions as may be necessary (including,
without limitation, making the necessary notations on ADRs) to give
effect to the issuance of such ADSs and to ensure that such ADSs are
not fungible with other ADSs issued hereunder until such time as the
entitlement of the Shares represented by such non-fungible ADSs equals
that of the Shares represented by ADSs prior to the original such
deposit. The Company agrees to give timely written notice to the
Depositary if any Shares issued or to be issued contain rights
different from those of any other Shares theretofore issued and shall
assist the Depositary with the establishment of procedures enabling
the identification of such non-fungible Shares upon delivery to the
Custodian.
3.2 REPRESENTATIONS
Every person depositing Shares hereunder is deemed to represent and
warrant that such Shares are (i) duly authorized, validly issued and
outstanding, fully paid, nonassessable and were legally obtained, (ii)
were not acquired in violation of any pre-emptive rights, (iii) that
the person making such deposit is duly authorised to do so (iv) free
and clear of any lien, encumbrance, security interest, charge,
mortgage or adverse claim, (v) have not been stripped of any rights or
entitlements, and (vi) that such Shares (a) are not "restricted
securities" as such term is defined in Rule 144 under the Securities
Act and may be offered or sold in the United States in transactions
that are exempt from registration under the Securities Act or (b) have
been registered under the Securities Act. Such representations and
warranties shall survive the deposit of Shares and issuance of ADRs.
3.3 HOLDING OF DEPOSITED SECURITIES
Deposited Securities shall be held by the Custodian for and to the
order of the Depositary on behalf of the Holders and the Beneficial
Owners. Shares and other Deposited Securities eligible for deposit
with a Clearing Agent shall be held by the Custodian at its account at
the Clearing Agent or Agents selected by it. Deposited Securities may
be delivered by the Depositary or the Custodian to any person only
under the circumstances expressly contemplated in this Agreement.
3.4 TREATMENT AS A LEGAL OWNER
Notwithstanding anything herein to the contrary, the Company will, for
all purposes, treat the Depositary, in its capacity as such, as the
legal owner of all Deposited Securities.
4. ISSUE OF ADRS
4.1 ISSUANCE
After any deposit of Shares or rights to receive Shares in accordance
with Section 3.1, together with any other documents required by the
Depositary in accordance with this Agreement, the Custodian shall as
promptly as practicable notify the Depositary of such deposit and of
the information contained in any Delivery Order. Such notice shall be
given in writing, either by letter, airmail, postage prepaid, or, at
the request, risk and expense of the person making the deposit, by
telex or facsimile or electronic transmission. After receiving such
notice from the Custodian, the Depositary, subject to this Agreement,
shall as promptly as practicable execute and deliver at the
Depositary's Office, to or upon the order of the person named in such
notice, ADRs registered as requested and evidencing the aggregate
number of ADSs to which such person is entitled. ADRs shall be issued
only in denominations of any whole numbers of ADSs. At the request,
risk and expense of the person depositing Shares or rights to receive
shares, the Depositary may deliver ADRs at a place other than the
Depositary's Office. ADRs may be issued by the Depositary only under
the circumstances expressly contemplated in this Agreement. Nothing
herein shall prohibit any Pre-Release upon the terms set forth in this
Agreement.
4.2 ISSUANCE OF ADDITIONAL SHARES
The Company agrees that in the event it or any of its Affiliates
proposes (i) an issuance, sale or distribution of additional Shares,
(ii) an offering of rights to subscribe for Shares or other Deposited
Securities, (iii) an issuance of securities convertible into or
exchangeable for Shares, (iv) an issuance of rights to subscribe for
securities convertible into or exchangeable for Shares, (v) an
elective dividend of cash or Shares, (vi) a redemption of Deposited
Securities, (vii) a meeting of holders of Deposited Securities, or
solicitation of consents or proxies, relating to any reclassification
of securities, merger or consolidation or transfer of assets or (viii)
any reclassification, recapitalization, reorganization, merger,
consolidation or sale of assets which affects the Deposited
Securities, it will obtain U.S. legal advice and take all steps
necessary to ensure that the application of the proposed transaction
to Holders and Beneficial Owners does not violate the registration
provisions of the Securities Act, or any other applicable laws
(including, without limitation, the U.S. Investment Company Act of
1940, as amended, the Exchange Act or the securities laws of any of
the states of the United States). In support of the foregoing, the
Company will furnish to the Depositary, at the Company's expense, (a)
a written opinion of U.S. counsel or counsel in any other applicable
jurisdiction (in form and substance reasonably satisfactory to the
Depositary) stating whether or not application of such transaction to
Holders and Beneficial Owners (1) requires a registration statement
under the Securities Act to be in effect or (2) is exempt from the
registration requirements of the Securities Act and (b) an opinion of
Irish counsel (reasonably satisfactory to the Depositary) stating that
(1) making the transaction available to Holders and Beneficial Owners
does not violate the laws or regulations of Ireland and (2) all
requisite regulatory consents and approvals have been obtained in
Ireland. If the filing of a registration statement is required, the
Depositary shall not have any obligation to proceed with the
transaction unless it shall have received evidence reasonably
satisfactory to it that such registration statement has been declared
effective and that such distribution is in accordance with all
applicable laws or regulations. If, being advised by counsel, the
Company determines that a transaction is required to be registered
under the Securities Act, the Company will either (i) register such
transaction to the extent necessary, (ii) alter the terms of the
transaction to avoid the registration requirements of the Securities
Act or (iii) direct the Depositary to take specific measures, in each
case as contemplated in this Agreement, to prevent such transaction
from violating the registration requirements of the Securities Act.
The Company agrees with the Depositary that neither the Company nor
any of its Affiliates will at any time (i) deposit any Shares or other
Deposited Securities, either upon original issuance or upon a sale of
Shares or other Deposited Securities previously issued and reacquired
by the Company or by any such Affiliate, or (ii) issue additional
Shares, rights to subscribe for such Shares, securities convertible
into or exchangeable for Shares or rights to subscribe for such
securities, unless such transaction and the securities issuable in
such transaction are exempt from registration under the Securities Act
or have been registered under the Securities Act (and such
registration statement has been declared effective).
Notwithstanding anything else contained in this Agreement, nothing in
this Agreement shall be deemed to obligate the Company to file any
registration statement in respect of any proposed transaction.
4.3 PRE-RELEASE
Subject to the further terms and provisions of this Section, the
Depositary, its affiliates and their agents, on their own behalf, may
own and deal in any class of securities of the Company and its
Affiliates and in ADSs. In its capacity as Depositary, the Depositary
may (i) issue ADSs represented by Pre-Released ADRs (each such
transaction a "Pre-Release Transaction") as provided below and (ii)
deliver Shares upon the receipt and cancellation of ADSs that were
issued in a Pre-Release Transaction, but for which Shares may not yet
have been received. The Depositary may receive ADSs in lieu of Shares
under (i) above and receive Shares in lieu of ADSs under (ii) above.
Each such Pre-Release Transaction will be (a) subject to a written
agreement whereby the person or entity (the "Applicant") to whom ADSs
or Shares are to be delivered (1) represents that at the time of the
Pre-Release Transaction the Applicant or its customer owns the Shares
or ADSs that are to be delivered by the Applicant under such
Pre-Release Transaction, (2) agrees to indicate the Depositary as
owner of such Shares or ADSs in its records and to hold such Shares or
ADSs in trust for the Depositary until such Shares or ADSs are
delivered to the Depositary or the Custodian, (3) unconditionally
guarantees to deliver to the Depositary or the Custodian, as
applicable, such Shares or ADSs, and (4) agrees to any additional
restrictions or requirements that the Depositary deems appropriate,
(b) at all times fully collateralized with cash, United States
government securities or such other collateral as the Depositary deems
appropriate, (c) terminable by the Depositary on not more than five
business days' notice and (d) subject to such further indemnities and
credit regulations as the Depositary deems appropriate. The Depositary
will normally limit the number of ADSs and Shares involved in such
Pre-Release Transactions at any one time to 30% of the ADSs
outstanding (without giving effect to ADSs outstanding under (i)
above), provided, however, that the Depositary reserves the right to
disregard such limit from time to time as it deems reasonably
appropriate. The Depositary may also set limits with respect to the
number of ADSs and Shares involved in Pre-Release Transactions with
any one person on a case by case basis as it deems appropriate.
For the purposes of enabling the Depositary to fulfil its obligations
to the Holders under the Agreement, the collateral referred to in
clause (b) above shall be held by the Depositary as security for the
performance of the Applicant's obligation to deliver Shares or ADRs
upon termination of a Pre-release Transaction (and shall not, for the
avoidance of doubt, constitute Deposited Securities hereunder). The
Depositary may retain for its own account any compensation received by
it in connection with the foregoing.
5. TRANSFER, COMBINATION AND SPLIT-UP OF ADRS; SUBSTITUTION OF ADRS;
CANCELLATION AND DESTRUCTION OF ADRS; MAINTENANCE OF RECORDS
5.1 TRANSFER, COMBINATION AND SPLIT-UP OF ADRS
Subject to the terms and conditions of this Agreement, the Depositary
shall, upon surrender of an ADR or ADRs in form satisfactory to the
Depositary at the Depositary's Office (a) for the purpose of transfer,
if such ADRs are accompanied by such instruments of transfer as the
Depositary may require and are stamped as may be required by law,
register the transfer of such ADRs on the Register and execute and
deliver new ADRs to or upon the order of the person entitled thereto;
and (b) for the purpose of effecting a split-up or combination,
execute and deliver a new ADR or ADRs in such denominations as may be
requested, evidencing the same aggregate number of ADRs as the ADRs
surrendered.
5.2 SUBSTITUTION OF ADRS
The Depositary shall execute and deliver a new ADR of like tenor in
exchange and substitution for any mutilated ADR upon cancellation
thereof or in substitution for a destroyed, lost or stolen ADR, upon
payment of applicable fees, costs and expenses, unless the Depositary
has notice that such ADR has been acquired by a bona fide purchaser,
upon the Holder thereof filing with the Depositary a request for such
execution and delivery and a sufficient indemnity bond (for the
benefit of the Depositary and the Company) and satisfying any other
reasonable requirements imposed by the Depositary.
At the request of a Holder, the Depositary shall, for the purpose of
substituting a certificated Receipt with a Receipt issued through
DRS/Profile, or vice versa, execute and deliver a certificated Receipt
or DRS/Profile statement, as the case may be, for any authorized
number of ADSs requested, evidencing the same aggregate number of ADSs
as those evidenced by the certificated Receipt or DRS/Profile
statement, as the case may be, substituted.
5.3 CANCELLATION AND DESTRUCTION OF ADRS
The Depositary shall cancel all ADRs surrendered to it. The Depositary
is authorised to destroy ADRs so cancelled in accordance with
customary practices of stock transfer agents in The City of New York.
Cancelled ADRs shall not be entitled to any benefits under this
Agreement or be valid or obligatory for any purpose.
5.4 MAINTENANCE OF RECORDS
The Depositary shall maintain records of all ADRs surrendered,
Deposited Securities withdrawn under Section 5.5, transfer of ADRs,
substitute ADRs delivered, and cancelled or destroyed ADRs under this
Section 5, in keeping with the procedures ordinarily followed by stock
transfer agents located in The City of New York or as required by
applicable law or regulation.
5.5 SURRENDER OF RECEIPTS AND WITHDRAWAL OF DEPOSITED SECURITIES
Upon surrender, at the Principal Office of the Depositary, of ADSs for
the purpose of withdrawal of the Deposited Securities represented
thereby, and upon payment of (i) the fees and charges of the
Depositary for the making of withdrawals of Deposited Securities and
cancellation of ADRs (as set forth in Exhibit B) and (ii) all
applicable taxes and governmental charges payable in connection with
such surrender and withdrawal, including any applicable Irish stamp
duty, and subject to the terms and conditions of this Agreement, the
Company's Articles of Association, and any other provisions of or
governing the Deposited Securities and other applicable laws, the
Holder of such ADSs shall be entitled to Delivery, to him or upon his
order, of the Deposited Securities at the time represented by the ADSs
so surrendered. ADSs may be surrendered for the purpose of withdrawing
Deposited Securities by delivery of an ADR evidencing such ADSs (if
held in certificated form) or by book-entry delivery of such ADSs to
the Depositary.
A Receipt surrendered for such purposes shall, if so required by the
Depositary, be properly endorsed in blank or accompanied by proper
instruments of transfer in blank, and if the Depositary so requires,
the Holder thereof shall execute and deliver to the Depositary a
written order directing the Depositary to cause the Deposited
Securities being withdrawn to be delivered to or upon the written
order of a person or persons designated in such order. Thereupon, the
Depositary shall direct the Custodian to deliver (without unreasonable
delay) at the designated office of the Custodian or through a book
entry delivery of the Shares (in either case, subject to Section 5.6,
Exhibit B and to the other terms and conditions of this Agreement, to
the Company's Articles of Association, to the provisions of or
governing the Deposited Securities and to applicable laws, now or
hereafter in effect) to or upon the written order of the person or
persons designated in the order delivered to the Depositary as
provided above, the Deposited Securities represented by such ADSs,
together with any certificate or other proper documents of or relating
to title of the Deposited Securities as may be legally required, as
the case may be, to or for the account of such person.
The Depositary may, in its discretion, refuse to accept for surrender
a number of ADSs representing a number other than a whole number of
Shares. In the case of surrender of an ADR evidencing a number of ADSs
representing other than a whole number of Shares, the Depositary shall
cause ownership of the appropriate whole number of Shares to be
delivered in accordance with the terms hereof, and shall, at the
discretion of the Depositary, either (i) issue and deliver to the
person surrendering such Receipt a new Receipt evidencing ADSs
representing any remaining fractional Share, or (ii) sell or cause to
be sold the fractional Shares represented by the Receipt surrendered
and remit the proceeds of such sale (net of (a) applicable fees and
charges of, and reasonable expenses incurred by, the Depositary and
(b) taxes withheld) to the person surrendering the Receipt.
At the request, risk and expense of any Holder so surrendering an ADR,
and for the account of such Holder, the Depositary shall direct the
Custodian to forward (to the extent permitted by law) any cash or
other property (other than securities) held in respect of, and any
certificate or certificates and other proper documents of or relating
to title to, the Deposited Securities represented by such ADR to the
Depositary for delivery at the Principal Office of the Depositary, and
for further delivery to such Holder. Such direction shall be given by
letter or, at the request, risk and expense of such Holder, by cable,
telex or facsimile transmission. Upon receipt by the Depositary, the
Depositary may make delivery to such person or persons entitled
thereto at the Principal Office of the Depositary of any dividends or
cash distributions with respect to the Deposited Securities
represented by such ADSs, or of any proceeds of sale of any dividends,
distributions or rights, which may at the time be held by the
Depositary.
5.6 LIMITATIONS ON EXECUTION AND DELIVERY, TRANSFER, ETC. OF RECEIPTS;
SUSPENSION OF DELIVERY, TRANSFER, ETC.
As a condition precedent to the execution and delivery, registration,
registration of transfer, split-up, combination or surrender of any
ADR, the delivery of any distribution thereon or withdrawal of any
Deposited Securities, the Depositary or the Custodian may require (i)
payment from the depositor of Shares or presenter of the ADR of a sum
sufficient to reimburse it for any tax or other governmental charge,
including any applicable Irish stamp duty, and any stock transfer or
registration fee with respect thereto (including any such tax or
charge and fee with respect to Shares being deposited or withdrawn)
and payment of any applicable fees and charges of the Depositary as
provided in Exhibit B, (ii) the production of proof satisfactory to it
as to the identity and genuineness of any signature or any other
matter contemplated by Section
14.5 and (iii) compliance with (A) any laws or governmental
regulations relating to the execution and delivery of ADRs or ADSs or
to the withdrawal or delivery of Deposited Securities and (B) such
reasonable regulations as the Depositary may establish consistent with
the provisions of this Agreement and applicable law.
The issuance of ADSs against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the issuance of
ADSs against the deposit of particular Shares may be withheld, or the
registration of transfer of ADRs in particular instances may be
refused, or the registration of transfers of ADRs generally may be
suspended, during any period when the transfer books of the Depositary
are closed or if any such action is deemed necessary or advisable by
the Depositary or the Company, in good faith, at any time or from time
to time because of any requirement of law, any government or
governmental body or commission or any securities exchange on which
the Receipts or Shares are listed, or under any provision of this
Agreement or provisions of, or governing, the Deposited Securities, or
any meeting of shareholders of the Company or for any other reason,
subject, in all cases, to Section 16.
6. DISTRIBUTIONS: CONVERSION OF FOREIGN CURRENCY WITHHOLDING
6.1 CASH DISTRIBUTIONS
Whenever the Depositary receives confirmation from the Custodian of
receipt of any cash dividend or other cash distribution on any
Deposited Securities, or receives proceeds from the sale of any
Shares, rights, securities or other entitlements under the terms
hereof, the Depositary will, if at the time of receipt thereof any
amounts received in a foreign currency can in the judgment of the
Depositary (pursuant to Section 6.8) be converted on a practicable
basis into Dollars transferable to the United States, promptly convert
or cause to be converted such cash dividend, distribution or proceeds
into Dollars (on the terms described in Section 6.8) and will
distribute promptly the amount thus received (net of (a) the
applicable fees and charges of, and expenses incurred by, the
Depositary and (b) taxes withheld) to the Holders of record as of the
ADS Record Date in proportion to the number of ADSs held by such
Holders respectively as of the ADS Record Date. The Depositary shall
distribute only such amount, however, as can be distributed without
attributing to any Holder a fraction of one cent. Any such fractional
amounts shall be rounded to the nearest whole cent and so distributed
to Holders entitled thereto. Holders and Beneficial Owners understand
that in converting Foreign Currency, amounts received on conversion
are calculated at a rate which exceeds three or four decimal places
(the number of decimal places used by the Depositary to report
distribution rates). Any excess amount may be retained by the
Depositary as an additional cost of conversion, irrespective of any
other fees and expenses payable or owing hereunder and shall not be
subject to escheatment. If the Company, the Custodian or the
Depositary is required to withhold and does withhold from any cash
dividend or other cash distribution in respect of any Deposited
Securities an amount on account of taxes, duties or other governmental
charges, the amount distributed to Holders on the ADSs representing
such Deposited Securities shall be reduced accordingly. Such withheld
amounts shall be forwarded by the Company, the Custodian or the
Depositary to the relevant governmental authority. Evidence of payment
thereof by the Company shall be forwarded by the Company to the
Depositary upon request. The Depositary will forward to the Company or
its agent such information from its records as the Company may
reasonably request to enable the Company or its agent to file
necessary reports with governmental agencies, such reports necessary
to obtain benefits under the applicable tax treaties for the Holders
and Beneficial Owners of Receipts.
6.2 DISTRIBUTION IN SHARES
If any distribution upon any Deposited Securities consists of a
dividend in, or free distribution of, Shares, the Company shall cause
such Shares to be deposited with the Custodian and registered, as the
case may be, in the name of the Depositary, the Custodian or any of
their
nominees. Upon receipt of confirmation of such deposit from the
Custodian, the Depositary shall establish the ADS Record Date upon the
terms described in Section 6.6 and shall, subject to Exhibit B hereof,
either (i) distribute to the Holders as of the ADS Record Date in
proportion to the number of ADSs held as of the ADS Record Date,
additional ADSs, which represent in the aggregate the number of Shares
received as such dividend, or free distribution, subject to the other
terms of this Agreement (including, without limitation, (a) the
applicable fees and charges of, and reasonable expenses incurred by,
the Depositary and (b) taxes), or (ii) if additional ADSs are not so
distributed, each ADS issued and outstanding after the ADS Record Date
shall, to the extent permissible by law, thenceforth also represent
rights and interests in the additional Shares distributed upon the
Deposited Securities represented thereby (net of (a) the applicable
fees and charges of, and reasonable expenses incurred by, the
Depositary and (b) taxes). In lieu of delivering fractional ADSs, the
Depositary shall sell the number of Shares represented by the
aggregate of such fractions and distribute the proceeds upon the terms
described in Section 6.1. The Depositary may withhold any such
distribution of Receipts if it has not received satisfactory
assurances from the Company (including an opinion of counsel to the
Company furnished at the Company's expense) that such distribution
does not require registration under the Securities Act or is exempt
from registration under the provisions of the Securities Act. To the
extent such distribution may be withheld, the Depositary may dispose
of all or a portion of such distribution in such amounts and in such
manner, including by public or private sale, as the Depositary deems
necessary and practicable, and the Depositary shall distribute the net
proceeds of any such sale (after deduction of applicable (a) taxes and
(b) fees and charges of, and expenses incurred by, the Depositary) to
Holders entitled thereto upon the terms described in Section 6.1.
6.3 ELECTIVE DISTRIBUTIONS IN CASH OR SHARES
Whenever the Company intends to distribute a dividend payable at the
election of the holders of Shares in cash or in additional Shares, the
Company shall give notice thereof to the Depositary at least 30 days
prior to the proposed distribution stating whether or not it wishes
such elective distribution to be made available to Holders of ADSs.
Upon receipt of notice indicating that the Company wishes such
elective distribution to be made available to Holders of ADSs, the
Depositary shall consult with the Company to determine, and the
Company shall assist the Depositary in its determination, whether it
is lawful and reasonably practicable to make such elective
distribution available to the Holders of ADSs. The Depositary shall
make such elective distribution available to Holders only if (i) the
Company shall have timely requested that the elective distribution is
available to Holders of ADRs, (ii) the Depositary shall have
determined that such distribution is reasonably practicable and (iii)
the Depositary shall have received satisfactory documentation within
the terms of Section 4.2. If the above conditions are not satisfied,
the Depositary shall, to the extent permitted by law, distribute to
the Holders, on the basis of the same determination as is made in the
local market in respect of the Shares for which no election is made,
either (x) cash upon the terms described in Section 6.1 or (y)
additional ADSs representing such additional Shares upon the terms
described in Section 6.2. If the above conditions are satisfied, the
Depositary shall establish an ADS Record Date (on the terms described
in Section 6.6) and establish procedures to enable Holders to elect
the receipt of the proposed dividend in cash or in additional ADSs.
The Company shall assist the Depositary in establishing such
procedures to the extent reasonably necessary. Subject to Exhibit B
hereof, if a Holder elects to receive the proposed dividend (x) in
cash, the dividend shall be distributed upon the terms described in
Section 6.1, or (y) in ADSs, the dividend shall be distributed upon
the terms described in Section 6.2. Nothing herein shall obligate the
Depositary to make available to Holders a method to receive the
elective dividend in Shares (rather than ADSs). There can be no
assurance that Holders generally, or any Holder in particular, will be
given the opportunity to receive elective distributions on the same
terms and conditions as the holders of Shares.
6.4 DISTRIBUTION OF RIGHTS TO PURCHASE SHARES
(a) Distribution to ADS Holders. Whenever the Company intends to
distribute to the holders of the Deposited Securities rights
to subscribe for additional Shares, the Company shall give
notice thereof to the Depositary at least 60 days prior to
the proposed distribution stating whether or not it wishes
such rights to be made available to Holders. Upon receipt of
a notice indicating that the Company wishes such rights to
be made available to Holders, the Depositary shall consult
with the Company to determine, and the Company shall
determine, whether it is lawful and reasonably practicable
to make such rights available to the Holders. The Depositary
shall make such rights available to Holders only if (i) the
Company shall have timely requested that such rights be made
available to Holders, (ii) the Depositary shall have
received satisfactory documentation within the terms of
Section 4.2, and (iii) the Depositary shall have determined
that such distribution of rights is lawful and reasonably
practicable. In the event any of the conditions set forth
above are not satisfied, the Depositary shall proceed with
the sale of the rights as contemplated in Section 6.4(b)
below or, if timing or market conditions may not permit, do
nothing thereby allowing such rights to lapse. In the event
all conditions set forth above are satisfied, the Depositary
shall establish an ADS Record Date (upon the terms described
in Section 6.6) and establish procedures (x) to distribute
such rights (by means of warrants or otherwise) and (y) to
enable the Holders to exercise the rights (upon payment of
applicable (a) fees and charges of, and reasonable expenses
incurred by, the Depositary and (b) taxes and other
governmental charges). Nothing herein shall obligate the
Depositary to make available to the Holders a method to
exercise such rights to subscribe for Shares (rather than
ADSs).
(b) Sale of Rights. If (i) the Company does not timely request
the Depositary to make the rights available to Holders or
requests that the rights not be made available to Holders,
(ii) the Depositary fails to receive satisfactory
documentation within the terms of Section 4.2 or determines
it is not lawful or reasonably practicable to make the
rights available to Holders, or (iii) any rights made
available are not exercised and appear to be about to lapse,
the Depositary shall determine whether it is lawful and
reasonably practicable to sell such rights, in a riskless
principal capacity or otherwise, at such place and upon such
terms (including public or private sale) as it may deem
proper. The Company shall assist the Depositary to the
extent reasonably necessary to determine such legality and
practicability. The Depositary shall, upon such sale,
convert and distribute proceeds of such sale (net of
applicable (a) fees and charges of, and reasonable expenses
incurred by, the Depositary and (b) taxes) upon the terms
set forth in Section 6.1.
(c) Lapse of Rights. If the Depositary is unable to make any
rights available to Holders upon the terms described in
Section 6.4(a) or to arrange for the sale of the rights upon
the terms described in Section 6.4(b), the Depositary shall
allow such rights to lapse.
The Depositary shall not be responsible for (i) any failure to
determine that it may be lawful or practicable to make such rights
available to Holders in general or any Holders in particular, (ii) any
foreign exchange exposure or loss incurred in connection with such
sale, or exercise, or (iii) the content of any materials forwarded to
the Holders on behalf of the Company in connection with the rights
distribution.
Notwithstanding anything to the contrary in this Section 6.4, if
registration (under the Securities Act or any other applicable law) of
the rights or the securities to which any rights relate may be
required in order for the Company to offer such rights or such
securities to Holders and to sell the securities represented by such
rights, the Depositary will not distribute such rights to the Holders
(i) unless and until a registration statement under the Securities Act
covering such
offering is in effect or (ii) unless the Company furnishes to the
Depositary at the Company's expense opinion(s) of counsel to the
Company in the U.S. and counsel to the Company in any other applicable
country in which rights would be distributed, in each case reasonably
satisfactory to the Depositary, to the effect that the offering and
sale of such securities to Holders and Beneficial Owners are exempt
from, or do not require registration under, the provisions of the
Securities Act or any other applicable laws. In the event that the
Company, the Depositary or the Custodian shall be required to withhold
and does withhold from any distribution of property (including rights)
an amount on account of taxes or other governmental charges, the
amount distributed to the Holders shall be reduced accordingly. In the
event that the Depositary determines that any distribution in property
(including Shares and rights to subscribe therefor) is subject to any
tax or other governmental charges which the Depositary is obligated to
withhold, the Depositary may dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such
amounts and in such manner, including by public or private sale, as
the Depositary deems necessary and practicable to pay any such taxes
or charges.
There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to exercise rights on the
same terms and conditions as the holders of Shares or be able to
exercise such rights. Nothing herein shall obligate the Company to
file any registration statement in respect of any rights or Shares or
other securities to be acquired upon the exercise of such rights.
6.5 DISTRIBUTIONS OTHER THAN CASH, SHARES OR RIGHTS TO PURCHASE SHARES
(a) Whenever the Company intends to distribute to the holders of
Deposited Securities property other than cash, Shares or
rights to purchase additional Shares, the Company shall give
notice thereof to the Depositary at least 30 days prior to
the proposed distribution and shall indicate whether or not
it wishes such distribution to be made to Holders. Upon
receipt of a notice indicating that the Company wishes such
distribution be made to Holders, the Depositary shall
determine whether such distribution to Holders is lawful and
practicable. The Depositary shall not make such distribution
unless (i) the Company shall have timely requested the
Depositary to make such distribution to Holders, (ii) the
Depositary shall have received satisfactory documentation
within the terms of Section 4.2, and (iii) the Depositary
shall have determined that such distribution is reasonably
practicable.
(b) Upon receipt of satisfactory documentation and the request
of the Company to distribute property to Holders and after
making the requisite determinations set forth in (a) above,
the Depositary may distribute the property so received to
the Holders of record as of the ADS Record Date, in
proportion to the number of ADSs held by such Holders
respectively and in such manner as the Depositary may deem
practicable for accomplishing such distribution (i) upon
receipt of payment or net of the applicable fees and charges
of, and expenses incurred by, the Depositary, and (ii) net
of any taxes and other governmental charges withheld. The
Depositary may dispose of all or a portion of the property
so distributed and deposited, in such amounts and in such
manner (including public or private sale) as the Depositary
may deem practicable or necessary to satisfy any taxes
(including applicable interest and penalties) or other
governmental charges applicable to the distribution.
(c) If (i) the Company does not request the Depositary to make
such distribution to Holders or requests not to make such
distribution to Holders or, (ii) the Depositary does not
receive satisfactory documentation within the terms of
Section 4.2, or (iii) the Depositary determines that all or
a portion of such distribution is not reasonably practicable
or feasible, the Depositary shall endeavor to sell or cause
such property to be sold in a public or private sale, at
such place or places and upon such terms as it
may deem proper and shall distribute the net proceeds, if
any, of such sale received by the Depositary (net of
applicable (a) fees and charges of, and reasonable expenses
incurred by, the Depositary and (b) taxes) to the Holders as
of the ADS Record Date upon the terms of Section 6.1. If the
Depositary is unable to sell such property, the Depositary
may dispose of such property in any way it deems reasonably
practicable under the circumstances for nominal or no
consideration and Holders and Beneficial Owners shall have
no rights thereto or arising therefrom.
6.6 FIXING OF RECORD DATE
Whenever necessary in connection with any distribution (whether in
cash, Shares, rights, or other distribution), or whenever for any
reason the Depositary causes a change in the number of Shares that are
represented by each ADS, or whenever the Depositary shall receive
notice of any meeting of or solicitation of holders of Shares or other
Deposited Securities, or whenever the Depositary shall find it
necessary or convenient, the Depositary shall fix a record date (the
"ADS Record Date"), as close as practicable to the record date fixed
by the Company with respect to the Shares, for the determination of
the Holders who shall be entitled to receive such distribution, to
give instructions for the exercise of voting rights at any such
meeting, or to give or withhold such consent, or to receive such
notice or solicitation or to otherwise take action, or to exercise the
rights of Holders with respect to such changed number of Shares
represented by each ADS. Subject to applicable law and the provisions
of Section 6.1 through 6.5 and to the other terms and conditions of
this Agreement, only the Holders of record at the close of business in
New York on such ADS Record Date shall be entitled to receive such
distribution, to give such voting instructions, to receive such notice
or solicitation, or otherwise take action.
6.7 VOTING OF DEPOSITED SHARES
Subject to the next sentence, as soon as practicable after receipt of
notice of any meeting at which the holders of Shares are entitled to
vote, or of solicitation of consents or proxies from holders of Shares
or other Deposited Securities, the Depositary shall fix the ADS Record
Date in respect of such meeting or solicitation of consent or proxy.
The Depositary shall, if requested by the Company in writing in a
timely manner (the Depositary having no obligation to take any further
action if the request shall not have been received by the Depositary
at least 30 days prior to the date of such vote or meeting) and at the
Company's expense and provided no U.S. legal prohibitions exist, which
may in the reasonable discretion of the Depositary be supported by an
opinion of counsel with respect to U.S. law furnished by the Company
to the Depositary in a form and substance reasonably acceptable to the
Depositary (furnished at the expense of the Company), mail by regular,
ordinary mail delivery or otherwise distribute to Holders as of the
ADS Record Date: (a) such notice of meeting or solicitation of consent
or proxy; (b) a statement that the Holders at the close of business on
the ADS Record Date will be entitled, subject to any applicable law,
the Company's Articles of Association and the provisions of or
governing the Deposited Securities (which provisions, if any, shall be
summarized in pertinent part by the Company), to instruct the
Depositary as to the exercise of the voting rights, if any, pertaining
to the Shares or other Deposited Securities represented by such
Holder's ADSs; and (c) a brief statement as to the manner in which
such instructions may be given. Voting instructions may be given only
in respect of a number of ADSs representing an integral number of
Shares or other Deposited Securities. Upon the timely receipt of
written instructions of a Holder of ADSs on the ADS Record Date of
voting instructions in the manner specified by the Depositary, the
Depositary shall endeavor, insofar as practicable and permitted under
applicable law, the provisions of this Agreement, the Company's
Articles of Association and the provisions of or governing the
Deposited Securities, to vote or cause the Custodian to vote the
Shares and/or other Deposited Securities (in person or by proxy)
represented by ADSs evidenced by such Receipt in accordance with such
voting instructions.
Neither the Depositary nor the Custodian shall, under any
circumstances exercise any discretion as to voting, and neither the
Depositary nor the Custodian shall vote, attempt to exercise the right
to vote, or in any way make use of for purposes of establishing a
quorum or otherwise, the Shares or other Deposited Securities
represented by ADSs except pursuant to and in accordance with such
written instructions from Holders. Shares or other Deposited
Securities represented by ADSs for which no specific voting
instructions are received by the Depositary from the Holder shall not
be voted.
Notwithstanding the above, save for applicable provisions of Irish
law, and in accordance with the terms of Section 10, the Depositary
shall not be liable for any failure to carry out any instructions to
vote any of the Deposited Securities.
6.8 CONVERSION OF FOREIGN CURRENCY
Upon receipt by the Depositary or the Custodian of any foreign
currency, if at the time of its receipt such foreign currency can in
the judgment of the Depositary be converted on a reasonably basis into
U.S. dollars and the resulting U.S. dollars transferred to the United
States, the Depositary shall as promptly as practicable (and in any
event within on business day) convert or cause to be converted, such
foreign currency into U.S. dollars, and shall distribute such U.S.
dollars to the Holders entitled thereto in accordance with Sections
6.1 through 6.5. If such conversion or distribution can be effected
only with the approval or license of any government or agency thereof,
the Depositary shall file such application for approval or license as
it may deem in its reasonable judgment upon consultation with the
Company desirable. If the Depositary determines that such foreign
currency is not convertible, in whole or in part, on a reasonable
basis into U.S. dollars transferable to the United States, or if any
approval or license which is required for such conversion is denied or
in the opinion of the Depositary is not obtainable or is not obtained
within a reasonable period or at a reasonable costs, the Depositary
may distribute all or part of the foreign currency (or an appropriate
document evidencing the right to receive such foreign currency) to, or
in its discretion may hold such foreign currency uninvested and
without liability for interest thereon for the respective accounts of
the Holders entitled thereto. Each Holder agrees that in converting
Foreign Currency, amounts received on conversion are calculated at a
rate which may exceed the number of decimal places used by the
Depositary to report distribution rates (which in any case will not be
less than two decimal places). Any excess amount may be retained by
the Depositary as an additional cost of conversion, irrespective of
any other fees and expenses payable or owing hereunder and shall not
be subject to escheatment. All expenses of any such conversion shall
be deducted from the proceeds thereof.
6.9 WITHHOLDING
In connection with any distribution on the Deposited Securities, each
of the Company, the Depositary and the Custodian shall remit to the
appropriate governmental authority such amounts (if any) as may be
required by law to withhold and pay to such authority. The Depositary
shall forward to the Company in a timely fashion such information from
its records as the Company may reasonably request to enable the
Company to file necessary reports with governmental authorities. The
Depositary shall make reasonable efforts to establish and maintain
arrangements that assist Beneficial Owners in claiming any tax
refunds, credits or other benefits (pursuant to treaty or otherwise)
relating to distributions on the ADSs. The Depositary shall provide
copies of any filing that it makes in conjunction with any such
arrangements to the Company. The Company shall provide such
cooperation in establishing and maintaining any such arrangements as
the Depositary may reasonably request.
If any present or future tax or other governmental charge shall become
payable by the Depositary or the Custodian with respect to any ADR or
any Deposited Securities or ADSs, such tax or other governmental
charge shall be payable by the Holders and Beneficial Owners
to the Depositary and such Holders and Beneficial Owners shall be
deemed liable therefor. The Company, the Custodian and/or the
Depositary may withhold or deduct from any distributions made in
respect of Deposited Securities and may sell for the account of a
Holder and/or Beneficial Owner any or all of the Deposited Securities
and apply such distributions and sale proceeds in payment of such
taxes (including applicable interest and penalties) or charges, with
the Holder and the Beneficial Owner remaining fully liable for any
deficiency. In addition to any other remedies available to it, the
Depositary and the Custodian may refuse the deposit of Shares, and the
Depositary may refuse to issue ADSs, to deliver ADRs, register the
transfer, split-up or combination of ADRs and (subject to Section 16)
the withdrawal of Deposited Securities, until payment in full of such
tax, charge, penalty or interest is received. Every Holder and
Beneficial Owner agrees to indemnify the Depositary, the Company, the
Custodian, and each of their respective agents, officers, directors,
employees and Affiliates for, and to hold each of them harmless from,
any claims with respect to taxes (including applicable interest and
penalties thereon) arising from any tax benefit obtained for such
Holder and/or Beneficial Owner. The obligations of Holders and
Beneficial Owners of Receipts under this Section 6.9 shall survive any
transfer of Receipts, any surrender of Receipts and withdrawal of
Deposited Securities, or the termination of this Agreement.
7. CUSTODIAN
The Depositary shall procure that there is at all times a Custodian.
Any Custodian in acting hereunder shall be subject to the direction of
the Depositary and shall be responsible solely to it. The Depositary
shall be responsible for the compliance by each Custodian with the
provisions hereof. The Depositary may, from time to time, appoint one
or more agents to act for it as Custodian hereunder in addition to or
in lieu of the Custodian named in the Form of ADR. Any Custodian may
resign from its duties hereunder upon 30 days' written notice to the
Depositary. The Depositary may discharge any Custodian at any time
upon notice to such Custodian. The Depositary shall promptly instruct
any Custodian ceasing to act as Custodian to deliver all Deposited
Securities held by it to a Custodian continuing to act hereunder and
the resignation of discharge of any Custodian shall not be effective
until such Custodian shall have so delivered all Deposited Securities
held by it. Upon the appointment of any successor depositary, any
Custodian then acting hereunder shall, unless otherwise instructed by
the Depositary, continue to be the Custodian of the Deposited
Securities without any further act or writing and shall be subject to
the direction of the successor depositary. The successor depositary so
appointed shall, nevertheless, on the written request of any
Custodian, execute and deliver to such Custodian all such instruments
as may be proper to give to such Custodian full and complete power and
authority to act on the direction of such successor depositary.
8. DEPOSITARY'S AGENTS
The Depositary may perform its obligations hereunder through any agent
appointed by it including, but not limited to, a co-register to
register ADRs and transfers, combinations and split-ups of ADRs and to
countersign ADRs and/or a co-transfer agent for the purpose of
effecting transfers, combinations or split-ups of ADRs at designated
offices in addition to the Depositary's Office. Each agent so
appointed by the Depositary shall give written notice to the
Depositary accepting such appointment and shall agree in writing to be
bound by the provision hereof. Notwithstanding the foregoing, the
Depositary shall remain responsible for the performance of its
obligations hereunder as if no agent were appointed.
9. MAINTENANCE OF OFFICE
Until termination of this Agreement in accordance with its terms, the
Depositary or if a Registrar for the Receipts shall have been
appointed, the Registrar shall maintain in the Borough of Manhattan,
the City of New York, an office and facilities for the execution and
delivery, registration, registration of transfers, combination and
split-up of Receipts, the
surrender of Receipts and the delivery and withdrawal of Deposited
Securities in accordance with the provisions of this Agreement.
10. STANDARD OF CARE
The Company and the Depositary and their respective agents assume no
obligation and shall not be subject to any liability under this
Agreement or any Receipts to any Holder(s) or Beneficial Owner(s) or
other persons, except in accordance with Section 15, provided, that
the Company and the Depositary and their respective agents agree to
perform their respective obligations specifically set forth in this
Agreement or the applicable ADRs without gross negligence or willful
misconduct. Without limitation of the foregoing, neither the
Depositary, nor the Company, nor any of their respective controlling
persons, or agents, shall be under any obligation to appear in,
prosecute or defend any action, suit or other proceeding in respect of
any Deposited Securities or in respect of the Receipts, which in its
opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expenses (including fees and
disbursements of counsel) and liabilities be furnished as often as may
be required (and no Custodian shall be under any obligation whatsoever
with respect to such proceedings, the responsibility of the Custodian
being solely to the Depositary).
The Depositary and its agents shall not be liable for any failure to
carry out any instructions to vote any of the Deposited Securities, or
for the manner in which any vote is cast or the effects of any vote.
The Depositary shall not incur any liability for any failure to
determine that any distribution or action may be lawful or reasonably
practicable, for the content of any information submitted to it by the
Company for distribution to the Holders or for any inaccuracy of any
translation thereof, for any investment risk associated with acquiring
an interest in the Deposited Securities, for the validity or worth of
the Deposited Securities or for any tax consequences that may result
from the ownership of ADSs, Shares or Deposited Securities, for the
credit-worthiness of any third party, for allowing any rights to lapse
upon the terms of this Agreement or for the failure or timeliness of
any notice from the Company, or for any action or non action by it in
reliance upon the opinion, advice of or information from legal
counsel, accountants, any person representing Shares for deposit, any
Holder or any other person believed by it in good faith to be
competent to give such advice or information. The Depositary and its
agents shall not be liable for any acts or omissions made by a
successor depositary whether in connection with a previous act or
omission of the Depositary or in connection with any matter arising
wholly after the removal or resignation of the Depositary, provided
that in connection with the issue out of which such potential
liability arises the Depositary performed its obligations without
gross negligence or willful misconduct while it acted as Depositary.
11. RESIGNATION AND REMOVAL OF THE DEPOSITARY: SUCCESSOR DEPOSITARY
The Depositary may resign as Depositary by written notice of
resignation delivered to the Company, subject to such limitations as
may be agreed by the Company and the Depositary in writing from time
to time, such resignation to be effective on the earlier of (i) the
90th day after delivery thereof to the Company (whereupon the
Depositary shall be entitled to take the actions contemplated in
Section 13), or (ii) upon the appointment by the Company of a
successor depositary and its acceptance of such appointment as
hereinafter provided. The Depositary may be removed the Company by
written notice of removal delivered to the Depositary, subject to such
limitations as may be agreed by the Company and the Depositary in
writing from time to time, which removal shall be effective on the
later to occur of (i) the 90th day after delivery thereof to the
Depositary (whereupon the Depositary shall be entitled to take the
actions contemplated in Section 13), or (ii) upon the appointment by
the Company of a successor depositary and its acceptance of such
appointment as hereinafter provided. At any time in which the
Depositary may resign or be removed hereunder, the Company shall be
subject to
prior payment of any amounts, fees, costs or expenses owed to the
Depositary hereunder or in accordance with any other agreements
otherwise agreed to in writing between the Company and the Depositary,
prior to such resignation or removal taking effect. If the Depositary
shall resign or be removed, the Company shall use its best efforts to
appoint a bank or trust company having an office in The City of New
York, as successor depositary hereunder. Every successor depositary
shall execute and deliver to its predecessor and to the Company
written acceptance of its appointment hereunder, and thereupon such
successor depositary shall execute and deliver to its predecessor and
to the Company written acceptance of its appointment hereunder, and
thereupon such successor depositary, shall become Depositary
hereunder; but such predecessor, upon payment of all sums due it
hereunder and on the written request of the Company, shall execute and
deliver an instrument transferring all rights and powers hereunder,
shall duly assign, transfer and deliver all of its right, title and
interest in the Deposited Securities to such successor, and shall
deliver to such successor a list of the names and addresses of, and
holdings of ADSs by, all Holders. Any bank or trust company into or
with which the Depositary may be merged or consolidated, or to which
the Depositary shall transfer substantially all its American
depositary receipt business (including the ADR facility created
pursuant to this Agreement), shall be the successor depositary
hereunder without any further action. Upon the appointment or
accession of any successor depositary hereunder, any Custodian then
acting hereunder shall forthwith become the agent hereunder of such
successor depositary and such successor depositary shall, on the
written request of such Custodian, execute and deliver to such
Custodian any instruments necessary to give such Custodian authority
as the agent hereunder of such successor depositary.
12. AMENDMENT
The ADRs and this Agreement may be amended by the Company and the
Depositary without consent of the Holders, provided that any amendment
that imposes or increases any fees or charge, or that shall otherwise
prejudice any substantial existing right of Holders, shall become
effective 30 days after notice of such amendment shall have been given
to the Holders. Every Holder, at the time any amendment so becomes
effective, shall be deemed, by continuing to hold any ADR, to consent
and agree to such amendment and to be bound by the ADRs and this
Agreement as amended thereby.
13. TERMINATION
The Depositary shall, at the written direction of the Company,
terminate this Agreement and this ADR by mailing notice of such
termination to the Holders at least 30 days prior to the date fixed in
such notice for such termination. The Depositary may terminate this
Agreement, after giving notice to the Holders as set forth in the
preceding sentence of this Section 13 at any time 45 days or more
after the Depositary shall have delivered to the Company its written
resignation, provided that no successor depositary shall have been
appointed and accepted its appointment as provided in Section 11
before the end of such 45 days. After the date so fixed for
termination, the Depositary and its agents shall perform no further
acts under this Agreement and this ADR, except to advise Holders to
such termination, receive and hold (or sell) distributions on
Deposited Securities and deliver Deposited Securities being withdrawn
together with any such distributions on Deposited Securities. As soon
as practicable after the expiration of one year from the date so fixed
for termination, the Depositary shall, to the extent practicable, sell
the Deposited Securities and shall thereafter (as long as it may
lawfully do so) hold the net proceeds of such sales, together with any
other cash then held by it under this Agreement, without liability for
interest, for the pro rata benefit of the Holders of ADRs not
theretofore surrendered. After making such sale, the Depositary shall
be discharged from all obligations in respect of this Agreement and
this ADR, except to account for such net proceeds and other cash and
its indemnification obligations to the Company. After the date so
fixed for termination, the Company shall be discharged from all
obligations under the Agreement except for its indemnification and
payment obligations to the Depositary.
14. INFORMATION
14.1 AVAILABLE INFORMATION
This Agreement, the Company's Articles of Association, and written
communications from the Company that are received by the Custodian or
the Depositary in accordance with Section 14.6 of the Agreement, are
available for inspection by Holders at the Depositary's Office and the
office of the Custodian during normal business hours on any Business
Day. The Company is exempt from the periodic reporting requirements of
the Securities Exchange Act. The Company will submit to the Commission
such notices, reports and communications which are required to be
submitted to the Commission by Rule 12g3-2(b) of the Securities
Exchange Act. Such notices, reports and communications may be
inspected and copied at the public reference facilities maintained by
the Commission located at the date of the Agreement at Judiciary
Plaza, 000 Xxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.
14.2 ARTICLES OF ASSOCIATION
The Company has delivered to the Depositary and the Custodian, a copy
of its Articles of Association (in English or with an English
translation) and, promptly upon any amendment thereto, the Company
shall deliver to the Depositary and the Custodian a copy (in English
or with an English translation) of such amendment.
14.3 COMPLIANCE WITH INFORMATION REQUESTS
Notwithstanding any other provision of this Agreement, the Receipts,
the Articles of Association and applicable law, each Holder and
Beneficial Owner agrees to (a) provide such information as the Company
or the Depositary may request pursuant to law (including, without
limitation, relevant Irish law, any applicable law of the United
States, the Articles of Association, any resolutions of the Company's
Board of Directors, the requirements of any markets or exchanges upon
which the Shares, ADSs or Receipts are listed or traded or to any
requirements of any electronic book-entry system by which the ADSs or
Receipts may be transferred and (b) be bound by and subject to
applicable provisions of the laws of Ireland, the Articles of
Association and the requirements of any markets or exchanges upon
which the ADSs, Receipts or Shares are listed or traded, or pursuant
to any requirements of any electronic book-entry system by which the
ADSs, Receipts or Shares may be transferred, to the same extent as if
such Holder and Beneficial Owner held Shares directly, in each case
irrespective of whether or not they are Holders or Beneficial Owners
at the time such request is made, and (c) without limiting the
generality of the foregoing, comply with all applicable provisions of
Irish law, the rules and requirements of the Irish Stock Exchange
Limited and any other stock exchange on which the Shares are, or will
be registered, traded or listed and the Company's Articles of
Association regarding any such Holder or Beneficial Owner's interest
in Shares (including the aggregate of ADSs and Shares held by each
such Holder or Beneficial Owner), in compliance with applicable Irish
law in force at the relevant time. Each Holder and Beneficial Owner
acknowledge that failure to provide on a timely basis any required
notification of an interest in Shares may result in withholding of
certain rights, including voting and dividend rights, in respect of
the Shares in which such Beneficial Owner has an interest. Each Holder
and Beneficial Owner of ADSs further agrees to furnish the Company
with any such notification made in accordance with this Section 14.3
and to comply with requests from the Company pursuant to the laws of
Ireland, the rules and requirements of the Irish Stock Exchange
Limited and any other stock exchange on which the Shares are, or will
be registered, traded or listed, and the Articles of Association,
whether or not they are Holders and/or Beneficial Owner at the time of
such request. The Depositary agrees to use its reasonable efforts to
forward upon the request of the Company, and at the Company's expense,
any such request from the Company to the Holders and to forward to the
Company any such responses to such requests received by the
Depositary.
Under Irish law, where any person acquires an interest in 5 per cent
or more of the issued voting share capital of any class of a public
limited company, such person must notify the company of his interest
and of certain information relating to that interest. Notification
must also be made of any change in the percentage level of a person's
interest above 5 per cent. and any reduction to his or her interest to
less than 5 per cent. By virtue of the Company's listing on the
Official List of the Irish Stock Exchange, the Company will be
required to notify the Company Announcements Office of the Irish Stock
Exchange of any disclosure made to it in compliance with these
provisions and of the particulars of any interests of any person,
other than a Director, in 3.0 per cent. or more of the nominal value
of any class of capital carrying rights to vote in all circumstances
at general meetings of the Company, if such interest has been
disclosed to it.
Additionally, under Irish law, a person who acquires or disposes of
interests in Shares must notify the Irish Stock Exchange if his
percentage interest in Shares, following the acquisition or disposal,
equals, exceeds or falls below the following percentages: 10 per cent,
25 per xxxx, 00 per cent and 75 per cent.
14.4 LISTS OF HOLDERS
The Company shall, to the extent permitted by applicable law, have the
right to inspect the Register and the transfer records of the
Depositary to supply copies of such records as the Company may
reasonably request. The Depositary shall, to the extent permitted by
applicable law, furnish to the Company, promptly upon the receipt of a
written request from the Company, a list of the names and addresses
of, and holdings of ADSs by, all Holders. The Depositary shall provide
copies to the Company, promptly upon receipt of a written request from
the Company, of any information received by the Depositary in
accordance with Section 5.6 unless such disclosure is prohibited by
applicable law.
14.5 PROOFS, CERTIFICATES AND OTHER INFORMATION
Any person presenting Shares for deposit, any Holder and any
Beneficial Owner may be required, and every Holder and Beneficial
Owner agrees, from time to time to provide to the Depositary or the
Custodian such proof of citizenship or residence, taxpayer status,
payment of all applicable taxes or other governmental charges,
exchange control approval, legal or beneficial ownership of ADSs and
Deposited Securities, compliance with applicable laws and the terms of
this Agreement and the provisions of, or governing, the Deposited
Securities or other information; to execute such certifications and to
make such representations and warranties, and to provide such other
information and documentation as the Depositary may deem necessary or
proper or as the Company may reasonably require by written request to
the Depositary consistent with its obligations hereunder. The
Depositary and the Registrar, as applicable, may withhold the
execution or delivery or registration of transfer of any Receipt or
the distribution or sale of any dividend or distribution of rights or
of the proceeds thereof, or to the extent not limited by the terms of
Section 16, the delivery of any Deposited Securities, until such proof
or other information is filed or such certifications are executed, or
such representations and warranties are made, or such other
documentation or information provided, in each case to the
Depositary's and the Company's satisfaction. The Depositary shall from
time to time on the written request advise the Company of the
availability of any such proofs, certificates or other information and
shall, at the Company's sole expense, provide or otherwise make
available copies thereof to the Company upon written request thereof
by the Company, unless such disclosure is prohibited by law. Each
Holder and Beneficial Owner agrees to provide any information
requested by the Company or the Depositary pursuant to this paragraph.
Nothing herein shall obligate the Depositary to (i) obtain any
information for the Company if not provided by the Holders or
Beneficial Owners or (ii) verify or vouch for the accuracy of the
information so provided by the Holders or Beneficial Owners.
14.6 NOTICES
Notice to any Holder shall be deemed to be given when first mailed,
first class postage prepaid, or sent via telex or facsimile
transmission to such Holder to the address or telex or facsimile
number, as the case may be, of such Holder in the Register. Notice to
the Depositary or the Company shall be deemed to be given when first
received by it at the address or facsimile transmission number set
forth in (a) or (b) below, respectively, or at such other address or
facsimile transmission number as either may specify to the other by
written notice:
(a) Deutsche Bank Trust Company Americas
00 Xxxx Xxxxxx
Xxx Xxxx
XX 00000
Xxxxxx Xxxxxx
Attention: ADR Department
Fax: x0-000-000-0000
(b) C&C Group plc
Kylemore Park
Xxxxxx 00
Ireland
Attention: Company Secretary
Fax: x000 0 000 0000
Notices to the Depositary must be in English.
14.7 REPORTS
The Depositary will, at the expense of the Company and in accordance
with Section 14.6, mail by regular, ordinary mail delivery or by
electronic transmission (if agreed between the Company and the
Depositary) and unless otherwise agreed in writing, copies of such
communications (or English translations or summaries thereof) to
Holders when requested and furnished by the Company.
15. INDEMNIFICATION
15.1 INDEMNIFICATION BY THE COMPANY
The Company agrees to indemnify the Depositary against any loss,
liability or expense (including reasonable fees and reasonable
expenses of counsel) that may arise out of a (a) its acceptance and
performance of its powers and duties in respect of this Agreement,
except to the extent such loss, liability or expense (i) is due to the
gross negligence or bad faith of the Depositary or its agents or (ii)
arises solely or exclusively out of a Pre-Release of an ADR and would
not have arisen had such ADR not been the subject of a Pre-Release, or
(b) any offer or sale of ADRs, ADSs, Shares or other Deposited
Securities or any registration statement under the Securities Act in
respect thereof, except to the extent such loss, liability or expense
arises out of information (or omissions from such information)
relating to the Depositary furnished in writing to the Company by the
Depositary expressly for use in such registration statement.
15.2 INDEMNIFICATION BY THE DEPOSITARY
The Depositary agrees to indemnify the Company against any loss,
liability or expense (including reasonable fees and reasonable
expenses of counsel) incurred by the Company in
respect of this Agreement to the extent such loss, liability or
expense (a) is due to the gross negligence or bad faith of the
Depositary or its agents or (b) arises solely or exclusively out of a
Pre-Release of an ADR and would not have arisen had such ADR not been
the subject of a Pre-Release.
15.3 NOTIFICATION AND SETTLEMENT
Any person seeking indemnification hereunder (an "indemnified person")
shall notify the person from whom it is seeking indemnification (the
"indemnifying person") of the commencement of any indemnifiable action
or claim promptly after such indemnified person becomes aware of such
commencement (provided that the failure to make such notification
shall not affect such indemnified person's rights otherwise than under
this Section 15.3) and shall consult in good faith with the
indemnifying person as to the conduct of the defense of such action or
claim, which shall be reasonable in the circumstances. No indemnified
person shall compromise or settle any indemnifiable action or claim
without the prior written consent of the indemnifying person (which
consent shall not be unreasonably withheld).
15.4 SURVIVAL
The obligations set forth in this Section 15 shall survive the
termination of this Agreement.
16. COMPLIANCE WITH U.S. SECURITIES LAWS
Notwithstanding anything in this Agreement to the contrary, the
withdrawal or delivery of Deposited Securities will not be suspended
by the Company or the Depositary except as would be permitted by
Instruction I.A.(1) of the General Instructions to Form F-6
Registration Statement, as amended from time to time, under the
Securities Act.
17. MISCELLANEOUS
This Agreement is for the exclusive benefit of the Company, the
Depositary, the Holders, the Beneficial Owners, and their respective
successors hereunder, and shall not give any legal or equitable right,
remedy or claim whatsoever to any other person. The Holders and
Beneficial Owners shall be parties to this Agreement and shall be
bound by the provisions hereof. If any such provision is invalid,
illegal or unenforceable in any respect, the remaining provisions
shall in no way be affected thereby. This Agreement may be executed in
two counterparts, each of which shall be deemed an original and both
of which shall constitute one instrument. Subject to the provisions of
Section 11, this Agreement may not be assigned by either the Company
or the Depositary. The Company agrees not to appoint any other
depositary for the issuance or administration of depositary receipts
evidencing any class of stock of the Company so long as Deutsche Bank
Trust Company Americas is acting as Depositary hereunder.
18. GOVERNING LAW
This Agreement and the Receipts shall be interpreted in accordance
with, and all rights hereunder and thereunder and provisions hereof
and thereof shall be governed by, the laws of the State of New York
without reference to the principles of choice of law thereof. Except
as set forth in the following paragraph of this Section 18, the
Company and the Depositary agree that the federal or state courts in
the City of New York shall have jurisdiction to hear and determine any
suit, action or proceeding and to settle any dispute between them that
may arise out of or in connection with this Agreement and, for such
purposes, each irrevocably submits to the non-exclusive jurisdiction
of such courts. The Company hereby irrevocably designates, appoints
and empowers Xxxxxxx & Associates (the "Agent") now at 000 Xxxxxxx
Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000, as its authorized agent to
receive and accept for and on its behalf, and on behalf of its
properties, assets and revenues, service by mail of any and all legal
process, summons, notices and documents that may be served in any
suit, action or proceeding brought against the Company in any federal
or state court as described in the preceding sentence or in the next
paragraph of this Section 18. If for any reason the Agent shall cease
to be available to act as such, the Company agrees to designate a new
agent in the City of New York on the terms and for the purposes of
this Section 18 reasonably satisfactory to the Depositary. The Company
further hereby irrevocably consents and agrees to the service of any
and all legal process, summons, notices and documents in any suit,
action or proceeding against the Company, by service by mail of a copy
thereof upon the Agent (whether or not the appointment of such Agent
shall for any reason prove to be ineffective or such Agent shall fail
to accept or acknowledge such service), with a copy mailed to the
Company by registered or certified air mail, postage prepaid, to its
address provided in Section 14.6. The Company agrees that the failure
of the Agent to give any notice of such service to it shall not impair
or affect in any way the validity of such service or any judgment
rendered in any action or proceeding based thereon.
Notwithstanding the foregoing, the Depositary and the Company
unconditionally agree that in the event that a Holder or Beneficial
Owner brings a suit, action or proceeding against (a) the Company, (b)
the Depositary in its capacity as Depositary under this Agreement or
(c) against both the Company and the Depositary, in any state or
federal court of the United States, and the Depositary or the Company
have any claim, for indemnification or otherwise, against each other
arising out of the subject matter of such suit, action or proceeding,
then the Company and the Depositary may pursue such claim against each
other in the state or federal court in the United States in which such
suit, action, or proceeding is pending, and for such purposes, the
Company and the Depositary irrevocably submit to the non-exclusive
jurisdiction of such courts. The Company agrees that service of
process upon the Agent in the manner set forth in the preceding
paragraph shall be effective service upon it for any suit, action or
proceeding brought against it as described in this paragraph.
The Company irrevocably and unconditionally waives, to the fullest
extent permitted by law, any objection that it may now or hereafter
have to the laying of venue of any actions, suits or proceedings
brought in any court as provided in this Section 18, and hereby
further irrevocably and unconditionally waives and agrees not to plead
or claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient forum.
C & C GROUP PLC
By:
-----------------------------------
Name:
Title:
DEUTSCHE BANK TRUST COMPANY AMERICAS
By:
-----------------------------------
Name:
Title:
EXHIBIT A
ANNEXED TO AND INCORPORATED IN DEPOSIT AGREEMENT
[FORM OF ADR]
CERTAIN RIGHTS OF THE HOLDER OF THIS AMERICAN DEPOSITARY RECEIPT MAY BE WITHHELD
IN ACCORDANCE WITH THE PROVISIONS OF SECTION 14 OF THE DEPOSIT AGREEMENT,
INCLUDING, WITHOUT LIMITATION, VOTING RIGHTS AND THE RIGHT TO RECEIVE DIVIDENDS
AND OTHER DISTRIBUTIONS
[Number]
No. of ADSs:
-------------
Each ADS represents
Three (3) Shares
CUSIP: O
AMERICAN DEPOSITARY RECEIPT
evidencing
AMERICAN DEPOSITARY SHARES
representing
ORDINARY SHARES, PAR VALUE EUR 0.01 EACH
of
C & C GROUP PLC
(Incorporated under the laws of Ireland)
DEUTSCHE BANK TRUST COMPANY AMERICAS, as depositary hereunder (the
"DEPOSITARY"), hereby certifies that ____________________ is the registered
owner (a "HOLDER") of _____ American Depositary Shares ("ADSS"), each
representing three ordinary shares, par value EUR 0.01 each, including rights to
receive Shares (together "SHARES" and, together with any additional securities
or cash from time to time held by the Depositary or the Custodian referred to
below in respect or in lieu, thereof, the "DEPOSITED SECURITIES"), of C & C
GROUP PLC, a company organized and existing under the laws of the Ireland (the
"COMPANY"), deposited at the Ireland office of the Governor and Company of the
Bank of Ireland, as custodian (the "CUSTODIAN"). This ADR is issued pursuant to
the Deposit Agreement dated as of 2005 (as amended from time to time, the
"AGREEMENT") among the Company, the Depositary and the owner from time to time
of American Depositary Receipts issued thereunder ("ADRS"), each of whom by
accepting an ADR agrees to become a party thereto and to be bound by all of the
terms and conditions thereof and hereof. Copies of the Agreement are on file at
the Depositary's Office at 00 Xxxx Xxxxxx, Xxx Xxxx XX 00000 and at the office
of the Custodian at New Century House, International Financial Center, Lower
Mayor Street, Dublin 1, Eire. This ADR shall be governed by and construed in
accordance with the laws of the State of New York. The terms and conditions of
the Agreement are hereby incorporated by reference into this ADR and terms
defined in the Agreement are used herein as so defined. In particular, the
Agreement provides as follows:
1. Voting of Deposited Shares
Subject to the next sentence, as soon as practicable after receipt of
notice of any meeting at which the holders of Shares are entitled to
vote, or of solicitation of consents or proxies from holders of Shares
or other Deposited Securities, the Depositary shall fix the ADS Record
Date in respect of such meeting or solicitation of consent or proxy.
The Depositary shall, if requested
by the Company in writing in a timely manner (the Depositary having no
obligation to take any further action if the request shall not have
been received by the Depositary at least 30 days prior to the date of
such vote or meeting) and at the Company's expense and provided no
U.S. legal prohibitions exist, which may in the reasonable discretion
of the Depositary be supported by an opinion of counsel with respect
to U.S. law furnished by the Company to the Depositary in a form and
substance reasonably acceptable to the Depositary (furnished at the
expense of the Company), mail by regular, ordinary mail delivery or
otherwise distribute to Holders as of the ADS Record Date: (a) such
notice of meeting or solicitation of consent or proxy; (b) a statement
that the Holders at the close of business on the ADS Record Date will
be entitled, subject to any applicable law, the Articles of
Association and the provisions of or governing the Deposited
Securities (which provisions, if any, shall be summarized in pertinent
part by the Company), to instruct the Depositary as to the exercise of
the voting rights, if any, pertaining to the Shares or other Deposited
Securities represented by such Holder's ADSs; and (c) a brief
statement as to the manner in which such instructions may be given.
Voting instructions may be given only in respect of a number of ADSs
representing an integral number of Shares or other Deposited
Securities. Upon the timely receipt of written instructions of a
Holder of ADSs on the ADS Record Date of voting instructions in the
manner specified by the Depositary, the Depositary shall endeavor,
insofar as practicable and permitted under applicable law, the
provisions of this Agreement, the Company's Articles of Association
and the provisions of or governing the Deposited Securities, to vote
or cause the Custodian to vote the Shares and/or other Deposited
Securities (in person or by proxy) represented by ADSs evidenced by
such Receipt in accordance with such voting instructions.
Neither the Depositary nor the Custodian shall, under any
circumstances exercise any discretion as to voting, and neither the
Depositary nor the Custodian shall vote, attempt to exercise the right
to vote, or in any way make use of for purposes of establishing a
quorum or otherwise, the Shares or other Deposited Securities
represented by ADSs except pursuant to and in accordance with such
written instructions from Holders. Shares or other Deposited
Securities represented by ADSs for which no specific voting
instructions are received by the Depositary from the Holder shall not
be voted.
Notwithstanding the above, save for applicable provisions of Irish
law, and in accordance with the terms of Section 10 of the Agreement,
the Depositary shall not be liable for any failure to carry out any
instructions to vote any of the Deposited Securities.
2. Distributions
2.1 Cash Distributions
Whenever the Depositary receives confirmation from the Custodian of
receipt of any cash dividend or other cash distribution on any
Deposited Securities, or receives proceeds from the sale of any
Shares, rights, securities or other entitlements under the terms
hereof, the Depositary will, if at the time of receipt thereof any
amounts received in a foreign currency can in the judgment of the
Depositary (pursuant to Section 6.8 of the Agreement) be converted on
a practicable basis into Dollars transferable to the United States,
promptly convert or cause to be converted such cash dividend,
distribution or proceeds into Dollars (on the terms described in
Section 6.8) and will distribute promptly the amount thus received
(net of (a) the applicable fees and charges of, and reasonable
expenses incurred by, the Depositary and (b) taxes withheld) to the
Holders of record as of the ADS Record Date in proportion to the
number of ADSs held by such Holders respectively as of the ADS Record
Date. The Depositary shall distribute only such amount, however, as
can be distributed without attributing to any Holder a fraction of one
cent. Any such fractional amounts shall be rounded to the nearest
whole cent and so distributed to Holders entitled thereto. Holders and
Beneficial Owners understand that in converting Foreign Currency,
amounts received on conversion are calculated at a rate which exceeds
three or four decimal places (the number of decimal places used by the
Depositary to
report distribution rates). Any excess amount may be retained by the
Depositary as an additional cost of conversion, irrespective of any
other fees and expenses payable or owing hereunder and shall not be
subject to escheatment. If the Company, the Custodian or the
Depositary is required to withhold and does withhold from any cash
dividend or other cash distribution in respect of any Deposited
Securities an amount on account of taxes, duties or other governmental
charges, the amount distributed to Holders on the ADSs representing
such Deposited Securities shall be reduced accordingly. Such withheld
amounts shall be forwarded by the Company, the Custodian or the
Depositary to the relevant governmental authority. Evidence of payment
thereof by the Company shall be forwarded by the Company to the
Depositary upon request. The Depositary will forward to the Company or
its agent such information from its records as the Company may
reasonably request to enable the Company or its agent to file
necessary reports with governmental agencies, such reports necessary
to obtain benefits under the applicable tax treaties for the Holders
and Beneficial Owners of Receipts.
2.2 Distribution in Shares
If any distribution upon any Deposited Securities consists of a
dividend in, or free distribution of, Shares, the Company shall cause
such Shares to be deposited with the Custodian and registered, as the
case may be, in the name of the Depositary, the Custodian or any of
their nominees. Upon receipt of confirmation of such deposit from the
Custodian, the Depositary shall establish the ADS Record Date upon the
terms described in Section 6.6 of the Agreement and shall, subject to
Exhibit B to the Agreement, either (i) distribute to the Holders as of
the ADS Record Date in proportion to the number of ADSs held as of the
ADS Record Date, additional ADSs, which represent in the aggregate the
number of Shares received as such dividend, or free distribution,
subject to the other terms of this Agreement (including, without
limitation, (a) the applicable fees and charges of, and reasonable
expenses incurred by, the Depositary and (b) taxes), or (ii) if
additional ADSs are not so distributed, each ADS issued and
outstanding after the ADS Record Date shall, to the extent permissible
by law, thenceforth also represent rights and interests in the
additional Shares distributed upon the Deposited Securities
represented thereby (net of (a) the applicable fees and charges of,
and expenses incurred by, the Depositary and (b) taxes). In lieu of
delivering fractional ADSs, the Depositary shall sell the number of
Shares represented by the aggregate of such fractions and distribute
the proceeds upon the terms described in Section 6.1 of the Agreement.
The Depositary may withhold any such distribution of Receipts if it
has not received reasonably satisfactory assurances from the Company
(including an opinion of counsel to the Company furnished at the
Company's expense) that such distribution does not require
registration under the Securities Act or is exempt from registration
under the provisions of the Securities Act. To the extent such
distribution may be withheld, the Depositary may dispose of all or a
portion of such distribution in such amounts and in such manner,
including by public or private sale, as the Depositary deems necessary
and practicable, and the Depositary shall distribute the net proceeds
of any such sale (after deduction of applicable (a) taxes and (b) fees
and charges of, and reasonable expenses incurred by, the Depositary)
to Holders entitled thereto upon the terms described in Section 6.1.
2.3 Elective Distributions in Cash or Shares
Whenever the Company intends to distribute a dividend payable at the
election of the holders of Shares in cash or in additional Shares, the
Company shall give notice thereof to the Depositary at least 30 days
prior to the proposed distribution stating whether or not it wishes
such elective distribution to be made available to Holders of ADSs.
Upon receipt of notice indicating that the Company wishes such
elective distribution to be made available to Holders of ADSs, the
Depositary shall consult with the Company to determine, and the
Company shall assist the Depositary in its determination, whether it
is lawful and reasonably practicable to make such elective
distribution available to the Holders of ADSs. The Depositary shall
make such elective distribution available to Holders only if (i) the
Company shall have timely requested that the
elective distribution is available to Holders of ADRs, (ii) the
Depositary shall have determined that such distribution is reasonably
practicable and (iii) the Depositary shall have received satisfactory
documentation within the terms of Section 4.2 of the Agreement. If the
above conditions are not satisfied, the Depositary shall, to the
extent permitted by law, distribute to the Holders, on the basis of
the same determination as is made in the local market in respect of
the Shares for which no election is made, either (x) cash upon the
terms described in Section 6.1 of the Agreement or (y) additional ADSs
representing such additional Shares upon the terms described in
Section 6.2 of the Agreement. If the above conditions are satisfied,
the Depositary shall establish an ADS Record Date (on the terms
described in Section 6.6 of the Agreement) and establish procedures to
enable Holders to elect the receipt of the proposed dividend in cash
or in additional ADSs. The Company shall assist the Depositary in
establishing such procedures to the extent necessary. Subject to
Exhibit B to the Agreement, if a Holder elects to receive the proposed
dividend (x) in cash, the dividend shall be distributed upon the terms
described in Section 6.1 of the Agreement, or (y) in ADSs, the
dividend shall be distributed upon the terms described in Section 6.2
of the Agreement. Nothing herein shall obligate the Depositary to make
available to Holders a method to receive the elective dividend in
Shares (rather than ADSs). There can be no assurance that Holders
generally, or any Holder in particular, will be given the opportunity
to receive elective distributions on the same terms and conditions as
the holders of Shares.
2.4 Distribution of Rights to Purchase Shares
(a) Distribution to ADS Holders. Whenever the Company intends to
distribute to the holders of the Deposited Securities rights
to subscribe for additional Shares, the Company shall give
notice thereof to the Depositary at least 60 days prior to
the proposed distribution stating whether or not it wishes
such rights to be made available to Holders. Upon receipt of
a notice indicating that the Company wishes such rights to be
made available to Holders, the Depositary shall consult with
the Company to determine, and the Company shall determine,
whether it is lawful and reasonably practicable to make such
rights available to the Holders. The Depositary shall make
such rights available to Holders only if (i) the Company
shall have timely requested that such rights be made
available to Holders, (ii) the Depositary shall have received
satisfactory documentation within the terms of Section 4.2 of
the Agreement, and (iii) the Depositary shall have determined
that such distribution of rights is lawful and reasonably
practicable. In the event any of the conditions set forth
above are not satisfied, the Depositary shall proceed with
the sale of the rights as contemplated in Section 6.4(b) to
the Agreement or, if timing or market conditions may not
permit, do nothing thereby allowing such rights to lapse. In
the event all conditions set forth above are satisfied, the
Depositary shall establish an ADS Record Date (upon the terms
described in Section 6.6 of the Agreement) and establish
procedures (x) to distribute such rights (by means of
warrants or otherwise) and (y) to enable the Holders to
exercise the rights (upon payment of applicable (a) fees and
charges of, and expenses incurred by, the Depositary and (b)
taxes and other governmental charges). Nothing herein shall
obligate the Depositary to make available to the Holders a
method to exercise such rights to subscribe for Shares
(rather than ADSs).
(b) Sale of Rights. If (i) the Company does not timely request
the Depositary to make the rights available to Holders or
requests that the rights not be made available to Holders,
(ii) the Depositary fails to receive satisfactory
documentation within the terms of Section 4.2 of the
Agreement or determines it is not lawful or reasonably
practicable to make the rights available to Holders, or (iii)
any rights made available are not exercised and appear to be
about to lapse, the Depositary shall determine whether it is
lawful and reasonably practicable to sell such rights, in a
riskless principal capacity or otherwise, at such place and
upon such terms (including public or private sale) as it may
deem proper. The Company shall assist the Depositary to
the extent necessary to determine such legality and
practicability. The Depositary shall, upon such sale,
convert and distribute proceeds of such sale (net of
applicable (a) fees and charges of, and expenses incurred
by, the Depositary and (b) taxes) upon the terms set forth
in Section 6.1 of the Agreement.
(c) Lapse of Rights. If the Depositary is unable to make any
rights available to Holders upon the terms described in
Section 6.4(a) of the Agreement or to arrange for the sale of
the rights upon the terms described in Section 6.4(b) of the
Agreement, the Depositary shall allow such rights to lapse.
The Depositary shall not be responsible for (i) any failure to
determine that it may be lawful or practicable to make such rights
available to Holders in general or any Holders in particular, (ii) any
foreign exchange exposure or loss incurred in connection with such
sale, or exercise, or (iii) the content of any materials forwarded to
the Holders on behalf of the Company in connection with the rights
distribution.
Notwithstanding anything to the contrary in this Section 6.4 of the
Agreement, if registration (under the Securities Act or any other
applicable law) of the rights or the securities to which any rights
relate may be required in order for the Company to offer such rights
or such securities to Holders and to sell the securities represented
by such rights, the Depositary will not distribute such rights to the
Holders (i) unless and until a registration statement under the
Securities Act covering such offering is in effect or (ii) unless the
Company furnishes to the Depositary at the Company's expense
opinion(s) of counsel to the Company in the U.S. and counsel to the
Company in any other applicable country in which rights would be
distributed, in each case satisfactory to the Depositary, to the
effect that the offering and sale of such securities to Holders and
Beneficial Owners are exempt from, or do not require registration
under, the provisions of the Securities Act or any other applicable
laws. In the event that the Company, the Depositary or the Custodian
shall be required to withhold and does withhold from any distribution
of property (including rights) an amount on account of taxes or other
governmental charges, the amount distributed to the Holders shall be
reduced accordingly. In the event that the Depositary determines that
any distribution in property (including Shares and rights to subscribe
therefor) is subject to any tax or other governmental charges which
the Depositary is obligated to withhold, the Depositary may dispose of
all or a portion of such property (including Shares and rights to
subscribe therefor) in such amounts and in such manner, including by
public or private sale, as the Depositary deems necessary and
practicable to pay any such taxes or charges.
There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to exercise rights on the
same terms and conditions as the holders of Shares or be able to
exercise such rights. Nothing herein shall obligate the Company to
file any registration statement in respect of any rights or Shares or
other securities to be acquired upon the exercise of such rights.
2.5 Distributions Other Than Cash, Shares or Rights to Purchase Shares
(a) Whenever the Company intends to distribute to the holders of
Deposited Securities property other than cash, Shares or
rights to purchase additional Shares, the Company shall give
notice thereof to the Depositary at least 30 days prior to
the proposed distribution and shall indicate whether or not
it wishes such distribution to be made to Holders. Upon
receipt of a notice indicating that the Company wishes such
distribution be made to Holders, the Depositary shall
determine whether such distribution to Holders is lawful and
practicable. The Depositary shall not make such distribution
unless (i) the Company shall have timely requested the
Depositary to make such distribution to Holders, (ii) the
Depositary shall have received satisfactory
documentation within the terms of Section 4.2 of the
Agreement, and (iii) the Depositary shall have determined
that such distribution is reasonably practicable.
(b) Upon receipt of satisfactory documentation and the request of
the Company to distribute property to Holders and after
making the requisite determinations set forth in (a) above,
the Depositary may distribute the property so received to the
Holders of record as of the ADS Record Date, in proportion to
the number of ADSs held by such Holders respectively and in
such manner as the Depositary may deem practicable for
accomplishing such distribution (i) upon receipt of payment
or net of the applicable fees and charges of, and reasonable
expenses incurred by, the Depositary, and (ii) net of any
taxes and other governmental charges withheld. The Depositary
may dispose of all or a portion of the property so
distributed and deposited, in such amounts and in such manner
(including public or private sale) as the Depositary may deem
practicable or necessary to satisfy any taxes (including
applicable interest and penalties) or other governmental
charges applicable to the distribution.
(c) If (i) the Company does not request the Depositary to make
such distribution to Holders or requests not to make such
distribution to Holders, (ii) the Depositary does not receive
satisfactory documentation within the terms of Section 4.2 of
the Agreement, or (iii) the Depositary determines that all or
a portion of such distribution is not reasonably practicable
or feasible, the Depositary shall endeavor to sell or cause
such property to be sold in a public or private sale, at such
place or places and upon such terms as it may deem proper and
shall distribute the net proceeds, if any, of such sale
received by the Depositary (net of applicable (a) fees and
charges of, and expenses incurred by, the Depositary and (b)
taxes) to the Holders as of the ADS Record Date upon the
terms of Section 6.1 of the Agreement. If the Depositary is
unable to sell such property, the Depositary may dispose of
such property in any way it deems reasonably practicable
under the circumstances for nominal or no consideration and
Holders and Beneficial Owners shall have no rights thereto or
arising therefrom.
3. Fixing of Record Date
Whenever necessary in connection with any distribution
(whether in cash, Shares, rights, or other distribution), or
whenever for any reason the Depositary causes a change in
the number of Shares that are represented by each ADS, or
whenever the Depositary shall receive notice of any meeting
of or solicitation of holders of Shares or other Deposited
Securities, or whenever the Depositary shall find it
necessary or convenient, the Depositary shall fix a record
date (the "ADS Record Date"), as close as practicable to the
record date fixed by the Company with respect to the Shares,
for the determination of the Holders who shall be entitled
to receive such distribution, to give instructions for the
exercise of voting rights at any such meeting, or to give or
withhold such consent, or to receive such notice or
solicitation or to otherwise take action, or to exercise the
rights of Holders with respect to such changed number of
Shares represented by each ADS. Subject to applicable law
and the provisions of Section 6.1 through 6.5 of the
Agreement and to the other terms and conditions of the
Agreement, only the Holders of record at the close of
business in New York on such ADS Record Date shall be
entitled to receive such distribution, to give such voting
instructions, to receive such notice or solicitation, or
otherwise take action.
4. Available Information
The Agreement, the Articles of Association, and written communications
from the Company that are received by the Custodian or the Depositary
in accordance with Section 14.6 of the Agreement, are available for
inspection by Holders at the Depositary's Office and the office of the
Custodian during normal business hours on any Business Day. The
Company is exempt
from the periodic reporting requirements of the Securities Exchange
Act. The Company will submit to the Commission such notices, reports
and communications which are required to be submitted to the
Commission by Rule 12g3-2(b) of the Securities Exchange Act. Such
notices, reports and communications may be inspected and copied at the
public reference facilities maintained by the Commission located at
the date of the Agreement at Judiciary Plaza, 000 Xxxxx Xxxxxx, X.X.,
Xxxxxxxxxx, X.X. 00000.
5. Reports
The Depositary will, at the expense of the Company and in accordance
with Section 14.6, mail by regular, ordinary mail delivery or by
electronic transmission (if agreed between the Company and the
Depositary) and unless otherwise agreed in writing, copies of such
communications (or English translations or summaries thereof) to
Holders when requested and furnished by the Company.
6. Notices
Notice to any Holder shall be deemed to be given when first mailed,
first class postage prepaid, or sent via telex or facsimile
transmission to such Holder to the address or telex or facsimile
number, as the case may be, of such Holder in the Register. Notice to
the Depositary or the Company shall be deemed to be given when first
received by it at the address or facsimile transmission number set
forth in (a) or (b) below, respectively, or at such other address or
facsimile transmission number as either may specify to the other by
written notice:
(d) Deutsche Bank Trust Company Americas
00 Xxxx Xxxxxx
Xxx Xxxx
XX 00000
Xxxxxx Xxxxxx
Attention: ADR Department
Fax: x0-000-000-0000
(e) C&C Group plc
Xxxxxxxx Xxxx
Xxxxxx 00
Xxxxxxx
Attention: Company Secretary
Fax: x000 0 000 0000
Notices to the Depositary must be in English.
7. Lists of Holders
The Company shall, to the extent permitted by applicable law, have the
right to inspect the Register and the transfer records of the
Depositary to supply copies of such records as the Company may
reasonably request. The Depositary shall, to the extent permitted by
applicable law, furnish to the Company, promptly upon the receipt of a
written request from the Company, a list of the names and addresses
of, and holdings of ADSs by, all Holders. The Depositary shall provide
copies to the Company, promptly upon receipt of a written request from
the Company, of any information received by the Depositary in
accordance with Section 5.6 of the Agreement unless such disclosure is
prohibited by applicable law.
8. Transfer, Combination and Split-up of ADRs
Subject to the terms and conditions of the Agreement, the Depositary
shall, upon surrender of an ADR or ADRs in form satisfactory to the
Depositary at the Depositary's Office (a) for the purpose of transfer,
if such ADRs are accompanied by such instruments of transfer as the
Depositary may require and are stamped as may be required by law,
register the transfer of such ADRs on the Register and execute and
deliver new ADRs to or upon the order of the person entitled thereto;
and (b) for the purpose of effecting a split-up or combination,
execute and deliver a new ADR or ADRs in such denominations as may be
requested, evidencing the same aggregate number of ADRs as the ADRs
surrendered.
9. Amendment
The ADRs and the Agreement may be amended by the Company and the
Depositary without consent of the Holders, provided that any amendment
that imposes or increases any fees or charge, or that shall otherwise
prejudice any substantial existing right of Holders, shall become
effective 30 days after notice of such amendment shall have been given
to the Holders. Every Holder, at the time any amendment so becomes
effective, shall be deemed, by continuing to hold any ADR, to consent
and agree to such amendment and to be bound by the ADRs and the
Agreement as amended thereby.
10. Termination
The Depositary shall, at the written direction of the Company,
terminate the Agreement and this ADR by mailing notice of such
termination to the Holders at least 30 days prior to the date fixed in
such notice for such termination. The Depositary may terminate the
Agreement, after giving notice to the Holders as set forth in the
preceding sentence of this Section 13 at any time 45 days or more
after the Depositary shall have delivered to the Company its written
resignation, provided that no successor depositary shall have been
appointed and accepted its appointment as provided in Section 11
before the end of such 45 days. After the date so fixed for
termination, the Depositary and its agents shall perform no further
acts under the Agreement and this ADR, except to advise Holders to
such termination, receive and hold (or sell) distributions on
Deposited Securities and deliver Deposited Securities being withdrawn
together with any such distributions on Deposited Securities. As soon
as practicable after the expiration of one year from the date so fixed
for termination, the Depositary shall, to the extent practicable, sell
the Deposited Securities and shall thereafter (as long as it may
lawfully do so) hold the net proceeds of such sales, together with any
other cash then held by it under the Agreement, without liability for
interest, for the pro rata benefit of the Holders of ADRs not
theretofore surrendered. After making such sale, the Depositary shall
be discharged from all obligations in respect of the Agreement and
this ADR, except to account for such net proceeds and other cash and
its indemnification obligations to the Company. After the date so
fixed for termination, the Company shall be discharged from all
obligations under the Agreement except for its indemnification and
payment obligations to the Depositary.
11. Surrender of Receipts and Withdrawal of Securities
Upon surrender, at the Principal Office of the Depositary, of ADSs for
the purpose of withdrawal of the Deposited Securities represented
thereby, and upon payment of (i) the fees and charges of the
Depositary for the making of withdrawals of Deposited Securities and
cancellation of ADRs (as set forth in Exhibit B) and (ii) all
applicable taxes and governmental charges payable in connection with
such surrender and withdrawal, including any applicable Irish stamp
duty, and subject to the terms and conditions of this Agreement, the
Articles of Association, and any other provisions of or governing the
Deposited Securities and other applicable laws, the Holder of such
ADSs shall be entitled to Delivery, to him or upon his order, of the
Deposited Securities at the time represented by the ADSs so
surrendered. ADSs may be surrendered for the purpose of withdrawing
Deposited Securities by delivery of an
ADR evidencing such ADSs (if held in certificated form) or by
book-entry delivery of such ADSs to the Depositary.
A Receipt surrendered for such purposes shall, if so required by the
Depositary, be properly endorsed in blank or accompanied by proper
instruments of transfer in blank, and if the Depositary so requires,
the Holder thereof shall execute and deliver to the Depositary a
written order directing the Depositary to cause the Deposited
Securities being withdrawn to be delivered to or upon the written
order of a person or persons designated in such order. Thereupon, the
Depositary shall direct the Custodian to deliver (without unreasonable
delay) at the designated office of the Custodian or through a book
entry delivery of the Shares (in either case, subject to Section 5.6
of the Agreement, Exhibit B to the Agreement, and to the other terms
and conditions of this Agreement, to the Articles of Association, to
the provisions of or governing the Deposited Securities and to
applicable laws, now or hereafter in effect) to or upon the written
order of the person or persons designated in the order delivered to
the Depositary as provided above, the Deposited Securities represented
by such ADSs, together with any certificate or other proper documents
of or relating to title of the Deposited Securities as may be legally
required, as the case may be, to or for the account of such person.
The Depositary may, in its discretion, refuse to accept for surrender
a number of ADSs representing a number other than a whole number of
Shares. In the case of surrender of an ADR evidencing a number of ADSs
representing other than a whole number of Shares, the Depositary shall
cause ownership of the appropriate whole number of Shares to be
delivered in accordance with the terms hereof, and shall, at the
discretion of the Depositary, either (i) issue and deliver to the
person surrendering such Receipt a new Receipt evidencing ADSs
representing any remaining fractional Share, or (ii) sell or cause to
be sold the fractional Shares represented by the Receipt surrendered
and remit the proceeds of such sale (net of (a) applicable fees and
charges of, and reasonable expenses incurred by, the Depositary and
(b) taxes withheld) to the person surrendering the Receipt.
At the request, risk and expense of any Holder so surrendering an ADR,
and for the account of such Holder, the Depositary shall direct the
Custodian to forward (to the extent permitted by law) any cash or
other property (other than securities) held in respect of, and any
certificate or certificates and other proper documents of or relating
to title to, the Deposited Securities represented by such ADR to the
Depositary for delivery at the Principal Office of the Depositary, and
for further delivery to such Holder. Such direction shall be given by
letter or, at the request, risk and expense of such Holder, by cable,
telex or facsimile transmission. Upon receipt by the Depositary, the
Depositary may make delivery to such person or persons entitled
thereto at the Principal Office of the Depositary of any dividends or
cash distributions with respect to the Deposited Securities
represented by such ADSs, or of any proceeds of sale of any dividends,
distributions or rights, which may at the time be held by the
Depositary.
12. Limitations on Execution and Delivery, Transfer, Etc. of Receipts;
Suspension of Delivery, Transfer, Etc.
As a condition precedent to the execution and delivery, registration,
registration of transfer, split-up, combination or surrender of any
ADR, the delivery of any distribution thereon or withdrawal of any
Deposited Securities, the Depositary or the Custodian may require (i)
payment from the depositor of Shares or presenter of the ADR of a sum
sufficient to reimburse it for any tax or other governmental charge,
including any applicable Irish stamp duty, and any stock transfer or
registration fee with respect thereto (including any such tax or
charge and fee with respect to Shares being deposited or withdrawn)
and payment of any applicable fees and charges of the Depositary as
provided in Exhibit B to the Agreement, (ii) the production of proof
satisfactory to it as to the identity and genuineness of any signature
or any other matter contemplated by Section 14.5 of the Agreement and
(iii) compliance with (A) any laws or governmental regulations
relating to the execution and delivery of ADRs or ADSs or to the
withdrawal or delivery of Deposited Securities and (B) such reasonable
regulations as the Depositary may establish consistent with the
provisions of this Agreement and applicable law.
The issuance of ADSs against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the issuance of
ADSs against the deposit of particular Shares may be withheld, or the
registration of transfer of ADRs in particular instances may be
refused, or the registration of transfers of ADRs generally may be
suspended, during any period when the transfer books of the Depositary
are closed or if any such action is deemed necessary or advisable by
the Depositary or the Company, in good faith, at any time or from time
to time because of any requirement of law, any government or
governmental body or commission or any securities exchange on which
the Receipts or Shares are listed, or under any provision of this
Agreement or provisions of, or governing, the Deposited Securities, or
any meeting of shareholders of the Company or for any other reason,
subject, in all cases, to Section 16 of the Agreement.
13. Proofs, Certificates and Other Information
Any person presenting Shares for deposit, any Holder and any
Beneficial Owner may be required, and every Holder and Beneficial
Owner agrees, from time to time to provide to the Depositary or the
Custodian such proof of citizenship or residence, taxpayer status,
payment of all applicable taxes or other governmental charges,
exchange control approval, legal or beneficial ownership of ADSs and
Deposited Securities, compliance with applicable laws and the terms of
this Agreement and the provisions of, or governing, the Deposited
Securities or other information; to execute such certifications and to
make such representations and warranties, and to provide such other
information and documentation as the Depositary may deem necessary or
proper or as the Company may reasonably require by written request to
the Depositary consistent with its obligations hereunder. The
Depositary and the Registrar, as applicable, may withhold the
execution or delivery or registration of transfer of any Receipt or
the distribution or sale of any dividend or distribution of rights or
of the proceeds thereof, or to the extent not limited by the terms of
Section 16 of the Agreement, the delivery of any Deposited Securities,
until such proof or other information is filed or such certifications
are executed, or such representations and warranties are made, or such
other documentation or information provided, in each case to the
Depositary's and the Company's satisfaction. The Depositary shall from
time to time on the written request advise the Company of the
availability of any such proofs, certificates or other information and
shall, at the Company's sole expense, provide or otherwise make
available copies thereof to the Company upon written request thereof
by the Company, unless such disclosure is prohibited by law. Each
Holder and Beneficial Owner agrees to provide any information
requested by the Company or the Depositary pursuant to this paragraph.
Nothing herein shall obligate the Depositary to (i) obtain any
information for the Company if not provided by the Holders or
Beneficial Owners or (ii) verify or vouch for the accuracy of the
information so provided by the Holders or Beneficial Owners.
14. Indemnification by the Company
The Company agrees to indemnify the Depositary against any loss,
liability or expense (including reasonable fees and reasonable
expenses of counsel) that may arise out of a (a) its acceptance and
performance of its powers and duties in respect of this Agreement,
except to the extent such loss, liability or expense (i) is due to the
gross negligence or bad faith of the Depositary or its agents or (ii)
arises solely or exclusively out of a Pre-Release of an ADR and would
not have arisen had such ADR not been the subject of a Pre-Release, or
(b) any offer or sale of ADRs, ADSs, Shares or other Deposited
Securities or any registration statement under the Securities Act in
respect thereof, except to the extent such loss, liability or expense
arises out of information (or omissions from such information)
relating to the Depositary furnished in writing to the Company by the
Depositary expressly for use in such registration statement.
15. Additional Information; Inspection of Transfer Books
This Agreement, the Company's Articles of Association, and written
communications from the Company that are received by the Custodian or
the Depositary in accordance with Section 14.6 of the Agreement, are
available for inspection by Holders at the Depositary's Office and the
office of the Custodian during normal business hours on any Business
Day.
The Depositary or the Registrar, as applicable, shall keep books for
the registration of Receipts and transfers of Receipts which at all
reasonable times shall be open for inspection by the Company and by
the Holders of such Receipts, provided that such inspection shall not
be, to the Depositary's or the Registrar's knowledge, for the purpose
of communicating with Holders of such Receipts in the interest of a
business or object other than the business of the Company or other
than a matter related to the Deposit Agreement or the Receipts.
16. Fees and Charges of the Depositary
The fees and charges of the Depositary are set out in Exhibit B to the
Agreement and are hereby incorporated by reference.
Dated: DEUTSCHE BANK TRUST
COMPANY AMERICAS as Depositary
By:
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Vice President
EXHIBIT B
FEES AND CHARGES OF THE DEPOSITARY
The Company, the Holders, the Beneficial Owners, and persons depositing Shares
or surrendering ADSs for cancellation and withdrawal of Deposited Securities
shall be required to pay to the Depositary the Depositary's fees and related
charges identified as payable by them respectively as set forth below.
The Depositary shall charge the following fees for the services performed under
the terms of the Agreement:
(i) to any person to whom ADSs are issued upon the deposit of
Shares or to any person to whom a distribution is made in
respect of ADS distributions pursuant to stock dividends or
other free distributions of stock, bonus distributions, stock
splits or other distributions (except where converted to
cash), a fee not in excess of U.S.$5.00 per 100 ADSs (or
fraction thereof) so issued under the terms of the Agreement
to be determined by the Depositary;
(ii) to any person surrendering ADSs for cancellation and
withdrawal of Deposited Securities including, inter alia,
cash distributions made pursuant to a cancellation or
withdrawal, a fee not in excess of U.S.$5.00 per 100 ADSs (or
fraction thereof) so surrendered;
(iii) to any Holder of ADSs, a fee not in excess of U.S.$2.00 per
100 ADS held for the distribution of cash proceeds, including
cash dividends or sale of rights and other entitlements, not
made pursuant to a cancellation or withdrawal;
(iv) to any Holder of ADSs, a fee not in the excess of U.S.$5.00
per 100 ADSs (or portion thereof) issued upon the exercise of
rights.
In addition, Holders, Beneficial Owners, person depositing Shares for deposit
and person surrendering ADSs for cancellation and withdrawal of Deposited
Securities will be required to pay the following charges:
(i) taxes (including applicable interest and penalties) and other
governmental charges;
(ii) such registration fees as may from time to time be in effect
for the registration of Shares or other Deposited Securities
with the Foreign Registrar and applicable to transfers of
Shares or other Deposited Securities to or from the name of
the Custodian, the Depositary or any nominees upon the making
of deposits and withdrawals, respectively;
(iii) such cable, telex , facsimile and electronic transmission and
delivery expenses as are expressly provided in the Agreement
to be at the expense of the person depositing or withdrawing
Shares or Holders and Beneficial Owners of ADSs;
(iv) the expenses and charges incurred by the Depositary in the
conversion of foreign currency;
(v) such fees and expenses as are incurred by the Depositary in
connection with compliance with exchange control regulations
and other regulatory requirements applicable to Shares,
Deposited Securities, ADSs and ADRs;
(vi) the fees and expenses incurred by the Depositary in
connection with the delivery of Deposited Securities,
including any fees of a central depository for securities in
the local market, where applicable; and
(vii) any additional fees, charges, costs or expenses that may be
incurred by the Depositary or its agents, or the Custodian,
or its agents from time to time.
Any other charges and expenses of the Depositary under the Agreement will be
paid by the Company upon agreement between the Depositary and the Company.
All fees and charges so payable may, at any time and from time to time, be
changed by agreement between the Depositary and the Company, but, in the case of
fees and charges payable by Holders and Beneficial Owners, only in the manner
contemplated in Section 12. The Depositary shall provide, without charge, a copy
of its latest fee schedule to anyone upon request.
The Depositary and the Company may reach separate agreement in relation to the
payment of any additional remuneration to the Depositary in respect of any
exceptional duties which the Depositary finds necessary or desirable and agreed
by both parties in the performance of its obligations hereunder and in respect
of the actual costs and expenses of the Depositary in respect of any notices
required to be given to the Holders in accordance with Section 14.6.
In connection with any payment by the Company to the Depositary:
(i) all fees, taxes, duties, charges, costs and expenses which
are payable by the Company shall be paid or be procured to be
paid by the Company (and any such amounts which are paid by
the Depositary shall be reimbursed to the Depositary by the
Company upon demand therefor); and
(ii) such payment shall be subject to all necessary exchange
control regulations, where applicable, and other consents and
approvals having been obtained. The Company undertakes to use
its reasonable endeavours to obtain all necessary approvals
that are required to be obtained by it in this connection.
(iii) the Depositary may request, in its sole but reasonable
discretion after reasonable consultation with the Company, an
opinion of counsel regarding New York law, the laws of
Ireland, or the laws of any other applicable jurisdiction, to
be furnished at the expense of the Company, if at any time it
deems it necessary to seek such an opinion of counsel
regarding the validity of any action to be taken or
instructed to be taken under this Agreement.
The Company agrees to promptly pay to the Depositary such other fees and charges
and to reimburse the Depositary for such out-of-pocket expenses as the
Depositary and the Company may agree to in writing from time to time.
Responsibility for payment of such charges may at any time and from time to time
be changed by agreement between the Company and the Depositary.
All payments by the Company to the Depositary under this Exhibit B shall be paid
without set-off or counterclaim, and free and clear of and without deduction or
withholding for or on account of, any present or future taxes, levies, imports,
duties, fees, assessments or other charges of whatever nature, imposed by
Ireland or by any department, agency or other political subdivision or taxing
authority thereof or therein, and all interest, penalties or similar liabilities
with respect thereto.
The right of the Depositary to receive payment of fees, charges and expenses as
provided above shall survive the termination of this Agreement. As to any
Depositary, upon the resignation or removal of such Depositary as described in
Section 11 of the Agreement, such right shall extend for those fees, charges and
expenses incurred prior to the effectiveness of such resignation or removal.