AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 26, 1996
Registration No. 333-03829
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
POST-EFFECTIVE AMENDMENT NO. 2 ON FORM F-3* TO
FORM F-4
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
ELAN CORPORATION, plc
(Exact name of registrant as specified in charter)
Republic of Ireland Not Applicable
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Monksland, Athlone
County Westmeath, Republic of Ireland
+353-902-95000
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
WILLIAM F. DANIEL
Monksland, Athlone
County Westmeath, Republic of Ireland
+353-902-95000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
________________
Approximate date of commencement of proposed sale to the public: From time
to time after this Registration Statement becomes effective.
________________
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please check
the following box. / /
_________________________
* Filed as a Post-Effective Amendment on Form F-3 to such Form F-4
Registration Statement pursuant to the provisions of Rule 401(e) and
the procedure described herein. See "INTRODUCTORY STATEMENT NOT
FORMING PART OF PROSPECTUS."
<PAGE>
If any of the securities being registered on this
Form are to be offered on a delayed or continuous basis
pursuant to Rule 415 under the Securities Act of 1933, other
than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. /x/
If this Form is filed to register additional
securities for an offering pursuant to Rule 462(b) under the
Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed
pursuant to Rule 462(c) under the Securities Act, check the
following box and list the Securities Act registration
statement number of the earlier effective registration
statement for the same offering. /_/
If delivery of the prospectus is expected to be made
pursuant to Rule 434, please check the following box. /_/
The registrant hereby amends this registration
statement on such date or dates as may be necessary to delay
its effective date until the registrant shall file a further
amendment which specifically states that this registration
statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the
registration statement shall become effective on such date as
the Commission, acting pursuant to Section 8(a), may determine.
<PAGE>
Explanatory Note
The purpose of this amendment is to file Exhibit 4.1
to this Registration Statement (File No. 333-03829). The
Prospectus included as a part of this Registration Statement
remains unchanged.
<PAGE>
Part II
Information Not Required in Prospectus
Item 16 Exhibits
Exhibit No. Description
4.1 - Amended and Restated Deposit Agreement, dated as
of May 17, 1996 among Elan Corporation plc, The
Bank of New York, as depositary, and the owners
and holders from time to time of the ADRs.
4.2 - Specimen of American Depositary Receipt,
evidencing American Depositary Receipts of Elan
(included as part of Exhibit 4.1)
5.1 - Opinion of McCann FitzGerald with respect to the
legality of the securities registered hereby.*
23.1 - Consent of McCann FitzGerald (included as part
of Exhibit 5.1)*
23.2 - Consent of KPMG Peat Marwick*
23.3 - Consent of Ernst & Young LLP, independent
auditors*
24.1 - Powers of Attorney*
_________________________
* Previously filed.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of
1933, the registrant certifies that it has reasonable grounds
to believe that it meets all of the requirements for filing on
Form F-3 and has duly caused this Post-Effective Amendment No.
2 to the Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of
Dublin, Republic of Ireland, on June 26, 1996
ELAN CORPORATION, plc
By: Thomas G. Lynch
---------------------------
Thomas G. Lynch
Chief Financial Officer
Executive Vice President
Pursuant to the requirements of the Securities Act of
1933, this Amendment No. 1 to the Registration Statement has
been signed by the following persons in the capacities and on
the dates indicated:
Signatures Capacity Date
---------- -------- ----
*
- - ---------------------- Chairman of the Board June 26, 1996
Donald E. Panoz
*
- - ---------------------- Chief Executive June 26, 1996
Donal J. Geaney Officer/President
and Director
(Principal
Executive Officer)
Thomas G. Lynch
- - ---------------------- Chief Finanical June 26, 1996
Thomas G. Lynch Officer/Executive
Vice President
(Principal
Financial Officer)
<PAGE>
Signatures Capacity Date
---------- -------- ----
*
- - -------------------- Executive Vice President June 26, 1996
Kenneth W. McVey and Director
*
- - -------------------- Group Financial Controller June 26, 1996
William F. Daniel (Principal
Accounting Officer)
*
- - -------------------- Director June 26, 1996
Howard C. Ansel, Ph.D.
*
- - -------------------- Director June 26, 1996
Garo Armen, Ph.D.
*
- - -------------------- Director June 26, 1996
James Balog
*
- - -------------------- Director June 26, 1996
Brendan Boushel
*
- - -------------------- Director June 26, 1996
Charles Greyston
<PAGE>
Signatures Capacity Date
---------- -------- ----
*
- - -------------------- Director June 26, 1996
Kevin McIntyre, M.D.
Elan Pharmaceutical Research Corp.
Authorized Representative
Thomas G. Lynch Secretary June 26, 1996
- - ------------------------
Thomas G. Lynch
*: Thomas G. Lynch
------------------
Thomas G. Lynch
Attorney-in-Fact
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
4.1 - Amended and Restated Deposit Agreement, dated as
of May 17, 1996 among Elan Corporation plc, The
Bank of New York, as depositary, and the owners
and holders from time to time of the ADRs.
4.2 - Specimen of American Depositary Receipt,
evidencing American Depositary Receipts of Elan
(included as part of Exhibit 4.1)
5.1 - Opinion of McCann FitzGerald with respect to the
legality of the securities registered hereby.*
23.1 - Consent of McCann FitzGerald (included as part
of Exhibit 5.1)*
23.2 - Consent of KPMG Peat Marwick*
23.3 - Consent of Ernst & Young LLP, independent*
auditors
24.1 - Powers of Attorney*
_________________________
* Previously filed.
=======================================================================
ELAN CORPORATION, PLC
AND
THE BANK OF NEW YORK,
AS DEPOSITARY
AND
HOLDERS OF AMERICAN DEPOSITARY RECEIPTS
AMENDED AND RESTATED DEPOSIT AGREEMENT
DATED AS OF MAY 17, 1996
=======================================================================
<PAGE>
TABLE OF CONTENTS
ARTICLE 1. ................................................................. 3
SECTION 1.01. Company. ..................................................3
SECTION 1.02. Depositary. .............................................. 3
SECTION 1.03. Custodian. ............................................... 3
SECTION 1.04. Deposit Agreement. ....................................... 4
SECTION 1.05. Stock. ................................................... 4
SECTION 1.06. Deposited Securities. .................................... 4
SECTION 1.07. Receipts. ................................................ 4
SECTION 1.08. American Depositary Shares. .............................. 4
SECTION 1.09. Holder. .................................................. 5
SECTION 1.10. Registrar. ............................................... 5
SECTION 1.11. Dollars. ................................................. 5
SECTION 1.12. Securities Act of 1933. .................................. 5
SECTION 1.13. Commission. .............................................. 5
ARTICLE 2. ................................................................. 6
SECTION 2.01. Form and Transferability of Receipts. .................... 6
SECTION 2.02. Deposit of Stock. ........................................ 7
SECTION 2.03. Execution and Delivery of Receipts ....................... 9
SECTION 2.04. Transfer of Receipts; Combination and
Split-Up of Receipts. ....................................10
SECTION 2.05. Surrender of Receipts and Withdrawal
of Stock. ................................................11
SECTION 2.06. Limitations on Execution and Delivery,
Transfer and Surrender of Receipts. ......................12
SECTION 2.07. Lost Receipts, etc. ......................................13
SECTION 2.08. Cancellation and Destruction of
Surrendered Receipts. ....................................14
SECTION 2.09. Pre-Release of Receipts. .................................14
ARTICLE 3. .................................................................15
SECTION 3.01. Filing Proofs, Certificates and Other
Information. .............................................15
SECTION 3.02. Liability of Holder for Taxes. ...........................16
SECTION 3.03. Warranties on Deposit of Stock. ..........................16
ARTICLE 4. .................................................................17
SECTION 4.01. Cash Distributions. ......................................17
SECTION 4.02. Distributions Other Than Cash or
Stock. ...................................................18
SECTION 4.03. Distributions in Stock. ..................................18
SECTION 4.04. Rights. ..................................................19
SECTION 4.05. Conversion of Foreign Currency. ..........................21
SECTION 4.06. Fixing of Record Date. ...................................22
SECTION 4.07. Voting of Deposited Securities. ..........................23
SECTION 4.08. Changes Affecting Deposited
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Securities. ..............................................24
SECTION 4.09. Reports. ................................................25
SECTION 4.10. Available Information. ...................................26
SECTION 4.11. Lists of Receipt Holders. ................................26
SECTION 4.12. Withholding. .............................................26
ARTICLE 5. .................................................................27
SECTION 5.01. Maintenance of Office and Transfer
Books by the Depositary. .................................27
SECTION 5.02. Prevention or Delay in Performance by
the Depositary or the Company. ...........................28
SECTION 5.03. Obligation of the Depositary, the
Custodian and the Company. ...............................29
SECTION 5.04. Resignation and Removal of the
Depositary; Appointment of Successor
Depositary. ..............................................30
SECTION 5.05. The Custodian. ...........................................31
SECTION 5.06. Notices and Reports. .....................................33
SECTION 5.07. Issuance of Additional Stock, etc. .......................33
SECTION 5.08. Indemnification. .........................................34
SECTION 5.09. Charges of Depositary. ...................................35
ARTICLE 6. .................................................................36
SECTION 6.01. Amendment. ...............................................36
SECTION 6.02. Termination. .............................................37
ARTICLE 7. .................................................................38
SECTION 7.01. Counterparts. ............................................38
SECTION 7.02. No Third Party Beneficiaries. ............................38
SECTION 7.03. Severability. ............................................38
SECTION 7.04. Holders Parties; Binding Effect. .........................39
SECTION 7.05. Notices. .................................................39
SECTION 7.06. Governing Law. ...........................................40
SECTION 7.07. Compliance with U.S. Securities Laws. ....................40
<PAGE>
AMENDED AND RESTATED
DEPOSIT AGREEMENT
AMENDED AND RESTATED DEPOSIT AGREEMENT dated as of May 17, 1996 among ELAN
CORPORATION, plc incorporated under the laws of the Republic of Ireland (herein
called the Company), THE BANK OF NEW YORK, a New York banking corporation
(herein called the Depositary), and Holders from time to time of American
Depositary Receipts issued hereunder amending and restating the Deposit
Agreement dated as of January 4, 1984 among the Company, MORGAN GUARANTY TRUST
COMPANY OF NEW YORK, a New York corporation, and all Holders from time to time
of American Depositary Receipts issued and hereunder as amended and restated as
of July 9, 1990 among the Company, The Bank of New York and all Holders from
time to time of American Depositary Receipts, and as further amended by
Amendment No. 1 thereto dated as of July 31, 1990.
WITNESSETH:
WHEREAS, the Company desires to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of Ordinary Shares (herein called Stock), of
the Company from time to time with the Depositary or with the principal Dublin
office of The Bank of Ireland (herein called the Custodian), as agent of the
Depositary for the purposes set forth in this
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<PAGE>
Deposit Agreement, for the creation of American Depositary Shares
representing the Stock so deposited and for the execution and delivery of
American Depositary Receipts in respect of the American Depositary Shares; and
WHEREAS, the American Depositary Receipts are to be substantially in the
form of Exhibit A annexed hereto, with appropriate insertions, modifications and
omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, it is agreed by and
between the parties hereto as follows:
ARTICLE 1.
Definitions.
The following definitions shall for all purposes, unless otherwise clearly
indicated, apply to the respective terms used in this Deposit Agreement:
SECTION 1.1. Company.
The term "Company" shall mean Elan Corporation, plc, incorporated under the
laws of the Republic of Ireland, and
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<PAGE>
its successors.
SECTION 1.2. Depositary.
The term "Depositary" shall mean The Bank of New York, a New York banking
corporation and its successors as depositary hereunder. The term "Corporate
Trust Office" when used with respect to the Depositary shall mean the office of
the Depositary which at the date of this Agreement is 101 Barclay Street, New
York, New York 10286.
SECTION 1.3. Custodian.
The term "Custodian" shall mean the principal Dublin office of The Bank of
Ireland, as agent of the Depositary for the purposes of this Deposit Agreement,
and any other firm or corporation which may hereafter be appointed by the
Depositary, pursuant to the terms of Section 5.05, as substitute custodian
hereunder.
SECTION 1.4. Deposit Agreement.
The term "Deposit Agreement" shall mean this Amended and Restated Deposit
Agreement, as the same may be amended from time to time in accordance with the
provisions hereof.
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SECTION 1.5. Stock.
The term "Stock" shall mean Ordinary Shares in registered form of the
Company.
SECTION 1.6. Deposited Securities.
The term "Deposited Securities" as of any time shall mean Stock at such
time deposited under this Deposit Agreement and any and all other securities,
property and cash received by the Depositary or the Custodian in respect thereof
and at such time held hereunder, subject as to cash to the provisions of Section
4.05.
SECTION 1.7. Receipts.
The term "Receipts" shall mean the American Depositary Receipts issued
hereunder evidencing American Depositary Shares.
SECTION 1.8. American Depositary Shares.
The term "American Depositary Shares" shall mean the rights represented by
the Receipts issued hereunder and the interests in the Deposited Securities
represented thereby. Each American Depositary Share shall represent one unit of
Stock (or evidence of rights to receive such Stock), until there shall occur a
distribution upon Deposited Securities
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<PAGE>
covered by Section 4.03 or a change in Deposited Securities covered by
Section 4.08 with respect to which additional Receipts are not executed and
delivered, and thereafter American Depositary Shares shall represent the amount
of Stock or Deposited Securities specified in such Sections.
SECTION 1.9. Holder.
The term "Holder" shall mean the person in whose name a Receipt is
registered on the books of the Depositary maintained for such purpose.
SECTION 1.10. Registrar.
The term "Registrar" shall mean any bank or trust company having an office
in the Borough of Manhattan, The City of New York, which shall be appointed to
register Receipts and transfers of Receipts as herein provided.
SECTION 1.11. Dollars.
The term "dollars" shall mean United States dollars. The term "pounds"
shall mean Irish pounds.
SECTION 1.12. Securities Act of 1933.
The term "Securities Act of 1933" shall mean the United States Securities
Act of 1933, as from time to time amended.
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<PAGE>
SECTION 1.13. Commission.
The term "Commission" shall mean the Securities and Exchange Commission of
the United States or any successor governmental agency in the United States.
ARTICLE 2.
FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND
DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
SECTION 2.1. Form and Transferability of Receipts.
Definitive Receipts shall be engraved or printed or lithographed on
steel-engraved borders and shall be substantially in the form set forth in
Exhibit A annexed to this Deposit Agreement, with appropriate insertions,
modifications and omissions, as hereinafter provided. Such Receipts shall be
executed by the Depositary by the manual signature of a duly authorized officer
of the Depositary; provided, however, that such signature may be a facsimile if
a Registrar for the Receipts shall have been appointed and such Receipts are
countersigned by the manual signature of a duly authorized officer of the
Registrar. No Receipt shall
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<PAGE>
be entitled to any benefits under this Deposit Agreement or be valid or
obligatory for any purpose, unless such Receipt shall have been executed by the
Depositary by the manual signature of a duly authorized officer or, if a
Registrar shall have been appointed, by the manual signature of a duly
authorized officer of the Registrar. The Depositary shall maintain books on
which each Receipt so executed and delivered as hereinafter provided and the
transfer of each such Receipt shall be registered. Receipts bearing the
facsimile signature of a duly authorized officer of the Depositary who was at
any time a proper officer of the Depositary shall bind the Depositary,
notwithstanding that such officer has ceased to hold such office prior to
signature of the Registrar and delivery of such Receipts or did not hold such
office at the date of such Receipts.
The Receipts may be endorsed with or have incorporated in the text thereof
such legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement as may be required by the Depositary or required to comply
with any applicable law or regulations thereunder or with the rules and
regulations of any securities exchange upon which Receipts may be listed or to
conform with any usage with respect thereto, or to indicate any special
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<PAGE>
limitations or restrictions to which any particular Receipts are subject by
reason of the date of issuance of the underlying Deposited Securities or
otherwise.
Title to a Receipt (and to the American Depositary Shares evidenced
thereby), when properly endorsed or accompanied by proper instruments of
transfer, shall be transferable by delivery with the same effect as in the case
of a negotiable instrument; 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 Deposit Agreement, and for all other purposes.
SECTION 2.2. Deposit of Stock.
Subject to the terms and conditions of this Deposit Agreement, Stock or
evidence of rights to receive Stock may be deposited by delivery thereof to the
Custodian accompanied by any appropriate instrument or instruments of transfer,
or endorsement, in form satisfactory to the Custodian, together with all such
certifications as may be required by the
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<PAGE>
Depositary or the Custodian in accordance with the provisions of this Deposit
Agreement, and together with 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 a Receipt or Receipts for the number of American Depositary Shares
representing such deposit. No Stock shall be accepted for deposit unless
accompanied by evidence satisfactory to the Depositary that any necessary
approval has been granted by the governmental authority or body in the Republic
of Ireland, if any, which is then performing the function of the regulation of
currency exchange. If required by the Depositary, Stock presented for deposit at
any time, whether or not the transfer books of the Company are closed, shall
also be accompanied by an agreement or assignment, or other instrument
satisfactory to the Depositary, which will provide for the prompt transfer to
the Custodian of any dividend, or right to subscribe for additional Stock or to
receive other property which any person in whose name the Stock is or has been
recorded may thereafter receive upon or in respect of such deposited Stock, or
in lieu thereof, such agreement of indemnity or other agreement as shall be
satisfactory to the Depositary.
At the request and risk and expense of any holder of
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<PAGE>
Stock, and for the amount of such holder, the Depositary may receive
certificates for Stock to be deposited, together with the other instruments
herein specified, for the purpose of forwarding to the Custodian for deposit
hereunder.
Upon each delivery to the Custodian of a certificate or certificates for
Stock to be deposited hereunder, together with the other documents above
specified, the Custodian shall, as soon as transfer and recordation can be
accomplished, present such certificate or certificates to the Company for
transfer and recordation of the Stock being deposited in the name of the
Depositary or its nominee, or the Custodian or its nominee.
Deposited Stock shall be held by the Depositary or by the Custodian for the
account and to the order of the Depositary, or at such other place or places as
the Depositary shall determine.
SECTION 2.3. Execution and Delivery of Receipts
Upon receipt by the Custodian of any deposit pursuant to Section 2.02
hereunder (and in addition, if the transfer books of the Company are open, a
proper acknowledgment or
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<PAGE>
other evidence from the Company satisfactory to the Depositary that any
deposited Stock have been recorded upon the Company's books in the name of the
Depositary or its nominee or the Custodian or its nominee), together with the
other documents required as above specified, the Custodian shall notify the
Depositary of such deposit and the person or persons to whom or upon whose
written order a Receipt or Receipts are deliverable in respect thereof and the
number of American Depositary Shares to be represented thereby. Such
notification shall be made by letter or, at the request and risk and expense of
the person making the deposit, by cable, telex or facsimile transmission. Upon
receiving such notice from the Custodian, the Depositary, subject to the terms
and conditions of this Deposit Agreement, shall execute and deliver at its
Corporate Trust Office, to or upon the order of the person or persons named in
the notice delivered to the Depositary, a Receipt or Receipts, registered in the
name or names and representing any authorized number of American Depositary
Shares requested by such person or persons, but only upon payment to the
Depositary of the fee of the Depositary for the execution and delivery of such
Receipt or Receipts, and of all taxes and governmental charges and fees payable
in connection with such deposit and the transfer of the deposited Stock.
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<PAGE>
SECTION 2.4. Transfer of Receipts; Combination and
Split-Up of Receipts.
The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall register transfers on its transfer books from time to time of
Receipts, upon any surrender of a Receipt, by the Holder in person or by duly
authorized attorney, properly endorsed or accompanied by proper instruments of
transfer, and duly stamped as may be required by the laws of the State of New
York and of the United States of America. Thereupon, the Depositary shall
execute a new Receipt or Receipts and deliver the same to or upon the order of
the person entitled thereto.
The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall upon surrender of a Receipt or Receipts for the purpose of
effecting a split-up or combination of such Receipt or Receipts, execute and
deliver a new Receipt or Receipts for any authorized number of American
Depositary Shares requested, representing the same aggregate number of American
Depositary Shares as the Receipt or Receipts surrendered.
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<PAGE>
SECTION 2.5. Surrender of Receipts and Withdrawal of
Stock.
Upon surrender at the Corporate Trust Office of the Depositary of a Receipt
evidencing American Depositary Shares for the purpose of withdrawal of the
Deposited Securities represented thereby, and upon payment of the fee of the
Depositary for the cancellation of Receipts, and subject to the terms and
conditions of this Deposit Agreement, the Holder of such Receipt shall be
entitled to delivery, to him or upon his order, of the amount of Deposited
Securities at the time represented by such Receipt.
Delivery of such Deposited Securities may be made by the delivery of
certificates to such Holder or as ordered by him. Such delivery shall be made,
as hereinafter provided, without unreasonable delay.
A Receipt surrendered for such purposes may be required by the Depositary
to be properly endorsed in blank or accompanied by proper instruments of
transfer in blank, and 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
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<PAGE>
or upon the written order of the person or persons designated in such order.
Thereupon the Depositary shall direct the Custodian to deliver at the Dublin
office of the Custodian, subject to Sections 2.06, 3.01 and 3.02, and to the
other terms and conditions of this Deposit Agreement, to or upon the written
order of the person or persons designated in the order delivered to the
Depositary as above provided, the amount of Deposited Securities represented by
such Receipt, except that the Depositary may take delivery to such person or
persons at the Corporate Trust Office of the Depositary of any dividends or
distributions with respect to the Deposited Securities represented by such
Receipt, or of any proceeds of sale of any dividends, distributions or rights,
which may at the time be held by the Depositary.
At the request, risk and expense of any Holder so surrendering a Receipt,
and for the account of such Holder, the Depositary shall direct the Custodian to
forward a certificate or certificates and other proper documents of title for
the Deposited Securities represented by such Receipt to the Depositary for
deliver at the Corporate Trust Office of the Depositary. Such direction shall be
given by letter or, at the request, risk and expense of such Holder, by cable,
telex or facsimile transmission.
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<PAGE>
SECTION 2.6. Limitations on Execution and Delivery,
Transfer and Surrender of Receipts.
As a condition precedent to the execution and delivery, registration of
transfer, split-up, combination or surrender of any Receipt or withdrawal of any
Deposited Securities, the Depositary or the Custodian may require payment from
the presentor of the Receipt of a sum sufficient to reimburse it for any tax or
other governmental charge and any stock transfer or registration fee with
respect thereto (including any such tax or charge and fee with respect to Stock
being deposited or withdrawn) and payment of any applicable fees as herein
provided, may require the production of proof satisfactory to it as to the
identity and genuineness of any signature and may also require compliance with
such regulations, if any, as the Depositary may establish consistent with the
provisions of this Deposit Agreement. The surrender of outstanding Receipts and
withdrawal of Deposited Securities may not be suspended subject only to (i)
temporary delays caused by closing the transfer books of the Depositary or the
Company or the deposit of Shares in connection with voting at a shareholders'
meeting, or the payment of dividends, (ii) the payment of fees, taxes and
similar charges, and (iii)
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compliance with any U.S. or foreign laws or governmental
regulations relating to the Receipts or to the withdrawal of
the Deposited Securities.
The delivery of Receipts against deposits of Stock generally or against
deposits of particular Stock may be suspended, or the delivery of Receipts
against the deposit of particular Stock may be withheld, or the registration of
transfer of Receipts in particular instances may be refused, or the transfer or
surrender of outstanding Receipts 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 at any time or
from time to time because of any requirement of law or of any government or
governmental authority, body or commission, or under any provision of this
Deposit Agreement, subject to the provisions of the preceding paragraph and
Section 7.07 hereof. Without limitation of the foregoing, the Depositary shall
not knowingly accept for deposit under this Deposit Agreement any Stock required
to be registered under the provisions of the Securities Act of 1933, unless a
registration statement is in effect as to such Stock.
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<PAGE>
SECTION 2.7. Lost Receipts, etc.
In case any Receipt shall be mutilated, destroyed, lost or stolen, the
Depositary shall execute and deliver a new Receipt of like tenor, in exchange
and substitution for such mutilated Receipt upon cancellation thereof, or in
lieu of and in substitution for such destroyed or lost or stolen Receipt, upon
the Holder thereof filing with the Depositary (a) a request for such exchange
and delivery before the Depositary has notice that the Receipt has been acquired
by a bona fide purchaser and (b) a sufficient indemnity bond and satisfying any
other reasonable requirements imposed by the Depositary.
SECTION 2.8. Cancellation and Destruction of Surrendered
Receipts.
All Receipts surrendered to the Depositary shall be cancelled by the
Depositary. The Depositary is authorized to destroy Receipts so cancelled.
SECTION 2.9. Pre-Release of Receipts.
Notwithstanding Section 2.03 hereof, the Depositary
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may execute and deliver Receipts prior to the receipt of Shares pursuant to
Section 2.02 ("Pre-Release"). The Depositary may, pursuant to Section 2.05,
deliver Shares upon the receipt and cancellation of Receipts which have been
Pre- Released, whether or not such cancellation is prior to the termination of
such Pre-Release or the Depositary knows that such Receipt has been
Pre-Released. The Depositary may receive Receipts in lieu of Shares in
satisfaction of a Pre- Release. Each Pre-Release will be (a) preceded or
accompanied by a written representation from the person to whom Receipts are to
be delivered that such person, or its customer, owns the Shares or Receipts to
be remitted, as the case may be, (b) at all times fully collateralized with cash
or such other collateral as the Depositary deems appropriate, (c) terminable by
the Depositary on not more than five (5) business days notice, and (d) subject
to such further indemnities and credit regulations as the Depositary deems
appropriate. The number of American Depositary Shares which are outstanding at
any time as a result of Pre-Releases will not normally exceed thirty percent
(30%) of the Shares deposited hereunder; provided, however, that the Depositary
reserves the right to change or disregard such limit from time to time as it
deems appropriate.
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The Depositary may retain for its own account any compensation received by
it in connection with the foregoing.
ARTICLE 3.
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS.
SECTION 3.1. Filing Proofs, Certificates and Other
Information.
Any person presenting Stock for deposit or any Holder of a Receipt may be
required from time to time to file such proof of citizenship or residence,
exchange control approval, or such information relating to the registration on
the books of the Company of the Stock presented for deposit or other
information, to execute such certificates and to make such representations and
warranties, as the Depositary may deem necessary or proper. The Depositary may
withhold the delivery or registration of transfer of any Receipt or the
distribution or sale of any dividend or other distribution or rights or of the
proceeds thereof or the delivery of any Deposited Securities until such proof or
other information is filed or such certificates are executed.
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SECTION 3.2. Liability of Holder for Taxes.
If any tax or other governmental charge shall become payable with respect
to any Deposited Securities represented by any Receipt, such tax or other
governmental charge shall be payable by the Holder of such Receipt to the
Depositary. The Depositary may refuse to effect any transfer of such Receipt or
any withdrawal of Deposited Securities represented thereby until such payment is
made, any may withhold any dividends or other distributions, or may sell for the
account of the Holder thereof any part or all of the Deposited Securities
represented by such Receipt, and may apply such dividends or other distributions
or the proceeds of any such sale in payment of such tax or other governmental
charge, the Holder of such Receipt remaining liable for any deficiency.
SECTION 3.3. Warranties on Deposit of Stock.
Every person depositing Stock under this Deposit Agreement shall be deemed
thereby to represent and warrant that such Stock and each certificate therefor
is validly issued and subscribed for, fully paid, non-assessable and not subject
to pre-emption rights and that the person making such deposit is duly authorized
so to do. Such representations
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and warranties shall survive the deposit of Stock and
issuance of Receipts.
ARTICLE 4.
THE DEPOSITED SECURITIES.
SECTION 4.1. Cash Distributions.
Whenever the Depositary shall receive any cash dividend or other cash
distribution by the Company on any Deposited Securities, the Depositary shall,
subject to the provisions of Section 4.05, convert such dividend or distribution
into dollars and shall distribute the amount thus received to the Holders of
Receipts entitled thereto, in proportion to the number of American Depositary
Shares representing such Deposited Securities held by them respectively;
provided, however, that in the event that the Company or the Depositary shall be
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, the amount distributed to the Holder of Receipts for American Depositary
Shares representing such
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Deposited Securities shall be reduced accordingly. The Depositary shall
distribute only such amount, however, as can be distributed without attributing
to any Holder of a Receipt a fraction of one cent, and any balance not so
distributable shall be held by the Depositary (without liability for interest
thereon) and shall be added to and become part of the next sum received by the
Depositary for distribution to Holders of Receipts then outstanding. The Company
will remit to the appropriate governmental authority or agency in the Republic
of Ireland all amounts withheld and owing to such authority or agency. The
Depositary will forward to the Company such information from its records as the
Company may reasonably request to enable the Company to file necessary reports
with governmental authorities or agencies, and either the Depositary or the
Company may file any such reports necessary to obtain benefits under the
applicable tax treaties for the Holders of Receipts.
SECTION 4.2. Distributions Other Than Cash or Stock.
Whenever the Depositary shall receive any distribution other than cash or
Stock upon any Deposited Securities, the Depositary shall cause the securities
or property received by it to be distributed to the Holders of
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Receipts entitled thereto, in proportion to the number of American Depositary
Shares representing such Deposited Securities held by them respectively, in any
manner that the Depositary may deem equitable and practicable for accomplishing
such distribution; provided, however, that if in the opinion of the Depositary
such distribution cannot be made proportionately among the Holders of Receipts
entitled thereto, or if for any other reason (including any requirement that the
Company or the Depositary withhold an amount on account of taxes) the Depositary
deems such distribution not to be feasible, the Depositary may adopt such method
as it may deem equitable and practicable for the purpose of effecting such
distribution, including the sale (public or private) of the securities or
property thus received, at any part thereof and the net proceeds of any such
sale shall be distributed by the Depositary to the Holders of Receipts entitled
thereto as in the case of a distribution received in cash.
SECTION 4.3. Distributions in Stock.
If any distribution upon any Deposited Securities consists of a dividend
in, or free distribution of, Stock, the Depositary may with the Company's
approval, and shall if
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the Company shall so request, distribute to the Holders of outstanding Receipts
entitled thereto, in proportion to the number of American Depositary Shares
representing such Deposited Securities held by them respectively, additional
Receipts for an aggregate number of American Depositary Shares representing the
amount of Stock received as such dividend or free distribution. In lieu of
delivering Receipts for fractional American Depositary Shares in any such case,
the Depositary may sell the amount of Stock represented by the aggregate of such
fractions and distribute the net proceeds, all in the manner and subject to the
conditions described in Section 4.02. If additional Receipts are not so
distributed, each American Depositary Share shall thenceforth also represent the
additional Stock distributed upon the Deposited Securities represented thereby.
SECTION 4.4. Rights.
In the event that the Company shall offer or cause to be offered to the
holders of any Deposited Securities any rights to subscribe for additional Stock
or any rights of any other nature, the Depositary shall have discretion as to
the procedure to be followed in making such rights available to the Holders of
Receipts or in disposing of such rights on
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behalf of such Holders and making the net proceeds available in dollars to such
Holders; provided, however, that the Depositary will, if requested by the
Company, take action as follows:
(i) if at the time of the offering of any rights the Depositary
determines that it is lawful and feasible to make such rights
available to Holders of Receipts by means of warrants or otherwise,
the Depositary shall distribute warrants or other instruments therefor
in such form as it may determine to the Holders entitled thereto, in
proportion to the number of American Depositary Shares representing
such Deposited Securities, or employ such other method as it may deem
feasible in order to facilitate the exercise, sale or transfer of
rights by such Holders; or
(ii) if at the time of the offering of any rights the Depositary
determines that it is not lawful or not feasible to make such rights
available to Holders of Receipts by means of warrants or otherwise, or
if the rights represented by such warrants or such other instruments
are not exercised and appear to be about to lapse, the
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Depositary in its discretion may sell such rights or such
warrants or other instruments at public or private sale, at such place
or places and upon such terms as it may deem proper, and may allocate
the proceeds of such sales for account of the Holders of Receipts
otherwise entitled to such rights, warrants or other instruments, upon
an averaged or other practicable basis without regard to any
distinctions among such Holders because of exchange restrictions, or
the date of delivery of any Receipt or Receipts, or otherwise.
If registration under the Securities Act of 1933 of the securities to which
any rights relate is required in order for the Company to offer such rights to
Holders of Receipts and sell the securities represented by such rights, the
Depositary will not offer such rights to the Holders of Receipts unless and
until such a registration statement is in effect, or unless the offering and
sale of such securities to the Holders of such Receipts are exempt from
registration under the provisions of such Act.
SECTION 4.5. Conversion of Foreign Currency.
Whenever the Depositary shall receive foreign currency, by way of dividends
or other distributions or the net proceeds from the sale of securities, property
or rights, and if at the time of the receipt thereof the foreign currency so
received can in the judgment of the Depositary be converted on a reasonable
basis into dollars and the resulting dollars transferred to the United States,
the Depositary shall convert or cause to be converted, by sale or
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in any other manner that it may determine, such foreign currency into dollars,
and such dollars shall be distributed to the Holders of Receipts entitled
thereto or, if the Depositary shall have distributed any warrants or other
instruments which entitle the holders thereof to such dollars, then to the
holders of such warrants and/or instruments upon surrender thereof for
cancellation. Such distribution may be made upon an averaged or other
practicable basis without regard to any distinctions among Holders on account of
exchange restrictions or otherwise.
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, if any, as it may deem desirable.
If at any time the Depositary shall determine that in its judgment any
foreign currency received by the Depositary is not convertible on a reasonable
basis into dollars transferable to the United States, or if any approval or
license of any government authority or agency thereof which is required for such
conversion is denied or in the opinion of the Depositary is not obtainable, or
if any such approval or license is not obtained within a reasonable period as
determined by the Depositary, the Depositary may distribute the foreign currency
(or an appropriate document evidencing the right to receive such foreign
currency) received by the Depositary to, or in its discretion may hold such
foreign currency for the respective accounts of, the Holders of Receipts
entitled to receive the same.
If any such conversion of foreign currency, in
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whole or in part, cannot be effected for distribution to some Holders of
Receipts entitled thereto, the Depositary may in its discretion make such
conversion and distribution in dollars to the extent permissible to the Holders
of Receipts entitled thereto and may distribute the balance of the foreign
currency received by the Depositary to, or hold such balance for the account of,
the Holders of Receipts entitled thereto.
SECTION 4.6. Fixing of Record Date.
Whenever any cash dividend or other cash distribution shall become payable
or any distribution other than cash shall be made, or whenever rights shall be
issued with respect to the Deposited Securities, or whenever the Depositary
shall receive notice of any meeting of holders of Stock or other Deposited
Securities, the Depositary shall fix a record date for the determination of the
Holders of Receipts who shall be entitled to receive such dividend, distribution
or rights, or the net proceeds of the sale thereof, or to give instructions for
the exercise of voting rights at any such meeting. Subject to the provisions of
Sections 4.01 through 4.05 and to the other terms and conditions of this Deposit
Agreement, the Holders of Receipts on such record date shall be entitled to
receive the amount distributable by the Depositary with respect to such dividend
or other distribution or such rights or the net proceeds of sale thereof in
proportion to the number of American Depositary Shares held by them
respectively.
SECTION 4.7. Voting of Deposited Securities.
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Upon receipt of notice of any meeting of holders of Stock or other
Deposited Securities, the Depositary shall, as soon as practicable thereafter,
mail to the Holders of Receipts a notice which shall contain (a) such
information as is contained in such notice of meeting, and (b) a statement that
the Holders of Receipts at the close of business on a specified record date will
be entitled, subject to any applicable provisions of law and of the Memorandum
and Articles of Association of the Company, to instruct the Depositary as to the
exercise of the voting rights, if any, pertaining to the amount of Stock
representing Ordinary Shares or other Deposited Securities represented by their
respective American Depositary Shares, and a brief statement as to the manner in
which such instructions may be given, including an express indication that
instructions may be given to the Depositary to give a discretionary proxy to a
designated member or members of the Board of Directors of the Company. Upon the
written request of a Holder of a Receipt on such record date, received on or
before the date established by the Depositary for such purpose, the Depositary
shall endeavor in so far as practicable to vote or cause to be voted the amount
of Stock representing Ordinary Shares or other Deposited Securities represented
by such Receipt in accordance with the instructions set forth in such request.
The Depositary agrees not to vote the amount of Stock or other Deposited
Securities represented by a Receipt unless it receives instructions from the
record holder of such Receipt.
SECTION 4.8. Changes Affecting Deposited Securities.
Upon any change in par value, split-up,
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consolidation or any other reclassification of Deposited Securities, or upon any
recapitalization, reorganization, merger or consolidation or sale of assets
affecting the Company or to which it is a party, any securities which shall be
received by the Depositary in exchange for or in conversion of or in respect of
Deposited Securities shall be treated as new Deposited Securities under this
Deposit Agreement, and American Depositary Shares shall thenceforth represent
the new Deposited Securities so received in exchange or conversion, unless
additional Receipts are delivered pursuant to the following sentence. In any
such case the Depositary may with the Company's approval, and shall if the
Company shall so request, execute and deliver additional Receipts as in the case
of a stock dividend, or call for the surrender of outstanding Receipts to be
exchanged for new Receipts specifically describing such new Deposited
Securities.
SECTION 4.9. Reports.
The Depositary shall make available for inspection by Holders of Receipts
at its Corporate Trust Office, any reports and communications received from the
Company which are both (a) received by the Depositary as the holder of the
Deposited Securities and (b) made generally available to the holders of such
Deposited Securities by the Company. The Depositary shall also send to Holders
of Receipts copies of such reports when furnished by the Company pursuant to
Section 5.06.
The Depositary shall also furnish to the Commission semi-annually,
beginning on or before six months after the
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effective date of any registration statement filed with the Commission under the
Securities Act of 1933 relating to the Receipts, the following information in
tabular form:
(1) the number of American Depositary Shares evidenced by Receipts
issued during the period covered by the report;
(2) the number of American Depositary Shares evidenced by Receipts
retired during the period covered by the report;
(3) the total amount of American Depositary Shares evidenced by
Receipts remaining outstanding at the end of the six-month period; and
(4) the total number of Holders of Receipts at the end of the
six-month period.
The Depositary shall also furnish the Commission with the name of each
dealer known to the Depositary depositing Stock against issuance of Receipts
during the period covered by the report. The Company shall furnish the
Depositary with the names of each dealer known to the Company and the Depositary
shall include in its report the names of such dealer or dealers which are
supplied by the Company.
SECTION 4.10. Available Information.
The Company is subject to the periodic reporting
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requirements of the Securities Exchange Act of 1934 and, accordingly files
certain reports and information with the Commission. Such reports and other
information may be inspected and copied at the public reference facilities
maintained by the Commission in Washington, D.C and certain other regional
offices of the Commission.
SECTION 4.11. Lists of Receipt Holders.
Promptly upon request by the Company, the Depositary shall furnish to it a
list, as of a recent date, of the names, addresses and holdings of American
Depositary Shares by all persons in whose names Receipts are registered on the
books of the Depositary.
SECTION 4.12. Withholding.
Notwithstanding any other provision of this Deposit Agreement, in the event
that the Depositary determines that any distribution in property (including
Stock or rights to subscribe therefor) is subject to any tax which the
Depositary is obligated to withhold, the Depositary may dispose of all or a
portion of such property (including Stock and rights to subscribe therefor) in
such amounts and in such manner as the Depositary deems necessary and
practicable to pay such taxes, by public or private sale, and the Depositary
shall distribute the net proceeds of any such sale or the balance of any such
property after deduction of such taxes to the Holders of Receipts entitled
thereto.
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ARTICLE 5.
The Depositary, the Custodian and the Company.
SECTION 5.1. Maintenance of Office and Transfer Books
by the Depositary.
Until termination of this Deposit Agreement in accordance with its terms,
the Depositary shall maintain in the Borough of Manhattan, The City of New York,
facilities for the execution and delivery, registration, registration of
transfers and surrender of Receipts in accordance with the provisions of this
Deposit Agreement.
The Depositary shall keep books for the registration of Receipts and
transfers of Receipts which at all reasonable times shall be open for inspection
by the Holders of Receipts, provided that such inspection shall not be for the
purpose of communicating with Holders of Receipts in the interest of a business
or object other than the business of the Company or a matter related to this
Deposit Agreement or the Receipts.
The Depositary may close the transfer books, at any time or from time to
time, when deemed expedient by it in connection with the performance of its
duties hereunder.
If any Receipts or the American Depositary Shares represented thereby are
listed on one or more stock exchanges in the United States, the Depositary shall
act a Registrar or, with the approval of the Company, appoint a Registrar or one
or more co-registrars for registry of such Receipts in
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accordance with any requirements of such exchanges. Such Registrar or
co-registrars may be removed and substitute appointed by the Depositary upon the
request or with the approval of the Company.
SECTION 5.2. Prevention or Delay in Performance by the
Depositary or the Company.
Neither the Depositary nor the Company shall incur any liability to any
Holder of any Receipt, if by reason of any provision of any present or future
law of the United States or the Republic of Ireland or any other country, or of
any other governmental authority, or by reason of any provision, present or
future, of the Memorandum and Articles of Association of the Company, or by
reason of any act of God or war or other circumstances beyond its control, the
Depositary or the Company shall be prevented or forbidden from doing or
performing any act or thing which by the terms of this Deposit Agreement it is
provided shall be done or performed; nor shall the Depositary or the Company
incur any liability to any Holder of a Receipt by reason of any non-performance
or delay, caused as aforesaid, in performance of any act or thing which by the
terms of this Deposit Agreement it is provided shall or may be done or
performed, or by reason of any exercise of, or failure to exercise, any
discretion provided for in this Deposit Agreement.
SECTION 5.3. Obligation of the Depositary, the
Custodian and the Company.
The Company assumes no obligation nor shall it be subject to any liability
under this Deposit Agreement to
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Holders of Receipts, except that it agrees to use its best judgment and good
faith in the performance of its obligation set forth in this Deposit Agreement.
The Depositary assumes no obligation nor shall it be subject to any
liability under this Deposit Agreement to Holders of Receipts (including,
without limitation, liability with respect to the validity or worth of the
Deposited Securities), other than that it agrees to use its best judgment and
good faith in the performance of such duties as are specifically set forth in
this Deposit Agreement.
Neither the Depositary nor the Company 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 expense and liability be furnished as often as may be required, and
the Custodian shall not be under any obligations whatsoever with respect to such
proceedings, the responsibility of the Custodian being solely to the Depositary.
Neither the Depositary nor the Company shall be liable for any action or
non-action by it in reliance upon the advice of or information from legal
counsel, accountants, any person presenting Stock for deposit, any Holder of a
Receipt, or any other person believed by it in good faith to be competent to
give such advice or information.
The Depositary shall not be responsible for any failure to carry out any
instructions to vote any of the
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Deposited Securities, or for the manner in which any such vote is cast or effect
of any such vote, provided that any such action or non-action is in good faith.
The Depositary may own and deal in any class of securities of the Company
and its affiliates and in Receipts.
No disclaimer of liability under the Securities Act of 1933 is
intended by any provision of this Deposit Agreement.
SECTION 5.4. Resignation and Removal of the
Depositary; Appointment of Successor Depositary.
The Depositary may at any time resign as Depositary hereunder by written
notice of its election so to do delivered to the Company, such resignation to
take effect upon the appointment of a successor depositary and its acceptance of
such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by written notice
of such removal effective upon the appointment of a successor depositary and its
acceptance of such appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall use its best efforts to appoint a successor
depositary, which shall be a bank or trust company having an office in the
Borough of Manhattan, The City of New York. Every successor depositary shall
execute and deliver to its predecessor and to the Company an instrument in
writing accepting its appointment
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hereunder, and thereupon such successor depositary, without any further act or
deed, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor; but such predecessor, nevertheless, upon payment
of all sums due it and on the written request of the Company shall execute and
deliver an instrument transferring to such successor all rights and powers of
such predecessor hereunder, shall duly assign, transfer and deliver all right,
title and interest in the Deposited Securities to such successor, and shall
deliver to such successor a list of the Holders of all outstanding Receipts. Any
such successor depositary shall promptly mail notice of its appointment to the
Holders of Receipts.
Any corporation into or with which the Depositary may be merged or
consolidated shall be the successor of the Depositary without the execution or
filing of any document or any further act.
SECTION 5.5. The Custodian.
The Depositary has appointed the Bank of Ireland as Custodian and agent of
the Depositary for the purposes of this Deposit Agreement. The Custodian in
acting hereunder shall be subject at all times and in all respects to the
directions of the Depositary and shall be responsible solely to it. The
Custodian may resign and be discharged from its duties hereunder by notice of
such resignation delivered to the Depositary at least 30 days prior to the date
on which such resignation is to become effective. The Depositary shall, promptly
after receiving such notice, appoint a substitute custodian, which shall
thereafter be the Custodian
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hereunder. Whenever the Depositary in its discretion determines that it is in
the best interest of the Holders of Receipts to do so, it may appoint a
substitute custodian, which shall thereafter be the Custodian hereunder, and
upon demand of the Depositary the previous Custodian shall deliver the Deposited
Securities held by it to such substitute custodian. Each such substitute
custodian shall deliver to the Depositary forthwith upon its appointment, an
acceptance of such appointment satisfactory in form and substance to the
Depositary. Immediately upon any such change, the Depositary shall give notice
thereof in writing to all Holders of Receipts.
Upon the appointment of any successor depositary hereunder, the Custodian
then acting hereunder shall forthwith become, without any further act or
writing, the agent hereunder of such successor depositary and the appointment of
such successor depositary shall in no way impair the authority of the Custodian
hereunder; but the successor depositary so appointed shall, nevertheless, on the
written request of the Custodian, execute and deliver to the Custodian all such
instruments as may be proper to give to the Custodian full and complete power
and authority as agent hereunder of such successor depositary.
SECTION 5.6. Notices and Reports.
On or before the first date of giving by the Company of notice, by
publication or otherwise, of any meeting of holders of Stock or other Deposited
Securities, or of any adjourned meeting of such holders, or of the taking of any
action in respect of any cash or other distributions
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or the offering of any rights, the Company agrees to transmit to the Custodian a
copy of the notice thereof in the form given or to be given to holders of Stock
or other Deposited Securities.
The Depositary will, at the Company's expense, arrange for the prompt
transmittal by the Custodian to the Depositary of such notices and any other
reports and communications which are made generally available by the Company to
holders of its Stock, and arrange for the mailing, at the Company's expense, of
copies thereof to all Holders of Receipts.
SECTION 5.7. Issuance of Additional Stock, etc.
The Company agrees that in the event of any issuance of (1) additional
Stock, (2) rights to subscribe for Stock, (3) securities convertible into Stock,
or (4) rights to subscribe for such securities, the Company will promptly
furnish to the Depositary a written opinion from counsel for the Company in the
United States, which counsel shall be satisfactory to the Depositary, stating
whether or not the circumstances of such issue are such as to make it necessary
for a Registration Statement under the Securities Act of 1933 to be in effect
prior to the delivery of the Receipts to be issued in connection with such
securities or the issuance of such rights. If in the opinion of such counsel a
Registration Statement is required, such counsel shall furnish to the Depositary
a written opinion as to whether or not there is a Registration Statement in
effect which will cover such issuance of securities or rights.
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The Company agrees with the Depositary that neither the Company nor any
company controlled by the Company will at any time deposit any Stock, either
upon original issuance or upon a sale of Stock previously issued and reacquired
by the Company or by any company under its control, unless a Registration
Statement is in effect as to such Stock under the Securities Act of 1933 or
registration of such Stock is not required under such Act.
SECTION 5.8. Indemnification.
The Company agrees to indemnify the Depositary and the Custodian against,
and hold each of them harmless from, any liability or expense which may arise
out of acts performed or omitted, in accordance with the provisions of this
Deposit Agreement and of the Receipts, as the same may be amended, modified or
supplemented from time to time, (i) by either the Depositary or the Custodian,
except for any liability or expense arising out of the negligence or bad faith
of either of them, or (ii) by the Company or any of its agents for any liability
or expense which may arise out of or in connection with the registration of the
Stock represented by the American Depositary Shares with the Commission or the
offer or sale to the public of the Receipts evidencing the American Depositary
Shares except to the extent that such liability or expense arises out of
information relating to the Depositary or Custodian, as the case may be,
furnished in writing to the Company by the Depositary or Custodian, as the case
may be, expressly for use in any registration statement, proxy statement,
prospectus or preliminary prospectus relating to the Stock represented by the
American Depositary Shares.
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The Depositary agrees to indemnify the Company and hold it harmless from
any liability which may arise out of acts performed or omitted by the Depositary
or its Custodian due to their negligence or bad faith.
SECTION 5.9. Charges of Depositary.
The Company agrees to pay all charges and expenses of the Depositary as
shown in Exhibit B hereto, and those of the Registrar other than (1) the fees of
the Depositary for the execution and delivery of Receipts pursuant to Section
2.03 and the surrender of Receipts pursuant to Section 2.05, (2) taxes and other
governmental charges, (3) such registration fees as may from time to time be in
effect for the registration of transfers of Stock generally on the stock
register of the Company and accordingly applicable to transfers of Stock to the
name of the Depositary or its nominee or Custodian or its nominee on the making
of deposit hereunder, (4) such cable, telex and facsimile transmission expenses
as are expressly provided in this Deposit Agreement to be at the expense of
persons depositing Stock or Holders of Receipts, and (5) such expenses as are
incurred by the Depositary in the conversion of foreign currency pursuant to
Section 4.05. Any other charges and expenses of the Depositary hereunder will be
paid by the Company after consultation and agreement between the Depositary and
the Company as to the amount and nature of such charges and expenses. Such
charges may at any time and from time to time be changed by agreement between
the Company and the Depositary. The Depositary shall present its statement for
such charges and expenses to the Company once every three months. The charges
and expenses of the Custodian are for
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the sole account of the Depositary.
ARTICLE 6.
Amendment and Termination.
SECTION 6.1. Amendment.
The form of the Receipts and any provisions of this Deposit Agreement may
at any time and from time to time be amended by agreement between the Company
and the Depositary in any respect which they may deem necessary or desirable.
Any amendment which shall impose or increase any fees or charges (other than
taxes and other governmental charges, registration fees, cable, telex or
facsimile transmission costs, delivery costs or other such expenses), or which
shall otherwise prejudice any substantial existing right of Holders of Receipts,
shall, however, not become effective as to outstanding Receipts until the
expiration of three months after notice of amendment to this Deposit Agreement
shall have been given to the Holders of outstanding Receipts. Every Holder of a
Receipt at the time any amendment to this Deposit Agreement so becomes effective
shall be deemed, by continuing to hold such Receipt, to consent and agree to
such amendment and to be bound by the Deposit Agreement as amended thereby. In
no event shall any amendment impair the right of the Holder of any Receipt to
surrender such Receipt and receive therefor the Deposited Securities represented
thereby.
SECTION 6.2. Termination.
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The Depositary shall at any time at the direction of the Company terminate
this Deposit Agreement by mailing notice of such termination to the Holders of
all Receipts then outstanding at least 30 days prior to the date fixed in such
notice for such termination. The Depositary may likewise terminate this Deposit
Agreement if at any time 60 days shall have expired after the Depositary shall
have delivered to the Company a written notice of its election to resign and a
successor depositary shall not have been appointed and accepted its appointment
as provided in Section 5.04. If any Receipts shall remain outstanding after the
date of termination, the Depositary thereafter shall discontinue the
registration of transfers of Receipts, shall suspend the distribution of
dividends to the Holders thereof, and shall not give any further notices or
perform any further acts under this Deposit Agreement, except that the
Depositary shall continue to collect dividends and other distributions
pertaining to Deposited Securities, shall sell rights as provided in this
Deposit Agreement, and shall continue to deliver Deposited Securities, together
with any dividends or other distributions received with respect thereto and the
net proceeds of the sale of any rights or other property, in exchange for
Receipts surrendered to the Depositary. At any time after the expiration of two
years from the date of termination, the Depositary may sell the Deposited
Securities then held hereunder and may thereafter hold the net proceeds of any
such sale, together with any other cash then held by it hereunder, without
liability for interest, for the pro rata benefit of the Holders of Receipts
which have not theretofore been surrendered. After making such sale, the
Depositary shall be discharged from all obligations under this Deposit
Agreement, except to account for such net
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proceeds and other cash. Upon the termination of this Deposit Agreement, the
Company shall be discharged from all obligations under this Deposit Agreement
except for its obligations to the Depositary under Section 5.08 and 5.09 hereof.
ARTICLE 7.
Miscellaneous
SECTION 7.1. Counterparts.
This Deposit Agreement may be executed in any number of counterparts, each
of which shall be deemed an original and all of such counterparts shall
constitute one and the same instrument. Copies of this Deposit Agreement shall
be filed with the Depositary and the Custodian and shall be open to inspection
by any Holders of a Receipt during business hours.
SECTION 7.2. No Third Party Beneficiaries.
This Deposit Agreement is for the exclusive benefit of the parties hereto
and shall not be deemed to give any legal or equitable right, remedy or claim
whatsoever to any other person.
SECTION 7.3. Severability.
In case any one or more of the provisions contained in this Deposit
Agreement or in the Receipts should be or become invalid, illegal or
unenforceable in any respect, the
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validity, legality and enforceability of the remaining provisions contained
herein or therein shall in no wise be affected, prejudiced or disturbed thereby.
SECTION 7.4. Holders Parties; Binding Effect.
The Holders of Receipts from time to time shall be parties to this Deposit
Agreement and shall be bound by all of the terms and conditions hereof and of
the Receipts by acceptance thereof.
SECTION 7.5. Notices.
Any and all notices to be given to the Company shall be deemed to have been
duly given if personally delivered to sent by mail or cable, telex or facsimile
transmission confirmed by letter, addressed to Elan Corporation, plc, Monksland,
Athlone, County Westmeath, Republic of Ireland, or any other place to which the
Company may have transferred its principal office.
Any and all notices to be given to the Depositary shall be deemed to have
been duly given if personally delivered or sent by mail or cable, telex or
facsimile transmission confirmed by letter, addressed to The Bank of New York,
101 Barclay Street, New York, New York 10286, or any other place to which the
Depositary may have transferred this Corporate Trust Office.
Any and all notices to be given to any Holder of a Receipt shall be deemed
to have been duly given if personally delivered or sent by mail or cable, telex
or facsimile
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transmission confirmed by letter, addressed to such Holder at the address of
such Holder as its appears on the transfer books for Receipts of the Depositary,
or, if such Holder shall have filed with the Depositary a written request that
notices intended for such Holder be mailed to some other address, at the address
designated in such request.
Delivery of a notice sent by mail or cable, telex or facsimile transmission
shall be deemed to be effected at the time when a duly addressed letter
containing the same (or a confirmation thereof in the case of a cable, telex or
facsimile transmission) is deposited, postage prepaid, in a post-office letter
box. The Depositary or the Company may, however, act upon any cable, telex or
facsimile transmission received by it from the other or from any Holder of a
Receipt, notwithstanding that such cable, telex or facsimile transmission shall
not subsequently be confirmed by letter as aforesaid.
SECTION 7.6. Governing Law.
This Deposit Agreement and the Receipts shall be interpreted and all rights
hereunder and thereunder and provisions hereof and thereof shall be governed by
the laws of the State of New York.
SECTION 7.7. Compliance with U.S. Securities Laws.
Notwithstanding anything in this Deposit Agreement to the contrary, the
Company and the Depositary each agrees that it will not exercise any rights it
has under this Deposit Agreement to prevent the withdrawal or delivery of
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Deposited Securities in a manner which would violate the U.S. securities laws,
including, but not limited to, Section I.A.(1) of the General Instructions to
the Form F-6 Registration Statement, as amended from time to time, under the
Securities Act of 1933.
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IN WITNESS WHEREOF, ELAN CORPORATION, plc and THE BANK OF NEW YORK have
duly executed this agreement as of the day and year first above set forth and
all Holders of Receipts shall become parties hereto upon acceptance by them of
Receipts issued in accordance with the terms hereof.
ELAN CORPORATION, plc
By:----------------------
THE BANK OF NEW YORK
By:----------------------
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EXHIBIT A
AMERICAN DEPOSITARY SHARES
(each representing one unit of Stock)
[FORM OF FACE OF RECEIPT]
AMERICAN DEPOSITARY RECEIPT
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED ORDINARY SHARES OF
ELAN CORPORATION, plc
(Incorporated under the laws of the Republic of Ireland)
No.
THE BANK OF NEW YORK, a New York banking corporation, as Depositary (herein
called the Depositary), hereby certifies that is the Holder of American
Depositary Shares, representing deposited Ordinary Shares, par value 4 Irish
pence each (herein called Stock), of Elan Corporation, plc, incorporated under
the laws of the Republic of Ireland (herein called the Company). At the date
hereof, each American Depositary Share represents one unit of Stock (or evidence
of rights to receive such Stock) deposited under the Amended and Restated
Deposit Agreement at the principal Dublin office of the Bank of Ireland (herein
called the Custodian).
THE DEPOSITARY'S CORPORATE TRUST OFFICE ADDRESS IS
101 BARCLAY STREET, NEW YORK, N.Y. 10286
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(1) This American Depositary Receipt is one of an issue (herein called the
Receipts), all issued and to be issued upon the terms and conditions set forth
in the Amended and Restated Deposit Agreement dated as of May 17, 1996 (herein
called the Deposit Agreement), by and between the Company, the Depositary and
all Holders from time to time of Receipts issued thereunder, each of whom by
accepting a Receipt agrees to become a party thereto and becomes bound by all
the terms and provisions thereof. The Deposit Agreement sets forth the rights of
Holders of the Receipts and the rights and duties of the Depositary in respect
of the Stock deposited thereunder and any and all other securities, property and
cash from time to time received in respect of such Stock and held thereunder
(such Stock, securities, property and cash are herein called Deposited
Securities). Copies of the Deposit Agreement are on file at the principal
offices of the Depositary and the Custodian. The statements made on the face and
the reverse of this Receipt are summaries of certain provisions of the Deposit
Agreement and are qualified by and subject to the detailed provisions of the
Deposit Agreement, to which reference is hereby made.
(2) Upon surrender at the Corporate Trust Office of the Depositary of this
Receipt, and upon payment of the fee of the Depositary provided in paragraph (6)
of this Receipt, and subject to the terms and conditions of the Deposit
Agreement, the Holder hereof is entitled to delivery, to him or upon his order,
of the Deposited Securities at the time represented by the American Depositary
Shares for which this Receipt is issued. Delivery of such Deposited Securities
may be made by the delivery of certificates in the name of the Holder hereof or
as ordered by him or by the delivery of certificates endorsed (or accompanied by
proper instruments of transfer).
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Such delivery will be made without unreasonable delay and, at the option of the
Holder hereof, either at the office of the Custodian or at the Corporate Trust
Office of the Depositary, provided that the forwarding of Stock certificates or
other Deposited Securities for such delivery at the Corporate Trust Office of
the Depositary in The City of New York shall be at the risk and expense of the
Holder hereof.
(3) This Receipt is transferable on the books of the Depositary by the
Holder hereof in person or by duly authorized attorney, upon surrender of this
Receipt properly endorsed or accompanied by proper instruments of transfer and
duly stamped as may be required by law; provided, however, that the Depositary
may close the transfer books, at any time or from time to time, when deemed
expedient by it in connection with the performance of its duties under the
Deposit Agreement. This Receipt may be split into other Receipts or may be
combined with other Receipts into one Receipt, representing the same aggregate
number of American Depositary Shares as the Receipt or Receipts surrendered. As
a condition precedent to the execution and delivery, registration of transfer,
split-up, combination or surrender of any Receipt or withdrawal of any Deposited
Securities, the Depositary or the Custodian may require payment of a sum
sufficient to reimburse it for any tax or other governmental charge and any
stock transfer or registration fee with respect thereto and payment of any
applicable fees as provided in paragraph (6) of this Receipt, may require the
production of proof satisfactory to it as to the identity and genuineness of any
signature and may also require compliance with such regulations, if any, as the
Depositary may establish consistent with the provisions of the Deposit
Agreement.
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<PAGE>
The Depositary may refuse to execute and deliver Receipts, register the
transfer of any Receipt, make any distribution of, or related to, Deposited
Securities until it has received such proof of citizenship, residence, exchange
control approval or other information as it may deem necessary or proper. The
delivery of Receipts against deposits of Stock generally may be suspended, or
the delivery of Receipts against the deposit of particular Stock may be
withheld, or the registration of transfer of Receipts in particular instances
may be refused, or the registration of transfers or surrenders of outstanding
Receipts generally may be suspended, during any period when the transfer books
of the Depositary or the Company are closed, if any such action is deemed
necessary or advisable by the Depositary or the Company at any time or from time
to time. The surrender of outstanding Receipts and withdrawal of Deposited
Securities may not be suspended subject only to (i) temporary delays caused by
closing the transfer books of the Depositary or the Company or the deposit of
Shares in connection with voting at a shareholders' meeting, or the payment of
dividends, (ii) the payment of fees, taxes and similar charges and (iii)
compliance with any U.S. or foreign laws or governmental regulations relating to
the Receipts or to the withdrawal of the Deposited Securities. Without
limitation of the foregoing, the Depositary will not knowingly accept for
deposit under the Deposit Agreement any Stock required to be registered under
the provisions of the Securities Act of 1933, unless a registration statement is
in effect as to such Stock.
(4) If any tax or other governmental charge shall become payable with
respect to any Deposited Securities represented hereby, such tax or other
governmental charge
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shall be payable by the Holder hereof to the Depositary. The Depositary may
refuse to effect any registration of transfer of this Receipt or any withdrawal
of Deposited Securities represented hereby until such payment is made, and may
withhold any dividends or other distributions, or may sell for the account of
the Holder hereof any part of all of the Deposited Securities represented
hereby, and may apply such dividends or other distributions or the proceeds of
any such sale in payment of such tax or other governmental charge, the Holder
hereof remaining liable for any deficiency.
(5) Every person depositing Stock under the Deposit Agreement shall be
deemed thereby to represent and warrant that such Stock and each certificate
therefor are valid and that the person making such deposit is duly authorized so
to do. Such representations and warranties shall survive the deposit of Stock
and issuance of Receipts.
(6) The Depositary will charge the party to whom Receipts are delivered
against deposits, and the party surrendering Receipts for delivery of Deposited
Securities, $5.00 for each 100 American Depositary Shares (or portion thereof)
represented by the Receipts issued or surrendered. The Company will pay other
charges of the Depositary, with the exception of (i) taxes and other
governmental charges, (ii) stock transfer registration fees on deposits of
Stock, (iii) such cable, telex and facsimile transmission and delivery charges
as are expressly provided in the Deposit Agreement to be at the expense of
persons depositing Stock or Holders of Receipts, and (iv) such expenses as are
incurred by the Depositary in the conversion of foreign currency into dollars.
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<PAGE>
(7) It is a condition of this Receipt, and every successive Holder hereof
by accepting or holding the same consents and agrees, that title to this Receipt
(and to the American Depositary Shares evidenced hereby), when properly endorsed
or accompanied by proper instruments of transfer, is transferable by delivery
with the same effect as in the case of a negotiable instrument; provided,
however, that the Depositary, notwithstanding any notice to the contrary, may
treat the person in whose name this Receipt is registered on the books of the
Depositary as the absolute owner hereof for the purpose of determining the
person entitled to distribution of dividends or other distributions or to any
notice provided for in the Deposit Agreement, and for all other purposes.
(8) Notwithstanding Section 2.03 of the Deposit Agreement, the Depositary
may execute and deliver Receipts prior to the receipt of Shares pursuant to
Section 2.02 of the Deposit Agreement ("Pre-Release"). The Depositary may,
pursuant to Section 2.05 of the Deposit Agreement, deliver Shares upon the
receipt and cancellation of Receipts which have been Pre-Released, whether or
not such cancellation is prior to the termination of such Pre-Release or the
Depositary knows that such Receipt has been Pre-Released. The Depositary may
receive Receipts in lieu of Shares in satisfaction of a Pre-Release. Each
Pre-Release will be (a) preceded or accompanied by a written representation from
the person to whom Receipts are to be delivered that such person, or its
customer, owns the Shares or Receipts to be remitted, as the case may be, (b) at
all times fully collateralized with cash or such other collateral as the
Depositary deems appropriate, (c) terminable by the Depositary on not more than
five (5) business days notice, and (d) subject to such
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<PAGE>
further indemnities and credit regulations as the Depositary deems appropriate.
The number of American Depositary Shares which are outstanding at any time as a
result of Pre-Releases will not normally exceed thirty percent (30%) of the
Shares deposited under the Deposit Agreement; provided, however, that the
Depositary reserves the right to change or disregard such limit from time to
time as it deems appropriate.
The Depositary may retain for its own account any compensation received by
it in connection with the foregoing.
(9) This Receipt shall not be entitled to any benefits under the Deposit
Agreement or be valid or obligatory for any purpose, unless this Receipt shall
have been executed by the Depositary by the manual signature of a duly
authorized officer or, if a Registrar for the Receipts shall have been
appointed, by the manual signature of a duly authorized officer of such
Registrar.
(10) The Company is subject to the periodic reporting requirements of the
Securities Exchange Act of 1934 and, accordingly files certain reports and
information with the Securities and Exchange Commission. Such reports and other
information may be inspected and copied at the public reference facilities
maintained by the Securities and Exchange Commission in Washington, D.C. and
certain other regional offices of the Commission.
Dated:
THE BANK OF NEW YORK
as Depositary
By---------------------------
Authorized Officer
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<PAGE>
The address of the Corporate Trust Office of the Depositary is 101 Barclay
Street, New York, New York 10286 and its principal executive office is located
at 48 Wall Street, New York, New York 10286.
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<PAGE>
[FORM OF REVERSE OF RECEIPT]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
Dividends and Distributions. Whenever the Depositary shall receive any cash
dividend or other cash distribution on the Deposited Securities, the Depositary
will, if at the time of receipt thereof any amounts received in a foreign
currency can in the judgment of the Depositary be converted on a reasonable
basis into United States dollars transferable to the United States and, subject
to the provisions of the Deposit Agreement, convert such dividend or
distribution into United States dollars and will distribute the amount thus
received to the Holders of Receipts entitled thereto, in proportion to the
number of American Depositary Shares representing such Deposited Securities held
by them respectively; provided, however, that the amount distributed will be
reduced by any amounts required to be withheld by the Company, its agent or the
Depositary on account of taxes. If in the judgement of the Depositary amounts
received in foreign currency may not be converted on a reasonable basis into
United States dollars transferable to the United States, or may not be so
convertible for all of the Holders of Receipts entitled thereto, the Depositary
may in its discretion make such conversion, if any, and distribution in United
States dollars to the extent permissible to the Holders of Receipts entitled
thereto and may distribute the balance of the foreign currency received and not
so convertible by the Depositary to, or hold such balance for the account of,
the Holders of Receipts entitled thereto. If in the opinion of the Depositary
any distribution other than cash or Stock upon any Deposited Securities cannot
be made proportionately among the Holders of Receipts entitled
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<PAGE>
thereto, or if for any other reason the Depositary deems such distribution not
to be feasible, the Depositary may adopt such method as it may deem equitable
for the purpose of effecting such distribution, including the sale (at public or
private sale) of the securities or property thus received, or any part thereof,
and the net proceeds of any such sale will be distributed by the Depositary to
the Holders of Receipts entitled thereto as in the case of a distribution
received in cash. If any distribution upon any Deposited Securities consists of
a dividend in, or free distribution of, Stock, the Depositary may with the
Company's approval, and shall if the Company shall so request, distribute to the
Holders of outstanding Receipts entitled thereto, in proportion to the number of
American Depositary Shares representing such Deposited Securities held by them
respectively, additional Receipts for an aggregate number of American Depositary
Shares representing the amount of Stock received as such dividend or free
distribution. In lieu of delivering Receipts for fractional American Depositary
Shares in any such case, the Depositary may sell the amount of Stock represented
by the aggregate of such fractions and distribute the net proceeds, converted
into United States dollars if not in such dollars, to the Holders of Receipts
entitled thereto. If additional Receipts are not so distributed, each American
Depositary Share shall thenceforth also represent the additional Stock
distributed upon the Deposited Securities represented thereby. In the event that
the Company shall offer or cause to be offered to the holders of any Deposited
Securities any rights to subscribe for additional Stock or any rights of any
nature, the Depositary shall have discretion as to whether such rights are to be
made available to the holders of Receipts; provided, however, that the
Depositary will, if requested by the Company, either (a) make
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such rights available to Holders of Receipts by means of warrants or otherwise,
if lawful and feasible, or (b) if making such rights available is not lawful or
not feasible, or if the rights represented by such warrants or other instruments
are not exercised and appear to be about to lapse, sell such rights or warrants
or other instruments at public or private sale, at such place or places and upon
such terms as the Depositary may deem proper, and allocate the proceeds of such
sales for account of the Holders of Receipts otherwise entitled thereto upon an
averaged or other practicable basis without regard to any distinctions among
such Holders because of exchange restrictions, or the date of delivery of any
Receipt or Receipts, or otherwise.
Record Dates. Whenever any cash dividend or other cash distribution shall
become payable or any distribution other than cash shall be made, or whenever
rights shall be issued, with respect to the Deposited Securities, or whenever
the Depositary shall receive notice of any meeting of holders of Stock or other
Deposited Securities, the Depositary will fix a record date for the
determination of the Holders of Receipts who shall be entitled to receive such
dividend, distribution or rights, or the net proceeds of the sale thereof, or to
give instructions for the exercise of voting rights at any such meeting, subject
to the provisions of the Deposit Agreement.
Voting of Deposited Securities. Upon receipt of notice of any meeting of
holders of Deposited Securities, the Depositary will mail to the Holders of
Receipts a notice which will contain (a) such information as is contained in
such notice of meeting and (b) a statement that the Holders of Receipts at the
close of business on a specified record
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<PAGE>
date will be entitled to instruct the Depositary as to the exercise of voting
rights, if any, pertaining to the amount of Deposited Securities represented by
their respective American Depositary Shares, and a brief statement as to the
manner in which such instructions may be given. Upon the written request of a
Holder of a Receipt or Receipts on such record date, received on or before the
date established by the Depositary for such purpose, the Depositary will
endeavor insofar as practicable to vote or cause to be voted the amount of
Deposited Securities represented by such Receipt or Receipts in accordance with
such instructions. The Depositary agrees not to vote the units of Stock or other
Deposited Securities represented by a Receipt unless it receives instructions
from the Holder of such Receipts.
Changes Affecting Deposited Securities. Upon any change in par value,
split-up, consolidation or any other reclassification of Deposited Securities,
or upon any recapitalization, reorganization, merger or consolidation or sale of
assets affecting the Company or to which it is a party, any securities which
shall be received by the Depositary in exchange for or in conversion of or in
respect of Deposited Securities shall be treated as new Deposited Securities
under the Deposit Agreement, and the American Depositary Shares shall
thenceforth represent the new Deposited Securities so received in exchange or
conversion, unless additional Receipts are delivered pursuant to the following
sentence. In any such case the Depositary may with the Company's approval, and
shall if the Company shall so request, execute and deliver additional Receipts
as in the case of a stock dividend, or call for the surrender of outstanding
Receipts to be exchanged for new Receipts.
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Reports; Inspection of Transfer Books. The Depositary will make available
for inspection by Holders of Receipts at its Corporate Trust Office, any reports
and communications received from the Company which are both (a) received by the
Depositary as the holder of the Deposited Securities, and (b) made generally
available to the holders of such Deposited Securities by the Company. The
Depositary will also send to Holders of Receipts copies of such reports when
furnished by the Company as provided in the Deposit Agreement. The Depositary
will keep books for the registration of Receipts and their transfer which at all
reasonable times will be open for inspection by the Holders of Receipts,
provided that such inspection shall not be for the purpose of communicating with
Holders of Receipts in the interest of a business or object other than the
business of the Company or a matter related to the Deposit Agreement or the
Receipts.
Withholding. Notwithstanding any other provision of the Deposit Agreement,
in the event that the Depositary determines that any distribution in property
(including Stock or rights to subscribe therefor) is subject to any tax which
the Depositary is obligated to withhold, the Depositary may dispose of all or a
portion of such property (including Stock and rights to subscribe therefor) in
such amounts and in such manner as the Depositary deems necessary and
practicable to pay such taxes, by public or private sale, and the Depositary
shall distribute the net proceeds of any such sale after deduction of such taxes
to the Holders of Receipts entitled thereto.
Liability of the Company and Depositary. Neither the Depositary nor the
Company shall incur any liability to any Holder of this Receipt, if by reason of
any provision of any
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present or future law of any country, or of any governmental authority, or by
reason of any provision, present or future, of the Memorandum and Articles of
Association of the Company, or by reason of any act of God or war or other
circumstance beyond its control, the Depositary or the Company shall be
prevented or forbidden from doing or performing any act or thing which by the
terms of the Deposit Agreement it is provided shall be done or performed.
Neither the Company nor the Depositary assumes any obligation or shall be
subject to any liability under the Deposit Agreement to Holders of Receipts,
except that they agree to use their best judgment and good faith in the
performance of such duties as are specifically set forth in the Deposit
Agreement. Neither the Depositary nor the Company 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 and liability, unless indemnity satisfactory
to it against all expense and liability be furnished as often as may be
required, and the Custodian shall not be under any obligation whatsoever with
respect to such proceedings, the responsibility of the Custodian being solely to
the Depositary. Neither the Depositary nor the Company shall be liable for any
action or non-action by it in reliance upon the advice of or information from
legal counsel, accountants, any person presenting Stock for deposit, any Holder
of a Receipt, or any other person believed by it in good faith to be competent
to give such advice or information. The Depositary will not be responsible for
any failure to carry out any instructions to vote any of the Deposited
Securities, or for the manner in which any such vote is cast or effect of any
such vote, provided that any such action or non-action is in good faith. The
Depositary may own and deal in any class
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of securities of the Company and its affiliates and in Receipts. The Company
agrees to indemnify the Depositary and the Custodian against, and hold each of
them harmless from, any liability which may arise out of acts performed in
accordance with the provisions of the Deposit Agreement and of the Receipts, as
the same may be amended, modified or supplemented from time to time, (i) by
either the Depositary or the Custodian, except for any liability arising out of
the negligence or bad faith of either of them, or (ii) by the Company or any of
its agents.
Resignation and Removal of Depositary; Substitution of Custodian. The
Depositary may at any time resign as Depositary under the Deposit Agreement by
written notice of its election so to do delivered to the Company, such
resignation to take effect upon the appointment of a successor depositary and
its acceptance of such appointment as provided in the Deposit Agreement. The
Depositary may at any time be removed by the Company, effective upon the
appointment of a successor depositary and its acceptance of such appointment as
provided in the Deposit Agreement. The Depositary may at any time appoint a
substitute custodian and the term "Custodian" shall refer to such substitute.
Amendment of Deposit Agreement and Receipts. The Receipts and the Deposit
Agreement may at any time and from time to time be amended by agreement between
the Company and the Depositary. Any amendment which shall impose or increase any
fees or charges (other than taxes and other governmental charges, registration
fees, cable, telex or facsimile transmission costs, delivery costs or other such
expenses), or which shall otherwise prejudice any substantial existing right of
Holders of Receipts, shall, however, not become
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effective as to outstanding Receipts until the expiration of three months after
notice of such amendment shall have been given to the Holders of outstanding
Receipts. Every Holder of a Receipt at the time any amendment so becomes
effective shall be deemed, by continuing to hold such Receipt, to consent and
agree to such amendment and to be bound by the Deposit Agreement as amended
thereby. In no event shall any amendment impair the right of the Holder hereof
to surrender this Receipt and receive therefor the Deposited Securities
represented hereby.
Termination of Deposit Agreement. The Depositary will at any time at the
direction of the Company terminate the Deposit Agreement by mailing notice of
such termination to the Holders of all Receipts then outstanding at least 30
days prior to the date fixed in such notice for such termination. The Depositary
may likewise terminate the Deposit Agreement at any time 60 days after the
Depositary shall have resigned, if a successor depositary shall not have been
appointed and accepted its appointment. If any Receipts shall remain outstanding
after the date of termination, the Depositary thereafter will discontinue the
registration of transfers of Receipts, will suspend the distribution of
dividends to the holders thereof, and will not give any further notices or
perform any further acts under the Deposit Agreement, except the collection of
dividends and other distributions pertaining to Deposited Securities, the sale
of rights and the delivery of Deposited Securities, together with any dividends
or other distributions received with respect thereto and the net proceeds of the
sale of any rights or other property, in exchange for Receipts surrendered to
the Depositary. At any time after the expiration of two years from the date of
termination, the
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Depositary may sell the Deposited Securities then held under the Deposit
Agreement and may thereafter hold the net proceeds of any such sale, together
with any other cash then held by it under the Deposit Agreement, without
liability for interest, for the pro rata benefit of the holders of Receipts not
theretofore surrendered. Thereafter the Depositary shall be discharged from all
obligations under the Deposit Agreement, except to account for such net proceeds
and other cash.
Compliance with U.S. Securities Laws. Notwithstanding anything in the
Deposit Agreement or this Receipt to the contrary, the Company and the
Depositary each agrees that it will not exercise any rights it has under the
Deposit Agreement to prevent the withdrawal or delivery of Deposited Securities
in a manner which would violate the U.S. securities laws, including, but not
limited to, Section I.A.(1) of the General Instructions to the Form F-6
Registration Statement, as amended from time to time, under the Securities Act
of 1933.
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EXHIBIT B
CHARGES OF THE DEPOSITARY
Service Rate By Whom Paid
(1) Receipt of deposits $5 per 100 American Party to whom
and issuance of Depositary Shares or Receipts are
Receipts fraction thereof
(2) Delivery of $5 per 100 American Party surren-
deposits and sur- Depositary Shares or dering Receipts
render of Receipts fraction thereof
The Company will pay all charges of the Depositary in connection with the
initial issuance of Receipts in connection with a public offering. Other charges
of the Depositary plus out-of-pocket expenses such as printing, translation,
stationery, postage, insurance, cables, etc., are to be paid by the Company in
accordance with agreements in writing entered into between the Depositary and
the Company from time to time.
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