DEPOSIT AGREEMENT
Among
SOLSTICE BIOMEDICAL DEVICES LIMITED,
MERIDIAN TRUST COMPANY, N.A., as Depositary,
and
ALL HOLDERS AND BENEFICIAL OWNERS OF AMERICAN DEPOSITARY SHARES
Dated as of March 2, 2023
CUSIP: 83472R 109 Nasdaq Global Market Ticker Symbol: SBDX
Each American Depositary Share represents one (1) ordinary share, nominal value €0.01 per share, of Solstice Biomedical Devices Limited
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of March 2, 2023 (this "Agreement"), among SOLSTICE BIOMEDICAL DEVICES LIMITED, a private company limited by shares incorporated under the laws of Ireland (CRO No. 587412), with its registered office at Unit 7, Lakeview Technology Campus, Parkmore East, Galway, H91 XK72, Ireland (the "Company"), MERIDIAN TRUST COMPANY, N.A., a national banking association organized under the laws of the United States, with its principal office at 500 Ross Street, Pittsburgh, PA 15219 (the "Depositary"), and all Holders and Beneficial Owners of American Depositary Shares issued hereunder.
RECITALS
WHEREAS, the Company is a private company limited by shares duly incorporated and validly existing under the laws of Ireland, registered with the Companies Registration Office under number 587412, with its registered office at Unit 7, Lakeview Technology Campus, Parkmore East, Galway, H91 XK72, Ireland;
WHEREAS, the Depositary is a national banking association organized under the laws of the United States, with its principal office located at 500 Ross Street, Pittsburgh, PA 15219, and is authorized and qualified to act as depositary for American Depositary Shares;
WHEREAS, the Company has filed a Registration Statement on Form S-1 (File No. 333-268514) with the United States Securities and Exchange Commission (the "SEC"), which Registration Statement was declared effective on February 28, 2023, in connection with an initial public offering of American Depositary Shares on the Nasdaq Global Market under the ticker symbol "SBDX";
WHEREAS, the Company desires to provide for the deposit of its ordinary shares, nominal value €0.01 per share, with a custodian in Ireland for the account of the Depositary, and the issuance by the Depositary of American Depositary Shares representing such deposited ordinary shares, and the Depositary is willing to act as depositary for the American Depositary Shares on the terms and conditions set forth herein;
WHEREAS, each American Depositary Share shall represent one (1) ordinary share of the Company deposited under this Agreement, and shall be assigned CUSIP number 83472R 109;
WHEREAS, the Company and the Depositary desire to set forth their respective rights and obligations, and the rights and obligations of all Holders and Beneficial Owners of American Depositary Shares, with respect to the American Depositary Shares and the deposited property held hereunder;
NOW, THEREFORE, in consideration of the premises and of the mutual agreements herein set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I — DEFINITIONS
Section 1.1 — Defined Terms
As used in this Agreement, the following terms shall have the meanings set forth below:
"ADS" or "American Depositary Share" means an American Depositary Share, each evidenced by an American Depositary Receipt (whether in certificated or book-entry form), representing the right to receive one (1) ordinary share of the Company deposited under this Agreement and held by the Custodian for the account and to the order of the Depositary, together with any additional deposited property attributable thereto. All ADSs issued under this Agreement shall bear CUSIP number 83472R 109.
"ADR" or "American Depositary Receipt" means the certificate or book-entry record issued by the Depositary evidencing one or more ADSs issued under this Agreement, substantially in the form set forth in Exhibit A hereto.
"Beneficial Owner" means any person having a beneficial ownership interest in ADSs, whether such interest is held directly by a Holder or indirectly through a broker, dealer, commercial bank, trust company, custodian, nominee, or other intermediary. For the avoidance of doubt, the Depositary may, to the extent required by applicable law, treat the Holder as the absolute owner of each ADS registered in its name for purposes of receiving distributions, voting, and all other purposes, notwithstanding any notice of beneficial ownership to the contrary.
"Company" means Solstice Biomedical Devices Limited, a private company limited by shares incorporated under the laws of Ireland, registered with the Companies Registration Office under number 587412, and any successor entity thereto.
"Company's Ordinary Shares" or "Shares" means ordinary shares of the Company, nominal value €0.01 per share, out of the authorized share capital of 100,000,000 ordinary shares, and includes any rights, interests, or other securities that are convertible into, exchangeable for, or otherwise relating to such ordinary shares that may be deposited under this Agreement.
"Custodian" means the agent or agents of the Depositary appointed in accordance with Section 9.2 of this Agreement to hold deposited property in Ireland for the account and to the order of the Depositary. The initial Custodian shall be a branch or correspondent bank in Ireland designated by the Depositary, and any successor custodian appointed from time to time by the Depositary.
"Delivered Shares" means Shares delivered to or held by the Custodian for deposit under this Agreement, including Shares delivered in connection with the initial public offering and any subsequent deposits.
"Depositary" means Meridian Trust Company, N.A., a national banking association organized under the laws of the United States, acting in its capacity as depositary under this Agreement, and any successor depositary appointed hereunder in accordance with the terms of this Agreement.
"Deposited Property" means (a) Shares deposited or deemed deposited under this Agreement and held by the Custodian for the account and to the order of the Depositary, and (b) any cash (including cash resulting from the conversion of foreign currency), securities, rights, or other property received by the Depositary or the Custodian in respect of such Shares, whether received as a dividend, distribution, or otherwise.
"DTC" means The Depository Trust Company, a limited-purpose trust company organized under the laws of the State of New York.
"DWT" or "Irish Dividend Withholding Tax" means the dividend withholding tax imposed under Chapter 8A of Part 6 of the Taxes Consolidation Act 1997 of Ireland, as amended, at the standard rate of 25% (or such other rate as may be in effect from time to time), subject to reduction or exemption pursuant to the terms of any applicable tax treaty or domestic exemption.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder by the SEC.
"Holder" means the person in whose name an ADR is registered on the books of the Depositary (or the Registrar, if a separate registrar is appointed). In the case of ADSs held through DTC, the term "Holder" shall refer to DTC or its nominee, unless the context otherwise requires.
"Irish Companies Act" means the Companies Act 2014 of Ireland, as amended or re-enacted from time to time, including any statutory instrument, rule, regulation, order, or guidance issued thereunder.
"Nasdaq" means the Nasdaq Global Market, a securities exchange operated by The Nasdaq Stock Market LLC, a national securities exchange registered under Section 6 of the Exchange Act.
"Pre-Release" means the delivery by the Depositary of ADSs prior to the receipt by the Depositary of a deposit of the corresponding Shares, or the delivery by the Depositary of deposited Shares prior to the receipt and cancellation of the corresponding ADSs, in each case in accordance with Section 9.4 of this Agreement.
"Registrar" means the Depositary, or any agent appointed by the Depositary to register the issuance, transfer, combination, split-up, and cancellation of ADRs on the books maintained by the Depositary for such purpose. The initial Registrar shall be Meridian Trust Company, N.A.
"Registration Statement" means the Company's Registration Statement on Form S-1 (File No. 333-268514), as filed with the SEC and declared effective on February 28, 2023, including any amendments or supplements thereto and any subsequent registration statement filed by the Company with the SEC covering ADSs or the underlying Shares.
"SEC" means the United States Securities and Exchange Commission and any successor governmental agency or authority having substantially the same functions.
"Securities Act" means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder by the SEC.
"Transfer Agent" means Meridian Trust Company, N.A., acting in its capacity as transfer agent for ordinary shares and ADSs, and any successor transfer agent appointed from time to time.
"U.S.–Ireland Double Taxation Convention" means the Convention Between the Government of the United States of America and the Government of Ireland for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and Capital Gains, signed on July 28, 1997, as amended by the Protocol signed on March 24, 1999, and as may be further amended or supplemented from time to time.
Section 1.2 — Rules of Construction
In this Agreement, except to the extent the context otherwise requires:
(a) References to "dollars," "$," or "US$" mean the lawful currency of the United States of America.
(b) References to "euro" or "€" mean the single currency of the member states of the European Union that have adopted the euro as their lawful currency pursuant to the Treaty on the Functioning of the European Union, as amended.
(c) The headings of Articles, Sections, and other subdivisions of this Agreement are for convenience of reference only and shall not affect the interpretation or construction of any provision hereof.
(d) The singular shall include the plural and vice versa, and references to any gender shall include each other gender, in each case as the context may require.
(e) References to any statute, rule, regulation, or other governmental requirement shall be deemed to include any successor statute, rule, regulation, or other governmental requirement and all rules and regulations promulgated thereunder.
(f) References to "include," "includes," and "including" shall be deemed to be followed by the phrase "without limitation."
(g) References to "herein," "hereof," "hereunder," and similar words refer to this Agreement as a whole and not to any particular Article, Section, or other subdivision.
(h) References to a "business day" mean any day other than a Saturday, Sunday, or day on which banking institutions in New York, New York or Dublin, Ireland are authorized or required by law or executive order to close.
ARTICLE II — FORM OF ADRS, DEPOSIT OF SHARES, ISSUANCE AND DELIVERY OF ADSS
Section 2.1 — Form and Transferability of ADRs
(a) Form. American Depositary Receipts issued pursuant to this Agreement shall be substantially in the form set forth in Exhibit A hereto, with such changes as may be agreed upon by the Company and the Depositary consistent with the provisions of this Agreement. ADRs may be issued in certificated form or as uncertificated ADSs registered through the Direct Registration System maintained by the Depositary or held through the book-entry settlement system of DTC. The Depositary shall, in its discretion, determine the format and manner of issuance of ADRs, subject to applicable law and the rules and regulations of DTC and Nasdaq.
(b) Execution. Each ADR issued in certificated form shall be executed by the Depositary by the manual or facsimile signature of a duly authorized officer of the Depositary and shall be countersigned by the Registrar (if other than the Depositary) by the manual or facsimile signature of a duly authorized officer of the Registrar. ADRs bearing the facsimile signature of any person who was at the time of execution a duly authorized officer of the Depositary or the Registrar shall bind the Depositary or the Registrar, as applicable, notwithstanding that such person shall have ceased to hold such office prior to the delivery of such ADR or did not hold such office on the date of the ADR.
(c) Transferability. ADRs shall be transferable on the books of the Depositary upon surrender of the ADR to be transferred at the office of the Depositary at 500 Ross Street, Pittsburgh, PA 15219 (or at such other office as the Depositary may designate from time to time for such purpose), accompanied by a duly executed instrument of transfer in form satisfactory to the Depositary, together with payment of any applicable fees, charges, taxes, and governmental charges required to be paid in connection with such transfer, and subject to compliance with the terms and conditions of this Agreement and all applicable laws and regulations, including the Securities Act and the Exchange Act. No transfer of an ADR shall be effective until recorded on the register maintained by the Depositary.
(d) Register of Holders. The Depositary shall maintain at its principal office at 500 Ross Street, Pittsburgh, PA 15219, a register of all Holders of ADRs, showing the names and addresses of such Holders and the number of ADSs held by each such Holder. Such register shall be open for inspection by the Company and any Holder of ADSs at reasonable times during the Depositary's business hours, in each case solely for purposes relating to this Agreement or communications with Holders.
Section 2.2 — Deposit of Shares
(a) Deposits Generally. Subject to the terms and conditions of this Agreement, any person may deposit ordinary shares of the Company with the Custodian in Ireland for the purpose of receiving ADSs hereunder. Each deposit of Shares shall be accompanied by:
(i) a duly executed instrument of transfer or appropriate endorsement, in blank or to the Custodian or its nominee, in a form satisfactory to the Company and the Custodian, sufficient to transfer title to such Shares to the Custodian for the account and to the order of the Depositary;
(ii) such certifications, written representations, affidavits, and other documentation as the Depositary may reasonably require for the purpose of establishing compliance with applicable securities laws (including the Securities Act and the Exchange Act), anti-money laundering regulations, and any applicable "know your customer" requirements;
(iii) payment of any applicable Depositary fees and charges as set forth in Article VIII hereof and any taxes or governmental charges payable in connection with such deposit, including any Irish stamp duty;
(iv) evidence satisfactory to the Depositary that any necessary approvals, consents, or filings required under the Irish Companies Act, the Company's memorandum and articles of association, or any applicable law or regulation in Ireland or elsewhere have been obtained or made in connection with the deposit of such Shares and the issuance of ADSs representing such Shares; and
(v) such additional documentation as the Depositary may reasonably request from time to time.
(b) Quality of Shares. No Shares shall be accepted for deposit under this Agreement unless such Shares are fully paid and validly issued in accordance with the Irish Companies Act and the Company's memorandum and articles of association, and are free and clear of any lien, encumbrance, security interest, charge, mortgage, or other adverse claim, except as may exist under the Company's constitutional documents or applicable law (including any pre-emptive rights that have been duly waived or complied with).
(c) Registration Requirements. The Depositary shall not knowingly accept for deposit any Shares that are required to be registered under the Securities Act unless a registration statement under the Securities Act is in effect as to such Shares. The Depositary may refuse to accept Shares for deposit whenever it has received notice from the Company that the Company has restricted transfers of such Shares in order to comply with ownership or transfer restrictions under applicable law, the Company's constitutional documents, or any agreement to which the Company is a party.
Section 2.3 — Issuance of ADSs
(a) Issuance Upon Deposit. Upon receipt of confirmation from the Custodian that deposited Shares have been received and are being held in the Custodian's account to the order of the Depositary, together with all required documentation and payment of applicable fees and charges, the Depositary shall issue to the depositing person (or its designee) the number of ADSs to which such person is entitled, at the ratio of one (1) ADS for each one (1) ordinary share deposited. ADSs so issued shall be credited to the account of the depositing person or its designee through the facilities of DTC, or, if the depositing person so elects and the Depositary agrees, issued in certificated form.
(b) IPO Deposits. In connection with the initial public offering of the Company's ADSs on the Nasdaq Global Market, the Company shall deposit, or cause to be deposited, with the Custodian 7,666,667 ordinary shares, consisting of 6,666,667 firm shares to be sold in the initial public offering and up to 1,000,000 additional shares subject to the overallotment option granted to the underwriters. Upon receipt and confirmation of such deposits, the Depositary shall issue the corresponding number of ADSs to the underwriters (Keystone Mercer & Co., LLC, as representative of the several underwriters named in the underwriting agreement) or to the purchasers thereof, as directed by the Company or such representative, in accordance with the terms of the underwriting agreement.
(c) Conditions Precedent. The Depositary shall not be required to issue ADSs unless all conditions to the issuance thereof set forth in this Agreement have been satisfied, including, without limitation, receipt of satisfactory evidence that the deposit of the underlying Shares and the issuance of ADSs will not violate any provision of the Securities Act, the Exchange Act, or other applicable law.
Section 2.4 — Restrictions on Deposits
(a) General Restriction. The Depositary may refuse to accept Shares for deposit and may refuse to issue ADSs if it determines, in its reasonable judgment, that acceptance of such deposit or issuance of such ADSs would violate any provision of applicable law or regulation, including the Securities Act, the Exchange Act, the Irish Companies Act, any rule or regulation of Nasdaq, or any order or directive of any governmental authority.
(b) Regulatory Compliance. Deposits of Shares may be restricted or suspended if necessary for compliance with the Company's obligations under the Securities Act (including any requirement to maintain an effective registration statement), the Exchange Act (including Section 12(g) thereof), applicable Irish law, or any agreement to which the Company is a party.
(c) Lock-Up Restrictions. The Depositary shall not accept deposits of Shares that are subject to lock-up agreements entered into in connection with the initial public offering or otherwise, unless the depositing person has provided evidence satisfactory to the Depositary that the lock-up restrictions applicable to such Shares have expired or have been waived in writing by the representative of the underwriters or such other person entitled to enforce such restrictions. The Depositary shall be entitled to rely upon such evidence without further inquiry.
Section 2.5 — Evidence of Issuance
The Depositary shall maintain books and records reflecting each issuance of ADSs hereunder, including the number of ADSs issued, the identity of the Holder (or, in the case of ADSs held through DTC, the DTC participant), the date of issuance, and the number of ordinary shares deposited in connection with such issuance. All ADSs issued under this Agreement shall bear the CUSIP number 83472R 109. The books and records of the Depositary with respect to ADSs issued shall, in the absence of manifest error, be conclusive evidence of the matters set forth therein.
ARTICLE III — WITHDRAWAL OF DEPOSITED SHARES
Section 3.1 — Withdrawal
(a) Right of Withdrawal. Subject to the terms and conditions of this Agreement, any Holder of ADSs shall be entitled, upon compliance with the requirements of this Section 3.1, to withdraw the deposited Shares underlying such Holder's ADSs. Such right of withdrawal shall not be limited by any provision of this Agreement, except as expressly permitted by applicable law, including Section 17A(b)(4)(A) of the Exchange Act.
(b) Procedures. To effect a withdrawal of deposited Shares, a Holder shall:
(i) surrender the ADR(s) evidencing the ADSs to be cancelled at the office of the Depositary at 500 Ross Street, Pittsburgh, PA 15219 (or at such other office or agency as the Depositary may designate from time to time for such purpose), or, in the case of ADSs held in book-entry form through DTC, deliver instructions to DTC to surrender such ADSs to the Depositary for cancellation;
(ii) pay all applicable fees and charges of the Depositary as set forth in Article VIII hereof, and all applicable taxes and governmental charges, including any Irish stamp duty, capital duty, or transfer tax applicable to the transfer or delivery of the underlying ordinary shares;
(iii) provide such certifications and documentation as the Depositary may reasonably require for compliance with all applicable laws and regulations, including applicable "know your customer" and anti-money laundering requirements; and
(iv) provide written instructions specifying the person to whom the ordinary shares shall be delivered in Ireland (including the name, address, and account details of such person with the Company's share registrar or such other information as may be required to effect the transfer on the Company's share register).
(c) Delivery of Shares. Upon receipt of surrendered ADSs in proper form and satisfaction of all applicable conditions, the Depositary shall cancel such ADSs and instruct the Custodian to deliver the corresponding number of ordinary shares (one ordinary share per ADS cancelled) to the person designated by the former Holder, subject to all applicable conditions for such delivery, including registration of the transferee on the Company's register of members in Ireland. The Depositary shall endeavor to effect such delivery as promptly as practicable following satisfaction of all conditions, but shall not be liable for any delay in delivery arising from circumstances beyond its reasonable control.
Section 3.2 — Limitations on Withdrawal
(a) Temporary Delays. Notwithstanding the provisions of Section 3.1, the Depositary may temporarily delay the withdrawal of deposited Shares:
(i) because of the temporary closure of the Depositary's or the Custodian's transfer books or the Company's share register, in each case for purposes of settling pending transactions, preparing for the payment of dividends, or conducting other administrative functions;
(ii) to permit the orderly settlement of pending deposit, withdrawal, or transfer transactions;
(iii) for compliance with applicable law, rule, or regulation, including any order of a court or governmental authority, or any requirement under the Irish Companies Act or the rules of Nasdaq; or
(iv) for any other reason that the Depositary determines in good faith to be necessary for the protection of Holders or to comply with its obligations under this Agreement.
(b) Reasonableness. Any delay in the withdrawal of deposited Shares pursuant to this Section 3.2 shall not continue for any unreasonable period, and the Depositary shall lift any such restriction as soon as reasonably practicable after the reason for such restriction has ceased. The Depositary shall at all times exercise its authority to delay withdrawals in a manner consistent with Section 17A(b)(4)(A) of the Exchange Act and the rules and regulations promulgated thereunder.
Section 3.3 — Cancellation of ADSs
Upon cancellation of ADSs in connection with a withdrawal of deposited Shares pursuant to Section 3.1, such ADSs shall be removed from the register maintained by the Depositary and shall no longer represent any right, title, or interest in the deposited Shares or any other deposited property. The Depositary shall promptly confirm cancellation of the surrendered ADSs to the surrendering Holder, including the date of cancellation, the number of ADSs cancelled, and the number of ordinary shares delivered or to be delivered.
ARTICLE IV — RECORD DATES; VOTING
Section 4.1 — Fixing of ADS Record Dates
(a) Company Record Dates. Whenever the Company sets a record date for determining the holders of ordinary shares entitled to receive notice of, attend, or vote at any general meeting or extraordinary general meeting, or entitled to receive any distribution, or for any other purpose, the Company shall notify the Depositary of such record date in a timely manner, and in any event not later than the later of (i) the date on which the Company provides notice to holders of ordinary shares generally, and (ii) thirty (30) days prior to the meeting date or the record date for such distribution or other action.
(b) Depositary Record Dates. Upon receipt of notice from the Company, the Depositary shall fix a corresponding ADS record date (the "ADS Record Date"), which shall be the same date as, or as close as reasonably practicable to, the Company's record date. The Depositary may, at its discretion and upon notice to Holders, fix ADS Record Dates for distributions of cash, securities, or other property, for voting, or for any other purpose, whether or not the Company has fixed a corresponding record date.
(c) Notification to Holders. The Depositary shall promptly notify Holders of any ADS Record Date fixed pursuant to this Section 4.1, specifying the purpose for which such record date has been fixed and the relevant deadlines for action by Holders.
Section 4.2 — Voting of Deposited Shares
(a) Distribution of Voting Materials. Upon receipt of notice from the Company of any meeting of shareholders or solicitation of consents or proxies of holders of ordinary shares, the Depositary shall, as promptly as practicable after receipt of such notice:
(i) distribute to each Holder of record as of the applicable ADS Record Date a copy of the notice of meeting, together with any proxy statement, information circular, or other solicitation materials furnished by the Company;
(ii) distribute to each such Holder a form of voting instructions (a "Voting Instruction Card") prepared by the Depositary, setting forth the matters to be voted upon, the manner in which voting instructions may be given, and the deadline for the receipt of such instructions by the Depositary; and
(iii) endeavor to distribute such materials not less than ten (10) business days before the applicable meeting date, provided that the Depositary shall not be responsible for any failure to meet such deadline if the Company has not furnished the required materials to the Depositary in a timely manner.
(b) Voting Instructions. Holders as of the applicable ADS Record Date may instruct the Depositary as to the voting of the ordinary shares underlying their ADSs by returning a completed Voting Instruction Card to the Depositary on or before the date specified therein. The Depositary shall accept voting instructions given by any reasonable means specified in the Voting Instruction Card, including mail, facsimile, electronic transmission, or such other method as the Depositary may authorize.
(c) Voting by the Depositary. The Depositary shall endeavor, insofar as practicable and permitted by applicable law, to vote or cause to be voted (including by appointing a proxy or attorney-in-fact) the ordinary shares underlying ADSs held by Holders who have provided timely voting instructions, in accordance with the instructions of the respective Holders. The Depositary shall not be obligated to vote any Shares for which it has not received voting instructions from the applicable Holder. The Depositary shall only vote whole Shares; fractional entitlements shall be disregarded for voting purposes.
(d) No Discretionary Voting. If no voting instructions are received from a Holder by the deadline specified in the Voting Instruction Card, the Depositary shall not vote the ordinary shares underlying such Holder's ADSs (the Depositary shall have no discretion to vote such Shares), except as may be required by applicable law. The Depositary shall not exercise any discretion in voting deposited Shares and shall not be responsible for any failure to carry out voting instructions or to vote deposited Shares by reason of (i) the untimely receipt of instructions from a Holder, (ii) any legal impediment or restriction under Irish law, the Irish Companies Act, or the Company's memorandum and articles of association, or (iii) any operational or procedural limitation.
(e) Applicable Laws and Constitutional Documents. The voting procedures set forth in this Section 4.2 are subject at all times to the provisions of the Company's memorandum and articles of association, the Irish Companies Act, and all other applicable law, rule, or regulation. In the event of any conflict between the voting procedures set forth herein and the requirements of the Company's constitutional documents or Irish law, the requirements of the Company's constitutional documents and Irish law shall prevail.
Section 4.3 — Reports and Communications
(a) Company Reports. The Company shall furnish the Depositary with copies of all reports, notices, communications, and other materials furnished or made available to holders of ordinary shares generally, including, without limitation, annual reports, interim reports, notices of meetings, proxy materials, and information circulars. The Company shall furnish such materials in the English language (or, if originally prepared in another language, accompanied by an English translation) and in a form suitable for distribution to Holders.
(b) Distribution to Holders. The Depositary shall, upon receipt of such reports and communications from the Company, make such materials available to Holders as promptly as practicable, by one or more of the following methods: (i) mail to each Holder of record at such Holder's registered address; (ii) electronic delivery (including e-mail or posting to a website designated by the Depositary); or (iii) such other method as the Depositary may determine to be reasonable and in accordance with applicable law and the rules and regulations of Nasdaq and the SEC. The Depositary shall not be obligated to translate any materials received from the Company.
(c) SEC Filings. The Company shall provide the Depositary with copies of all documents filed by the Company with the SEC under the Securities Act or the Exchange Act, promptly upon such filing, to the extent such documents are relevant to the ADSs or the deposited property.
ARTICLE V — CASH DISTRIBUTIONS
Section 5.1 — Distributions of Cash
(a) General. Upon receipt of any cash distribution or payment in respect of deposited Shares (whether characterized as a dividend, return of capital, or otherwise), the Depositary shall, subject to Sections 5.4 and 5.5, distribute to each Holder entitled thereto, as of the applicable ADS Record Date, such Holder's proportionate share of such distribution, after deduction and withholding of:
(i) any taxes or governmental charges required to be deducted and withheld under applicable law (including Irish DWT as described in Section 5.4);
(ii) the Depositary's fees as set forth in Article VIII hereof; and
(iii) any expenses incurred by the Depositary in connection with such distribution, including expenses of converting foreign currency to U.S. dollars and remitting such funds to Holders.
(b) Currency Conversion. If any cash distribution is made in euro or any other currency other than U.S. dollars, the Depositary shall convert such distribution to U.S. dollars at the exchange rate obtained by the Depositary in the ordinary course of its foreign exchange business, which rate shall be the rate at which the Depositary is able to purchase U.S. dollars with the relevant foreign currency on a reasonable basis, taking into account the size of the amount to be converted and prevailing market conditions. The Depositary shall not be liable for any loss arising from fluctuations in exchange rates between the date on which a distribution is received and the date of conversion.
(c) Timing. The Depositary shall distribute cash to Holders as promptly as practicable after receipt of the funds, but in any event not later than fifteen (15) business days after receipt by the Depositary of the relevant funds in converted form, subject to any delay resulting from legal or regulatory requirements, settlement procedures, or circumstances beyond the Depositary's reasonable control.
Section 5.2 — Distributions of Shares
If the Company declares or makes a distribution of additional ordinary shares (whether by way of stock dividend, bonus issue, or otherwise) to holders of ordinary shares generally, the Depositary shall, upon receipt of such additional Shares from the Custodian:
(a) distribute to each Holder entitled thereto, as of the applicable ADS Record Date, additional ADSs representing the number of additional ordinary shares to which such Holder is entitled, at the ratio of one (1) ADS per one (1) ordinary share, in each case free of charge (except for applicable Depositary fees); or
(b) if the Depositary determines that the distribution of additional ADSs is not lawful or reasonably practicable (including without limitation if the distribution of such additional ADSs would require registration under the Securities Act and no registration statement is in effect with respect thereto), sell the additional Shares received by the Custodian and distribute the net cash proceeds (after deduction of applicable taxes, fees, and expenses) to Holders entitled thereto, in the manner described in Section 5.1 hereof.
Section 5.3 — Distributions of Rights
(a) Distribution of Rights. If the Company offers or causes to be offered to holders of ordinary shares rights to subscribe for or purchase additional Shares or other securities, the Depositary shall, if it deems such distribution to be lawful and reasonably practicable, distribute to each Holder entitled thereto, as of the applicable ADS Record Date, warrants, rights, or other instruments representing such rights, in a form determined by the Depositary to be appropriate.
(b) Sale of Rights. If the Depositary determines that the distribution of rights to Holders is not lawful or not reasonably practicable (including, without limitation, if the rights or the securities issuable upon exercise thereof are not registered or exempt from registration under the Securities Act), the Depositary may, if permitted by applicable law:
(i) sell such rights on behalf of the Holders to the extent reasonably practicable, and distribute the net cash proceeds (after deduction of applicable taxes, fees, and expenses) to Holders entitled thereto, in the manner described in Section 5.1 hereof; or
(ii) if the sale of such rights is not reasonably practicable, allow such rights to lapse, in which case neither the Depositary nor the Company shall have any obligation to the Holders with respect thereto.
(c) Notice. The Depositary shall provide Holders with notice of any rights offering and of the Depositary's determination regarding the distribution or sale of such rights, as promptly as practicable after the Depositary's receipt of notice thereof from the Company.
Section 5.4 — Irish Withholding Tax on Distributions
(a) Standard Withholding Rate. All cash distributions and deemed distributions to Holders shall be subject to deduction and withholding of Irish dividend withholding tax at the standard rate of twenty-five percent (25%) of the gross amount of such distribution, unless a reduced rate or an exemption applies under applicable law, including the U.S.–Ireland Double Taxation Convention.
(b) Reduced Rate for Qualifying U.S. Holders. Under the U.S.–Ireland Double Taxation Convention, qualifying U.S. resident Holders (as defined in such Convention) may be entitled to a reduced withholding rate of fifteen percent (15%) on dividends paid by the Company. To qualify for such reduced rate, a Holder must provide the Depositary with appropriate documentation, including a completed IRS Form W-8BEN (for individual beneficial owners) or IRS Form W-8BEN-E (for entity beneficial owners), and any certification or declaration required by the Irish Revenue Commissioners, in each case in form and substance satisfactory to the Depositary and the Company.
(c) Cooperation. The Depositary shall cooperate with the Company and the Custodian in applying reduced withholding rates or exemptions to the extent that Holders have provided the required documentation. The Depositary shall not be required to apply a reduced rate or exemption unless the applicable documentation has been received by the Depositary within the time period specified by the Depositary for such purpose.
(d) Remittance. The Depositary shall remit all amounts withheld under this Section 5.4 to the Company or, at the Company's direction, directly to the Irish Revenue Commissioners, as instructed by the Company in writing.
(e) Tax Credit Information. The Company and the Depositary shall provide Holders with such information as may be reasonably necessary to enable Holders to claim foreign tax credits in the United States with respect to Irish DWT withheld on distributions, including, without limitation, the gross amount of each distribution, the amount of Irish DWT withheld, the applicable withholding rate, and the tax jurisdiction (Ireland).
Section 5.5 — Distributions Other Than Cash, Shares, or Rights
If the Company makes a distribution to holders of ordinary shares of property other than cash, additional ordinary shares, or rights to subscribe for or purchase additional shares or other securities, the Depositary shall distribute such property to Holders entitled thereto in such manner as the Depositary deems equitable and practicable. If the Depositary determines that such distribution is not reasonably practicable, the Depositary may, with the Company's approval, sell such property and distribute the net cash proceeds (after deduction of applicable taxes, fees, and expenses) to the entitled Holders in the manner described in Section 5.1 hereof.
Section 5.6 — Fractional ADSs
No fractional ADSs or ADRs shall be issued under this Agreement. If any distribution of additional Shares, any adjustment to the ADS-to-Share ratio, or any other event would otherwise result in a fractional ADS entitlement, the Depositary shall sell the Shares representing such fractional entitlements, aggregate the proceeds thereof, and distribute the net cash proceeds pro rata (after deduction of applicable taxes, fees, and expenses) to the Holders who would otherwise have been entitled to receive such fractional ADSs.
Section 5.7 — Undelivered Distributions
Any distribution of cash, ADSs, rights, securities, or other property that cannot be delivered to a Holder (whether because of an incorrect address, the return of a distribution as undeliverable, or any other reason) shall be held by the Depositary for the benefit of the applicable Holder, without liability for interest thereon, until such distribution is claimed by such Holder. If such distribution remains unclaimed for a period of three (3) years from the date of distribution (or such shorter period as may be required by applicable law), the Depositary may, in its discretion, surrender such unclaimed distribution to the Company or dispose of such distribution in accordance with applicable escheatment or unclaimed property laws. Thereafter, the Holder's sole recourse shall be against the Company or the applicable governmental authority, and neither the Depositary nor the Company shall have any further obligation with respect to such unclaimed distribution.
ARTICLE VI — TRANSFER, COMBINATION, AND SPLIT-UP OF ADRS
Section 6.1 — Transfer
(a) Transfer Procedures. ADRs in certificated form may be transferred on the books of the Depositary upon surrender of the ADR(s) to be transferred at the Depositary's office at 500 Ross Street, Pittsburgh, PA 15219, accompanied by:
(i) a duly executed instrument of transfer or endorsement, in a form satisfactory to the Depositary;
(ii) such proof of identity or authority and such certifications as the Depositary may reasonably require;
(iii) payment of all applicable fees, charges, taxes, and governmental charges payable in connection with such transfer; and
(iv) compliance with all applicable securities law restrictions, including any restrictions under the Securities Act, the Exchange Act, and any lock-up obligations applicable to the transferor.
(b) Book-Entry Transfers. ADSs held through DTC may be transferred through the facilities of DTC in accordance with DTC's rules and procedures. Such transfers shall be recorded on the books of DTC and the Depositary as appropriate.
(c) Restrictions on Transfer. The Depositary may refuse to register the transfer of any ADR if it determines that such transfer would violate any applicable law or regulation, or if the transferor has not complied with the conditions set forth in this Section 6.1.
Section 6.2 — Combination and Split-Up
Any Holder may surrender one or more ADRs for the purpose of combination into a single ADR representing the same aggregate number of ADSs, or for the purpose of split-up into two or more ADRs, each representing such number of ADSs as the surrendering Holder may request. The Depositary shall execute and deliver new ADRs for the same aggregate number of ADSs as the surrendered ADRs, subject to payment of applicable Depositary fees and charges as set forth in Article VIII hereof and any applicable taxes and governmental charges.
Section 6.3 — Lost, Stolen, or Destroyed ADRs
If any ADR in certificated form is lost, stolen, mutilated, or destroyed, the Depositary shall issue a replacement ADR upon receipt of:
(a) evidence satisfactory to the Depositary of such loss, theft, mutilation, or destruction (which may include an affidavit and/or police report);
(b) indemnification of the Depositary and the Company by the Holder, in form and substance satisfactory to the Depositary, including, if required by the Depositary, a surety bond or other security in an amount sufficient to protect the Depositary and the Company against any claim that may be made against either of them on account of the allegedly lost, stolen, mutilated, or destroyed ADR or the issuance of such replacement; and
(c) payment of any applicable fees and charges of the Depositary.
The Depositary may, in its discretion, waive the requirement for a surety bond or other security in connection with the replacement of mutilated ADRs that are surrendered to the Depositary.
ARTICLE VII — AMENDMENT AND TERMINATION
Section 7.1 — Amendment
(a) Amendment by Agreement. This Agreement may be amended at any time by agreement between the Company and the Depositary, without the consent of any Holder or Beneficial Owner, for any purpose, including to add to or change any provision of this Agreement or to change the form of ADR.
(b) Notice of Certain Amendments. Notwithstanding the foregoing, any amendment that would (i) impose or increase any fees or charges upon Holders (other than taxes and other governmental charges, registration fees, transmission costs, delivery expenses, or other such expenses specifically allocated to Holders under this Agreement), or (ii) otherwise prejudice any substantial existing right of Holders or Beneficial Owners, shall not become effective until thirty (30) days after notice of such amendment has been given to each Holder of record as of the date of such notice.
(c) Deemed Consent. Every Holder and Beneficial Owner at the time any amendment to this Agreement becomes effective who continues to hold ADSs after such effective date shall be deemed, by such continued holding, to have consented and agreed to such amendment and to be bound by this Agreement, as so amended. In no event shall any amendment impair the right of a Holder to surrender ADSs and receive the corresponding deposited Shares, except to the extent required to comply with mandatory provisions of applicable law.
(d) Filing. The Company shall promptly file any material amendment to this Agreement with the SEC as an exhibit to a report or registration statement, as required by applicable law.
Section 7.2 — Termination
(a) Termination by the Company. The Company may terminate this Agreement at any time by providing written notice to the Depositary specifying a termination date that is not less than ninety (90) days after the date of such notice. Upon receipt of such notice, the Depositary shall promptly notify all Holders of the termination of this Agreement and the procedures for withdrawal of deposited Shares.
(b) Resignation of the Depositary. The Depositary may resign as depositary hereunder by providing written notice to the Company not less than ninety (90) days prior to the effective date of such resignation. Upon receipt of such notice of resignation, the Company shall use commercially reasonable efforts to appoint a successor depositary prior to the expiration of such ninety-day period. If the Company fails to appoint a successor depositary within such period, the Depositary may terminate this Agreement in accordance with Section 7.2(d) below.
(c) Removal of the Depositary. The Company may remove the Depositary as depositary hereunder upon not less than ninety (90) days' prior written notice to the Depositary, provided that a successor depositary shall have been appointed and shall have accepted such appointment prior to the effective date of such removal.
(d) Procedures Upon Termination. Upon termination of this Agreement (whether by the Company, by the Depositary, or otherwise), the Depositary shall:
(i) set a final date for the surrender of ADRs and the withdrawal of the corresponding deposited Shares (the "Final Surrender Date"), which date shall be not earlier than ninety (90) days after the date on which notice of termination is given to Holders;
(ii) cease accepting new deposits of Shares after the effective date of termination;
(iii) use commercially reasonable efforts to notify all Holders of the Final Surrender Date and the procedures for withdrawal of deposited Shares;
(iv) after the Final Surrender Date, sell, in one or more public or private transactions as it may determine, all deposited Shares not theretofore withdrawn by Holders, and hold the net cash proceeds of such sales (after deduction of applicable taxes, fees, and expenses) for the pro rata benefit of the Holders who have not theretofore surrendered their ADSs; and
(v) hold such net cash proceeds uninvested and without liability for interest for the benefit of the former Holders, who shall become general creditors of the Depositary with respect to such proceeds, until claimed or escheated in accordance with applicable law.
ARTICLE VIII — DEPOSITARY FEES AND CHARGES
Section 8.1 — Fees Payable by Holders and Beneficial Owners
Holders and Beneficial Owners of ADSs shall be required to pay the following fees and charges to the Depositary:
In addition to the fees described above, Holders and Beneficial Owners shall be responsible for the payment of all taxes, duties, governmental charges, and other charges payable in connection with the deposit, withdrawal, transfer, or other transaction involving ADSs or deposited Shares, including, without limitation, Irish stamp duty, any transfer taxes, and any wire transfer fees or other transmission costs.
Section 8.2 — Fees and Expenses Payable by the Company
The Company shall pay the Depositary the following fees and expenses:
(a) An annual administrative and maintenance fee in an amount to be agreed upon between the Company and the Depositary from time to time, payable on or before January 15 of each calendar year during the term of this Agreement.
(b) Reimbursement of the Depositary for expenses reasonably incurred in connection with:
(i) the delivery and registration of deposited Shares with the Custodian, including any fees of the Company's share registrar in Ireland;
(ii) the fees and expenses of the Custodian;
(iii) taxes and other governmental charges (including Irish stamp duty) that are not payable by Holders;
(iv) currency conversion costs and foreign exchange expenses;
(v) cable, telex, facsimile, and electronic transmission costs incurred in connection with the performance of the Depositary's obligations under this Agreement;
(vi) expenses incurred in connection with the distribution of materials to Holders (including printing, postage, and electronic delivery costs);
(vii) expenses incurred in connection with compliance with exchange control or other regulatory requirements applicable to the deposit, issuance, cancellation, or transfer of ADSs or deposited Shares; and
(viii) any other expenses reasonably incurred by the Depositary in connection with the performance of its obligations under this Agreement, as agreed upon by the Company and the Depositary.
Section 8.3 — Charges of Custodian
The fees, charges, and expenses of the Custodian appointed by the Depositary pursuant to Section 9.2 shall be borne by the Company. To the extent that any such fees, charges, or expenses are not paid by the Company, the Depositary may, in its discretion, pass such fees, charges, and expenses through to Holders as provided in this Article VIII.
Section 8.4 — Right to Charge Holder Accounts
The Depositary may charge the account of any Holder (whether through DTC or otherwise) for any amount owing under this Agreement, including unpaid Depositary fees, taxes, governmental charges, and expenses, without prior notice to such Holder. Such right of charge shall survive the cancellation of ADSs and the termination of this Agreement with respect to amounts owing at the time of such cancellation or termination.
ARTICLE IX — THE DEPOSITARY; THE CUSTODIAN; THE COMPANY
Section 9.1 — Obligations of the Depositary