EXHIBIT INDEX
EXHIBIT
NUMBER EXHIBIT
1 Form of Underwriting Agreement
4.1** Deposit Agreement, dated as of May 20, 1998, between the Company,
The Bank of New York and the holders from time to time of the
Company's ADRs
4.2** Form of Ordinary Share certificate.
4.3** Form of ADR certificate (included in Exhibit 4.1).
4.4** Registration Rights Agreement, dated as of December 12, 1997.
5.1* Opinion of A&L Goodbody Solicitors as to certain Company related
matters.
5.2* Opinion of Cahill Gordon & Reindel as to certain matters of U.S.
taxation.
5.3 Opinion of KPMG, Tax Advisors, as to certain matters of Irish
taxation.
23.1 Consent of KPMG, Chartered Accountants for the Company.
23.2* Consent of A&L Goodbody Solicitors (included in Exhibit 5.1).
23.3* Consent of Cahill Gordon & Reindel (included in Exhibit 5.2).
23.4* Consent of KPMG, Tax Advisors (included in Exhibit 5.3).
24.1*** Power of Attorney (included on a signature page).
* To be filed by amendment.
** Incorporated by reference from exhibits to the Company's
Registration Statement on Form F-1 (File No. 333-8672) filed with
the Commission on April 23, 1998.
*** Filed previously.
ICON PLC
AMERICAN DEPOSITARY SHARES
REPRESENTING
ORDINARY SHARES
(PAR VALUE (EURO)0.06 PER SHARE)
--------------------
UNDERWRITING AGREEMENT
--------------------
o, 2003
Goldman, Sachs & Co.,
William Blair & Company, L.L.C.,
Bear, Stearns & Co. Inc.,
J&E Davy (trading as Davy Stockbrokers),
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
Ladies and Gentlemen:
ICON plc, a company incorporated under the laws of the Republic of Ireland
(the "Company"), proposes, subject to the terms and conditions stated herein, to
issue and sell to the underwriters named in Schedule I hereto (the
"Underwriters") an aggregate of 1,500,000 American Depositary Shares ("ADSs")
representing 1,500,000 Ordinary Shares, par value (euro)0.06 per Ordinary Share
("Stock"), of the Company, and the shareholders of the Company named in Schedule
II hereto (the "Selling Shareholders") propose, subject to the terms and
conditions stated herein, to sell to the Underwriters an aggregate of 1,500,000
ADSs representing 1,500,000 shares of Stock and, at the election of the
Underwriters, an aggregate of up to 450,000 additional ADSs representing 450,000
shares of Stock. The aggregate of 3,000,000 ADSs representing 3,000,000 shares
of Stock to be sold by the Company and the Selling Shareholders is herein called
the "Firm ADSs" and the aggregate of 450,000 ADSs representing
450,000 additional shares to be sold by the Selling Shareholders is herein
called the "Optional ADSs". The Firm ADSs and the Optional ADSs that the
Underwriters elect to purchase pursuant to Section 2 hereof are herein
collectively called the "ADSs". The shares of Stock represented by the Firm ADSs
are hereinafter called the "Firm Shares" and the shares of Stock represented by
the Optional ADSs are hereinafter called the "Optional Shares" and the Firm
Shares and the Optional Shares are herein collectively called the "Shares".
The ADSs are to be issued pursuant to a deposit agreement (the "Deposit
Agreement"), dated as of May 20, 1998, among the Company, The Bank of New York,
as depositary (the "Depositary"), and holders from time to time of the American
Depositary Receipts (the "ADRs") issued by the Depositary and evidencing the
ADSs. Each ADS will initially represent the right to receive one share of Stock
deposited pursuant to the Deposit Agreement.
1. (a) The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(i) A registration statement on Form F-3 (File No. 333-102893) (the
"Initial Registration Statement") in respect of the Shares and the ADSs has
been filed with the Securities and Exchange Commission (the "Commission");
such Initial Registration Statement and any post-effective amendment
thereto, each in the form heretofore delivered, excluding exhibits thereto
but including all documents incorporated by reference in the prospectus
contained therein, to you for each of the other Underwriters, have been
declared effective by the Commission in such form; other than a
registration statement, if any, increasing the size of the offering (a
"Rule 462(b) Registration Statement"), filed pursuant to Rule 462(b) under
the U.S. Securities Act of 1933, as amended (the "Act"), which became
effective upon filing, no other document with respect to the Initial
Registration Statement or document incorporated by reference therein has
heretofore been filed with the Commission; and no stop order suspending the
effectiveness of the Initial Registration Statement, any post-effective
amendment thereto or the Rule 462(b) Registration Statement, if any, has
been issued and no proceeding for that purpose has been initiated or, to
the knowledge of the Company, threatened by the Commission (any preliminary
prospectus included in the Initial Registration Statement or amendment
thereto and incorporated by reference in the Rule 462(b) Registration
Statement, if any, or filed with the Commission pursuant to Rule 424(a) of
the rules and regulations of the Commission under the Act is hereinafter
called a "Preliminary Prospectus"; the various parts of the Initial
Registration Statement and the Rule 462(b) Registration Statement, if any,
including all exhibits thereto and including (i) the information contained
in the form of final prospectus filed with the Commission pursuant to Rule
424(b) under the Act in accordance with Section 5(a) hereof and deemed by
virtue of Rule 430A under the Act to be part of the Initial Registration
Statement at the time it was declared effective and (ii) the documents
incorporated by reference in the prospectus contained in the Initial
Registration Statement at the time such part of the Initial Registration
Statement became effective, each as amended at the time such part of the
Initial Registration Statement became effective or such part of the Rule
462(b) Registration Statement, if any, became or hereafter becomes
effective, are hereinafter collectively called the "Registration
Statement"; such final prospectus, in the form first filed pursuant to Rule
424(b) under the Act, is hereinafter called the "Prospectus"; any reference
herein to any Preliminary Prospectus or the Prospectus
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shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form F-3 under the Act, as of the
date of such Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment or supplement to any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include any documents filed
after the date of such Preliminary Prospectus or Prospectus, as the case
may be, under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be; and any reference to any
amendment to the Registration Statement shall be deemed to refer to and
include any annual report of the Company filed pursuant to Section 13(a) or
15(d) of the Exchange Act after the effective date of the Initial
Registration Statement that is incorporated by reference in the
Registration Statement;
(ii) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act and the rules and regulations of
the Commission thereunder;
(iii) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement thereto,
when such documents become effective or are filed with the Commission, as
the case may be, will conform in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading;
(iv) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the rules and regulations of the Commission thereunder, and the
Registration Statement does not and will not, as of the applicable
effective date as to the Registration Statement and any amendment thereto
and as of the applicable filing date as to the Prospectus and any amendment
or supplement thereto, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; PROVIDED, HOWEVER, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter through Goldman, Sachs & Co.
expressly for use therein or by a Selling Shareholder expressly for use in
the preparation of the answers therein to Item 7 of Form F-3;
(v) A registration statement on Form F-6 (File No. 333-13442) in
respect of the ADSs has been filed with the Commission; such registration
statement in the form heretofore delivered to you and, excluding exhibits,
to you for each of the other
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Underwriters, has been declared effective by the Commission in such form;
no other document with respect to such registration statement has
heretofore been filed with the Commission; no stop order suspending the
effectiveness of such registration statement has been issued and no
proceeding for that purpose has been initiated or, to the knowledge of the
Company, threatened by the Commission (the various parts of such
registration statement, including all exhibits thereto, each as amended at
the time such part of the registration statement became effective, being
hereinafter called the "ADS Registration Statement") and the ADS
Registration Statement when it became effective conformed, and any further
amendments thereto will conform, in all material respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder, and did not, as of the applicable effective date, contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading;
(vi) The Preliminary Prospectus at the date thereof did not, and the
Prospectus at the date thereof, does or did not, and any further amendment
or supplement thereto, as of the date of any such amendment or supplement,
will not, contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading; PROVIDED,
HOWEVER, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter through
Goldman, Sachs & Co. expressly for use therein or by a Selling Shareholder
expressly for use therein; references herein to "prospectus", "Preliminary
Prospectus" or "Prospectus" shall mean each and every relevant prospectus,
unless the context otherwise requires;
(vii) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any loss or interference with
its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise (in each case) than as set forth or
contemplated in the Prospectus or that would not result in any material
adverse effect on the business, financial condition, shareholders' equity
or results of operations of the Company and its subsidiaries, taken as a
whole; and, since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there has not been any
change in the share capital or long-term debt of the Company or any of its
subsidiaries or any material adverse change, or any development involving a
prospective material adverse change in or affecting the general affairs,
management, financial position, shareholders' equity or results of
operations of the Company and its subsidiaries, taken as a whole, otherwise
than as set forth or contemplated in the Prospectus;
(viii) The Company and its subsidiaries have good and valid title to
all real property and good and valid title to all personal property owned
by them, in each case free of restrictions on transfer and free and clear
of all liens, encumbrances and defects except such as are described in the
Prospectus or such as do not materially affect the value of such property
and do not interfere with the use made and proposed to be made of such
property by the Company and its subsidiaries; and any real property and
buildings held under lease by the Company and its subsidiaries are held by
them under
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valid, subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the use made and proposed to be made of
such property and buildings by the Company and its subsidiaries;
(ix) The Company has been duly incorporated and is validly existing as
a public company limited by shares under the laws of the Republic of
Ireland, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and has
been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other jurisdiction
in which it owns or leases properties or conducts any business so as to
require such qualification, or is subject to no material liability or
disability by reason of the failure to be so qualified in any such
jurisdiction; and each subsidiary of the Company has been duly incorporated
and is validly existing as a public limited company or similar entity in
good standing under the laws of its jurisdiction of incorporation where the
concept of good standing applies and has corporate power and authority to
own or lease its properties and to conduct its business as described in the
Prospectus, except to the extent that failure to be so qualified would not
have a material adverse effect on the business, financial condition,
shareholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole;
(x) The Company has an authorized share capital as set forth in the
Prospectus, and all of the issued shares of Stock of the Company have been
duly and validly authorized and issued, are fully paid and non-assessable
and conform to the description of the Stock contained in the Prospectus;
and all of the issued share capital of each subsidiary of the Company has
been duly and validly authorized and issued, is fully paid and
non-assessable and (except for directors' qualifying shares) is owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims; the holders of the issued share capital
of the Company are not entitled to preemptive or other rights to acquire
shares of Stock or ADSs ; there are no outstanding securities convertible
into or exchangeable for, or warrants, rights or options to purchase from
the Company, or obligations of the Company to issue, shares of Stock or any
other class of share capital of the Company (except as set forth in the
Company's annual report on Form 20-F for the fiscal year ended May 31,
2002, and incorporated by reference into the Prospectus, under the caption
"Directors, Senior Management and Employees--Employee Share Option Schemes"
and in the Prospectus under the caption "Management--Employee Share Option
Schemes" and except for options granted subsequent to May 31, 2002 pursuant
to the share option plans described therein); the Company's outstanding
employee stock option plans (including without limitation the 1998
Long-Term Incentive Plan, the 1998 Consultant Option Plan and the Share
Option Plan 2003) conform in all material respects to the description
contained in the Company's annual report on Form 20-F for the fiscal year
ended May 31, 2002, and incorporated by reference into the Prospectus,
under the caption "Directors, Senior Management and Employees--Employee
Share Option Schemes" and in the Prospectus under the caption
"Management--Employee Share Option Schemes"; the Shares may be freely
deposited by the Company and the Selling Shareholders with the Depositary
or its nominee against issuance of ADRs evidencing ADSs; the ADSs are
freely transferable by the Company and the Selling Shareholders to or for
the account of the several Underwriters and (to the extent described in the
Prospectus) the initial purchasers thereof; and there are no restrictions
on subsequent transfers of the Shares and ADSs under the laws of the
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Republic of Ireland and of the United States except as described in the
Company's report on Form 6-K/A filed on [March 7], 2003, and incorporated
by reference into the Prospectus, under the captions "Description of Share
Capital" and "Description of American Depositary Shares";
(xi) The Shares have been duly and validly authorized and, when ADSs
representing the Shares to be sold by the Company hereunder are
unconditionally issued and delivered against payment therefor as provided
herein, the Shares will be duly and validly issued and fully paid and
non-assessable and will conform to the description of the shares of Stock
contained in the Prospectus; and no option or other agreements which
require or may require or confer any right to require the issue of shares
of Stock or other securities of the Company or any of its subsidiaries now
or at any time hereafter will be in force, except as disclosed in the
Prospectus;
(xii) This Agreement has been duly authorized, executed and delivered
by the Company;
(xiii) The Deposit Agreement has been duly authorized, executed and
delivered by the Company, and constitutes a valid and legally binding
agreement of the Company, enforceable in accordance with its terms,
subject, as to enforceability, to bankruptcy, insolvency, reorganization
and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles; upon issuance by the
Depositary of ADRs evidencing ADSs against the deposit of Shares in respect
thereof in accordance with the provisions of the Deposit Agreement, such
ADRs will be duly and validly issued and the persons in whose names the
ADRs are registered will be entitled to the rights specified therein and in
the Deposit Agreement; and the Deposit Agreement and the ADRs conform in
all material respects to the descriptions thereof contained in the
Prospectus;
(xiv) All consents, approvals, authorizations, orders, registrations,
notifications, certificates, permits, licenses, clearances and
qualifications (hereinafter referred to as "Governmental Authorizations")
of or with any court or governmental, regulatory or supranational agency or
body or any stock exchange authorities (hereinafter referred to as a
"Governmental Agency") having jurisdiction over the Company or any of its
subsidiaries or any of their properties required (A) for the execution and
delivery by the Company of this Agreement and the Deposit Agreement to be
duly and validly authorized; (B) for the issuance, sale and deposit of the
Shares by the Company, and the issuance, sale and delivery of ADSs in
respect thereof; (C) for the consummation by the Company of the
transactions contemplated by this Agreement and the Deposit Agreement and
(D) for the Company and its subsidiaries to own or lease their properties
and conduct their businesses in the manner described in the Prospectus
(except in respect of this subsection (D) for such Governmental
Authorizations, the failure to obtain or make which would not have a
material adverse effect on the ability of the Company and its subsidiaries,
taken as a whole, to own or lease its properties or conduct its business as
described in the Prospectus) have been obtained or made and are in full
force and effect, except (i) the registration under the Act of the Shares
and the ADSs and (ii) such Governmental Authorization as may be required
under the state securities or Blue Sky laws or any securities laws of
jurisdictions outside the Republic of Ireland
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and the United States in connection with the purchase and distribution of
the Shares and ADSs by or for the account of the Underwriters;
(xv) All dividends and other distributions declared and payable on the
share capital of the Company may under the current laws and regulations of
the Republic of Ireland be paid to the Depositary in euro that may be
converted into foreign currency that may be freely transferred out of the
Republic of Ireland, and all such dividends and other distributions will
not be subject to withholding or other taxes under the laws and regulations
of the Republic of Ireland and are otherwise free and clear of any other
tax, withholding or deduction in the Republic of Ireland and may be so paid
without the necessity of obtaining any Governmental Authorization in the
Republic of Ireland except as described in the Prospectus under the caption
"Irish Taxation Considerations";
(xvi) The issue and sale of Shares and ADSs by the Company hereunder,
the deposit of the Shares being deposited by the Company with the
Depositary against issuance of the ADRs evidencing the ADSs at each Time of
Delivery, the sale and delivery of the ADSs to be delivered at each Time of
Delivery and the compliance by the Company with all of the provisions of
this Agreement and the Deposit Agreement, and the consummation by the
Company of the transactions herein and therein contemplated will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company or
any of its subsidiaries is bound or to which any of the property or assets
of the Company or any of its subsidiaries is subject, except, in any such
case, such as would not have a material adverse effect on the business,
financial condition, shareholders' equity or results of operations of the
Company and its subsidiaries, taken as a whole, nor will such action result
in any violation of the provisions of the Memorandum or Articles of
Association of the Company or any of its subsidiaries or any statute or any
order, rule or regulation of any Governmental Agency having jurisdiction
over the Company or any of its subsidiaries or any of their properties;
(xvii) Neither the Company nor any of its subsidiaries is in violation
of its Memorandum or Articles of Association or in default in the
performance or observance of any material obligation, agreement, covenant
or condition contained in any indenture, mortgage, deed of trust, loan
agreement lease or other agreement or instrument to which it is a party or
by which it or any of its properties may be bound, except for any such
violation or default that would not have a material adverse effect on the
business, financial condition, shareholders' equity or results of
operations of the Company and its subsidiaries, taken as a whole or any
adverse effect on the issuance and sale of the Shares or ADSs or the
consummation of the transactions hereby;
(xviii) No stamp or other issuance or transfer taxes or duties and no
capital gains, income, withholding or other taxes are payable by or on
behalf of the Underwriters to the Republic of Ireland or the United States
or any political subdivision or taxing authority thereof or therein in
connection with (A) the deposit with the Depositary or its nominee of
Shares by the Company and the Selling Shareholders against the issuance of
ADRs evidencing ADSs to be sold at each Time of Delivery, (B) the sale and
delivery by the Company and Selling Shareholders of such ADSs to or for the
respective accounts of the Underwriters in the manner contemplated herein,
(C) the sale and
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delivery outside the Republic of Ireland by the Underwriters of the ADSs to
the initial purchasers thereof in the manner contemplated herein or (D) the
execution and delivery by the Company and the Selling Shareholders of this
Agreement or the execution and delivery by the Company of the Deposit
Agreement;
(xix) Neither the Company nor any of its subsidiaries has taken,
directly or indirectly, any action which was designed to stabilize or
manipulate or which has constituted or which might reasonably be expected
to cause or result in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Shares and
ADSs; PROVIDED, HOWEVER, that this provision shall not apply to any trading
or stabilization activities conducted by the Underwriters;
(xx) The statements set forth (A) in the Company's report on Form
6-K/A filed on March 7, 2003, and incorporated by reference into the
Prospectus, under the captions "Description of Share Capital" and
"Description of American Depositary Shares", insofar as they purport to
constitute a summary of the terms of the Stock and the ADSs, respectively,
and (B) (x) in the Company's report on Form 6-K/A filed on March 7, 2003,
and incorporated by reference into the Prospectus, under the captions
"Description of the Memorandum and Articles of Association of the Company",
"Changes to Constitutional Documents" and "Description of the Registration
Rights Agreement, Dated December 12, 1997", (y) in the Company's annual
report on Form 20-F for the fiscal year ended May 31, 2002, and
incorporated by reference into the Prospectus, under the caption "Major
Shareholders and Related Party Transactions", and (z) in the Prospectus
under the captions "Price Range of ADSs and Dividend Policy", "Business--
Government Regulation", "Management", "Selling Shareholders", "U.S.
Taxation Considerations", "Irish Taxation Considerations" and "Exchange
Controls and Other Limitations Affecting Security Holders", insofar as they
purport to describe the matters of law or regulation or the provisions of
documents referred to therein, are true and accurate in all material
respects and fairly summarize such information;
(xxi) There are no legal or governmental proceedings pending to which
the Company or any of its subsidiaries is a party or of which any property
of the Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on the
current or future consolidated financial position, shareholders' equity or
results of operations of the Company and its subsidiaries, taken as a
whole; and, to the best of the Company's knowledge after reasonable
investigation, no such proceedings are threatened by any Governmental
Agency or threatened by others;
(xxii) The Company and each of its subsidiaries maintain or are
covered by insurance that the Company reasonably believes to be adequate
for their businesses, including, but not limited to, insurance against
accidents, third-party injury or general liability and insurance covering
certain real and personal property owned or leased by the Company and each
of its subsidiaries against theft, damage, destruction, acts of vandalism
and all other risks customarily insured against, all of which insurance is
in full force and effect, except where the failure to maintain or be
covered by such insurance would not have a material adverse effect on the
business, financial condition, shareholders' equity or results of
operations of the Company and its subsidiaries, taken as a whole;
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(xxiii) There are no contracts or documents of the Company or any of
its subsidiaries that are required to be filed as exhibits to the
Registration Statement or the ADS Registration Statement by the Act or by
the rules and regulations of the Commission thereunder that have not been
so filed;
(xxiv) The Company is not and, after giving effect to the offering and
sale of the ADSs, will not be an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
(xxv) The Company and each of its subsidiaries have all licenses,
franchises, permits, authorizations, approvals and orders and other
concessions of and from all Governmental Agencies that are necessary to own
or lease their properties and conduct their businesses as described in the
Prospectus the loss of which in the aggregate would not have a material
adverse effect on the business, financial condition, shareholders' equity
or results of operations of the Company and its subsidiaries, taken as a
whole;
(xxvi) The Company is not, and giving consideration to the
consummation of the transactions contemplated hereby and the application of
the proceeds as described in the Registration Statement under the caption
"Use of Proceeds", the Company will not thereby become, as of each Time of
Delivery (as defined in Section 4(a) hereof), a Passive Foreign Investment
Company ("PFIC") within the meaning of Section 1296 of the United States
Internal Revenue Code of 1986, as amended (the "Code") and the Company
intends to conduct its business in a manner such that the Company is not
likely to become a PFIC in the future;
(xxvii) Neither the Company nor any of its affiliates does business
with the government of Cuba or with any person or affiliate located in Cuba
within the meaning of Section 517.075, Florida Statutes; and
(xxviii) KPMG, who have certified certain financial statements of the
Company and its subsidiaries, are independent public accountants as
required by the Act and the rules and regulations of the Commission
thereunder.
(b) Each of the Selling Shareholders severally and not jointly represents
and warrants to, and agrees with, each of the Underwriters and the Company that:
(i) All Governmental Authorizations required (A) for the deposit of
the Shares being deposited with the Depositary against issuance of the ADRs
evidencing the ADSs to be delivered by such Selling Shareholder at each
Time of Delivery, (B) for the sale and delivery of the ADSs to be sold by
such Selling Shareholder hereunder, (C) for the execution and delivery by
such Selling Shareholder of this Agreement, the Power of Attorney and the
Custody Agreement (as defined below) to be duly and validly authorized and
(D) for the consummation by such Selling Shareholder of the transactions
contemplated by this Agreement, the Power of Attorney, and the Custody
Agreement have been obtained or made or are in full force and effect,
except (i) the registration under the Act of the Shares or the ADSs and
(ii) such Governmental Authorization as may be required under the state
securities or Blue Sky laws or any securities laws of jurisdictions outside
the Republic of Ireland and the United States in
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connection with the purchase and distribution of the Shares or ADSs by or
for the account of the Underwriters; and such Selling Shareholder has full
right, power and authority to enter into this Agreement, the Power of
Attorney and the Custody Agreement and to sell, assign, transfer and
deliver the Shares to be sold by such Selling Shareholder hereunder;
(ii) The sale of the Shares or ADSs to be sold by such Selling
Shareholder hereunder, the deposit of the Shares with the Depositary
against issuance of the ADRs evidencing the ADSs to be delivered by such
Selling Shareholder at each Time of Delivery and the compliance by such
Selling Shareholder with all of the provisions of this Agreement, the Power
of Attorney, the Deposit Agreement and the Custody Agreement and the
consummation by such Selling Shareholder of the transactions herein and
therein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any statute, indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which such Selling Shareholder is a party
or by which such Selling Shareholder is bound, or to which any of the
property or assets of such Selling Shareholder is subject, except, in any
such case, such as would not affect the validity, performance or
consummation by such Selling Shareholder of the transactions contemplated
in this agreement, the Power of Attorney, the Deposit Agreement and the
Custody Agreement, nor will such action result in any violation of the
provisions of the constituent documents of such Selling Shareholder if such
Selling Shareholder is a corporation or the partnership agreement of such
Selling Shareholder if such Selling Shareholder is a partnership or any
statute or any order, rule or regulation of any Governmental Agency having
jurisdiction over such Selling Shareholder or the property of such Selling
Shareholder;
(iii) Such Selling Shareholder has, and immediately prior to each Time
of Delivery (as defined in Section 4 hereof) such Selling Shareholder will
have, good and valid title to the Shares which will underlie the ADSs to be
sold by such Selling Shareholder hereunder, free of restrictions on
transfer and free and clear of all liens, encumbrances, equities or claims;
upon deposit of such Shares with the Depositary or its nominee in
accordance with the Deposit Agreement and the entry in the register of
members of the Company in accordance with the Memorandum and Articles of
Association of the Company of the name of the Depositary or its nominee as
holder of such Shares, all legal right, title and interest of such Selling
Shareholder in or to such Shares will be transferred to the Depositary or
its nominee, as the case may be, free and clear of all liens, encumbrances,
equities or claims; and, assuming due authorization, execution and delivery
of the Deposit Agreement by the parties thereto and due issuance by the
Depositary of ADRs evidencing ADSs being delivered at such Time of Delivery
against the deposit of Shares by such Selling Shareholder in accordance
with the provisions of the Deposit Agreement upon delivery of such ADRs,
the persons in whose names such ADRs are registered will receive good and
valid title to such ADSs, free of restrictions on transfer and free and
clear of all liens, encumbrances, equities or claims;
(iv) Such Selling Shareholder has not taken and will not take,
directly or indirectly, any action which is designed to stabilize or
manipulate or which has constituted or which might reasonably be expected
to cause or result in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of
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the Shares or ADSs provided, however, that this provision shall not apply
to any trading or stabilization activities conducted by the Underwriters;
(v) Each of the Registration Statement, the Preliminary Prospectus and
the Prospectus at the respective dates thereof, does or did not, and any
further amendment or supplement thereto, as of the date of any such
amendment or supplement, will not, contain an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company
by an Underwriter through Goldman, Sachs & Co. expressly for use therein,
PROVIDED, HOWEVER, that the aggregate liability of a Selling Shareholder
pursuant to this subsection (b)(v) and 8(a) hereto shall not exceed an
amount equal to the product of the number of ADSs sold by such Selling
Shareholder, including any Optional ADSs, and the public offering price,
less the underwriting discount applicable to such ADSs, as set forth in the
Prospectus;
(vi) Certificates in negotiable form representing all of the Shares to
be sold by such Selling Shareholder hereunder have been placed in custody
under a Custody Agreement (the "Custody Agreement"), in the form heretofore
furnished to you, duly executed and delivered by such Selling Shareholder
to AIB/BNY Trust Company, as custodian (the "Custodian"), and such Selling
Shareholder has duly executed and delivered a Power of Attorney (the "Power
of Attorney"), in the form heretofore furnished to you, appointing the
persons indicated in Schedule II hereto, and each of them, as such Selling
Shareholder's attorneys-in-fact (the "Attorneys-in-Fact") with authority to
execute and deliver this Agreement on behalf of such Selling Shareholder,
to determine the purchase price to be paid by the Underwriters to the
Selling Shareholders as provided in Section 2 hereof, to authorize the
delivery of the ADSs to be sold by such Selling Shareholders hereunder and
otherwise to act on behalf of such Selling Shareholders in connection with
the transactions contemplated by this Agreement and the Custody Agreement;
(vii) The Shares represented by the certificates held in custody for
such Selling Shareholder under the Custody Agreement are subject to the
interests of the Underwriters; the arrangements made by such Selling
Shareholder for such custody, and the appointment by such Selling
Shareholder of the Attorneys-in-Fact by the Power of Attorney, are to that
extent irrevocable; the obligations of the Selling Shareholders hereunder
shall not be terminated by operation of law, whether by the death or
incapacity of any individual Selling Shareholder or, in the case of an
estate or trust, by the death or incapacity of any executor or trustee or
the termination of such estate or trust or, in the case of a partnership or
corporation, by the dissolution of such partnership or corporation, or by
the occurrence of any other event; if any individual Selling Shareholder or
any such executor or trustee should die or become incapacitated, or if any
such estate or trust should be terminated, or if any such partnership or
corporation should be dissolved, or if any other such event should occur,
before the delivery of the Shares hereunder, certificates representing the
Shares shall be delivered by or on behalf of the Selling Shareholders in
accordance with the terms and conditions of this Agreement and the Custody
Agreements; and actions taken by the Attorneys-in-Fact pursuant to the
Powers of Attorney shall be as valid as if such death, incapacity,
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termination, dissolution or other event had not occurred, regardless of
whether or not the Custodian, the Attorneys-in-Fact, or any of them, shall
have received notice of such death, incapacity, termination, dissolution or
other event; and
(viii) No stamp or other issuance or transfer taxes or duties and no
capital gains, income, withholding or other taxes are payable by or on
behalf of the Underwriters to the Republic of Ireland or the United States
or any political subdivision or taxing authority thereof or therein in
connection with (A) the deposit with the Depositary or its nominee of
Shares by such Selling Shareholder against the issuance of ADRs evidencing
ADSs to be sold by such Selling Shareholder at each Time of Delivery, (B)
the sale and delivery by such Selling Shareholder of such ADSs to or for
the respective accounts of the Underwriters in the manner contemplated
herein, (C) the sale and delivery outside the Republic of Ireland by the
Underwriters of such ADSs to the initial purchasers thereof in the manner
contemplated herein or (D) the execution and delivery by such Selling
Shareholder of this Agreement, the Power of Attorney or the Custody
Agreement.
2. Subject to the terms and conditions herein set forth, (a) the Company and
each of the Selling Shareholders agrees, severally and not jointly, to sell, or
procure the sale, to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company and each of the
Selling Shareholders, at a purchase price per ADS of $?, the number of Firm ADSs
(to be adjusted by you so as to eliminate fractional ADSs) determined by
multiplying the aggregate number of Firm ADSs to be sold by the Company and each
of the Selling Shareholders as set forth opposite their respective names in
Schedule II hereto by a fraction, the numerator of which is the aggregate number
of Firm ADSs to be purchased by such Underwriter as set forth opposite the name
of such Underwriter in Schedule I hereto and the denominator of which is the
aggregate number of Firm ADSs to be purchased by all of the Underwriters from
the Company and all of the Selling Shareholders hereunder and (b) in the event
and to the extent that the Underwriters shall exercise the election to purchase
Optional ADSs as provided below, each of the Selling Shareholders agrees,
severally and not jointly, to sell, or procure the sale, to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from each of the Selling Shareholders, at the purchase price per ADS
set forth in clause (a) of this Section 2, that portion of the number of
Optional ADSs as to which such election shall have been exercised (to be
adjusted by you so as to eliminate fractional ADSs) determined by multiplying
such number of Optional ADSs by a fraction the numerator of which is the maximum
number of Optional ADSs which such Underwriter is entitled to purchase as set
forth opposite the name of such Underwriter in Schedule I hereto and the
denominator of which is the maximum number of Optional ADSs that all of the
Underwriters are entitled to purchase hereunder.
The Selling Shareholders, as and to the extent indicated in Schedule II
hereto, hereby grant, severally and not jointly, to the Underwriters the right
to purchase at their election up to 450,000 Optional ADSs, at the purchase price
per ADS set forth in the paragraph above, for the sole purpose of covering sales
of ADSs in excess of the number of Firm ADSs. Any such election to purchase
Optional ADSs shall be made in proportion to the maximum number of Optional ADSs
to be sold by each Selling Shareholder as set forth in Schedule II hereto
initially with respect to the Optional ADSs to be sold among the Selling
Shareholders in proportion to the maximum number of Optional ADSs to be sold by
each Selling Shareholder as set forth in Schedule II hereto. Any such election
to purchase Optional ADSs may be exercised
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only by written notice from you to the Attorneys-in-Fact, given within a period
of 30 calendar days after the date of this Agreement and setting forth the
aggregate number of Optional ADSs to be purchased and the date on which such
Optional ADSs are to be delivered, as determined by you but in no event earlier
than the First Time of Delivery (as defined in Section 4 hereof) or, unless you
and the Attorneys-in-Fact otherwise agree in writing, earlier than two or later
than ten business days after the date of such notice.
3. Upon the authorization by you of the release of the Firm ADSs, the several
Underwriters propose to offer the Firm ADSs for sale upon the terms and
conditions set forth in the Prospectus.
4. (a) The ADSs to be purchased by each Underwriter hereunder, in definitive
form, and in such authorized denominations and registered in such names as
Goldman, Sachs & Co. may request upon at least forty-eight hours' prior notice
to the Company and the Selling Shareholders shall be delivered by or on behalf
of the Company and the Selling Shareholders to Goldman, Sachs & Co., through the
facilities of The Depository Trust Company ("DTC"), for the account of such
Underwriter, against payment by or on behalf of such Underwriter of the purchase
price therefor by wire transfer, payable to the order of the Company and the
Selling Shareholders in U.S. dollars in Federal (same day) funds. The Company
and the Selling Shareholders will cause the certificates representing the ADSs
to be made available for checking at least twenty-four hours prior to the Time
of Delivery (as defined below) with respect thereto at the office of DTC or its
designated custodian (the "Designated Office").
The time and date of such delivery and payment shall be, with respect to
the Firm ADSs, 9:30 a.m., New York City time (2:30 p.m. London time), on ?, 2003
or such other time and date as Goldman, Sachs & Co., the Company and the Selling
Shareholders may agree upon in writing, and, with respect to the Optional ADSs,
9:30 a.m., New York City time (2:30 p.m. London time), on the date specified by
Goldman, Sachs & Co. in the written notice given by Goldman, Sachs & Co. of the
Underwriters' election to purchase such Optional ADSs, or such other time and
date as Goldman, Sachs & Co., the Company and the Selling Shareholders may agree
upon in writing, PROVIDED that, in the case of the Optional ADSs, such date
falls on a London Business Day and on a New York Business Day. Such time and
date for delivery of the Firm ADSs is herein called the "First Time of
Delivery", such time and date for delivery of the Optional ADSs, if not the
First Time of Delivery, is herein called the "Second Time of Delivery", and each
such time and date for delivery is herein called a "Time of Delivery". For the
purposes of this Section 4, "London Business Day" shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in London are generally authorized or obligated by law or executive
order to close. "New York Business Day" shall mean each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking institutions
in New York are generally authorized or obligated by law or executive order to
close.
(b) The documents to be delivered at each Time of Delivery by or on behalf
of the parties hereto pursuant to Section 7 hereof, including the cross-receipt
for the ADSs and any additional documents requested by the Underwriters pursuant
to Section 7(r) hereof, will be delivered at the offices of Sullivan & Cromwell
LLP, 125 Broad Street, New York, New York (the "Closing Location"), and the ADSs
will be delivered as specified in subsection (a) above, all at such Time of
Delivery. A meeting will be held at the Closing Location at 9:30 a.m., New York
City time, on the New York Business Day next preceding such Time of Delivery, at
which
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meeting the final drafts of the documents to be delivered pursuant to the
preceding sentence will be available for review by the parties hereto.
5. (a) The Company agrees with each of the Underwriters:
(i) To prepare the Prospectus in a form approved by you and to file
such Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second business day following the
execution and delivery of this Agreement, or, if applicable, such earlier
time as may be required by Rule 430A(a)(3) under the Act; to make no
further amendment or any supplement to the Registration Statement, the ADS
Registration Statement, any Preliminary Prospectus or any Prospectus prior
to the last Time of Delivery which shall be disapproved by you promptly
after reasonable notice thereof (unless such amendment or supplement is
necessary to comply with applicable laws, rules or regulations); to advise
you, promptly after it receives notice thereof, of the time when any
amendment to the Registration Statement or the ADS Registration Statement
has been filed or becomes effective or any supplement to the Prospectus or
any amended Prospectus has been filed and to furnish you a reasonable
number of copies thereof; to file promptly all reports required to be filed
by the Company with the Commission pursuant to Section 13(a), 13(c) or
15(d) of the Exchange Act subsequent to the date of the Prospectus and for
so long as the delivery of a prospectus is required in connection with the
offering or sale of the ADSs; to advise you, promptly after it receives
notice thereof, of the issuance by the Commission of any stop order or of
any order preventing or suspending the use of any Preliminary Prospectus or
prospectus, of the suspension of the qualification of the ADSs for offering
or sale in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the Commission for
the amending or supplementing of the Registration Statement or Prospectus
or for additional information; and, in the event of the issuance of any
stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or Prospectus or suspending any such qualification,
promptly to use its best efforts to obtain the withdrawal of such order;
(ii) Promptly from time to time to take such action as you may
reasonably request to qualify the ADSs for offering and sale under the
securities laws of such jurisdictions as you may request and to comply with
such laws so as to permit the continuance of sales and dealings therein in
such jurisdictions for as long as may be necessary to complete the
distribution of the ADSs, PROVIDED that in connection therewith the Company
shall not be required to qualify as a foreign corporation or to file a
general consent to service of process in any jurisdiction;
(iii) Prior to 10:00 a.m., New York City time, on the New York
Business Day next succeeding the date of this Agreement and from time to
time, to furnish the Underwriters with copies of each Prospectus in New
York City in such quantities as you may reasonably request, and, if the
delivery of a prospectus is required at any time prior to the expiration of
nine months after the time of issue of the Prospectus in connection with
the offering or sale of the ADSs and if at such time any events shall have
occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made when
such Prospectus is delivered, not misleading, or, if for any other reason
it
-14-
shall be necessary during such period to amend or supplement any Prospectus
or to file under the Exchange Act any document incorporated by reference in
the Prospectus in order to comply with the Act or the Exchange Act, to
notify you and upon your request to file such document and to prepare and
furnish without charge to each Underwriter and to any dealer in securities
as many copies as you may reasonably request of an amended Prospectus or a
supplement to any Prospectus which will correct such statement or omission
or effect such compliance, and in case any Underwriter is required to
deliver a prospectus in connection with sales of any of the ADSs at any
time nine months or more after the time of issue of the Prospectus, upon
your request but at the expense of such Underwriter, to prepare and deliver
to such Underwriter as many written and electronic copies as you may
request of an amended or supplemented Prospectus, including with respect to
any Underwriter, a Prospectus complying with Section 10(a)(3) of the Act;
(iv) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earning statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the
rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158);
(v) During the period beginning from the date hereof and continuing to
and including the date 90 days after the date hereof, (i) not to offer,
sell, contract to sell or otherwise dispose of, except as provided
hereunder, any securities of the Company that are substantially similar to
the shares of Stock or ADSs, including but not limited to any securities
that are convertible into or exchangeable for, or that represent the right
to receive, shares of Stock or ADSs or any such substantially similar
securities without the prior written consent of Goldman, Sachs & Co., and
(ii) not to allow the exercise of any option pursuant to any outstanding
employee stock option plan (including without limitation the 1998 Long-Term
Incentive Plan, the 1998 Consultant Option Plan and the Share Option Plan
2003 (described in the Company's annual report on Form 20-F for the fiscal
year ended May 31, 2002, and incorporated by reference into the Prospectus,
under "Directors and Senior Management--Employee Share Option Schemes" and
in the Prospectus under the caption "Management--Employee Share Option
Schemes"), except for the options held by the Selling Shareholders and
outstanding on the date hereof, PROVIDED that upon the exercise of any of
such options, the Stock underlying such options remains subject to the
provisions of (v)(i) hereof on any date prior to 90 days after the date of
the Prospectus without the prior written consent of Goldman, Sachs & Co.;
(vi) To furnish to its shareholders as soon as practicable after the
end of each fiscal year an annual report (including a balance sheet and
statements of income, shareholders' equity and cash flows of the Company
and its consolidated subsidiaries certified by independent public
accountants and prepared in conformity with generally accepted accounting
principles in the United States ("U.S. GAAP")) and, as soon as practicable
after the end of each of the first three quarters of each fiscal year
prepared in accordance with U.S. GAAP (beginning with the fiscal quarter
ending after the effective date of the Registration Statement),
consolidated summary financial information of the Company and its
subsidiaries for such quarter in reasonable detail;
-15-
(vii) During a period of three years from the effective date of the
Registration Statement, to furnish to you copies of all reports or other
communications (financial or other) furnished to shareholders, and to
deliver to you (i) as soon as they are available, copies of any reports and
financial statements furnished to or filed with the Commission or any
securities exchange on which any class of securities of the Company is
listed; and (ii) such additional information concerning the business and
financial condition of the Company as you may from time to time reasonably
request (such financial statements to be on a consolidated basis to the
extent the accounts of the Company and its subsidiaries are consolidated in
reports furnished to its shareholders generally or to the Commission);
(viii) To use the net proceeds received by it from the sale of the
ADSs pursuant to this Agreement in the manner specified in the Prospectus
under the caption "Use of Proceeds";
(ix) Prior to the First Time of Delivery to deposit the Shares
representing the ADSs being sold and delivered by the Company hereunder
with the Depositary in accordance with the provisions of the Deposit
Agreement and otherwise to comply with the Deposit Agreement so that ADRs
evidencing such ADSs will be executed (and, if applicable, countersigned)
and issued by the Depositary against receipt of such Stock and delivered to
the Underwriters at such Time of Delivery;
(x) Not to (and to cause its subsidiaries not to) take, directly or
indirectly, any action which is designed to stabilize or manipulate or
which constitutes or which might reasonably be expected to cause or result
in stabilization or manipulation of the price of any security of the
Company or facilitate the sale or resale of the Shares and the ADSs;
(xi) To use its reasonable best efforts to have the Shares listed on
the Irish Stock Exchange and the ADSs approved for quotation on the
National Association of Securities Dealers Automated Quotations National
Market System ("Nasdaq National Market");
(xii) To bear and pay all stamp or other issuance or transfer taxes or
duties and income, capital gains, withholding or other tax (if any) payable
in connection with (A) the deposit with the Depositary of Shares by the
Company against the issuance of ADRs evidencing ADSs to be sold by the
Company at each Time of Delivery, (B) the sale and delivery by the Company
of such ADSs to or for the respective accounts of the Underwriters in the
manner contemplated herein, (C) the sale and delivery outside the Republic
of Ireland by the Underwriters of such ADSs to the initial purchasers
thereof in the manner contemplated in this Agreement (but excluding any
Irish tax on the income, profit or gains of any Underwriter whose net
income is subject to tax in the Republic of Ireland for reasons other than
the mere consummation of the transactions under this Agreement) or (D) the
execution and delivery by the Company of this Agreement;
(xiii) To file with the Commission such information as may be required
by Rule 463 under the Act;
(xiv) If the Company elects to rely upon Rule 462(b) under the Act,
the Company shall file a Rule 462(b) Registration Statement with the
Commission in compliance with
-16-
Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this
Agreement, and the Company shall at the time of filing either pay to the
Commission the filing fee for the Rule 462(b) Registration Statement or
give irrevocable instructions for the payment of such fee pursuant to Rule
111(b) under the Act; and
(xv) Upon request of any Underwriter, to furnish, or cause to be
furnished, to such Underwriter an electronic version of the Company's
trademarks, servicemarks and corporate logo for use on the website, if any,
operated by such Underwriter for the purpose of facilitating the on-line
offering of the Shares (the "License"); PROVIDED, HOWEVER, that the License
shall be used solely for the purpose described above, is granted without
any fee and may not be assigned or transferred.
(b) Each of the Selling Shareholders agrees with each of the Underwriters:
(i) During the period beginning from the date hereof and continuing to
and including the date 180 days after the date hereof, not to offer, sell,
contract to sell or otherwise dispose of, or exercise options to purchase
or receive, except as provided hereunder, any securities of the Company
that are substantially similar to the shares of Stock or ADSs, including
but not limited to any securities that are convertible into or exchangeable
or exercisable for, or that represent the right to receive, shares of Stock
or ADSs or any such substantially similar securities, without the prior
written consent of Goldman, Sachs & Co.;
(ii) Prior to each Time of Delivery, to deposit, or cause to be
deposited on their behalf pursuant to the Custody Agreement, shares of
Stock represented by the ADSs being sold and delivered by such Selling
Shareholder hereunder with the Depositary in accordance with the provisions
of the Deposit Agreement and otherwise to comply with the Deposit Agreement
so that ADRs evidencing ADSs will be executed (and, if applicable,
countersigned) and issued by the Depositary against receipt of such shares
of Stock and delivered to the Underwriters at such Time of Delivery;
(iii) Not to (and to cause its affiliates, partners or agents not to)
take, directly or indirectly, any action which is designed to stabilize or
manipulate or which constitutes or which might reasonably be expected to
cause or result in stabilization or manipulation of the price of any
security of the Company or facilitate the sale or resale of the Shares or
the ADSs;
(iv) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 with respect to the transactions herein
contemplated, such Selling Shareholder will deliver to you prior to or at
the First Time of Delivery a properly completed and executed United States
Treasury Department Form W-8 (or other applicable form or statement
specified by Treasury Department regulations in lieu thereof); and
(v) To bear and pay all stamp or other issuance or transfer taxes or
duties and income, capital gains, withholding or other tax (if any) payable
in connection with (A) the deposit with the Depositary of Shares by such
Selling Shareholder against the issuance of ADRs evidencing ADSs to be sold
by such Selling Shareholder at each Time of Delivery, (B) the sale and
delivery by such Selling Shareholder of such ADSs to or for
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the respective accounts of the Underwriters in the manner contemplated
herein, (C) the sale and delivery outside the Republic of Ireland by the
Underwriters of such ADSs to the initial purchasers thereof in the manner
contemplated in this Agreement or (D) the execution and delivery by such
Selling Shareholder of this Agreement, the Power of Attorney and the
Custody Agreement.
6. The Company covenants and agrees with the several Underwriters that (a) the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
registration of the Shares and ADSs under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, the ADS Registration Statement, any Preliminary Prospectus and any
Prospectus and amendments and supplements thereto and the mailing and delivering
of copies thereof to the Underwriters and dealers; (ii) the cost of printing or
producing the Deposit Agreement, the Blue Sky Memorandum, closing documents
(including compilations thereof) and any supplements or amendments thereto;
(iii) all expenses in connection with the qualification of the ADSs for offering
and sale under state securities laws as provided in Section 5(a)(ii) hereof,
including the fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky survey;
(iv) all fees and expenses in connection with listing the ADSs on the Nasdaq
National Market; (v) the filing fees incident to, and the reasonable fees and
disbursements of counsel for the Underwriters in connection with, securing any
required review by the National Association of Securities Dealers, Inc. of the
terms of the sale of the ADSs; (b) the Company will pay or cause to be paid: (i)
all expenses and taxes arising as a result of the deposit by the Company and
each of the Selling Shareholders of the Shares with the Depositary and the
issuance and delivery of the ADRs evidencing ADSs in exchange therefor by the
Depositary to the Company, of the sale and delivery outside of the Republic of
Ireland of the ADSs by the Underwriters to each other, and of the initial
purchasers thereof in the manner contemplated under this Agreement, including,
in any such case, any Irish income, capital gains, withholding, transfer or
other tax asserted against an Underwriter by reason of the purchase and sale of
an ADS pursuant to this Agreement; (ii) the fees and expenses (including fees
and disbursements of counsel), if any, of the Depositary and any custodian
appointed under the Deposit Agreement, other than the fees and expenses to be
paid by holders of ADRs (other than the Underwriters, in connection with the
initial purchase of ADSs); (iii) the fees and expenses of the Authorized Agent
(as defined in Section 14 hereof); (iv) the cost of preparing stock certificates
and ADRs; (iv) the cost and charges of any transfer agent or registrar; and (v)
all other costs and expenses incident to the performance of its obligations
hereunder which are not otherwise specifically provided for in this Section; and
(c) the Company will pay or cause to be paid all costs and expenses incident to
the performance of each Selling Shareholder's obligations hereunder which are
not otherwise specifically provided for in this Section, including (i) any fees
and expenses of counsel for each Selling Shareholder, (ii) each Selling
Shareholder's pro rata share of the fees and expenses of the Attorneys-in-Fact
and the Custodian (if any) and (iii) all expenses, stamp duties, transfer taxes
and other taxes and duties incident to the sale and delivery of the ADSs to be
sold by each Selling Shareholder to the Underwriters hereunder. In connection
with clause (c)(iii) of the preceding sentence, Goldman, Sachs & Co. agrees to
pay New York State stock transfer tax, and the Company agrees to reimburse
Goldman, Sachs & Co. for each Selling Shareholder's pro rata share of associated
carrying costs if such tax payment is not rebated on the day of payment and for
its pro rata share of any portion of such tax payment not rebated. It is
understood, however, that the Company shall bear, and the Selling Shareholders
shall not be required to pay or to reimburse the Company for, the cost of any
other matters not directly relating to the sale and
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purchase of the ADSs pursuant to this Agreement, and that, except as provided in
this Section, and Sections 8 and 11 hereof, the Underwriters will pay all of
their own costs and expenses, including the fees of their counsel, stock
transfer taxes (other than any imposed by the Republic of Ireland or any
political subdivision or taxing authority thereof or therein) on resale of any
of the ADSs by them, and any advertising expenses connected with any offers they
may make.
The Company and the Selling Shareholders agree with one another that each
Selling Shareholder will reimburse, pay or cause to be paid to the Company all
costs and expenses incident to the performance of each Selling Shareholder's
obligations hereunder as agreed upon between the Company and such Selling
Shareholder.
7. The obligations of the Underwriters hereunder, as to the ADSs to be delivered
at each Time of Delivery, shall be subject, in their discretion, to the
condition that all representations and warranties and other statements of the
Company and of the Selling Shareholders herein are, at and as of such Time of
Delivery, true and correct, the condition that the Company and the Selling
Shareholders shall have performed all of its and their obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to
Rule 424(b) within the applicable time period prescribed for such filing by the
rules and regulations under the Act and in accordance with Section 5(a) hereof;
if the Company has elected to rely upon Rule 462(b), the Rule 462(b)
Registration Statement shall become effective by 10:00 p.m., Washington, D.C.
time, on the date of this Agreement; no stop order suspending the effectiveness
of the Registration Statement, the ADS Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall have
been initiated or, to the Company's knowledge, threatened by the Commission; and
all requests for additional information on the part of the Commission shall have
been complied with to your reasonable satisfaction;
(b) Sullivan & Cromwell LLP, United States counsel for the Underwriters,
shall have furnished to you such opinion or opinions dated such Time of
Delivery, with respect to such matters as you may reasonably request, and such
counsel shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
(c) Cahill Gordon & Reindel, U.S. counsel for the Company, shall have
furnished to you their written opinion dated such Time of Delivery, to the
effect set forth in Annex A hereto;
(d) A & L Goodbody, Irish counsel for the Company, shall have furnished to
you their written opinion dated such Time of Delivery, to the effect set forth
in Annex B hereto;
(e) Cahill Gordon & Reindel, U.S. counsel for each of the Selling
Shareholders, shall have furnished to you their written opinion with respect to
each of the Selling Shareholders dated such Time of Delivery, to the effect set
forth in Annex C hereto;
(f) The respective counsel(s) for each of the Selling Shareholders that are
natural persons or entities organized under the laws of the Republic of Ireland,
as indicated in Schedule II hereto, each shall have furnished to you their
written opinion with respect to each of the
-19-
Selling Shareholders for whom they are acting as counsel, dated such Time of
Delivery, to the effect set forth in Annex D hereto;
(g) The respective counsel(s) for each of the Selling Shareholders that are
natural persons or entities organized under the laws of Jersey, as indicated in
Schedule II hereto, each shall have furnished to you their written opinion with
respect to each of the Selling Shareholders for whom they are acting as counsel,
dated such Time of Delivery, to the effect set forth in Annex E hereto;
(h) Emmet, Marvin & Martin, counsel for the Depositary, shall have
furnished to you their written opinion dated such Time of Delivery, to the
effect set forth in Annex F hereto;
(i) On the date hereof prior to the execution of this Agreement, on the
effective date of any post-effective amendment to the Registration Statement
filed subsequent to the date of this Agreement and also at each Time of
Delivery, KPMG shall have furnished to you a letter or letters, dated the
respective dates of delivery thereof, in form and substance satisfactory to you,
to the effect set forth in Annex G hereto;
(j) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus, and
(ii) since the respective dates as of which information is given in the
Prospectus there shall not have been any change in the share capital or
long-term debt of the Company or any of its subsidiaries or any change, or any
development involving a prospective change, in or affecting the general affairs,
management, consolidated financial position, shareholders' equity or results of
operations of the Company and its subsidiaries taken as a whole, otherwise than
as set forth or contemplated in the Prospectus, the effect of which, in any such
case described in Clause (i) or (ii), is in the judgment of the Representatives
so material and adverse as to make it impracticable or inadvisable to proceed
with the public offering or the delivery of the ADSs being delivered at such
Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(k) On or after the date hereof and prior to and through each Time of
Delivery there shall not have occurred any of the following: (i) a suspension or
material limitation in trading in securities generally on the New York Stock
Exchange, the Nasdaq National Market, the Nasdaq automated quotation system, the
London Stock Exchange or the Irish Stock Exchange; (ii) a suspension or material
limitation in trading in the Company's securities on the Nasdaq National Market
or the Irish Stock Exchange; (iii) a general moratorium on commercial banking
activities in New York, London or Dublin declared by the relevant authorities,
or a material disruption in commercial banking or securities settlement or
clearance services in the United States, the United Kingdom or the Republic of
Ireland; (iv) a change or development involving a prospective change in United
States or Irish taxation affecting the Company, the Shares or the ADSs or the
transfer thereof or the imposition of exchange controls by the United States or
the Republic of Ireland; or (v) the outbreak or escalation of hostilities
involving the United States, or the Republic of Ireland or the declaration by
the United States or the Republic of Ireland of a national emergency or war, if
the effect of any such event specified in this Clause (v) in the judgment of the
Representatives makes it impracticable or inadvisable to proceed with the
-20-
public offering or the delivery of the ADSs being delivered at such Time of
Delivery on the terms and in the manner contemplated in the Prospectus or (vi)
the occurrence of any other calamity or crisis or any change in financial,
political or economic conditions or currency exchange rates or controls in the
United States, the United Kingdom or the Republic of Ireland or elsewhere, if
the effect of any such event specified in clause (v) or (vi) in the judgment of
the Representatives makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the ADSs being delivered at such Time of
Delivery on the terms and in the manner contemplated in the Prospectus;
(l) The Shares shall have been duly listed, subject to notice of issuance,
on the Irish Stock Exchange, and the ADSs to be sold by the Company and the
Selling Shareholders at such Time of Delivery shall have been duly approved,
subject to notice of issuance, for quotation on the Nasdaq National Market;
(m) The Depositary shall have furnished or caused to be furnished to you at
such Time of Delivery certificates satisfactory to you evidencing the deposit
with it of the Shares being so deposited against issuance of ADRs evidencing the
ADSs to be delivered by the Company and the Selling Shareholders at such Time of
Delivery, and the execution, countersignature (if applicable), issuance and
delivery of ADRs evidencing such ADSs pursuant to the Deposit Agreement;
(n) The Company shall have complied with the provisions of Section 5(a)
hereof with respect to the furnishing of prospectuses on the New York Business
Day next succeeding the date of this Agreement; and
(o) The Company and the Selling Shareholders shall have furnished or caused
to be furnished to you at such Time of Delivery certificates of officers of the
Company and of the Selling Shareholders, respectively, satisfactory to you as to
the accuracy of the representations and warranties of the Company and the
Selling Shareholders, respectively, herein at and as of such Time of Delivery,
as to the performance by the Company and the Selling Shareholders of all of
their respective obligations hereunder to be performed at or prior to such Time
of Delivery, and as to such other matters as you may reasonably request, and the
Company shall have furnished or caused to be furnished certificates as to the
matters set forth in subsections (a) and (m) of this Section, and as to such
other matters as you may reasonably request.
8. (a) The Company and each of the Selling Shareholders, jointly and severally,
will indemnify and hold harmless each Underwriter against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement, the ADS Registration
Statement or any Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; PROVIDED, HOWEVER, that the Company and the Selling Shareholders shall
not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission
-21-
made in any Preliminary Prospectus, the Registration Statement, the ADS
Registration Statement or any Prospectus or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through Goldman, Sachs & Co. expressly for use
therein; PROVIDED, FURTHER, that the aggregate liability of a Selling
Shareholder pursuant to this subsection (a) shall not exceed the product of the
number of ADSs sold by such Selling Shareholder, including any Optional ADSs,
and the initial public offering price, less the underwriting discount applicable
to such ADSs, as set forth in the Prospectus.
(b) Each Underwriter will indemnify and hold harmless the Company and each
Selling Shareholder against any losses, claims, damages or liabilities to which
the Company or such Selling Shareholder may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement, the ADS Registration Statement or any Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement, the ADS Registration Statement or any
Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through Goldman, Sachs & Co. expressly for use therein; and will reimburse the
Company and each Selling Shareholder for any legal or other expenses reasonably
incurred by the Company or such Selling Shareholder in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against an indemnifying party
under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (which shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act,
-22-
by or on behalf of any indemnified party. It is understood that the indemnifying
party shall, in connection with any one such action, suit or proceeding or
separate but substantially similar or related actions, suits or proceedings in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of only one
separate firm of attorneys at any time for all indemnified parties not having
actual or potential differing interests among themselves except to the extent
that local counsel, in addition to the regular counsel to such indemnified
parties, is required in order to effectively defend against such action or
proceeding. Notwithstanding anything to the contrary contained herein, an
indemnified party will consult with the indemnifying party prior to effecting
the settlement of any claim or action.
(d) If the indemnification provided for in this Section 8 is unavailable to or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above in respect of any losses, claims, damages or liabilities (or actions in
respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company and the Selling Shareholders on the one hand and the Underwriters
on the other from the offering of the ADSs. If, however, the allocation provided
by the immediately preceding sentence is not permitted by applicable law or if
the indemnified party failed to give the notice required under subsection (c)
above, then each indemnifying party shall contribute to such amount paid or
payable by such indemnified party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company and the Selling Shareholders on the one hand and the Underwriters on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by the Company and the Selling Shareholders on the one hand and the Underwriters
on the other shall be deemed to be in the same proportion as the total net
proceeds from the offering of the ADSs purchased under this Agreement (before
deducting expenses) received by the Company and the Selling Shareholders bear to
the total underwriting discounts and commissions received by the Underwriters
with respect to the ADSs purchased under this Agreement, in each case as set
forth in the table on the cover page of the Prospectus. The relative fault shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or the Selling
Shareholders on the one hand or the Underwriters on the other and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company, each of the Selling
Shareholders and the Underwriters agree that it would not be just and equitable
if contributions pursuant to this subsection (d) were determined by PRO RATA
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this subsection (d),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the ADSs underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or
-23-
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint. The Selling Shareholders' respective obligations to
contribute under this subsection (d) are several and not joint.
(e) The obligations of the Company and the Selling Shareholders under this
Section 8 shall be in addition to any liability which the Company and the
respective Selling Shareholders may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the Underwriters under
this Section 8 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company (including any person
who, with his or her consent, is named in the Registration Statement as about to
become a director of the Company) and to each person, if any, who controls the
Company or any Selling Shareholder within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase the ADSs
which it has agreed to purchase hereunder at a Time of Delivery, you may in your
discretion arrange for you or another party or other parties to purchase such
ADSs on the terms contained herein. If within thirty-six hours after such
default by any Underwriter you do not arrange for the purchase of such ADSs,
then the Company and the Selling Shareholders shall be entitled to a further
period of thirty-six hours within which to procure another party or other
parties satisfactory to you to purchase such ADSs on such terms. In the event
that, within the respective prescribed periods, you notify the Company and the
Selling Shareholders that you have so arranged for the purchase of such ADSs, or
the Company and the Selling Shareholders notify you that they have so arranged
for the purchase of such ADSs, you or the Company and the Selling Shareholders
shall have the right to postpone such Time of Delivery for a period of not more
than seven days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments to the Registration Statement or the Prospectus which in your opinion
may thereby be made necessary. The term "Underwriter" as used in this Agreement
shall include any person substituted under this Section with like effect as if
such person had originally been a party to this Agreement with respect to such
ADSs.
(b) If, after giving effect to any arrangements for the purchase of the
ADSs of a defaulting Underwriter or Underwriters by you and the Company and the
Selling Shareholders as provided in subsection (a) above, the aggregate number
of such ADSs which remains unpurchased does not exceed one-eleventh of the
aggregate number of all of the ADSs to be purchased at such Time of Delivery,
then the Company and the Selling Shareholders shall have the right to require
each non-defaulting Underwriter to purchase the number of ADSs which such
Underwriter agreed to purchase hereunder at such Time of Delivery and, in
addition, to require each non-defaulting Underwriter to purchase its pro rata
share (based on the number of ADSs which such Underwriter agreed to purchase
hereunder) of the ADSs of such defaulting Underwriter or Underwriters for which
such arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
-24-
(c) If, after giving effect to any arrangements for the purchase of the
ADSs of a defaulting Underwriter or Underwriters by you and the Company and the
Selling Shareholders as provided in subsection (a) above, the aggregate number
of such ADSs which remains unpurchased exceeds one-eleventh of the aggregate
number of all of the ADSs to be purchased at such Time of Delivery, or if the
Company and the Selling Shareholders shall not exercise the right described in
subsection (b) above to require non-defaulting Underwriters to purchase ADSs of
a defaulting Underwriter or Underwriters, then this Agreement (or, with respect
to the Second Time of Delivery, the obligations of the Underwriters to purchase
and of the Company and the Selling Shareholders to sell the Optional ADSs) shall
thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company or the Selling Shareholders, except for the expenses
to be borne by the Company and the Selling Shareholders and the Underwriters as
provided in Section 6 hereof and the indemnity and contribution agreements in
Section 8 hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
10. The respective indemnities, agreements, representations, warranties and
other statements of the Company, the Selling Shareholders and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Company, or any of the Selling Shareholders, or any officer
or director or controlling person of the Company, or any controlling person of
any Selling Shareholder, and shall survive delivery of and payment for the ADSs.
11. If this Agreement shall be terminated pursuant to Section 9 hereof, neither
the Company nor the Selling Shareholders shall then be under any liability to
any Underwriter except as provided in Sections 6 and 8 hereof; but, if for any
other reason any ADSs are not delivered by or on behalf of the Company and the
Selling Shareholders as provided herein, the Company and each of the Selling
Shareholders pro rata (based on the number of ADSs to be sold by the Company and
such Selling Shareholder hereunder) will reimburse the Underwriters through you
for all out-of-pocket expenses approved in writing by you, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the ADSs not so delivered,
but the Company and the Selling Shareholders shall then be under no further
liability to any Underwriter in respect of the ADSs not so delivered except as
provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by Goldman, Sachs & Co. on behalf of you as the
representatives; and in all dealings with any Selling Shareholder hereunder, you
and the Company shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of such Selling Shareholder made or given by any
or all of the Attorneys-in-Fact for such Selling Shareholder.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives in care of Goldman, Sachs &
Co., 85 Broad Street, New York, New York 10004, Attention: Registration
Department; if to any Selling Shareholder shall be delivered or sent by mail,
telex or facsimile transmission to counsel for such Selling Shareholder at its
-25-
address set forth in Schedule II hereto; and if to the Company shall be
delivered or sent by mail, telex or facsimile transmission to the address of the
Company set forth in the Registration Statement, Attention: Company Secretary;
provided, however, that any notice to an Underwriter pursuant to Section 8(c)
hereof shall be delivered or sent by mail, telex or facsimile transmission to
such Underwriter at its address set forth in its Underwriters' Questionnaire or
telex constituting such Questionnaire, which address will be supplied to the
Company or the Selling Shareholders by you upon request. Any such statements,
requests, notices or agreements shall take effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the benefit of,
the Underwriters, the Company and the Selling Shareholders (and their successors
and assigns) and, to the extent provided in Sections 8 and 10 hereof, the
officers and directors of the Company and each person who controls the Company,
any Selling Shareholder or any Underwriter, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No purchaser of
any of the ADSs from any Underwriter shall be deemed a successor or assign by
reason merely of such purchase.
The obligations of the Selling Shareholders hereunder shall not be
terminated by operation of law, whether by the death or incapacity of any
individual Selling Shareholder or in the case of a partnership or corporation,
by the dissolution of such partnership or corporation, or by the occurrence of
any other event; if any individual Selling Shareholder should die or become
incapacitated, or if any such partnership or corporation should be dissolved, or
if any other such event should occur, before the delivery of the ADSs hereunder,
the ADSs shall be delivered by or on behalf of the Selling Shareholders in
accordance with the terms and conditions of this Agreement and of the Custody
Agreements; and actions taken by the Attorneys-in-Fact pursuant to the Powers of
Attorney shall be as valid as if such death, incapacity, termination,
dissolution or other event had not occurred, regardless of whether or not the
Custodian, the Attorneys-in-Fact, or any of them, shall have received notice of
such death, incapacity, dissolution or other event.
14. Each of the parties hereto irrevocably (i) agrees that any legal suit,
action or proceeding against the Company or the Selling Shareholders brought by
any Underwriter or by any person who controls any Underwriter arising out of or
based upon this Agreement or the transactions contemplated hereby may be
instituted in any New York court, (ii) waives, to the fullest extent it may
effectively do so, any objection which it may now or hereafter have to the
laying of venue of any such proceeding and (iii) submits to the exclusive
jurisdiction of such courts in any such suit, action or proceeding. Each of the
Company and the Selling Shareholders has appointed CT Corporation System, 1633
Broadway, New York, New York 10019, as its authorized agent (the "Authorized
Agent") upon whom process may be served in any such action arising out of or
based on this Agreement or the transactions contemplated hereby which may be
instituted in any New York Court by any Underwriter or by any person who
controls any Underwriter, expressly consents to the jurisdiction of any such
court in respect of any such action, and waives any other requirements of or
objections to personal jurisdiction with respect thereto. Such appointment shall
be irrevocable. Each of the Company and the Selling Shareholders represents and
warrants that the Authorized Agent has agreed to act as such agent for service
of process and agrees to take any and all action, including the filing of any
and all documents and instruments, that may be necessary to continue such
appointment in full force and effect as aforesaid. Service of process upon the
Authorized Agent and written notice of such service to the
-26-
Company shall be deemed, in every respect, effective service of process upon the
Company and the Selling Shareholders as the case may be.
15. In respect of any judgment or order given or made for any amount due
hereunder that is expressed and paid in a currency (the "judgment currency")
other than United States dollars, the Company and the Selling Shareholders, as
the case may be, will indemnify each Underwriter against any loss incurred by
such Underwriter as a result of any variation as between (i) the rate of
exchange at which the United States dollar amount is converted into the judgment
currency for the purpose of such judgment or order and (ii) the rate of exchange
at which an Underwriter is able to purchase United States dollars with the
amount of the judgment currency actually received by such Underwriter. The
foregoing indemnity shall constitute a separate and independent obligation of
the Company and the Selling Shareholders and shall continue in full force and
effect notwithstanding any such judgment or order as aforesaid. The term "rate
of exchange" shall include any premiums and costs of exchange payable in
connection with the purchase of or conversion into United States dollars.
16. Time shall be of the essence of this Agreement. As used herein, the term
"business day" shall mean any day when the Commission's office in Washington,
D.C. is open for business.
17. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
18. This Agreement may be executed by any one or more of the parties hereto in
any number of counterparts, each of which shall be deemed to be an original, but
all such counterparts shall together constitute one and the same instrument.
19. The Company and the Selling Shareholders (and each of their respective
employees, representatives or other agents) are authorized, subject to
applicable law, to disclose to any and all persons the tax treatment and tax
structure of this transaction and all materials of any kind (including tax
opinions and other tax analyses) that are provided to the Company and/or the
Selling Shareholders without the Underwriters imposing any limitation of any
kind.
If the foregoing is in accordance with your understanding, please sign and
return to us 10 (ten) counterparts hereof, and upon the acceptance hereof by
you, on behalf of each of the Underwriters, this letter and such acceptance
hereof shall constitute a binding agreement among each of the Underwriters, the
Company and each of the Selling Shareholders. It is understood that your
acceptance of this letter on behalf of each of the Underwriters is pursuant to
the authority set forth in a form of Agreement among Underwriters, the form of
which shall be submitted to the Company and the Selling Shareholders for
examination upon request, but without warranty on your part as to the authority
of the signers thereof.
-27-
Any person executing and delivering this Agreement as Attorney-in-Fact for
a Selling Shareholder represents by so doing that he has been duly appointed as
Attorney-in-Fact by such Selling Shareholder pursuant to a validly existing and
binding Power of Attorney which authorizes such Attorney-in-Fact to take such
action.
Very truly yours,
ICON plc
By:
-----------------------------------
Name: [Peter Gray]
Title: [Chief Executive Officer]
Ronan Lambe
Wineberry Limited
By:
-----------------------------------
Name: Dr. John Climax
Title: Attorney-in-Fact
By:
-----------------------------------
Name: Peter Gray
Title: Attorney-in-Fact
As Attorneys-in-Fact acting on behalf
of each of the Selling Shareholders
named in Schedule II to this Agreement
Accepted as of the date hereof:
Goldman, Sachs & Co.
William Blair & Company, L.L.C.,
Bear, Stearns & Co. Inc.,
J&E Davy (trading as Davy Stockbrokers),
By:
------------------------------------
(Goldman, Sachs & Co.)
On behalf of each of the Underwriters
-28-
SCHEDULE I
Number of Optional
Total Number of ADSs to be Purchased
Firm ADSs to be if Maximum Option
Underwriter Purchased Exercised
- -------------------------------------------------------------------- --------------- --------------------
Goldman, Sachs & Co.................................................
William Blair & Company, L.L.C......................................
Bear, Stearns & Co. Inc.............................................
J&E Davy (trading as Davy Stockbrokers).............................
Total 3,000,000 450,000
SCHEDULE II
Number of
Optional ADSs
to be sold if
Total Number of Firm Maximum Option
ADSs to be sold Exercised
The Company.................................................... 1,500,000 0
The Selling Shareholder(s):
Ronan Lambe (a) ........................................... 1,000,000 225,000
Wineberry Limited (b) ..................................... 500,000 225,000
Total...................................................... 3,000,000 450,000
(a) This Selling Shareholder is represented by A&L Goodbody, IFSC, North
Wall Quay, Dublin 1, Ireland.
(b) This Selling Shareholder is represented by Mourant du Feu & Jeune, PO
Box 87, 22 Grenville Street, St. Helier, Jersey JE4 8PX.
Annex A
(i) The Underwriting Agreement has been duly executed and delivered by
the Company to the extent that execution and delivery are governed by New
York law.
(ii) The Deposit Agreement has been duly executed and delivered by the
Company to the extent that execution and delivery are governed by New York
law and, assuming due authorization, execution and delivery of the Deposit
Agreement by the Depositary and that each of the Depositary and the Company
has full power, authority and legal right (under Irish law) to enter into
and perform its obligations thereunder, constitutes a valid and legally
binding agreement of the Company, enforceable in accordance with its terms,
subject to bankruptcy, insolvency, reorganization and similar laws of
general applicability relating to or affecting creditors' rights generally
and to general principles of equity.
(iii) Assuming the authority of the Depositary to execute the Deposit
Agreement and issue the ADRs, upon due issuance by the Depositary of the
ADRs evidencing ADSs being delivered on the date hereof against the deposit
of Shares to be deposited by the Company in respect thereof in accordance
with the provisions of the Deposit Agreement, such ADRs will be duly and
validly issued and the person in whose name the ADRs are registered will be
entitled to the rights specified therein and in the Deposit Agreement.
(iv) Under the laws of the State of New York relating to personal
jurisdiction, the Company has, pursuant to Section 14 of the Underwriting
Agreement, validly and irrevocably submitted to the personal jurisdiction
of any state or federal court located in the Borough of Manhattan, the City
of New York, New York (each a "New York Court") in any action arising out
of or relating to the Underwriting Agreement or the transactions
contemplated thereby, has validly and irrevocably waived any objection to
the venue of a proceeding in any such
court, and has validly and irrevocably appointed the Authorized Agent as
its authorized agent for the purpose described in Section 14 of the
Underwriting Agreement; and service of process effected on such agent in
the manner set forth in Section 14 of the Underwriting Agreement will be
effective to confer valid personal jurisdiction over the Company.
(v) To the best of our knowledge and other than as set forth in the
Prospectus, there are no legal or governmental proceedings in the United
States pending to which the Company or any of its subsidiaries is a party
or of which any property of the Company or any of its subsidiaries is
subject which, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a material
adverse effect on the current or future consolidated financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole; and, to the best of our knowledge, no such
proceedings are threatened or contemplated by any Governmental Agency in
the United States or threatened by others.
(vi) The sale of the ADSs being delivered on the date hereof by the
Company, the issue of the Shares represented by such ADSs, the deposit of
the Shares being deposited by the Company with the Depositary against
issuance of the ADRs with respect to such Shares to be delivered on the
date hereof, the compliance by the Company with all the provisions of the
Underwriting Agreement and the Deposit Agreement and the consummation of
the transactions contemplated thereby will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under (A) any existing applicable statutory law, order, rule or
regulation of any court or governmental agency or body in the United States
or the State of New York having jurisdiction over the Company or any of its
subsidiaries or any of their properties or (B) any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument, in each
case governed by United States law, known to us to which the Company or any
of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, except as such conflicts,
breaches or defaults that individually or in the aggregate would not have a
material adverse effect on the Company and its subsidiaries, taken as a
whole.
(vii) No Governmental Authorization of the United States or the State
of New York is required (A) for the issuance, sale and deposit of the
Shares by the Company, and the issuance, sale and delivery of ADSs in
respect thereof or (B) for the consummation by the Company and the Selling
Shareholders of the transactions contemplated by the Underwriting Agreement
and the Deposit Agreement, except (i) the registration under the Securities
Act of the Shares and the ADSs and (ii) such Governmental Authorization as
may be required under state securities or Blue Sky laws in connection with
the purchase and distribution of the Shares and ADSs by or for the account
of the Underwriters.
(viii) No stamp or other issuance or transfer taxes or duties and no
capital gains, income, withholding or other taxes are payable by or on
behalf of the Underwriters to the United States or any political
subdivision or taxing
authority thereof or therein in connection with (A) the deposit with the
Depositary or its nominee of Shares by the Company and the Selling
Shareholders against the issuance of ADRs evidencing ADSs to be sold at
each Time of Delivery, (B) the sale and delivery by the Company and the
Selling Shareholders of such ADSs to or for the respective accounts of the
Underwriters in the manner contemplated in the Underwriting Agreement, (C)
the sale and delivery outside the Republic of Ireland by the Underwriters
of the ADSs to the initial purchasers thereof in the manner contemplated in
the Underwriting Agreement or (D) the execution and delivery by the Company
and the Selling Shareholders of the Underwriting Agreement or the execution
and delivery by the Company of the Deposit Agreement.
(ix) The statements set forth in the Company's report on Form 6-K/A,
filed on March 7, 2003, and incorporated by reference into the
Prospectus, under the captions "Description of American Depositary Shares"
and "Description of the Registration Rights Agreement, dated December 12,
1997", and in the Prospectus under the captions "U.S. Taxation
Considerations" and "Underwriting" insofar as they purport to describe the
provisions of the laws and documents referred to therein, are true and
correct in all material respects and fairly summarize the information
required to be shown.
(x) The Company is not, and upon consummation of the transactions
contemplated in the Underwriting Agreement and the application of the
proceeds as described in the Prospectus under the caption "Use of Proceeds"
will not become, a PFIC within the meaning of Section 1296 of the Code or a
Foreign Personal Holding Company within the meaning of Section 552 of the
Code.
(xi) The Company is not an "investment company" and, after giving
effect to the offering and sale of the ADSs, will not be an entity
controlled by an "investment company", as such term is defined in the
Investment Company Act of 1940, as amended.
(xii) The documents incorporated by reference in the Prospectus (other
than the financial statements and related schedules therein, as to which
such counsel need express no opinion), when they became effective or were
filed with the Commission, as the case may be, complied as to form in all
material respects with the requirements of the Securities Act or the
Exchange Act of 1934, as amended (the "Exchange Act"), as applicable, and
the rules and regulations of the Commission thereunder; and we have no
reason to believe that any of such documents, when such documents became
effective or were so filed, as the case may be, contained, in the case of a
registration statement which became effective under the Securities Act, an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading, or, in the case of other documents which were filed under
the Exchange Act with the Commission, an untrue statement of a material
fact or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made when such documents were so filed, not misleading.
(xiii) The Registration Statement and the Prospectus and any further
amendments and supplements thereto made by the Company prior to the date
hereof (other than the financial statements, including the notes thereto,
and related financial data, as to which we express no opinion) comply as to
form in all material respects with the requirements of the 1933 Act and the
rules and regulations thereunder.
(xiv) We do not know of any amendment to the Registration Statement
required to be filed or of any contracts or other documents of a character
required to be filed as an exhibit to the Registration Statement or
required to be described in the Registration Statement or the Prospectus
that are not filed or described as required.
Annex B
(a) The Company has been duly incorporated and is validly existing as a
public limited company under the laws of Ireland, with corporate power and
authority to own its properties and conduct its business as described in the
Prospectus;
(b) The Company has an authorised share capital as set forth in the
Prospectus, and all of the issued shares of the Company (including the Shares
represented by the ADSs being delivered at such Time of Delivery) have been duly
and validly authorised and issued and are fully paid and non-assessable; the
holders of outstanding shares of the Company are not entitled to pre-emptive or
other rights to acquire the Shares to be deposited by the Company and the
Selling
Shareholders in respect of the ADSs or to be purchased from the Company and the
Selling Shareholders under the Underwriting Agreement which have not been
complied with or validly waived or disapplied; the Shares to be deposited by the
Company may be freely deposited by the Company with the Depositary against
issuance of ADRs evidencing ADSs, the Shares to be deposited by the Company and
the Shares already deposited by the Selling Shareholders are freely issuable or
transferable as the case may be by the Company and the Selling Shareholders to
or for the account of the several Underwriters in the manner contemplated in the
Underwriting Agreement and the initial purchasers thereof; there are no
restrictions on subsequent transfers of the ADSs or the Shares; and the Shares
conform to the description thereof contained in the Prospectus;
(c) The Deposit Agreement has been duly authorised, and insofar as Irish
law governs the formalities of execution and delivery thereof, executed and
delivered by the Company and insofar as the laws of Ireland are concerned,
constitutes an agreement which is, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganisation and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles;
(d) The Companies have been duly incorporated and each is validly existing
as a corporation under the laws of Ireland; and based solely on an inspection of
the relevant statutory books, all of the issued shares of the Companies have
been duly and validly authorised and issued, are fully paid and non-assessable,
and based only on a corporate certificate to that effect from each of the
Companies (except for directors' qualifying shares and except as otherwise set
forth in the Prospectus) all of the issued shares of the Irish Subsidiary are
owned directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims.
(e) The Companies have good, valid and marketable title to all real
property owned by them, in each case free and clear of all liens, encumbrances
and defects except such as are described in the Prospectus or such as do not
materially affect the value of such property and do not interfere with the use
made and proposed to be made of such property by the Companies; and any real
property and buildings held under lease by the Companies are held by them under
valid, subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the use made and proposed to be made of such
property and buildings by the Companies;
(f) To the best of our knowledge and other than as set forth in the
Prospectus, there are no legal or governmental proceedings pending to which the
Companies are a party or of which any property of the Companies is the subject
which, if determined adversely to the Companies, would individually or in the
aggregate have a material adverse effect on the current or future consolidated
financial position, shareholders' equity or results of operations of the
Companies; and, to the best of our knowledge, no such proceedings are threatened
or contemplated by any Governmental Agency or threatened by others;
(g) The Underwriting Agreement has been duly authorised, and insofar as the
laws of Ireland govern the formalities of execution and delivery thereof,
executed and delivered by the Company and by Ronan Lambe, and insofar as the
laws of Ireland are concerned, constitute an agreement of the Company,
enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency, reorganisation and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles;
(h) Based solely on searches conducted on the , 2003 on our behalf at the
Companies Registration Office in Dublin and the Central Office of the High Court
of Ireland and the relevant Revenue Sheriff's Offices, the issue and sale of the
Shares, the sale of the ADSs being delivered at such Time of Delivery to be sold
by the Company and the deposit of the Shares being deposited by the Company with
the Depositary against issuance of the ADRs evidencing the ADSs to be delivered
at such Time of Delivery by the Company and the compliance by the Company with
all of the provisions of the Underwriting Agreement and the Deposit Agreement
and the consummation of the transactions contemplated under the Underwriting
Agreement and the Deposit Agreement, will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to this Firm by virtue of current instructions
from the Company to which the Company or its Irish Subsidiary is a party or by
which the Company or its Irish Subsidiary is bound or to which any of the
property of assets of the Company or any of its Irish Subsidiaries is subject,
nor will such action result in any violation of the provisions of the Memorandum
and Articles of Association of the Company or any statute or any order, rule or
regulation known to us any Governmental Agency having jurisdiction over the
Company or its Irish Subsidiary or any of their properties;
(i) No Governmental Authorization of or with any Governmental Agency is
required in Ireland (A) for the execution and delivery by the Company of the
Underwriting Agreement and the Deposit Agreement to be duly and validly
authorized; (B) for the issuance, sale and deposit of the Shares by the Company,
and the issuance, sale and delivery of the ADSs being delivered at each Time of
Delivery by the Company and the Selling Shareholders; (C) for the deposit of the
Shares being deposited by the Company and the Selling Shareholders with the
Depositary against issuance of the ADRs evidencing the ADSs to be delivered at
each Time of Delivery; (D) for the execution and delivery by each Selling
Shareholder of the Underwriting Agreement, the Power of Attorney and the Custody
Agreement to be duly and validly authorized; or (E) for the consummation of the
transactions contemplated by the Underwriting Agreement, the Deposit Agreement,
the Power of Attorney, and the Custody Agreement, except those that have been
obtained or made and are in full force and effect;
(j) The statements set forth (A) in the Company's report on Form 6-K/A
filed on March 7, 2003, and incorporated by reference into the Prospectus, under
the caption "Description of Share Capital", insofar as they purport to
constitute a summary of the terms of the Stock, and (B) (x) in the Company's
report on Form 6-K/A filed on March 7, 2003, and incorporated by reference into
the Prospectus, under the captions "Description of the Memorandum and Articles
of Association of the Company" and "Changes to Constitutional Documents", (y) in
the Company's annual report on Form 20-F for the fiscal year ended May 31, 2002,
and incorporated by reference into the Prospectus, under the caption "Major
Shareholders and Related Party Transactions", and (z) in the Prospectus under
the captions "Price Range of ADSs and Dividend Policy", "Business -- Government
Regulation", "Management", "Selling Shareholders", "Irish Taxation
Considerations" and "Exchange Controls and Other Limitations Affecting Security
Holders; Shareholder Rights Under Irish Law", insofar as they purport to
describe the matters of Irish law or regulation or the provisions of documents
referred to therein, are true, accurate and fair summaries and fairly present
such information in all material respects in each case in the context in which
they appear;
(k) The opinion of this Firm set forth in the Prospectus under
"Enforceability of Civil Liabilities Provisions of Federal Securities Laws
Against Foreign Persons; Shareholder Rights Under Irish Law", to the extent that
such opinion constitutes a summary or description of Irish law is confirmed as
of such Time of Delivery;
(l) No stamp or other issuance or transfer taxes or duties and no Irish
capital gains, income, withholding or other taxes are payable by or on behalf of
the Underwriters to Ireland or to any political subdivision or taxing authority
thereof or therein in connection with (A) the deposit with the Depositary of
Shares by the Company and the Selling Shareholders against the issuance of ADRs
evidencing ADSs, (B) the sale and delivery by the Company of the ADSs to or for
the respective accounts of the Underwriters in the manner contemplated in the
Underwriting Agreement, (C) the sale and delivery outside Ireland by the
Underwriters of the ADSs to the initial purchasers thereof in the manner
contemplated in the Underwriting Agreement, or (D) the execution and delivery of
the Underwriting Agreement or the Deposit Agreement;
(m) Insofar as matters of Irish law are concerned, the Registration
Statement and the ADS Registration Statement and the filing of such documents
with the Commission have been duly authorised by and on behalf of the Company;
and each of the Registration Statement and the ADS Registration Statement has
been duly executed pursuant to such authorisation by and on behalf of the
Company;
(n) The Company's agreement to the choice of law provisions set forth in
the Underwriting Agreement and in the Deposit Agreement will be recognised and
given effect by the courts of Ireland; the Company can sue and be sued in its
own name under the laws of Ireland; the irrevocable submission of the Company to
the exclusive jurisdiction of a New York Court, the waiver by the Company of any
objection to the venue of a proceeding of a New York Court and the agreement of
the Company that the Underwriting Agreement and the Deposit Agreement shall be
governed by and construed in accordance with the laws of the State of New York
assuming that they constitute valid and binding obligations under New York law
are legal, valid and binding under Irish law, service of process effected in the
manner set forth in Section 14 of the Underwriting Agreement will be effective,
insofar as the laws of Ireland is concerned, to confer valid jurisdiction over
the Company; and judgment obtained in a New York Court arising out of or in
relation to the obligations of the Company or any Selling Shareholder under the
Underwriting Agreement would be enforceable against the Company or any Selling
Shareholders (as appropriate) in the courts of Ireland;
(o) The indemnification and contribution provisions set forth in Section 8
of the Underwriting Agreement do not contravene the public policy or laws of
Ireland;
(p) Under the current laws and regulations of Ireland all dividends and
other distributions declared and payable on the shares of capital stock of the
Company to be paid in euro (including any such dividends or distributions to be
paid to the Depositary),
may be converted into foreign currency which may be freely transferred out of
Ireland, and all such dividends and other distributions will not be subject to
withholding or other taxes under the laws and regulations of Ireland and are
otherwise free and clear of any other tax, withholding or deduction in Ireland
and may be paid without the necessity of obtaining any Governmental
Authorisation in Ireland;
(q) Neither the Company nor its Irish Subsidiary is in violation of its
Memorandum and Articles of Association or in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which it is a party or by which it or any of
its properties may be bound;
(r) To the best of this Firm's knowledge based upon certificates of each of
the Selling Shareholders upon which this Firm believes that both you and they
are justified in relying, immediately prior to such Time of Delivery each of
such Selling Shareholders has good, valid and marketable title to the Shares
underlying the ADSs to be sold at such Time of Delivery by such Selling
Shareholders under the Underwriting Agreement, free and clear of all liens,
encumbrances, equities or claims created by or resulting from actions of such
Selling Shareholders (other than those created pursuant to the Underwriting
Agreement, the Custody Agreement or the Power of Attorney) and upon and subject
to deposit of the Shares of the Selling Shareholders underlying the ADSs to be
sold at Time of Delivery with the Depositary or its nominee, the Depositary or
its nominee, as the case may be, has good, valid and marketable title to such
Shares, free and clear of all liens, encumbrances, equities or claims created by
or resulting from actions of Ronan Lambe (assuming receipt by it of such Shares
in good faith and without notice of any such lien, encumbrance, equity or claim
or any other adverse claim);
(s) We have no reason to believe that any of the documents incorporated by
reference in the Prospectus or any further amendment or supplement thereto made
by the Company prior to such Time of Delivery (other than the financial
statements and related schedules therein, as to which we express no opinion),
when they became effective or were filed with the Commission, as the case may
be, contained, in the case of a registration statement which became effective
under the Act, an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or, in the case of other documents which were filed
under the Exchange Act with the Commission, an untrue statement of a material
fact or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made
when such documents were so filed, not misleading;
(t) Although we do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Prospectus, except
for those referred to in paragraph (j) above, we have no reason to believe that,
as of its effective date, the Registration Statement or any further amendment
thereto made by the Company prior to such Time of Delivery (other than the
financial statements and related schedules therein, as to which we express no
opinion) contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading or that, as of its date, the Prospectus or any further
amendment or supplement thereto made by the Company prior to such Time of
Delivery (other than the financial statements and related schedules therein, as
to which we express no opinion) contained an untrue
statement of a material fact or omitted to state a material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading or that, as of such Time of Delivery, either the
Registration Statement or the Prospectus or any further amendment or supplement
thereto made by the Company prior to such time of Delivery (other than the
financial statements and related schedules therein, as to which we express no
opinion) contains an untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
Annex C
1. A Power of Attorney and a Custody Agreement have been duly executed and
delivered by each Selling Shareholder to the extent execution and delivery are
governed by New York law and, assuming due authorization by each Selling
Shareholder, constitute valid and binding agreements of each Selling Shareholder
in accordance with their terms.
2. The Underwriting Agreement has been duly executed and delivered by or on
behalf of each Selling Shareholder to the extent execution and delivery are
governed by New York law.
3. No Governmental Authorization of any Governmental Agency in the United States
is required (A) for the deposit of the Shares being deposited with the
Depositary against issuance of the ADRs evidencing the ADSs to be delivered by
each Selling Shareholder at each Time of Delivery, (B) for the sale and delivery
of the ADSs to be sold by each Selling Shareholder pursuant to the Underwriting
Agreement, or (C) for the consummation of the transactions contemplated in the
Underwriting Agreement, the Deposit Agreement, the Power of Attorney and the
Custody Agreement in connection with the ADSs to be sold by each Selling
Shareholder thereunder, except (i) such Governmental Authorizations as have been
duly obtained and are in full force and effect, (ii) the registration under the
Securities Act of the Shares or the ADSs and (iii) such Governmental
Authorizations as may be required under state or foreign securities or Blue Sky
laws in connection with the purchase and distribution of the Shares or ADSs by
or for the account of the Underwriters.
4. To the extent title is governed by New York law, immediately prior to the
date hereof each Selling Shareholder had good and valid title to the ADSs to be
sold on the date hereof by each Selling Shareholder under the Underwriting
Agreement and the Deposit Agreement, free and clear of all liens, encumbrances,
equities or claims, and full right, power and authority to sell, assign,
transfer and deliver the ADSs to be sold by each Selling Shareholder thereunder.
5. To the extent title is governed by New York law, good and valid title to the
ADSs, free and clear of all liens, encumbrances, equities or claims, has been
transferred to each of the several Underwriters who have purchased ADSs in good
faith and without notice of any such lien, encumbrance, equity or claim or any
other adverse claim within the meaning of the Uniform Commercial Code.
6. The irrevocable submission of each Selling Shareholder to the exclusive
jurisdiction of a New York court, the waiver by such Selling Shareholder of any
objection to the venue of a proceeding of a New York court and the agreement of
each Selling Shareholder that the Underwriting Agreement shall be governed by
and construed in accordance with the laws of the State of New York are legal,
valid and binding.
Annex D [INCLUDED IN ANNEX B]
Annex E
(i) The Company is duly incorporated and validly existing under Jersey
law.
(ii) The Company has the corporate power and capacity to enter into
and execute the Agreements and has taken the necessary corporate and other
action to authorise the acceptance and the due execution and performance of
its obligations under the Agreements.
(iii) The Company's entering into and performance of its obligations
under the Agreements and the transactions contemplated thereby do not
conflict with any law or regulation of the Island of Jersey or any other
agreements previously entered into by the Company.
(iv) The Agreements constitute valid, legal and binding obligations of
the Company, enforceable in accordance with their terms.
(v) It is not necessary or desirable that the Agreements be filed,
recorded, registered or enrolled at any public office or Registry within
the Island of Jersey.
(vi) There are no stamp, registration or other duties or fees required
to be paid in the Island of Jersey or in any political sub-division or
taxing authority therein or thereof with respect to or by virtue of the
execution and performance by the Company of the Agreements.
(vii) The Company will not be required to make any deduction or
withholding from any payment it may make under the Agreements.
(viii) All acts, conditions and things required to be done under
Jersey law in order to:-
a) enable the Company lawfully to enter into, exercise its rights
and perform the obligations expressed to be assumed by it in the
Agreements;
b) ensure that the obligations expressed to be assumed by it in
the Agreements are legal, valid and binding in accordance with
their respective terms; and
c) make the Agreements admissible in evidence in the Island of
Jersey,
have been done, fulfilled and performed in compliance with Jersey law.
(ix) The Company is not entitled to claim immunity from any suit,
execution, attachment or other legal process in the Island of Jersey.
(x) The choice of the law of the State of New York to govern the
Agreement and the Custody Agreement is a valid choice of law and
accordingly the law of the State of New York will be applied by the Jersey
courts if the Agreement or the Custody Agreement come under their
jurisdiction, upon proof of the relevant provisions of the law of the State
of New York.
(xi) The Jersey courts will recognize as valid a final judgment for a
sum of money (not being a sum payable in respect of taxes or other charges
of a like nature, a fine or a penalty) rendered against the Company by any
competent superior court in the State of New York, provided that such
judgment is obtained without fraud, in accordance with the principles of
natural justice and is not contrary to public policy.
(xii) The provisions of Section 14 of the Agreement for submission by
the Company to the jurisdiction of the New York courts and for service of
process will be valid and binding on the Company under Jersey law.
(xiii) It is not necessary that the Underwriters or any of them be
licensed, qualified or otherwise entitled to carry on business in the
Island of Jersey in order to enable the Underwriters or any of them:-
a) to enforce their rights under the Agreements;
b) to execute the Agreements; or
c) to perform the obligations expressed to be assumed by them in
the Agreements.
(xiv) A search at the Registrar of Companies in Jersey today revealed
no evidence of any current resolutions for the winding-up or dissolution of
the Company and no evidence of the appointment of any liquidator, receiver
or other similar official in respect of the Company or any of its assets
Annex F
1. The Deposit Agreement has been duly authorized, executed and delivered by the
Depositary and constitutes a valid and legally binding agreement of the
Depositary enforceable against the Depositary in accordance with its terms,
except as enforcement of it may be limited by bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium or similar laws of general application
relating to or affecting creditors' rights and by general principles of equity;
2. Upon execution and delivery by the Depositary of ADRs evidencing ADSs against
the deposit of Shares in accordance with the provisions of the Deposit
Agreement, the ADSs will be duly and validly issued and will entitle the holders
of the ADSs to the rights specified in the ADRs and in the Deposit Agreement;
and
3. The Registration Statement for the ADSs on Form F-6 (No. 333-13442) (the "F-6
Registration Statement") has been declared effective under the Securities Act of
1933, as amended (the "Act"), and, to our knowledge, no stop order suspending
the effectiveness of the F-6 Registration Statement or any part of it has been
issued and no proceedings for that purpose have been instituted or are pending
or contemplated under the Act, and the F-6 Registration Statement, complied, as
of its effective date, as to form in all material respects with the requirements
of the Act and the rules and regulations thereunder.
[KPMG LOGO]
Chartered Accountants
5 George's Dock Telephone +353 1 410 1000
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Dublin 1 Internet www.kpmg.ie
Ireland
PRIVATE AND CONFIDENTIAL
The Board of Directors
ICON plc
South County Business Park
Leopardstown
Dublin 18
Ireland
We consent to the use of our report dated July 26, 2002, with respect to the
consolidated balance sheets of ICON plc as of May 31, 2001 and 2002, and the
related consolidated statements of operations, shareholders' equity and
comprehensive income and cash flows for each of the years in the three-year
period ended May 31, 2002, incorporated herein by reference and to the reference
to our firm under the heading "Experts" in the prospectus.
/s/ KPMG
KPMG
Chartered Accountants
Dublin, Ireland
March 7, 2003
