FORM 6-K/A
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
REPORT OF FOREIGN PRIVATE ISSUER
PURSUANT TO RULE 13A - 16 UNDER
THE SECURITIES EXCHANGE ACT OF 1934
Supplement for the month of January, 2003
ICON PLC
(Registrant's name)
0-29714
(Commission file number)
South County Business Park, Leopardstown, Dublin 18, Ireland.
(Address of principal executive offices)
Indicate by check mark whether the registrant files or will file annual reports
under cover Form 20-F or Form 40-F.
Yes X No ___
Indicate by check mark whether the registrant is submitting the Form 6-K in
paper as permitted by Regulation S-T Rule 101(b)(1):
Yes ___ No X
Indicate by check mark whether the registrant is submitting the Form 6-K in
paper as permitted by Regulation S-T Rule 101(b)(7):
Yes ___ No X
Indicate by check mark whether the registrant by furnishing the information
contained in this Form is also thereby furnishing the information to the
Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of 1934.
Yes ___ No X
If "Yes" is marked, indicate below the file number assigned to the registrant in
connection with Rule 12g3-2(b):82 N/A
ICON PLC
GENERAL
As used herein, "ICON", the "Company" and "we" refer to ICON p1c and its
consolidated subsidiaries, unless the context requires otherwise.
NOTE
On January 31, 2003 the Company filed a Report of Foreign Private Issuer on Form
6-K with the Securities and Exchange Commission containing descriptions of: (i)
its Memorandum and Articles of Association, (ii) changes to its constitutional
documents, (iii) its Share Capital, (iv) its American Depositary Shares, and (v)
the Registration Rights Agreement dated December 12, 1997. The Company is filing
this Form 6-K/A in order to amend the description of its American Depositary
Shares contained in the Form 6-K. This Report on Form 6-K/A replaces in its
entirety the Report on Form 6-K filed on January 31, 2003.
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ICON PLC
CONTENTS PAGE
DESCRIPTION OF THE MEMORANDUM AND ARTICLES OF ASSOCIATION OF
THE COMPANY.................................................................4
CHANGES TO CONSTITUTIONAL DOCUMENTS...........................................8
DESCRIPTION OF SHARE CAPITAL..................................................8
DESCRIPTION OF AMERICAN DEPOSITARY SHARES.....................................8
DESCRIPTION OF THE REGISTRATION RIGHTS AGREEMENT, DATED DECEMBER 12, 1997....14
SIGNATURES...................................................................15
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DESCRIPTION OF THE MEMORANDUM AND ARTICLES OF ASSOCIATION OF THE COMPANY
1. The Company is registered in Ireland under the Companies Acts, 1963 to 2001
with registered number 145385. The Company was incorporated on 31 May 1989.
The Company's main object, which is to be found in clause 3 of the
Company's Memorandum of Association, or Memorandum, is to carry on the business
of an investment holding company. The Company's secondary objects which are also
found in clause 3 of the Memorandum are (i) the carrying out of research in the
fields of nutrition, metabolism and health, (ii) the advancement in the
knowledge of matters relating to electromagnetics, radiation, ecology and
environment, (iii) the pharmacologic effects of drugs, cosmetics, food
substances, food additives and beverages and (iv) to make provision and afford
facilities for the training of approved persons with a view to the above.
2. Under Article 95 of the Company's Articles of Association, or Articles, a
director of the Company who is in any way, whether directly or indirectly,
interested in a contract or proposed contract with the Company must declare
that interest at a meeting of the directors of the Company. Under Article
97 of the Articles, a director may not vote at a meeting of the directors
or a committee of the directors on any resolution concerning a matter in
which he has, directly or indirectly, either by himself or with others
connected with him, an interest which is material, or a duty, which
conflicts or may conflict with the interests of the Company. Furthermore, a
director may not be counted in the quorum present at a meeting in relation
to any such resolution on which he is not entitled to vote. This
prohibition on voting does not extend to certain matters, namely:
(i) where the Company is giving any security, guarantee or indemnity
to the director in respect of money lent by the director;
(ii) where the Company gives any security, guarantee or indemnity to a
third party in respect of a debt or obligation of the Company for
which the director has assumed the responsibility in whole or in
part;
(iii) where there is a subscription or purchase of shares, debentures
or other securities of the Company pursuant to an offer or
invitation to members or debenture holders of the Company, or to
the public or any section of the public under which offer the
director may be entitled to participate as a holder of securities
or which he is or is to be interested as a participant in the
underwriting or sub-underwriting thereof;
(iv) any proposal concerning any other company in which he is
interested, whether directly or indirectly, provided that the
director is not the holder of or beneficially interested,
directly or indirectly, in 1% or more of the issued shares of any
class of that company or of the voting rights available in that
company;
(v) any proposal concerning the adoption, modification or operation
of any pension or retirement benefit scheme under which the
director may benefit and which has been approved by the Revenue
Commissioners in Ireland;
(vi) any proposal concerning the adoption, modification or operation
of an employee share scheme which does not award the director any
privilege or benefit not generally awarded to the employees to
whom such scheme relates;
(vii) any proposal concerning insurance which the Company proposes to
maintain or purchase for the benefit of the directors; and
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(viii) where there is a proposal concerning the appointment of two or
more directors, to positions within the Company or any other
company in which the Company is interested, the directors
concerned will be entitled to vote in respect of each resolution
except that concerning his own appointment.
(b) The remuneration of the directors is determined from time to time by
the shareholders of the Company. This remuneration is divided among
the directors as they may agree or, failing agreement, equally with
the exception that any director who holds office for only part of the
period in respect of which the remuneration is payable, he shall be
entitled only to a proportion of the remuneration relating to the
period for which he has held office. As the remuneration of the
directors may only be determined by the shareholders, the directors
may not vote compensation to themselves. There is an exception made
under Article 78 for any director who holds any executive office,
including chairman or deputy chairman, or who serves on any committee,
or who performs services which in the opinion of the directors are
outside the scope of the ordinary duties of a director.
(c) Under Article 85 the directors may exercise all the powers of the
Company to borrow or raise money and to give security in connection
therewith. These borrowing powers may only be amended by the
shareholders of the Company in general meeting.
(d) There is no age limit requirement in the Articles that specifies when
a director must retire.
(e) Directors are not required to hold shares to qualify for the office of
director.
3. The share capital of the Company is(euro)1,200,000 divided into 20,000,000
ordinary shares of 6 euro cent each.
(a) Subject to the provisions of the Companies Acts, the Company may by
ordinary resolution declare dividends which shall not exceed the
amount recommended by the directors. Under the Companies Acts,
dividends may only be paid out of profits available for distribution.
The directors may also, if authorised by the members of the Company in
general meeting, offer the holders of ordinary shares the right to
receive scrip dividends instead of cash. The directors may also
declare and pay interim dividends if it appears to them that they are
justified to so do by the profits of the Company available for
distribution.
Any dividend which remains unclaimed for twelve years from the date of
its declaration shall be forfeited and cease to remain owing by the
Company if the directors so resolve.
(b) Voting at any general meeting of the Company on a resolution is
decided on a show of hands unless a poll is demanded. On a show of
hands every shareholder present in the meeting in person and every
proxy shall have one vote regardless of how many shares they may hold.
On a poll however, every member shall have one vote for every share
carrying voting rights of which he is the holder.
A poll may be demanded (i) by the chairman of the meeting, (ii) by at
least three members present (in person or by proxy) having the right
to attend and vote at the meeting, (iii) by any member or members
present (in person or by proxy) representing an aggregate of not less
than one tenth of the total voting rights of all the members having
the right to attend and vote at the meeting, or (iv) by a member or
members present (by person or by proxy) holding shares in the Company
conferring the right to attend and vote at the meeting being shares on
which an aggregate sum has been paid up equal to not less than one
tenth of the total sum paid up on all the
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shares conferring that right.
The quorum for a general meeting is three shareholders being present
in person or by proxy having an entitlement to vote upon the business
to be transacted.
All business is considered to be special business if it is transacted
at an extraordinary general meeting as is all business transacted at
an annual general meeting other than the declaration of a dividend,
the consideration of the accounts, balance sheets and reports of the
directors and auditors, the election of directors in the place of
those retiring (whether by rotation or otherwise), the fixing of the
remuneration of the directors, the re-appointment of the retiring
auditors and the fixing of the remuneration of the auditors, all of
which is deemed ordinary business. Special business is dealt with by
way of a special resolution, which must be passed by not less than 75%
of the votes cast by such members entitled to vote in person or, where
proxies are allowed, by proxy at a general meeting at which not less
than twenty one days notice specifying the intention to propose a
resolution as a special resolution has been duly given. Ordinary
business is dealt with by way of an ordinary resolution which requires
a simple majority of the votes cast by the members voting in person or
by proxy at a general meeting. Where an equal number of votes has been
cast on any resolution the chairman of the meeting is entitled to a
casting or second vote.
Voting rights may be restricted by the directors where they determine
that a Specified Event (as defined below) has occurred in relation to
any share or shares. In such case, the directors may serve a notice to
such effect on the relevant shareholders. On the expiry of fourteen
days following the service of such notice and for so long as such
notice remains in force, the relevant shareholder shall not be
entitled to attend or vote at any general meeting either personally or
by proxy in respect of those shares and the directors shall where
those restricted shares represent not less than 0.25% of the total
number of the issued shares be entitled not to pay dividends and
refuse to register any transfer (other than a bona fide transfer to an
unconnected third party) of those shares. For the purposes of Article
7 a Specified Event in relation to such shares shall mean either the
failure by the shareholder to pay any call or installment of a call or
failure by the shareholder to comply, to the satisfaction of the
directors with certain notification provisions under the Irish
Companies Act, 1990 and/or Article 7 of the Company's Articles (as
more full described at 3(h) below).
(c) The right to share in the Company's profits arises under the right to
receive a dividend as particularly described at 3(a) above.
(d) In the event of any surplus arising on the occasion of the liquidation
of the Company, the shareholders would be entitled to a share in that
surplus pro rata to their holdings of ordinary shares. Further, where
the Company is wound-up, the liquidator, with the sanction of a
special resolution of the Company, may divide among the members in
specie or kind the whole or part of the assets of the Company.
(e) Subject to the provisions of the Companies Acts, any shares may be
issued on the terms that they are, or at the option of the Company
are, liable to be redeemed.
(f) Not applicable.
(g) The directors may make calls upon the shareholders in respect of any
money unpaid on their shares. Failure to pay a call may result in a
forfeiture of shares by a shareholder pursuant to a resolution of the
directors. If a person's shares have been forfeited he shall cease to
be a share-
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holder in the Company but shall remain liable to the Company for all
monies payable by him to the Company in respect of those shares until
such time as the Company shall have received payment in full of all
such monies in respect of those shares.
(h) Under Article 7 of the Company's Articles the directors may, by notice
in writing, require any shareholder, or any other person appearing to
be interested or to have been interested in the Company's shares, to
disclose to the Company in writing such information as the directors
shall require relating to the ownership of any interest in the
Company's shares.
4. Under Article 5, wherever the share capital is divided into different
classes of shares, the rights attaching to any class may be varied with the
consent in writing of three quarters of the shareholders of that particular
class or with the sanction of a special resolution passed at a separate
general meeting of the shareholders of that class of shares. Further, where
the share capital is divided into different classes of shares they may be
varied either whilst the Company is a going concern, or during, or in
contemplation of, a winding-up. In each case, the quorum at any such
separate general meeting shall be two persons holding or representing by
proxy at least one third of the issued shares of the class in question. The
rights conferred upon the shareholders of any class issued with preferred
or other rights shall not, unless expressly provided for in the Articles or
the terms of issue of shares, be varied by the creation or issue of further
shares ranking pari passu therewith or subordinate thereto. These
conditions are no more significant than those required by law.
5. General meetings may be convened by the directors. Extraordinary general
meetings may also be convened by the directors as provided in the Companies
Acts. Annual general meetings and extraordinary general meetings called for
the passing of a special resolution shall be called by at least twenty one
clear days notice and all other extraordinary general meetings shall be
called by at least fourteen clear days notice.
Any notice convening a general meeting shall specify the time and place of
the meeting any, in the case of a special business, the general nature of
that business and, in reasonable prominence, that a shareholder entitled to
attend and vote is entitled to appoint a proxy to attend, speak and vote in
his place and that a proxy need not be a shareholder of the Company.
Admission to general meetings is limited to shareholders of the Company and
validly appointed proxies.
6. The Memorandum impose no restrictions on the right of non-resident or
foreign shareholders to own securities in the Company.
7. Failure to comply with the provisions of Article 7, which deals with the
notification of interests in shares by a shareholder, could result in a
restriction of voting and other rights under Article 68 as detailed above
at 3(b).
8. Under Irish company law where a person acquires an interest in shares in a
public limited company or ceases to be interested in such shares he has an
obligation to notify the Company of the interest he has or had in its
shares. The initial notifiable threshold is 5% of the aggregate nominal
value of the issued share capital carrying rights to vote in all
circumstances at a general meeting of the Company. In addition, if the
shares of the Company are quoted on the Irish Stock Exchange and a person
becomes aware that he has acquired, or has ceased to have an interest, in
shares in a quoted company, he must notify the exchange when his interest
in such shares exceeds or falls below, as the case may be, certain
reference levels: 10%, 25%, 50% and 75%.
Under Article 7 of the Articles, as detailed above at 3(b), the directors
may by notice in writing require any member or other person appearing to be
interested or have been interested in shares, to disclose to
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the Company in writing such information as the directors shall require.
9. Not applicable.
10. Not applicable.
CHANGES TO CONSTITUTIONAL DOCUMENTS
At its annual general meeting held on 22 November, 2001, shareholders approved
the redenomination of its share capital from Irish Punts into euro, and the
renominalisation, which involved the creation of a small reserve fund, of its
share capital to adjust the converted euro nominal value of each ordinary share
to a round number (6 cent).
DESCRIPTION OF SHARE CAPITAL
The authorized capital stock of the Company consists of 20,000,000 ordinary
shares, par value 6 euro cent per share. As of December 31, 2002, 11,815,637
ordinary shares were outstanding. All of the outstanding ordinary shares were
issued fully paid.
10,292,557 of the ordinary shares are registered in the Register of Members
of the Company and 1,523,080 are bearer shares. Each holder of a bearer share is
effectively treated by the Company as the holder and absolute owner of the share
represented by the bearer share and shall be deemed to be a member of the
Company to the fullest extent. Title to a bearer share will pass by delivery.
Additional ordinary shares, representing, on December 31, 2002, a 8.2% interest
in the Company, may be issued under the exercise of outstanding options. No
shares of the Company are held by or on behalf of the Company itself or by
subsidiaries of the Company.
DESCRIPTION OF AMERICAN DEPOSITARY SHARES
10,274,381 of the outstanding ordinary shares are represented by American
Depositary Shares ("ADSs") which are evidenced by American Depositary Receipts
("ADRs").
The Bank of New York, as Depositary (the "Depositary"), will execute and
deliver the ADRs. Each ADR is a certificate evidencing a specific number of
ADSs. Each ADS will represent one share (or a right to receive one share)
deposited with the principal Dublin office of Allied Irish Bank, as Custodian
for the Depositary in Ireland (the "Custodian"). Each ADS will also represent
any other securities, cash or other property which may be held by the
Depositary. The Depositary's office at which the ADRs will be administered is
located at 101 Barclay Street, New York, New York 10286.
You may hold ADSs either directly (by having an ADR registered in your
name) or indirectly through your broker or other financial institution. If you
hold ADSs directly, you are an ADR holder ("Holder"). This description assumes
you hold your ADSs directly. If you hold the ADSs indirectly, you must rely on
the procedures of your broker or other financial institution to assert the
rights of Holders described in this section. You should consult with your broker
or financial institution to find out what those procedures are.
As a Holder, we will not treat you as one of our shareholders and you will
not have shareholder rights. Irish law governs shareholder rights. The
Depositary will be the holder of the shares underlying your ADSs. As a Holder
you will have ADR holder rights. A Deposit Agreement (including any exhibits
thereto, the "Deposit Agreement") dated as of May 20, 1998 among the Company,
the Depositary and the Holders sets out Holder rights as well as the rights and
obligations of the Depositary.
The following is a summary of the material provisions of the Deposit
Agreement. For more complete information, you should read the entire Deposit
Agree-
8
ment and the form of ADR. Copies of the Deposit Agreement are available for
inspection at the Corporate Trust Office of the Depositary at 101 Barclay
Street, New York, New York 10286, at the office of the Depositary's agent and at
the designated office of the Custodian. Terms used herein and not otherwise
defined shall have the respective meanings set forth in the Deposit Agreement.
DEPOSIT, TRANSFER AND WITHDRAWAL
The Depositary has agreed, subject to the terms and conditions of the
Deposit Agreement, that upon delivery to the Custodian of ordinary shares (or
evidence of rights to receive ordinary shares) and pursuant to appropriate
instruments of transfer in a form satisfactory to the Custodian, the Depositary
will, upon payment of the fees, charges and taxes provided in the Deposit
Agreement, execute and deliver at its Corporate Trust Office to, or upon the
written order of, the person or persons named in the notice of the Custodian
delivered to the Depositary or requested by the person depositing such ordinary
shares with the Depositary, an ADR or ADRs, registered in the name or names of
such person or persons, and evidencing any authorized number of ADSs requested
by such person or persons.
Upon surrender at the Corporate Trust Office of the Depositary of an ADR
for the purpose of withdrawal of the Deposited Securities represented by the
ADSs evidenced by such ADR, and upon payment of the fees of the Depositary,
governmental charges and taxes as provided in the Deposit Agreement, and subject
to the terms and conditions of the Deposit Agreement, the Holder of such ADR
will be entitled to delivery, to him or upon his order, of the amount of
Deposited Securities at the time represented by the ADS or ADSs evidenced by
such ADR. The forwarding of share certificates, other securities, property, cash
and other documents of title for such delivery will be at the risk and expense
of the Holder.
Subject to the terms and conditions of the Deposit Agreement and any
limitations established by the Depositary, the Depositary may execute and
deliver ADRs prior to the receipt of ordinary shares (a "Pre-Release") and
deliver ordinary shares upon the receipt and cancellation of ADRs which have
been Pre-Released, whether or not such cancellation is prior to the termination
of such Pre-Release or the Depositary knows that such ADR has been Pre-Released.
The Depositary may receive ADRs in lieu of ordinary shares in satisfaction of a
Pre-Release. Each Pre-Release must be (a) preceded or accompanied by a written
representation from the person to whom the ADRs are to be delivered that such
person, or its customer, owns the ordinary shares or ADRs to be remitted, as the
case may be, (b) at all times fully collateralized with cash or such other
collateral as the Depositary deems appropriate, (c) terminable by the Depositary
on not more than five (5) business days' notice and (d) subject to such further
indemnities and credit regulations as the Depositary deems appropriate. The
number of ADSs that are outstanding at any time as a result of Pre-Releases will
not normally exceed 30% of the ordinary shares deposited hereunder, provided,
however, that the Depositary reserves the right to change or disregard such
limit from time to time as it deems appropriate.
The Depositary may retain for its own account any compensation received by
it in connection with the foregoing.
DIVIDENDS, OTHER DISTRIBUTIONS AND RIGHTS
The Depositary will convert or cause to be converted into dollars, to the
extent that in its judgment it can do so on a reasonable basis and can transfer
the resulting dollars to the United States, all cash dividends and other cash
distributions denominated in a currency other than dollars, including euro
("Foreign Currency"), that it receives in respect of the deposited ordinary
shares and will distribute the resulting dollar amount (net of the expenses
incurred by the Depositary in converting such Foreign Currency) to the Holders
entitled thereto. The Depositary might decide that Foreign Currency could not be
converted on a reasonable basis and might defer making the conversion if, for
example, the foreign currency market was disrupted by a crisis or extraordinary
event causing large fluctuations in exchange rates. Such distribution may be
made upon an averaged or other practica-
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ble basis without regard to any distinctions among Holders on account of
exchange restrictions or otherwise. The amount distributed to the Holders will
be reduced by any amount on account of taxes to be withheld by the Company or
the Depositary.
If the Depositary determines that in its judgment any Foreign Currency
received by the Depositary cannot be converted on a reasonable basis into
dollars transferable to the United States, or if any approval or license of any
government or agency thereof that is required for such conversion is denied or
in the opinion of the Depositary is not obtainable, or if any such approval or
license is not obtained within a reasonable period as determined by the
Depositary, the Depositary may distribute the Foreign Currency received by the
Depositary to, or in its discretion may hold such Foreign Currency uninvested
and without liability for interest thereon for the respective accounts of, the
Holders entitled to receive the same. If any such conversion of Foreign
Currency, in whole or in part, cannot be effected for distribution to some of
the Holders entitled thereto, the Depositary may in its discretion make such
conversion and distribution in dollars to the extent permissible to the Holders
entitled thereto, and may distribute the balance of the Foreign Currency
received by the Depositary to, or hold such balance uninvested and without
liability for interest thereon for, the respective accounts of, the Holders
entitled thereto.
If any distribution upon any Deposited Securities consists of a dividend
in, or free distribution of, ordinary shares, the Depositary may with the
Company's approval, and will if the Company so requests, distribute to the
Holders of outstanding ADRs entitled thereto, in proportion to the number of
ADSs evidenced by the ADRs held by them, respectively, additional ADRs
evidencing an aggregate number of ADSs that represents the amount of ordinary
shares received as such dividend or free distribution, subject to the terms and
conditions of the Deposit Agreement with respect to the deposit of ordinary
shares and the issuance of ADSs evidenced by ADRs, including the withholding of
any tax or other governmental charge and the payment of fees of the Depositary
as provided in the Deposit Agreement. In lieu of delivering ADRs for fractional
ADSs in the event of any such dividend or free distribution, the Depositary may
sell the amount of ordinary shares represented by the aggregate of such
fractions and distribute the net proceeds in accordance with the Deposit
Agreement. If additional ADRs are not so distributed, each ADS will thenceforth
also represent the additional ordinary shares distributed upon the Deposited
Securities represented thereby.
If the Company offers or causes to be offered to the holders of any
Deposited Securities any rights to subscribe for additional ordinary shares or
any rights of any other nature, the Depositary will have discretion, after
consultation with the Company, as to the procedure to be followed in making such
rights available to any Holders or in disposing of such rights for the benefit
of any Holders and making the net proceeds available to such Holders. The
Depositary will, if requested by the Company, take action as follows (i) if at
the time of the offering of any rights the Depositary determines in its
discretion that it is lawful and feasible to make such rights available to
Holders, the Depositary will distribute to the Holder, in proportion to the
number of ADSs held by such Holder, warrants or other instruments therefor in
such form as it deems appropriate; or (ii) if the Depositary determines in its
discretion that it is not lawful and feasible to make such rights available to
Holders, or if the rights represented by such warrants or other instruments are
not exercised and appear to be about to lapse, it may sell the rights, warrants
or other instruments and allocate the net proceeds of such sales for the account
of such Holders otherwise entitled to such rights, warrants or other
instruments, upon an averaged or other practical basis without regard to any
distinctions among such Holders because of exchange restrictions or the date of
delivery of any ADR or ADRs, or otherwise.
The Depositary will not offer rights to Holders unless both the rights and
the securities to which such rights relate are either exempt from registration
under the Securities Act with respect to a distribution to all Holders or are
registered under the provisions of such Act.
Whenever the Depositary receives any distribution other than cash, ordinary
shares or rights in respect of the Deposited Securities, the Depositary will
cause the securities or property received by it to be distributed to
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the Holders entitled thereto, after deduction or upon payment of any fees and
expenses of the Depositary or any taxes or other governmental charges, in
proportion to their holdings, respectively, in any manner that the Depositary
may deem equitable and practicable for accomplishing such distribution;
provided, however, that if in the opinion of the Depositary such distribution
cannot be made proportionately among the Holders entitled thereto, or if for any
other reason (including, but not limited to, any requirement that the Company or
the Depositary withhold an amount on account of taxes or other governmental
charges or that such securities must be registered under the Securities Act in
order to be distributed to Holders) the Depositary deems such distribution not
to be feasible, the Depositary may adopt such method as it may deem equitable
and practicable for the purpose of effecting such distribution, including, but
not limited to, the public or private sale of the securities or property thus
received, or any part thereof, and the net proceeds of any such sale (net of the
fees of the Depositary) will be distributed by the Depositary to the Holders
entitled thereto as in the case of a distribution received in cash.
If the Depositary determines that any distribution of property (including
ordinary shares and rights to subscribe therefor) is subject to any taxes or
other governmental charges that the Depositary is obligated to withhold, the
Depositary may, by public or private sale, dispose of all or a portion of such
property in such amount and in such manner as the Depositary deems necessary and
practicable to pay such taxes or charges and the Depositary will distribute the
net proceeds of any such sale after deduction of such taxes or charges to the
Holders entitled thereto.
Upon any change in nominal or par value, split-up, consolidation or any
other reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the Company
or to which it is a party, any securities that shall be received by the
Depositary or Custodian in exchange for, in conversion of, or in respect of
Deposited Securities will be treated as new Deposited Securities under the
Deposit Agreement, and the ADSs will thenceforth represent, in addition to the
existing Deposited Securities, the right to receive the new Deposited Securities
so received in exchange or conversion, unless additional ADRs are delivered
pursuant to the following sentence. In any such case the Depositary may with the
Company's approval, and will, if the Company so requests, execute and deliver
additional ADRs as in the case of a dividend in ordinary shares, or call for the
surrender of outstanding ADRs to be exchanged for new ADRs specifically
describing such new Deposited Securities.
RECORD DATES
Whenever any cash dividend or other cash distribution shall become payable
or any distribution other than cash shall be made, or whenever rights shall be
issued with respect to the Deposited Securities, or whenever the Depositary
shall receive notice of any meeting of holders of ordinary shares or other
Deposited Securities, the Depositary will fix a record date for the
determination of the Holders who will be (i) entitled to receive such dividend,
distribution or rights, or the net proceeds of the sale thereof, or (ii)
entitled to give instructions for the exercise of voting rights at any such
meeting.
VOTING OF DEPOSITED SECURITIES
Upon receipt of notice of any meeting of holders of ordinary shares or
other Deposited Securities, the Depositary will, as soon as practicable
thereafter, mail to all Holders a notice containing (a) such information
included in such notice of meeting received by the Depositary from the Company,
and (b) a statement that the Holders as of the close of business on a specified
record date will be entitled, subject to any applicable provision of Irish law
and of the Memorandum and Articles of Association of the Company, to instruct
the Depositary as to the exercise of the voting rights, if any, pertaining to
the amount of ordinary shares or other Deposited Securities represented by their
respective ADSs and a brief statement as to the manner in which such
instructions may be given, including an express indication that instructions may
be given to the Depositary to give a discretionary proxy to a designated member
or members of the Board of Directors of the Company. Upon the written request of
an Holder on such record date, received on or before the date established by the
Depositary for such purpose,
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the Depositary will endeavor, insofar as practicable, to vote or cause to be
voted the amount of ordinary shares or other Deposited Securities represented by
the ADSs evidenced by such ADRs in accordance with the instructions set forth in
such request. The Depositary will not, and the Depositary shall ensure that the
Custodian and any of its nominees shall not, vote the ordinary shares or other
Deposited Securities, other than in accordance with such instructions nor shall
the Depositary or Custodian demand a poll.
REPORTS AND OTHER COMMUNICATIONS
The Depositary will make available for inspection by Holders at its
Corporate Trust Office any reports and communications received from the Company
which are both (a) received by the Depositary as the holder of the Deposited
Securities and (b) made generally available to the holders of such Deposited
Securities by the Company. The Depositary will also send to the Holders copies
of such reports when furnished by the Company pursuant to the Deposit Agreement.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of ADRs and any provisions of the Deposit Agreement may at any
time and from time to time be amended by agreement between the Company and the
Depositary in any respect which they may deem necessary or desirable without the
consent of the Holders. Any amendment that imposes or increases any fees or
charges (other than taxes and other governmental charges, registration fees,
cable, telex or facsimile transmission costs, delivery costs or other such
expenses), or which otherwise prejudices any substantial existing right of
Holders, will not take effect as to outstanding ADRs until the expiration of
three months after notice of any amendment has been given to the Holders of
outstanding ADRs. Every Holder, at the time any amendment so becomes effective,
will be deemed, by continuing to hold such ADR, to consent and agree to such
amendment and to be bound by the Deposit Agreement as amended thereby. In no
event will any amendment impair the right of the Holder to surrender such ADR
and receive therefor the Deposited Securities represented thereby, except to
comply with mandatory provisions of applicable law.
The Depositary will at any time at the direction of the Company terminate
the Deposit Agreement by mailing notice of such termination to the Holders then
outstanding at least 30 days prior to the date fixed in such notice for such
termination. The Depositary may likewise terminate the Deposit Agreement by
mailing notice of such termination to the Company and the Holders of all ADRs
then outstanding if, any time after 60 days have expired after the Depositary
will have delivered to the Company a written notice of its election to resign
and a successor depositary will not have been appointed and accepted its
appointment, in accordance with the terms of the Deposited Agreement. If any
ADRs remain outstanding after the date of termination of the Deposit Agreement,
the Depositary thereafter will discontinue the registration of transfers of
ADRs, will suspend the distribution of dividends to the Holders thereof and will
not give any further notices or perform any further acts under the Deposit
Agreement, except the collection of dividends and other distributions pertaining
to the Deposited Securities, the sale of rights and the delivery of underlying
Deposited Securities, together with any dividends or other distributions
received with respect thereto and the net proceeds of the sale of any rights or
other property, in exchange for surrendered ADRs (after deducting, in each case,
the fees of the Depositary for the surrender of an ADR and other expenses set
forth in the Deposit Agreement and any applicable taxes or governmental
charges). At any time after the expiration of two years from the date of
termination, the Depositary may sell the Deposited Securities then held
thereunder and hold uninvested the net proceeds of such sale, together with any
other cash, unsegregated and without liability for interest, for the pro rata
benefit of the Holders that have not theretofore surrendered their Receipts.
After making such sale, the Depositary will be discharged from all obligations
under the Deposit Agreement, except to account for net proceeds and other cash
(after deducting, in each case, the fee of the Depositary and other expenses set
forth in the Deposit Agreement for the surrender of an ADR and any applicable
taxes or other governmental charges).Upon the termination of the Deposit
Agreement, the Company shall be discharged from all obligations under the
Deposit Agreement except for certain obligations to the Depositary relating to
fees and indemnity.
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CHARGES OF DEPOSITARY
The Depositary will charge any party depositing or withdrawing ordinary
shares or any party surrendering ADRs or to whom ADRs are issued (including,
without limitation, issuance pursuant to a stock dividend or stock split
declared by the Company or an exchange of stock regarding the ADRs or Deposited
Securities or a distribution of ADRs pursuant to the Deposit Agreement)
whichever applicable: (1) taxes and other governmental charges; (2) such
registration fees as may from time to time be in effect for the registration of
transfers of ordinary shares generally on the share register of the Company or
Foreign Registrar and applicable to transfers of ordinary shares to the name of
the Depositary or its nominee or the Custodian or its nominee on the making of
deposits or withdrawals; (3) such cable, telex and facsimile transmission
expenses as are expressly provided in the Deposit Agreement to be at the expense
of persons depositing ordinary shares or Holders; (4) such expenses as are
incurred by the Depositary in the conversion of Foreign Currency pursuant to the
Deposit Agreement; (5) a fee of $5.00 or less per 100 ADSs (or portion thereof)
for the execution, delivery and surrender of ADRs pursuant to the Deposit
Agreement; (6) a fee of $.02 or less per ADS (or portion thereof) for any cash
distribution made pursuant to the Deposit Agreement, including, but not limited
to, Sections 4.1 through 4.4 thereof; and (7) a fee for the distribution of
securities pursuant to the Deposit Agreement, such fee being in an amount equal
to the fee for the execution and delivery of ADSs referred to above which would
have been charged as a result of the deposit of such securities (for purposes of
this clause (7) treating all such securities as if they were ordinary shares),
but which securities are instead distributed by the Depositary to Holders and
the net proceeds distributed.
The Depositary, pursuant to the Deposit Agreement, may own and deal in any
class of securities of the Company and its affiliates and in ADRs.
LIABILITY OF HOLDER FOR TAXES
If any tax or other governmental charge shall become payable with respect
to any ADR or any Deposited Securities represented by the ADRs, such tax or
other governmental charge will be payable by the Holder of such ADR to the
Depositary. The Depositary may refuse to effect any transfer of such ADR or any
withdrawal of Deposited Securities underlying such ADR until such payment is
made, and may withhold any dividends or other distributions, or may sell for the
account of the Holder thereof any part or all of the Deposited Securities
underlying such ADR and may apply such dividends, distributions or the proceeds
of any such sale to pay any such tax or other governmental charge and the Holder
of such ADR will remain liable for any deficiency.
GENERAL
Neither the Depositary nor the Company will be liable to any Holder if by
reason of any provision of any present or future law or regulation of the United
States, or any other country, or of any governmental authority or by reason of
any provision, present or future, of the Memorandum and Articles of Association
of the Company, or by reason of any act of God or war or other circumstances
beyond its control, the Depositary or the Company shall be prevented or
forbidden from doing or performing any act or thing which by the terms of the
Deposit Agreement it is provided will be done or performed; nor will the
Depositary or the Company incur any liability to any Holder by reason of any
nonperformance or delay, caused as aforesaid, in the performance of any act or
thing which by the terms of the Deposit Agreement it is provided will or may be
done or performed, or by reason of any exercise of, or failure to exercise, any
discretion provided for under the Deposit Agreement.
The Company and the Depositary assume no obligation nor will they be
subject to any liability under the Deposit Agreement to Holders, except that
they agree to perform their respective obligations specifically set forth under
the Deposit Agreement without negligence or bad faith.
The ADRs are transferable on the books of the Depositary, provided that the
Depositary may close the transfer books at any time or from time to time when
deemed expedient by it in connection with the performance
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of its duties. As a condition precedent to the execution and delivery,
registration of transfer, split-up, combination or surrender of any ADR or
withdrawal of any Deposited Securities, the Depositary or the Custodian may
require payment from the person presenting the ADR or the person depositing
ordinary shares of a sum sufficient to reimburse it for any tax or other
governmental charge and any stock transfer or registration fee with respect
thereto (including any such tax or charge and fee with respect to ordinary
shares being deposited or withdrawn) and payment of any applicable fees payable
by the Holders. The surrender of outstanding ADRs and withdrawal of Deposited
Securities may not be suspended subject only to (i) temporary delays caused by
closing the transfer books of the Depositary or the Company or the deposit of
Shares in connection with voting at a shareholder's meeting, or in the payments
of dividends, (ii) the payment of fees, taxes and similar charges and (iii)
compliance with any U.S. or foreign laws or governmental regulations relating to
the ADRs or the withdrawal of the Deposited Securities. The Depositary may
refuse to deliver ADRs, to register the transfer of any ADR or to make any
distribution on, or related to, ordinary shares until it has received such proof
of citizenship or residence, exchange control approval or other information as
it may deem necessary or proper. The delivery, transfer, registration of
transfer of outstanding ADRs and surrender of ADRs generally may be suspended or
refused during any period when the transfer books of the Depositary are closed
or if any such action is deemed necessary or advisable by the Depositary or the
Company, at any time or from time to time.
The Depositary will keep books for the registration and transfer of ADRs,
which at all reasonable times will be open for inspection by the Holders,
provided that such inspection will not be for the purpose of communicating with
Holders in the interest of a business or object other than the business of the
Company or a matter related to the Deposit Agreement or the ADRs.
GOVERNING LAW
The Deposit Agreement will be governed by the laws of the State of New
York.
DESCRIPTION OF THE REGISTRATION RIGHTS AGREEMENT,
DATED DECEMBER 12, 1997
On December 12, 1997, the Company entered into a Registration Rights
Agreement with Dr. John Climax and Dr. Ronan Lambe (the "Holders"). The
Registration Rights Agreement provides that, if the Company proposes to register
any of its equity securities under the Securities Act at any time following the
initial public offering of its equity securities, subject to the Holders
agreeing to a lock-up of 180 days, the Company shall offer such Holders the
opportunity to include the Ordinary Shares held by them, with certain
limitations, in such Registration Statement, and the Company shall use its best
efforts to effect the registration of all or a portion of the Ordinary Shares of
such requesting Holders (the "Piggy-Back Registration Offer"). The Company shall
be obligated to make two Piggy-Back Registration Offers. In addition, pursuant
to the Registration Rights Agreement, each Holder is entitled to make one
request ("Demand") to the Company for registration of all or part of his
Ordinary Shares, with certain limitations, with the Securities and Exchange
Commission under and in accordance with the provisions of the Securities Act.
This Registration Rights Agreement also provides for customary indemnification
by the Company and the proportional sharing of expenses between the Company and
the Holders.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the,
undersigned thereunto duly authorized.
ICON PLC
March 7, 2003 /s/ Sean Leech
- ------------------------- ------------------------------
Date Sean Leech
Chief Financial Officer
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