==============================================================
TRINITY BIOTECH PLC
AND
THE BANK OF NEW YORK
As Depositary
AND
OWNERS AND HOLDERS OF AMERICAN
DEPOSITARY RECEIPTS
Deposit Agreement
Dated as of October 21,
1992
As Amended and Restated as of
_______________, 2004
==============================================================
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT
dated as of October 21, 1992, as amended
and restated as of _____________, 2004 among Trinity Biotech plc,
incorporated under the laws of the Republic of Ireland (herein
called the Issuer), THE BANK OF NEW YORK, a New York banking
corporation (herein called the Depositary), and all Owners and
holders from time to time of American Depositary Receipts issued
hereunder.
W I T N E S S E T H
:
WHEREAS , the Issuer desires to provide, as hereinafter set
forth in this Deposit Agreement, for the deposit of Shares (as
hereinafter defined) of the Issuer from time to time with the
Depositary or with the Custodian (as hereinafter defined) as agent
of the Depositary for the purposes set forth in this Deposit
Agreement, for the creation of American Depositary Shares
representing the Shares so deposited and for the execution and
delivery of American Depositary Receipts evidencing the American
Depositary Shares; and
WHEREAS , the American Depositary Receipts are to be
substantially in the form of Exhibit A annexed hereto, with
appropriate insertions, modifications and omissions, as hereinafter
provided in this Deposit Agreement;
NOW, THEREFORE , in consideration of the premises, it is agreed by
and between the parties hereto as follows:
ARTICLE
1.
DEFINITIONS.
The following definitions shall for all
purposes, unless otherwise clearly indicated, apply to the
respective terms used in this Deposit Agreement:
SECTION 1.1
American Depositary
Shares.
The term "American Depositary Shares"
shall mean the securities representing the interests in the
Deposited Securities and evidenced by the Receipts issued
hereunder. Each American Depositary Share shall represent one
Share, until there shall occur a distribution upon Deposited
Securities covered by Section 4.3 or a change in Deposited
Securities covered by Section 4.8 with respect to which additional
Receipts are not executed and delivered, and thereafter American
Depositary Shares shall evidence the amount of Shares or Deposited
Securities specified in such Sections.
SECTION 1.2
Commission.
The term "Commission" shall mean the
Securities and Exchange Commission of the United States or any
successor governmental agency in the United States.
SECTION 1.3
Custodian.
The term "Custodian" shall mean the
Dublin, Ireland office of A.I.B. Custodial Services, as agent of
the Depositary for the purposes of this Deposit Agreement, and any
other firm or corporation which may hereafter be appointed by the
Depositary pursuant to the terms of Section 5.5, as substitute or
additional custodian or custodians hereunder, as the context shall
require and shall also mean all of them collectively.
SECTION 1.4
Deposit Agreement.
The term "Deposit Agreement" shall mean
this amended and restated Agreement, as the same may be amended
from time to time in accordance with the provisions
hereof.
SECTION 1.5
Depositary; Corporate Trust
Office
The term "Depositary" shall mean The Bank
of New York, a New York banking corporation. The term
"Corporate Trust Office", when used with respect to the Depositary,
shall mean the office of the Depositary which at the date of this
Agreement is 101 Barclay Street, New York, New York,
10286.
SECTION 1.6
Deposited Securities.
The term "Deposited Securities" as of any
time shall mean Shares at such time deposited or deemed to be
deposited under this Deposit Agreement and any and all other
securities, property and cash received by the Depositary or the
Custodian in respect thereof and at such time held hereunder,
subject as to cash to the provisions of Section 4.5.
SECTION 1.7
Dollars.
The term "Dollars" shall mean United
States dollars.
SECTION 1.8
Foreign Registrar.
The term "Foreign Registrar" shall mean
the entity appointed by the Issuer, to carry out the duties of
registrar for the A Ordinary Shares of the Issuer or any successor
as registrar for the A Ordinary Shares of the Issuer and any other
appointed agent of the Issuer for the transfer and registration of
Shares.
SECTION 1.9
Issuer.
The term "Issuer" shall mean Trinity
Biotech plc, incorporated under the laws of the Republic of
Ireland, and its successors.
SECTION 1.10
Owner.
The term "Owner" shall mean the person in
whose name a Receipt is registered on the books of the Depositary
maintained for such purpose.
SECTION 1.11
Receipts.
The term "Receipts" shall mean the
American Depositary Receipts issued hereunder evidencing American
Depositary Shares.
SECTION 1.12
Registrar.
The term "Registrar" shall mean any bank
or trust company having an office in the Borough of Manhattan, The
City of New York, which shall be appointed to register Receipts and
transfers of Receipts as herein provided.
SECTION 1.13
Restricted Receipts.
The term "Restricted Receipts" shall mean
any Receipts issued pursuant to Section 4.4 hereunder in connection
with the issuance of rights by the Issuer as set forth in such
Section. Any such Restricted Receipts shall be legended in
accordance with applicable U.S. laws, and shall be subject to the
appropriate restrictions on sale, deposit, cancellation, and
transfer under such laws.
SECTION 1.14
Restricted Securities.
The term "Restricted Securities" shall
mean Shares, or Receipts representing such Shares, which are
acquired directly or indirectly from the Issuer or its affiliates
(as defined in Rule 144 to the Securities Act of 1933) in a
transaction or chain of transactions not involving any
public offering or which are subject to resale limitations under
Regulation D under that Act or both, or which are held by an
officer, director (or persons performing similar functions) or
other affiliate of the Issuer, or which are subject to other
restrictions on sale or deposit under the laws of the United
States, the Republic of Ireland, or under a shareholder agreement
or the Articles of Association and By-laws of the
Issuer.
SECTION 1.15
Securities Act of 1933.
The term "Securities Act of 1933" shall
mean the United States Securities Act of 1933, as from time to time
amended.
SECTION 1.16
Shares.
The term "Shares" shall mean A Ordinary
Shares in registered form of the Issuer, heretofore validly issued
and outstanding and fully paid, nonassessable and free of any
pre-emptive rights of the holders of outstanding Shares or
hereafter validly issued and outstanding and fully paid,
nonassessable and free of any pre-emptive rights of the holders of
outstanding Shares or interim certificates representing such
Shares.
ARTICLE
2.
FORM OF RECEIPTS,
DEPOSIT OF SHARES, EXECUTION AND DELIVERY, TRANSFER AND SURRENDER
OF RECEIPTS.
SECTION 2.1
Form and Transferability of
Receipts.
Definitive Receipts shall be
substantially in the form set forth in Exhibit A annexed to this
Deposit Agreement, with appropriate insertions, modifications and
omissions, as hereinafter provided. No Receipt shall be
entitled to any benefits under this Deposit Agreement or be
valid or obligatory for any purpose, unless such Receipt shall have
been executed by the Depositary by the manual or facsimile
signature of a duly authorized signatory of the Depositary and, if
a Registrar for the Receipts shall have been appointed,
countersigned by the manual or facsimile signature of a duly
authorized officer of the Registrar. The Depositary shall
maintain books on which each Receipt so executed and delivered as
hereinafter provided and the transfer of each such Receipt shall be
registered. Receipts bearing the manual or facsimile
signature of a duly authorized signatory of the Depositary who was
at any time a proper signatory of the Depositary shall bind the
Depositary, notwithstanding that such signatory has ceased to hold
such office prior to the execution and delivery of such Receipts by
the Registrar or did not hold such office on the date of issuance
of such Receipts.
The Receipts may be endorsed with or have
incorporated in the text thereof such legends or recitals or
modifications not inconsistent with the provisions of this Deposit
Agreement as may be required by the Depositary or required to
comply with any applicable law or regulations thereunder or with
the rules and regulations of any securities exchange upon which
Receipts may be listed or to conform with any usage with respect
thereto, or to indicate any special limitations or restrictions to
which any particular Receipts are subject by reason of the date of
issuance of the underlying Deposited Securities or
otherwise.
Title to a Receipt (and to the American
Depositary Shares evidenced thereby), when properly endorsed or
accompanied by proper instruments of transfer, shall be
transferable by delivery with the same effect as in the case of a
negotiable instrument; provided, however, that the
Depositary, notwithstanding any notice to the contrary, may
treat the Owner thereof as the absolute owner thereof for the
purpose of determining the person entitled to distribution of
dividends or other distributions or to any notice provided for in
this Deposit Agreement and for all other purposes.
SECTION 2.2
Deposit of Shares.
Subject to the terms and conditions of
this Deposit Agreement, Shares or evidence of rights to receive
Shares may be deposited by delivery thereof to any Custodian
hereunder, accompanied by any appropriate instrument or instruments
of transfer, or endorsement, in form satisfactory to the Custodian,
together with all such certifications as may be required by the
Depositary or the Custodian in accordance with the provisions of
this Deposit Agreement, and, if the Depositary requires, together
with a written order directing the Depositary to execute and
deliver to, or upon the written order of, the person or persons
stated in such order, a Receipt or Receipts for the number of
American Depositary Shares representing such deposit. No
Share shall be accepted for deposit unless accompanied by evidence
satisfactory to the Depositary that any necessary approval has been
granted by any governmental body in the Republic of Ireland which
is then performing the function of the regulation of currency
exchange. If required by the Depositary, Shares presented for
deposit at any time, whether or not the transfer books of the
Issuer or the Foreign Registrar, if applicable, are closed, shall
also be accompanied by an agreement or assignment, or other
instrument satisfactory to the Depositary, which will provide for
the prompt transfer to the Custodian of any dividend, or right to
subscribe for additional Shares or to receive other property which
any person in whose name the Shares are or have been recorded may
thereafter receive upon or in respect of such deposited Shares, or
in lieu thereof, such agreement of indemnity or other
agreement as shall be satisfactory to the Depositary.
At the request and risk and expense of
any person proposing to deposit Shares, and for the account of such
person, the Depositary may receive certificates for Shares to be
deposited, together with the other instruments herein specified,
for the purpose of forwarding such Share certificates to the
Custodian for deposit hereunder.
Upon each delivery to a Custodian of a
certificate or certificates for Shares to be deposited hereunder,
together with the other documents above specified, such Custodian
shall, as soon as transfer and recordation can be accomplished,
present such certificate or certificates to the Issuer or the
Foreign Registrar, if applicable, for transfer and recordation of
the Shares being deposited in the name of the Depositary or its
nominee or such Custodian or its nominee.
Deposited Securities shall be held by the
Depositary or by a Custodian for the account and to the order of
the Depositary or at such other place or places as the Depositary
shall determine.
SECTION 2.3
Execution and Delivery of
Receipts.
Upon receipt by any Custodian of any
deposit pursuant to Section 2.2 hereunder (and in addition, if the
transfer books of the Issuer or the Foreign Registrar, if
applicable, are open, the Depositary may in its sole discretion
require a proper acknowledgment or other evidence from the Issuer
that any Deposited Securities have been recorded upon the books of
the Issuer or the Foreign Registrar, if applicable, in the name of
the Depositary or its nominee or such Custodian or its nominee),
together with the other documents required as above
specified, such Custodian shall notify the Depositary of such
deposit and the person or persons to whom or upon whose written
order a Receipt or Receipts are deliverable in respect thereof and
the number of American Depositary Shares to be represented thereby.
Such notification shall be made by letter or, at the request,
risk and expense of the person making the deposit, by cable, telex
or facsimile transmission. Upon receiving such notice from
such Custodian, or upon the receipt of Shares by the Depositary,
the Depositary, subject to the terms and conditions of this Deposit
Agreement, shall execute and deliver at its Corporate Trust Office,
to or upon the order of the person or persons entitled thereto, a
Receipt or Receipts, registered in the name or names and
representing any authorized number of American Depositary Shares
requested by such person or persons, but only upon payment to the
Depositary of the fees of the Depositary for the execution and
delivery of such Receipt or Receipts as provided in Section 5.9,
and of all taxes and governmental charges and fees payable in
connection with such deposit and the transfer of the Deposited
Securities.
SECTION 2.4
Transfer of Receipts; Combination and
Split-up of Receipts.
The Depositary, subject to the terms and
conditions of this Deposit Agreement including payment of the fees
of the Depositary as provided in Section 5.9, shall register
transfers of Receipts on its transfer books from time to time, upon
any surrender of a Receipt, by the Owner in person or by a duly
authorized attorney, properly endorsed or accompanied by proper
instruments of transfer, and duly stamped as may be required by the
laws of the State of New York and of the United States of America.
Thereupon the Depositary shall execute a new Receipt or
Receipts and deliver the same to or upon the order of the person
entitled thereto but only upon payment to the Depositary of
the fees of the Depositary as provided in Section 5.9.
The Depositary, subject to the terms and
conditions of this Deposit Agreement, shall upon surrender of a
Receipt or Receipts for the purpose of effecting a split-up or
combination of such Receipt or Receipts, execute and deliver a new
Receipt or Receipts for any authorized number of American
Depositary Shares requested, representing the same aggregate number
of American Depositary Shares as the Receipt or Receipts
surrendered.
The Depositary may appoint one or more
co-transfer agents for the purpose of effecting transfers,
combinations and split-ups of Receipts at designated transfer
offices on behalf of the Depositary. In carrying out its
functions, a co-transfer agent may require evidence of authority
and compliance with applicable laws and other requirements by
Owners or persons entitled to Receipts and will be entitled
to protection and indemnity to the same extent as the
Depositary.
SECTION 2.5
Surrender of Receipts and Withdrawal
of Shares.
Upon surrender at the Corporate Trust
Office of the Depositary of a Receipt for the purpose of withdrawal
of the Deposited Securities represented by the American Depositary
Shares evidenced by such Receipt, and upon payment of the fee of
the Depositary for the surrender of Receipts as provided in Section
5.9 and payment of all taxes and governmental charges payable in
connection with such surrender and withdrawal of the Deposited
Securities, and subject to the terms and conditions of this Deposit
Agreement, the Owner of such Receipt shall be entitled to delivery,
to him or upon his order, of the amount of Deposited Securities at
the time represented by the American Depositary Shares evidenced by
such Receipt. Delivery of such Deposited Securities may
be made by the delivery of (a) certificates in the name of such
Owner or as ordered by him or by certificates properly endorsed or
accompanied by proper instruments of transfer to such Owner or as
ordered by him and (b) any other securities, property and cash to
which such Owner is then entitled in respect of such Receipts to
such Owner or as ordered by him. Such delivery shall be made,
as hereinafter provided, without unreasonable delay.
A Receipt surrendered for such purposes
may be required by the Depositary to be properly endorsed in blank
or accompanied by proper instruments of transfer in blank, and if
the Depositary so requires, the Owner thereof shall execute and
deliver to the Depositary a written order directing the Depositary
to cause the Deposited Securities being withdrawn to be delivered
to or upon the written order of a person or persons designated in
such order. Thereupon the Depositary shall direct the
Custodian to deliver at the Dublin office of such Custodian,
subject to Sections 2.6, 3.1 and 3.2 and to the other terms and
conditions of this Deposit Agreement, to or upon the written order
of the person or persons designated in the order delivered to the
Depositary as above provided, the amount of Deposited Securities
represented by the American Depositary Shares evidenced by
such Receipt, except that the Depositary may make delivery to
such person or persons at the Corporate Trust Office of the
Depositary of any dividends or distributions with respect to the
Deposited Securities represented by the American Depositary Shares
evidenced by such Receipt, or of any proceeds of sale of any
dividends, distributions or rights, which may at the time be held
by the Depositary.
At the request, risk and expense of any
Owner so surrendering a Receipt, and for the account of such Owner,
the Depositary shall direct the Custodian to forward any cash
or other property (other than rights) comprising, and forward a
certificate or certificates and other proper documents of title
for, the Deposited Securities represented by the American
Depositary Shares evidenced by such Receipt to the Depositary
for delivery at the Corporate Trust Office of the Depositary.
Such direction shall be given by letter or, at the request,
risk and expense of such Owner, by cable, telex or facsimile
transmission.
SECTION 2.6
Limitations on Execution and Delivery,
Transfer and Surrender of Receipts.
As a condition precedent to the execution
and delivery, registration of transfer, split-up, combination or
surrender of any Receipt or withdrawal of any Deposited Securities,
the Depositary, Custodian or Registrar may require payment from the
depositor of Shares or the presentor of the Receipt of a sum
sufficient to reimburse it for any tax or other governmental charge
and any stock transfer or registration fee with respect thereto
(including any such tax or charge and fee with respect to Shares
being deposited or withdrawn) and payment of any applicable fees as
herein provided, may require the production of proof satisfactory
to it as to the identity and genuineness of any signature and may
also require compliance with any regulations the Depositary may
establish consistent with the provisions of this Deposit Agreement,
including, without limitation, Section 7.8.
The delivery of Receipts against deposits
of Shares generally or against deposits of particular Shares may be
suspended, or the transfer of Receipts in particular instances may
be refused, or the registration of transfer of outstanding Receipts
generally may be suspended, during any period when the transfer
books of the Depositary are closed, or if any such action is deemed
necessary or advisable by the Depositary or the Issuer at any
time or from time to time because of any requirement of law or of
any government or governmental body or commission, or under any
provision of this Deposit Agreement, or for any other reason,
subject to Section 7.8 of this Deposit Agreement. The
surrender of outstanding Receipts and withdrawal of Deposited
Securities may not be suspended subject only to (i) temporary
delays caused by closing the transfer books of the Depositary or
the Issuer or the deposit of Shares in connection with voting at a
shareholders' meeting, or the payment of dividends, (ii) the
payment of fees, taxes and similar charges, and (iii) compliance
with any U.S. or foreign laws or governmental regulations relating
to the Receipts or to the withdrawal of the Deposited Securities.
Without limitation of the foregoing, the
Depositary shall not knowingly accept for deposit under this
Deposit Agreement any Shares required to be registered under the
provisions of the Securities Act of 1933, unless a registration
statement is in effect as to such Shares.
SECTION 2.7
Lost Receipts, etc.
In case any Receipt shall be mutilated,
destroyed, lost or stolen, the Depositary shall execute and deliver
a new Receipt of like tenor in exchange and substitution for such
mutilated Receipt upon cancellation thereof, or in lieu of and in
substitution for such destroyed, lost or stolen Receipt.
Before the Depositary shall execute and deliver a new Receipt
in substitution for a destroyed, lost or stolen Receipt, the Owner
thereof shall have (a) filed with the Depositary (i) a request for
such execution and delivery before the Depositary has notice that
the Receipt has been acquired by a bona fide purchaser and (ii) a
sufficient indemnity bond and (b) satisfied any other reasonable
requirements imposed by the Depositary.
SECTION 2.8
Cancellation and Destruction of
Surrendered Receipts.
All Receipts surrendered to the
Depositary shall be cancelled by the Depositary. The
Depositary is authorized to destroy Receipts so
cancelled.
SECTION 2.9
Pre-Release of
Receipts.
Notwithstanding Section 2.3 hereof, the
Depositary may execute and deliver Receipts prior to the receipt of
Shares pursuant to Section 2.2 ("Pre-Release"). The
Depositary may, pursuant to Section 2.5, deliver Shares upon the
receipt and cancellation of Receipts which have been Pre-Released,
whether or not such cancellation is prior to the termination of
such Pre-Release or the Depositary knows that such Receipt has been
Pre-Released. Each Pre-Release will be (a) preceded or
accompanied by a written representation from the person to whom
Receipts are to be delivered that such person, or its customer,
owns the Shares or Receipts to be remitted, as the case may be, (b)
at all times fully collateralized with cash or such other
collateral as the Depositary deems appropriate, (c) terminable by
the Depositary on not more than five (5) business days notice, and
(d) subject to such further indemnities and credit regulations as
the Depositary deems appropriate. The number of American
Depositary Shares which are outstanding at any time as a result of
Pre-Releases will not normally exceed thirty percent (30%) of the
Shares deposited hereunder; provided, however, that the Depositary
reserves the right to change or disregard such limit from time to
time as it deems appropriate.
The Depositary may retain for its own
account any compensation received by it in connection with the
foregoing.
ARTICLE
3.
CERTAIN
OBLIGATIONS OF OWNERS OF RECEIPTS.
SECTION 3.1
Filing Proofs, Certificates and Other
Information.
Any person presenting Shares for deposit
or any Owner of a Receipt may be required from time to time to file
with the Depositary or the Custodian such proof of citizenship or
residence, exchange control approval, or such information relating
to the registration on the books of the Issuer or the Foreign
Registrar, if applicable, to execute such certificates and to make
such representations and warranties, as the Depositary may deem
necessary or proper. The Depositary may withhold the delivery
or registration of transfer of any Receipt or the distribution of
any dividend or sale or distribution of rights or of the proceeds
thereof or the delivery of any Deposited Securities until such
proof or other information is filed or such certificates are
executed or such representations and warranties made.
SECTION 3.2
Liability of Owner for
Taxes.
If any tax or other governmental charge
shall become payable with respect to any Receipt or any Deposited
Securities represented by any Receipt, such tax or other
governmental charge shall be payable by the Owner of such Receipt
to the Depositary. The Depositary may refuse to effect any
transfer of such Receipt or any withdrawal of Deposited Securities
represented by American Depositary Shares evidenced by such Receipt
until such payment is made, and may withhold any dividends or other
distributions, or may sell for the account of the Owner thereof any
part or all of the Deposited Securities represented by the American
Depositary Shares evidenced by such Receipt, and may apply such
dividends or other distributions or the proceeds of any such sale
in payment of such tax or other governmental charge and the
Owner of such Receipt shall remain liable for any
deficiency.
SECTION 3.3
Warranties on Deposit of
Shares.
Every person depositing Shares under this
Deposit Agreement shall be deemed thereby to represent and warrant
that such Shares and each certificate therefor are validly issued,
fully paid, nonassessable and free of any pre-emptive rights of the
holders of outstanding Shares and that t
