(Name of Issuer)
|
Ordinary Stock, Nominal Value €0.05 each
American Depository Shares, each representing forty units of Ordinary Stock, Par Value €0.05 each
|
(Title and Class of Securities)
|
46267Q202
|
(CUSIP Number)
|
WL Ross & Co. LLC
1166 Avenue of the Americas
New York, New York 10036
Attention: Michael J. Gibbons
Telephone Number: (212) 826-1100
Facsimile Number: (212) 278-9645
|
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)
|
October 17, 2011
|
(Date of Event which Requires Filing of this Statement)
|
CUSIP No. 46267Q202
|
Schedule 13D
|
1
|
NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
WL Ross & Co. LLC (1)
|
|||
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) c
(b) S
|
|||
3
|
SEC USE ONLY
|
|||
4
|
SOURCE OF FUNDS
OO
|
|||
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
□
|
||
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
|
7
|
SOLE VOTING POWER
-0-
|
||
8
|
SHARED VOTING POWER
2,799,609,488 (1)
|
|||
9
|
SOLE DISPOSITIVE POWER
-0-
|
|||
10
|
SHARED DISPOSITIVE POWER
2,799,609,488 (1)
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,799,609,488 (1)
|
|||
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
□
|
||
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.3%
|
|||
14
|
TYPE OF REPORTING PERSON
OO
|
(1)
|
WL Ross & Co. LLC serves as the investment manager to WLR Recovery Fund IV, L.P. ("Fund IV"), WLR Recovery Fund V, L.P. ("Fund V") and WLR/GS Master Co-Investment L.P. (the "Co-Invest Fund"). Fund IV owns 2,121,208,699 units of Ordinary Stock of the issuer, Fund V owns 489,713,102 units of Ordinary Stock of the issuer and the Co-Invest Fund owns 188,687,687 units of Ordinary Stock of the issuer. Wilbur L. Ross, Jr. is the president and chief executive officer of WL Ross & Co. LLC, the managing member of El Vedado, LLC and the chairman and president of Invesco Private Capital, Inc. El Vedado, LLC is the general partner of WL Ross Group, L.P., which in turn is the managing member of WLR Recovery Associates IV LLC, WLR Recovery Associates V LLC and WLR Master Co-Investment GP, LLC. WLR Recovery Associates IV LLC is the general partner of Fund IV, WLR Recovery Associates V LLC is the general partner of Fund V and WLR Master Co-Investment GP, LLC is the general partner of the Co-Invest Fund.
|
CUSIP No. 46267Q202
|
Schedule 13D
|
Accordingly, WL Ross & Co. LLC may be deemed to share voting and dispositive power with (i) Wilbur L. Ross, Jr., El Vedado, LLC, WL Ross Group, L.P. and WLR Recovery Associates IV LLC over the units of Ordinary Stock owned by Fund IV; (ii) Wilbur L. Ross, Jr., El Vedado, LLC, WL Ross Group, L.P. and WLR Recovery Associates V LLC over the units of Ordinary Stock owned by Fund V; and (iii) Wilbur L. Ross, Jr., El Vedado, LLC, WL Ross Group, L.P. and WLR Master Co-Investment GP, LLC over the units of Ordinary Stock owned by the Co-Invest Fund.
|
CUSIP No. 46267Q202
|
Schedule 13D
|
1
|
NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
WLR Recovery Fund IV, L.P. (1)
|
|||
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) c
(b) S
|
|||
3
|
SEC USE ONLY
|
|||
4
|
SOURCE OF FUNDS
OO
|
|||
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
□
|
||
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
|
7
|
SOLE VOTING POWER
-0-
|
||
8
|
SHARED VOTING POWER
2,121,208,699 (1)
|
|||
9
|
SOLE DISPOSITIVE POWER
-0-
|
|||
10
|
SHARED DISPOSITIVE POWER
2,121,208,699 (1)
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,121,208,699 (1)
|
|||
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
□
|
||
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.0%
|
|||
14
|
TYPE OF REPORTING PERSON
PN
|
(1)
|
WLR Recovery Fund IV, L.P. ("Fund IV") owns 2,121,208,699 units of Ordinary Stock of the issuer. Wilbur L. Ross, Jr. is the president and chief executive officer of WL Ross & Co. LLC and the managing member of El Vedado, LLC. El Vedado, LLC is the general partner of WL Ross Group, L.P., which in turn is the managing member of WLR Recovery Associates IV LLC. WLR Recovery Associates IV LLC is the general partner of Fund IV. WL Ross & Co. LLC serves as the investment manager to Fund IV. Accordingly, WL Ross & Co. LLC, Wilbur L. Ross, Jr., El Vedado, LLC, WL Ross Group, L.P. and WLR Recovery Associates IV LLC may be deemed to share voting and dispositive power over the units of Ordinary Stock owned by Fund IV.
|
CUSIP No. 46267Q202
|
Schedule 13D
|
1
|
NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
WLR Recovery Fund V, L.P. (1)
|
|||
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) c
(b) S
|
|||
3
|
SEC USE ONLY
|
|||
4
|
SOURCE OF FUNDS
OO
|
|||
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
□
|
||
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
|
7
|
SOLE VOTING POWER
-0-
|
||
8
|
SHARED VOTING POWER
489,713,102 (1)
|
|||
9
|
SOLE DISPOSITIVE POWER
-0-
|
|||
10
|
SHARED DISPOSITIVE POWER
489,713,102 (1)
|
|||
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
489,713,102 (1)
|
|||
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
□
|
||
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.6%
|
|||
14
|
TYPE OF REPORTING PERSON
PN
|
(1)
|
WLR Recovery Fund V, L.P. ("Fund V") owns 489,713,102 units of Ordinary Stock of the issuer. Wilbur L. Ross, Jr. is the president and chief executive officer of WL Ross & Co. LLC and the managing member of El Vedado, LLC. El Vedado, LLC is the general partner of WL Ross Group, L.P., which in turn is the managing member of WLR Recovery Associates V LLC. WLR Recovery Associates V LLC is the general partner of Fund V. WL Ross & Co. LLC serves as the investment manager to Fund V. Accordingly, WL Ross & Co. LLC, Wilbur L. Ross, Jr., El Vedado, LLC, WL Ross Group, L.P. and WLR Recovery Associates V LLC may be deemed to share voting and dispositive power over the units of Ordinary Stock owned by Fund V.
|
CUSIP No. 46267Q202
|
Schedule 13D
|
1
|
NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
WLR/GS Master Co-Investment L.P. (1)
|
|||
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) c
(b) S
|
|||
3
|
SEC USE ONLY
|
|||
4
|
SOURCE OF FUNDS
OO
|
|||
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
□
|
||
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
Cayman Islands
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
|
7
|
SOLE VOTING POWER
-0-
|
||
8
|
SHARED VOTING POWER
188,687,687 (1)
|
|||
9
|
SOLE DISPOSITIVE POWER
-0-
|
|||
10
|
SHARED DISPOSITIVE POWER
188,687,687 (1)
|
|||
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
188,687,687 (1)
|
|||
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
□
|
||
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.6%
|
|||
14
|
TYPE OF REPORTING PERSON
PN
|
(1)
|
WLR/GS Master Co-Investment L.P. (the "Co-Invest Fund") owns 188,687,687 units of Ordinary Stock of the issuer. Wilbur L. Ross, Jr. is the president and chief executive officer of WL Ross & Co. LLC and the managing member of El Vedado, LLC. El Vedado, LLC is the general partner of WL Ross Group, L.P., which in turn is the managing member of WLR Master Co-Investment GP, LLC. WLR Master Co-Investment GP, LLC is the general partner of the Co-Invest Fund. WL Ross & Co. LLC serves as the investment manager to the Co-Invest Fund. Accordingly, WL Ross & Co. LLC, Wilbur L. Ross, Jr., El Vedado, LLC, WL Ross Group, L.P. and WLR Master Co-Investment GP, LLC may be deemed to share voting and dispositive power over the units of Ordinary Stock owned by the Co-Invest Fund.
|
CUSIP No. 46267Q202
|
Schedule 13D
|
1
|
NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
WLR IV Parallel ESC, L.P. (1)
|
|||
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) c
(b) S
|
|||
3
|
SEC USE ONLY
|
|||
4
|
SOURCE OF FUNDS
OO
|
|||
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
□
|
||
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
|
7
|
SOLE VOTING POWER
-0-
|
||
8
|
SHARED VOTING POWER
7,854,370 (1)
|
|||
9
|
SOLE DISPOSITIVE POWER
-0-
|
|||
10
|
SHARED DISPOSITIVE POWER
7,854,370 (1)
|
|||
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,854,370 (1)
|
|||
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
□
|
||
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
Less than 0.1%
|
|||
14
|
TYPE OF REPORTING PERSON
PN
|
(1)
|
WLR IV Parallel ESC, L.P. (the "Parallel Fund") owns 7,854,370 units of Ordinary Stock of the issuer. Wilbur L. Ross, Jr. is the president and chief executive officer of WL Ross & Co. LLC, the managing member of El Vedado, LLC and the chairman and president of Invesco Private Capital, Inc. El Vedado, LLC is the general partner of WL Ross Group, L.P., which in turn is the managing member of WLR Recovery Associates IV LLC. WLR Recovery Associates IV LLC is the general partner of WLR Recovery Fund IV, L.P. Invesco Private Capital, Inc. is the managing member of INVESCO WLR IV Associates LLC, which in turn is the general partner of the Parallel Fund. INVESCO WLR IV Associates LLC and WLR Recovery Associates IV LLC have entered into a parallel investment agreement pursuant to which WLR Recovery Associates IV LLC has been appointed as representative and attorney of the Parallel Fund to, among other things, exercise all rights, powers and privileges with respect to the Ordinary Stock owned by the Parallel Fund and to take whatever action, including voting such Ordinary Stock, as WLR Recovery Associates IV LLC in its discretion deems fit. Accordingly, Wilbur L. Ross, Jr., El Vedado, LLC, WL Ross Group, L.P., WLR Recovery Associates
|
CUSIP No. 46267Q202
|
Schedule 13D
|
IV LLC, Invesco Private Capital, Inc. and INVESCO WLR IV Associates LLC may be deemed to share voting and dispositive power over the units of Ordinary Stock owned by the Parallel Fund.
|
CUSIP No. 46267Q202
|
Schedule 13D
|
1
|
NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
WLR Recovery Associates IV LLC (1)
|
|||
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) c
(b) S
|
|||
3
|
SEC USE ONLY
|
|||
4
|
SOURCE OF FUNDS
OO
|
|||
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
□
|
||
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
|
7
|
SOLE VOTING POWER
-0-
|
||
8
|
SHARED VOTING POWER
2,129,063,069 (1)
|
|||
9
|
SOLE DISPOSITIVE POWER
-0-
|
|||
10
|
SHARED DISPOSITIVE POWER
2,129,063,069 (1)
|
|||
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,129,063,069 (1)
|
|||
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
□
|
||
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.1%
|
|||
14
|
TYPE OF REPORTING PERSON
OO
|
(1)
|
WLR Recovery Fund IV, L.P. ("Fund IV") owns 2,121,208,699 units of Ordinary Stock of the issuer. WLR IV Parallel ESC, L.P. (the "Parallel Fund") owns 7,854,370 units of Ordinary Stock of the issuer. Wilbur L. Ross, Jr. is the president and chief executive officer of WL Ross & Co. LLC, the managing member of El Vedado, LLC and the chairman and president of Invesco Private Capital, Inc. El Vedado, LLC is the general partner of WL Ross Group, L.P., which in turn is the managing member of WLR Recovery Associates IV LLC. WLR Recovery Associates IV LLC is the general partner of Fund IV. WL Ross & Co. LLC serves as the investment manager to Fund IV. INVESCO WLR IV Associates LLC and WLR Recovery Associates IV LLC have entered into a parallel investment agreement pursuant to which WLR Recovery Associates IV LLC has been appointed as representative and attorney of the Parallel Fund to, among other things, exercise all rights, powers and privileges with respect to the Ordinary Stock owned by the Parallel Fund and to take whatever action, including voting such Ordinary Stock, as WLR Recovery Associates IV LLC in its discretion deems fit. Accordingly, WLR Recovery Associates IV LLC may be deemed to share voting
|
CUSIP No. 46267Q202
|
Schedule 13D
|
and dispositive power with (i) WL Ross & Co. LLC, Wilbur L. Ross, Jr., El Vedado, LLC and WL Ross Group L.P. over the units of Ordinary Stock owned by Fund IV, and (ii) Wilbur L. Ross, Jr., El Vedado, LLC, WL Ross Group L.P., Invesco Private Capital, Inc. and INVESCO WLR IV Associates LLC over the units of Ordinary Stock owned by the Parallel Fund.
|
CUSIP No. 46267Q202
|
Schedule 13D
|
1
|
NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
WLR Recovery Associates V LLC (1)
|
|||
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) c
(b) S
|
|||
3
|
SEC USE ONLY
|
|||
4
|
SOURCE OF FUNDS
OO
|
|||
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
□
|
||
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
|
7
|
SOLE VOTING POWER
-0-
|
||
8
|
SHARED VOTING POWER
489,713,102 (1)
|
|||
9
|
SOLE DISPOSITIVE POWER
-0-
|
|||
10
|
SHARED DISPOSITIVE POWER
489,713,102 (1)
|
|||
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
489,713,102 (1)
|
|||
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
□
|
||
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.6%
|
|||
14
|
TYPE OF REPORTING PERSON
OO
|
(1)
|
WLR Recovery Fund V, L.P. ("Fund V") owns 489,713,102 units of Ordinary Stock of the issuer. Wilbur L. Ross, Jr. is the president and chief executive officer of WL Ross & Co. LLC and the managing member of El Vedado, LLC. El Vedado, LLC is the general partner of WL Ross Group, L.P., which in turn is the managing member of WLR Recovery Associates V LLC. WLR Recovery Associates V LLC is the general partner of Fund V. WL Ross & Co. LLC serves as the investment manager to Fund V. Accordingly, WL Ross & Co. LLC, Wilbur L. Ross, Jr., El Vedado, LLC, WL Ross Group, L.P. and WLR Recovery Associates V LLC may be deemed to share voting and dispositive power over the units of Ordinary Stock owned by Fund V.
|
CUSIP No. 46267Q202
|
Schedule 13D
|
1
|
NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
WLR Master Co-Investment GP, LLC (1)
|
|||
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) c
(b) S
|
|||
3
|
SEC USE ONLY
|
|||
4
|
SOURCE OF FUNDS
OO
|
|||
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
□
|
||
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
|
7
|
SOLE VOTING POWER
-0-
|
||
8
|
SHARED VOTING POWER
188,687,687 (1)
|
|||
9
|
SOLE DISPOSITIVE POWER
-0-
|
|||
10
|
SHARED DISPOSITIVE POWER
188,687,687 (1)
|
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
188,687,687 (1)
|
|||
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
□
|
||
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.6%
|
|||
14
|
TYPE OF REPORTING PERSON
OO
|
(1)
|
WLR/GS Master Co-Investment L.P. (the "Co-Invest Fund") owns 188,687,687 units of Ordinary Stock of the issuer. Wilbur L. Ross, Jr. is the president and chief executive officer of WL Ross & Co. LLC and the managing member of El Vedado, LLC. El Vedado, LLC is the general partner of WL Ross Group, L.P., which in turn is the managing member of WLR Master Co-Investment GP, LLC. WLR Master Co-Investment GP, LLC is the general partner of the Co-Invest Fund. WL Ross & Co. LLC serves as the investment manager to the Co-Invest Fund. Accordingly, WL Ross & Co. LLC, Wilbur L. Ross, Jr., El Vedado, LLC, WL Ross Group, L.P. and WLR Master Co-Investment GP, LLC may be deemed to share voting and dispositive power over the units of Ordinary Stock owned by the Co-Invest Fund.
|
CUSIP No. 46267Q202
|
Schedule 13D
|
1
|
NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
INVESCO WLR IV Associates LLC (1)
|
|||
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) c
(b) S
|
|||
3
|
SEC USE ONLY
|
|||
4
|
SOURCE OF FUNDS
OO
|
|||
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
□
|
||
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
|
7
|
SOLE VOTING POWER
-0-
|
||
8
|
SHARED VOTING POWER
7,854,370 (1)
|
|||
9
|
SOLE DISPOSITIVE POWER
-0-
|
|||
10
|
SHARED DISPOSITIVE POWER
7,854,370 (1)
|
|||
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,854,370 (1)
|
|||
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
□
|
||
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
Less than 0.1%
|
|||
14
|
TYPE OF REPORTING PERSON
OO
|
(1)
|
WLR IV Parallel ESC, L.P. (the "Parallel Fund") owns 7,854,370 units of Ordinary Stock of the issuer. Wilbur L. Ross, Jr. is the president and chief executive officer of WL Ross & Co. LLC, the managing member of El Vedado, LLC and the chairman and president of Invesco Private Capital, Inc. El Vedado, LLC is the general partner of WL Ross Group, L.P., which in turn is the managing member of WLR Recovery Associates IV LLC. WLR Recovery Associates IV LLC is the general partner of WLR Recovery Fund IV, L.P. Invesco Private Capital, Inc. is the managing member of INVESCO WLR IV Associates LLC, which in turn is the general partner of the Parallel Fund. INVESCO WLR IV Associates LLC and WLR Recovery Associates IV LLC have entered into a parallel investment agreement pursuant to which WLR Recovery Associates IV LLC has been appointed as representative and attorney of the Parallel Fund to, among other things, exercise all rights, powers and privileges with respect to the Ordinary Stock owned by the Parallel Fund and to take whatever action, including voting such Ordinary Stock, as WLR Recovery Associates IV LLC in its discretion deems fit. Accordingly, Wilbur L. Ross, Jr., El Vedado, LLC, WL Ross Group, L.P., WLR Recovery Associates
|
CUSIP No. 46267Q202
|
Schedule 13D
|
IV LLC, Invesco Private Capital, Inc. and INVESCO WLR IV Associates LLC may be deemed to share voting and dispositive power over the units of Ordinary Stock owned by the Parallel Fund.
|
CUSIP No. 46267Q202
|
Schedule 13D
|
1
|
NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Invesco Private Capital, Inc. (1)
|
|||
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) c
(b) S
|
|||
3
|
SEC USE ONLY
|
|||
4
|
SOURCE OF FUNDS
OO
|
|||
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
□
|
||
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
|
7
|
SOLE VOTING POWER
-0-
|
||
8
|
SHARED VOTING POWER
7,854,370 (1)
|
|||
9
|
SOLE DISPOSITIVE POWER
-0-
|
|||
10
|
SHARED DISPOSITIVE POWER
7,854,370 (1)
|
|||
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,854,370 (1)
|
|||
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
□
|
||
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
Less than 0.1%
|
|||
14
|
TYPE OF REPORTING PERSON
CO
|
(1)
|
WLR IV Parallel ESC, L.P. (the "Parallel Fund") owns 7,854,370 units of Ordinary Stock of the issuer. Wilbur L. Ross, Jr. is the president and chief executive officer of WL Ross & Co. LLC, the managing member of El Vedado, LLC and the chairman and president of Invesco Private Capital, Inc. El Vedado, LLC is the general partner of WL Ross Group, L.P., which in turn is the managing member of WLR Recovery Associates IV LLC. WLR Recovery Associates IV LLC is the general partner of WLR Recovery Fund IV, L.P. Invesco Private Capital, Inc. is the managing member of INVESCO WLR IV Associates LLC, which in turn is the general partner of the Parallel Fund. INVESCO WLR IV Associates LLC and WLR Recovery Associates IV LLC have entered into a parallel investment agreement pursuant to which WLR Recovery Associates IV LLC has been appointed as representative and attorney of the Parallel Fund to, among other things, exercise all rights, powers and privileges with respect to the Ordinary Stock owned by the Parallel Fund and to take whatever action, including voting such Ordinary Stock, as WLR Recovery Associates IV LLC in its discretion deems fit. Accordingly, Wilbur L. Ross, Jr., El Vedado, LLC, WL Ross Group, L.P., WLR Recovery Associates
|
CUSIP No. 46267Q202
|
Schedule 13D
|
IV LLC, Invesco Private Capital, Inc. and INVESCO WLR IV Associates LLC may be deemed to share voting and dispositive power over the units of Ordinary Stock owned by the Parallel Fund.
|
CUSIP No. 46267Q202
|
Schedule 13D
|
1
|
NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Wilbur L. Ross, Jr. (1)
|
|||
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) c
(b) S
|
|||
3
|
SEC USE ONLY
|
|||
4
|
SOURCE OF FUNDS
OO
|
|||
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
□
|
||
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
|
7
|
SOLE VOTING POWER
-0-
|
||
8
|
SHARED VOTING POWER
2,807,463,858 (1)
|
|||
9
|
SOLE DISPOSITIVE POWER
-0-
|
|||
10
|
SHARED DISPOSITIVE POWER
2,807,463,858 (1)
|
|||
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,807,463,858 (1)
|
|||
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
□
|
||
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.3%
|
|||
14
|
TYPE OF REPORTING PERSON
IN
|
(1)
|
WLR Recovery Fund IV, L.P. ("Fund IV") owns 2,121,208,699 units of Ordinary Stock of the issuer, WLR Recovery Fund V, L.P. ("Fund V") owns 489,713,102 units of Ordinary Stock of the issuer, WLR/GS Master Co-Investment L.P. (the "Co-Invest Fund") owns 188,687,687 units of Ordinary Stock of the issuer and WLR IV Parallel ESC, L.P. (the "Parallel Fund") owns 7,854,370 units of Ordinary Stock of the issuer. Wilbur L. Ross, Jr. is the president and chief executive officer of WL Ross & Co. LLC, the managing member of El Vedado, LLC and the chairman and president of Invesco Private Capital, Inc. El Vedado, LLC is the general partner of WL Ross Group, L.P., which in turn is the managing member of WLR Recovery Associates IV LLC, WLR Recovery Associates V LLC and WLR Master Co-Investment GP, LLC. WLR Recovery Associates IV LLC is the general partner of Fund IV, WLR Recovery Associates V LLC is the general partner of Fund V and WLR Master Co-Investment GP, LLC is the general partner of the Co-Invest Fund. WL Ross & Co. LLC serves as the investment manager to Fund IV, Fund V and the Co-Invest Fund. Invesco Private Capital, Inc. is the managing member of INVESCO WLR IV Associates LLC, which in turn is the general partner of the Parallel Fund. INVESCO WLR IV Associates LLC and WLR Recovery Associates IV
|
CUSIP No. 46267Q202
|
Schedule 13D
|
LLC have entered into a parallel investment agreement pursuant to which WLR Recovery Associates IV LLC has been appointed as representative and attorney of the Parallel Fund to, among other things, exercise all rights, powers and privileges with respect to the Ordinary Stock owned by the Parallel Fund and to take whatever action, including voting such Ordinary Stock, as WLR Recovery Associates IV LLC in its discretion deems fit. Accordingly, Wilbur L. Ross, Jr. may be deemed to share voting and dispositive power with (i) WL Ross & Co. LLC, El Vedado, LLC, WL Ross Group, L.P. and WLR Recovery Associates IV LLC over the units of Ordinary Stock owned by Fund IV; (ii) WL Ross & Co. LLC, El Vedado, LLC, WL Ross Group, L.P. and WLR Recovery Associates V LLC over the units of Ordinary Stock owned by Fund V; (iii) WL Ross & Co. LLC, El Vedado, LLC, WL Ross Group, L.P. and WLR Master Co-Investment GP, LLC over the units of Ordinary Stock owned by the Co-Invest Fund; and (iv) El Vedado, LLC, WL Ross Group, L.P., WLR Recovery Associates IV LLC, Invesco Private Capital, Inc. and INVESCO WLR IV Associates LLC over the units of Ordinary Stock owned by the Parallel Fund.
|
CUSIP No. 46267Q202
|
Schedule 13D
|
1
|
NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
El Vedado, LLC (1)
|
|||
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) c
(b) S
|
|||
3
|
SEC USE ONLY
|
|||
4
|
SOURCE OF FUNDS
OO
|
|||
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
□
|
||
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
New York
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
|
7
|
SOLE VOTING POWER
-0-
|
||
8
|
SHARED VOTING POWER
2,807,463,858 (1)
|
|||
9
|
SOLE DISPOSITIVE POWER
-0-
|
|||
10
|
SHARED DISPOSITIVE POWER
2,807,463,858 (1)
|
|||
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,807,463,858 (1)
|
|||
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
□
|
||
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.3%
|
|||
14
|
TYPE OF REPORTING PERSON
OO
|
(1)
|
WLR Recovery Fund IV, L.P. ("Fund IV") owns 2,121,208,699 units of Ordinary Stock of the issuer, WLR Recovery Fund V, L.P. ("Fund V") owns 489,713,102 units of Ordinary Stock of the issuer, WLR/GS Master Co-Investment L.P. (the "Co-Invest Fund") owns 188,687,687 units of Ordinary Stock of the issuer and WLR IV Parallel ESC, L.P. (the "Parallel Fund") owns 7,854,370 units of Ordinary Stock of the issuer. Wilbur L. Ross, Jr. is the president and chief executive officer of WL Ross & Co. LLC, the managing member of El Vedado, LLC and the chairman and president of Invesco Private Capital, Inc. El Vedado, LLC is the general partner of WL Ross Group, L.P., which in turn is the managing member of WLR Recovery Associates IV LLC, WLR Recovery Associates V LLC and WLR Master Co-Investment GP, LLC. WLR Recovery Associates IV LLC is the general partner of Fund IV, WLR Recovery Associates V LLC is the general partner of Fund V and WLR Master Co-Investment GP, LLC is the general partner of the Co-Invest Fund. WL Ross & Co. LLC serves as the investment manager to Fund IV, Fund V and the Co-Invest Fund. Invesco Private Capital, Inc. is the managing member of INVESCO WLR IV Associates LLC, which in turn is the general partner of the Parallel Fund. INVESCO WLR IV Associates LLC and WLR Recovery Associates IV
|
CUSIP No. 46267Q202
|
Schedule 13D
|
LLC have entered into a parallel investment agreement pursuant to which WLR Recovery Associates IV LLC has been appointed as representative and attorney of the Parallel Fund to, among other things, exercise all rights, powers and privileges with respect to the Ordinary Stock owned by the Parallel Fund and to take whatever action, including voting such Ordinary Stock, as WLR Recovery Associates IV LLC in its discretion deems fit. Accordingly, El Vedado, LLC may be deemed to share voting and dispositive power with (i) Wilbur L. Ross, Jr., WL Ross & Co. LLC, WL Ross Group, L.P. and WLR Recovery Associates IV LLC over the units of Ordinary Stock owned by Fund IV; (ii) Wilbur L. Ross, Jr., WL Ross & Co. LLC, WL Ross Group, L.P. and WLR Recovery Associates V LLC over the units of Ordinary Stock owned by Fund V; (iii) Wilbur L. Ross, Jr., WL Ross & Co. LLC, WL Ross Group, L.P. and WLR Master Co-Investment GP, LLC over the units of Ordinary Stock owned by the Co-Invest Fund; and (iv) Wilbur L. Ross, Jr., WL Ross Group, L.P., WLR Recovery Associates IV LLC, Invesco Private Capital, Inc. and INVESCO WLR IV Associates LLC over the units of Ordinary Stock owned by the Parallel Fund.
|
CUSIP No. 46267Q202
|
Schedule 13D
|
1
|
NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
WL Ross Group, L.P. (1)
|
|||
2
|
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) c
(b) S
|
|||
3
|
SEC USE ONLY
|
|||
4
|
SOURCE OF FUNDS
OO
|
|||
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
□
|
||
6
|
CITIZENSHIP OR PLACE OF ORGANIZATION
New York
|
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
|
7
|
SOLE VOTING POWER
-0-
|
||
8
|
SHARED VOTING POWER
2,807,463,858 (1)
|
|||
9
|
SOLE DISPOSITIVE POWER
-0-
|
|||
10
|
SHARED DISPOSITIVE POWER
2,807,463,858 (1)
|
|||
11
|
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,807,463,858 (1)
|
|||
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
□
|
||
13
|
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.3%
|
|||
14
|
TYPE OF REPORTING PERSON
PN
|
(1)
|
WLR Recovery Fund IV, L.P. ("Fund IV") owns 2,121,208,699 units of Ordinary Stock of the issuer, WLR Recovery Fund V, L.P. ("Fund V") owns 489,713,102 units of Ordinary Stock of the issuer, WLR/GS Master Co-Investment L.P. (the "Co-Invest Fund") owns 188,687,687 units of Ordinary Stock of the issuer and WLR IV Parallel ESC, L.P. (the "Parallel Fund") owns 7,854,370 units of Ordinary Stock of the issuer. Wilbur L. Ross, Jr. is the president and chief executive officer of WL Ross & Co. LLC, the managing member of El Vedado, LLC and the chairman and president of Invesco Private Capital, Inc. El Vedado, LLC is the general partner of WL Ross Group, L.P., which in turn is the managing member of WLR Recovery Associates IV LLC, WLR Recovery Associates V LLC and WLR Master Co-Investment GP, LLC. WLR Recovery Associates IV LLC is the general partner of Fund IV, WLR Recovery Associates V LLC is the general partner of Fund V and WLR Master Co-Investment GP, LLC is the general partner of the Co-Invest Fund. WL Ross & Co. LLC serves as the investment manager to Fund IV, Fund V and the Co-Invest Fund. Invesco Private Capital, Inc. is the managing member of INVESCO WLR IV Associates LLC, which in turn is the general partner of the Parallel Fund. INVESCO WLR IV Associates LLC and WLR Recovery Associates IV
|
CUSIP No. 46267Q202
|
Schedule 13D
|
LLC have entered into a parallel investment agreement pursuant to which WLR Recovery Associates IV LLC has been appointed as representative and attorney of the Parallel Fund to, among other things, exercise all rights, powers and privileges with respect to the Ordinary Stock owned by the Parallel Fund and to take whatever action, including voting such Ordinary Stock, as WLR Recovery Associates IV LLC in its discretion deems fit. Accordingly, WL Ross Group, L.P. may be deemed to share voting and dispositive power with (i) Wilbur L. Ross, Jr., WL Ross & Co. LLC, El Vedado, LLC and WLR Recovery Associates IV LLC over the units of Ordinary Stock owned by Fund IV; (ii) Wilbur L. Ross, Jr., WL Ross & Co. LLC, El Vedado, LLC and WLR Recovery Associates V LLC over the units of Ordinary Stock owned by Fund V; (iii) Wilbur L. Ross, Jr., WL Ross & Co. LLC, El Vedado, LLC and WLR Master Co-Investment GP, LLC over the units of Ordinary Stock owned by the Co-Invest Fund; and (iv) Wilbur L. Ross, Jr., El Vedado, LLC, WLR Recovery Associates IV LLC, Invesco Private Capital, Inc. and INVESCO WLR IV Associates LLC over the units of Ordinary Stock owned by the Parallel Fund.
|
CUSIP No. 46267Q202
|
Schedule 13D
|
·
|
WL Ross & Co. LLC, the investment manager of Fund IV, Fund V and the Co-Invest Fund (each as defined below)
|
|
·
|
WLR Recovery Fund IV, L.P. ("Fund IV")
|
|
·
|
WLR Recovery Fund V, L.P. ("Fund V")
|
|
·
|
WLR/GS Master Co-Investment L.P. (the "Co-Invest Fund")
|
|
·
|
WLR IV Parallel ESC, L.P. (the "Parallel Fund")
|
|
·
|
WLR Recovery Associates IV LLC, the general partner of Fund IV
|
|
·
|
WLR Recovery Associates V LLC, the general partner of Fund V
|
|
·
|
WLR Master Co-Investment GP, LLC, the general partner of the Co-Invest Fund
|
|
·
|
INVESCO WLR IV Associates LLC, the general partner of the Parallel Fund
|
|
·
|
Invesco Private Capital, Inc., the managing member of INVESCO WLR IV Associates LLC
|
|
·
|
WL Ross Group, L.P., the managing member of WLR Recovery Associates IV LLC, WLR Recovery Associates V LLC and WLR Master Co-Investment GP, LLC
|
|
·
|
El Vedado, LLC, the general partner of WL Ross Group, L.P.
|
|
·
|
Wilbur L. Ross, Jr., the managing member of El Vedado, LLC, president and chief executive officer of WL Ross & Co. LLC and chairman and president of Invesco Private Capital, Inc.
|
CUSIP No. 46267Q202
|
Schedule 13D
|
CUSIP No. 46267Q202
|
Schedule 13D
|
CUSIP No. 46267Q202
|
Schedule 13D
|
Exhibit 1
|
Joint Filing Agreement
|
||
Exhibit 2
|
First SPA
|
||
Exhibit 3
|
Supplemental Agreement to the First SPA
|
||
Exhibit 4.1
|
Deed of Adherence for Fund IV
|
||
Exhibit 4.2
|
Deed of Adherence for Fund V
|
||
Exhibit 4.3
|
Deed of Adherence for the Co-Invest Fund
|
CUSIP No. 46267Q202
|
Schedule 13D
|
Exhibit 4.4
|
Deed of Adherence for the Parallel Fund
|
||
Exhibit 4.5
|
Deed of Assignment for Fund IV
|
||
Exhibit 4.6
|
Deed of Assignment for Fund V
|
||
Exhibit 4.7
|
Deed of Assignment for the Co-Invest Fund
|
||
Exhibit 4.8
|
Deed of Assignment for the Parallel Fund
|
||
Exhibit 5
|
Conditional SPA
|
||
Exhibit 6
|
Supplemental Agreement to the Conditional SPA
|
||
Exhibit 7
|
Deed of Undertaking
|
||
Exhibit 8
|
Registration Rights Agreement
|
||
Exhibit 9
|
Offer Agreement
|
||
Exhibit 10
|
Issuer Agreement
|
||
Exhibit 11
|
Parallel Investment Agreement
|
CUSIP No. 46267Q202
|
Schedule 13D
|
WL ROSS & CO. LLC
|
|||
By:
|
/s/ Michael Gibbons
|
||
Name:
|
Michael Gibbons
|
||
Title:
|
Authorized Person
|
||
WLR RECOVERY FUND IV, L.P.
|
|||
By:
|
WLR Recovery Associates IV LLC,
its General Partner
|
||
By:
|
WL Ross Group, L.P.,
its Managing Member
|
||
By:
|
El Vedado, LLC,
its General Partner
|
||
By:
|
/s/ Michael Gibbons
|
||
Name:
|
Michael Gibbons
|
||
Title:
|
Authorized Person
|
||
WLR RECOVERY FUND V, L.P.
|
|||
By:
|
WLR Recovery Associates V LLC,
its General Partner
|
||
By:
|
WL Ross Group, L.P.,
its Managing Member
|
||
By:
|
El Vedado, LLC,
its General Partner
|
||
By:
|
/s/ Michael Gibbons
|
||
Name:
|
Michael Gibbons
|
||
Title:
|
Authorized Person
|
CUSIP No. 46267Q202
|
Schedule 13D
|
WLR/GS MASTER CO-INVESTMENT L.P.
|
|||
By:
|
WLR Master Co-Investment GP, LLC,
its General Partner
|
||
By:
|
WL Ross Group, L.P.,
its Managing Member
|
||
By:
|
El Vedado, LLC,
its General Partner
|
||
By:
|
/s/ Michael Gibbons
|
||
Name:
|
Michael Gibbons
|
||
Title:
|
Authorized Person
|
||
WLR IV PARALLEL ESC, L.P.
|
|||
By:
|
INVESCO WLR IV Associates LLC,
its General Partner
|
||
By:
|
Invesco Private Capital, Inc.,
its Managing Member
|
||
By:
|
/s/ Michael Gibbons
|
||
Name:
|
Michael Gibbons
|
||
Title:
|
Authorized Person
|
||
WLR RECOVERY ASSOCIATES IV LLC
|
|||
By:
|
WL Ross Group, L.P.,
its Managing Member
|
||
By:
|
El Vedado, LLC,
its General Partner
|
||
By:
|
/s/ Michael Gibbons
|
||
Name:
|
Michael Gibbons
|
||
Title:
|
Authorized Person
|
||
WLR RECOVERY ASSOCIATES V LLC
|
|||
By:
|
WL Ross Group, L.P.,
its Managing Member
|
||
By:
|
El Vedado, LLC,
its General Partner
|
||
By:
|
/s/ Michael Gibbons
|
||
Name:
|
Michael Gibbons
|
||
Title:
|
Authorized Person
|
CUSIP No. 46267Q202
|
Schedule 13D
|
WLR MASTER CO-INVESTMENT GP, LLC
|
|||
By:
|
WL Ross Group, L.P.,
its Managing Member
|
||
By:
|
El Vedado, LLC,
its General Partner
|
||
By:
|
/s/ Michael Gibbons
|
||
Name:
|
Michael Gibbons
|
||
Title:
|
Authorized Person
|
||
INVESCO WLR IV ASSOCIATES LLC
|
|||
By:
|
Invesco Private Capital, Inc.,
its Managing Member
|
||
By:
|
/s/ Michael Gibbons
|
||
Name:
|
Michael Gibbons
|
||
Title:
|
Authorized Person
|
||
INVESCO PRIVATE CAPITAL, INC.
|
|||
By:
|
/s/ Michael Gibbons
|
||
Name:
|
Michael Gibbons
|
||
Title:
|
Authorized Person
|
||
WL ROSS GROUP, L.P.
|
|||
By:
|
El Vedado, LLC,
its General Partner
|
||
By:
|
/s/ Michael Gibbons
|
||
Name:
|
Michael Gibbons
|
||
Title:
|
Authorized Person
|
||
EL VEDADO, LLC
|
|||
By:
|
/s/ Michael Gibbons
|
||
Name:
|
Michael Gibbons
|
||
Title:
|
Authorized Person
|
||
WILBUR L. ROSS, JR.
|
|||
/s/ Wilbur L. Ross, Jr.
|
|||
Wilbur L. Ross, Jr.
|
WL ROSS & CO. LLC
|
|||
By:
|
/s/ Michael Gibbons
|
||
Name:
|
Michael Gibbons
|
||
Title:
|
Authorized Person
|
||
WLR RECOVERY FUND IV, L.P.
|
|||
By:
|
WLR Recovery Associates IV LLC,
|
||
its General Partner
|
|||
By:
|
WL Ross Group, L.P.,
|
||
its Managing Member
|
|||
By:
|
El Vedado, LLC,
|
||
its General Partner
|
|||
By:
|
/s/ Michael Gibbons
|
||
Name:
|
Michael Gibbons
|
||
Title:
|
Authorized Person
|
WLR RECOVERY FUND V, L.P.
|
|||
By:
|
WLR Recovery Associates V LLC,
|
||
its General Partner
|
|||
By:
|
WL Ross Group, L.P.,
|
||
its Managing Member
|
|||
By:
|
El Vedado, LLC,
|
||
its General Partner
|
|||
By:
|
/s/ Michael Gibbons
|
||
Name:
|
Michael Gibbons
|
||
Title:
|
Authorized Person
|
||
WLR/GS MASTER CO-INVESTMENT L.P.
|
|||
By:
|
WLR Master Co-Investment GP, LLC,
|
||
its General Partner
|
|||
By:
|
WL Ross Group, L.P.,
|
||
its Managing Member
|
|||
By:
|
El Vedado, LLC,
|
||
its General Partner
|
|||
By:
|
/s/ Michael Gibbons
|
||
Name:
|
Michael Gibbons
|
||
Title:
|
Authorized Person
|
||
WLR IV PARALLEL ESC, L.P.
|
|||
By:
|
INVESCO WLR IV Associates LLC,
|
||
its General Partner
|
|||
By:
|
Invesco Private Capital, Inc.,
|
||
its Managing Member
|
|||
By:
|
/s/ Michael Gibbons
|
||
Name:
|
Michael Gibbons
|
||
Title:
|
Authorized Person
|
WLR RECOVERY ASSOCIATES IV LLC
|
|||
By:
|
WL Ross Group, L.P.,
|
||
its Managing Member
|
|||
By:
|
El Vedado, LLC,
|
||
its General Partner
|
|||
By:
|
/s/ Michael Gibbons
|
||
Name:
|
Michael Gibbons
|
||
Title:
|
Authorized Person
|
||
WLR RECOVERY ASSOCIATES V LLC
|
|||
By:
|
WL Ross Group, L.P.,
|
||
its Managing Member
|
|||
By:
|
El Vedado, LLC,
|
||
its General Partner
|
|||
By:
|
/s/ Michael Gibbons
|
||
Name:
|
Michael Gibbons
|
||
Title:
|
Authorized Person
|
||
WLR MASTER CO-INVESTMENT GP, LLC
|
|||
By:
|
WL Ross Group, L.P.,
|
||
its Managing Member
|
|||
By:
|
El Vedado, LLC,
|
||
its General Partner
|
|||
By:
|
/s/ Michael Gibbons
|
||
Name:
|
Michael Gibbons
|
||
Title:
|
Authorized Person
|
||
INVESCO WLR IV ASSOCIATES LLC
|
|||
By:
|
Invesco Private Capital, Inc.,
|
||
its Managing Member
|
|||
By:
|
/s/ Michael Gibbons
|
||
Name:
|
Michael Gibbons
|
||
Title:
|
Authorized Person
|
INVESCO PRIVATE CAPITAL, INC.
|
|||
By:
|
/s/ Michael Gibbons
|
||
Name:
|
Michael Gibbons
|
||
Title:
|
Authorized Person
|
||
WL ROSS GROUP, L.P.
|
|||
By:
|
El Vedado, LLC,
|
||
its General Partner
|
|||
By:
|
/s/ Michael Gibbons
|
||
Name:
|
Michael Gibbons
|
||
Title:
|
Authorized Person
|
||
EL VEDADO, LLC
|
|||
By:
|
/s/ Michael Gibbons
|
||
Name:
|
Michael Gibbons
|
||
Title:
|
Authorized Person
|
||
WILBUR L. ROSS, JR.
|
|||
/s/ Wilbur L. Ross, Jr.
|
|||
Wilbur L. Ross, Jr.
|
THE MINISTER FOR FINANCE OF IRELAND
|
|
of Upper Merrion Street, Dublin 2
|
|
(hereinafter called the "Minister")
|
|
THE NATIONAL PENSIONS RESERVE FUND
|
|
COMMISSION
|
|
acting in its capacity as controller and manager of
|
|
the assets of the National Pensions Reserve Fund
|
|
of Treasury Building, Grand Canal Street, Dublin 2
|
|
(hereinafter called the "Commission")
|
|
- and -
|
|
FAIRFAX FINANCIAL HOLDINGS LIMITED
|
|
having its registered office at
|
|
95 Wellington Street West, Suite 800,
|
|
Toronto, Ontario, Canada M5J 2N7
|
|
(hereinafter called the "Buyer")
|
A.
|
The Commission is the owner of 1,909,810,044 units of BoI Ordinary Stock as at the date of this Agreement, and is entitled prior to Completion to take up rights (and will do so) over a further 6,875,316,158 units of Rights Issue Stock (together the “Commission Stock”).
|
B.
|
The Commission is agreeable to selling, and the Buyer is agreeable to purchasing, 2,413,352,900 units of BoI Ordinary Stock (comprising part of the Commission Stock, and hereinafter referred to as the “Sale Stock”) on the terms and subject to the conditions hereinafter appearing.
|
C.
|
The Commission and the Buyer have accordingly agreed to enter into this Agreement to provide for the sale and purchase of the Sale Stock.
|
D.
|
The Minister is party to this Agreement for the purposes expressly provided for in this Agreement.
|
1.
|
Interpretation
|
1.1
|
Definitions
|
1.2
|
The headings in this Agreement do not affect its interpretation.
|
1.3
|
In this Agreement:
|
|
1.3.1
|
words denoting the singular shall include the plural and vice versa;
|
|
1.3.2
|
words denoting one gender shall include all genders;
|
|
1.3.3
|
except where otherwise stated, references to Clauses are references to Clauses of this Agreement;
|
|
1.3.4
|
references to the Parties include their respective successors in title; and
|
|
1.3.5
|
a reference to this Agreement or another instrument or agreement includes any variation, novation or replacement thereof.
|
2.
|
Conditions Precedent
|
2.1
|
Notwithstanding any other provision of this Agreement (save for Clause 2.2), Completion shall not occur unless:
|
|
2.1.1
|
on or prior to 25 July 2011 the Other Transaction Documents shall have been executed by all the respective parties thereto; and
|
|
2.1.2
|
on or prior to 29 July 2011 (or such later date as may be necessitated by the issue of a supplementary prospectus in respect of the Rights Issue) (the “Relevant Date”), the Rights Issue shall have completed and all Rights Issue Stock shall have been issued by BoI in accordance with the terms of the Underwriting Agreement;
|
2.2
|
The Pre-Conditions may be waived in whole or in part at their discretion by all Parties without prejudice to such rights (if any) which each Party may have against the other Parties arising out of the non-satisfaction of such Pre-Conditions. Any such waiver shall be binding on the Parties only if it is in writing and signed by all the Parties.
|
2.3
|
If the Pre-Conditions shall not have been satisfied (or waived by all Parties in accordance with Clause 2.2) on or prior to the Relevant Date, then this Agreement shall thereupon lapse (but without prejudice to any rights of the Parties pursuant to this Clause 2). In such event:
|
|
2.3.1
|
the accrued rights and obligations of the Parties up to the time of the lapse of this Agreement shall not be affected by such lapse; and
|
|
2.3.2
|
the provisions of Clauses 1 (Interpretation), 13 (Entire Agreement), 14 (Counterparts), 16 (Notices) and 17 (Governing Law and Jurisdiction) shall continue to apply notwithstanding such lapse.
|
3.
|
Sale and Purchase
|
4.
|
Consideration
|
5.
|
Completion and Settlement
|
5.1
|
Subject to the satisfaction (or waiver by the Parties in accordance with Clause 2.2) of the Pre-Conditions on or prior to the Relevant Date, Completion shall occur on the Relevant Date immediately following the allotment and issue by BoI of the Rights Issue Stock.
|
5.2
|
Upon Completion, the Commission shall cause the Sale Stock to be transferred to the Buyer and/or such other Buyers (as that term is defined in the Conditional Stock Purchase Agreement) as the Buyer shall designate and have previously been approved in writing by the Minister (the Buyer together with all such other Buyers being hereinafter collectively referred to as “Relevant Persons”, and each a “Relevant Person”) by credit through the facilities of CREST of the Sale Stock to an account or accounts nominated by the Buyer (or the other Relevant Persons, as the case may be), against payment by or on behalf of the Buyer of the consideration referred to in Clause 4 in same day funds (subject to deduction pursuant to Clause 15 (Buyer’s Fee)).
|
5.3
|
Upon the date of this Agreement, the Buyer shall deliver to the Minister and the Commission a confirmation from its chief legal officer confirming that:
|
|
5.3.1
|
the Buyer is a company duly incorporated and validly existing under the laws of Canada;
|
|
5.3.2
|
the Buyer has the legal right and full power and authority to execute and deliver, and to perform its obligations under this Agreement;
|
|
5.3.3
|
all necessary corporate actions, conditions and things have been taken, fulfilled and done in order to enable the Buyer to enter into, perform and comply with its obligations hereunder, and the person who has executed this Agreement on behalf of the Buyer has the necessary authority to do so on behalf of the Buyer and to bind the Buyer accordingly; and
|
|
5.3.4
|
this Agreement constitutes valid and binding obligations of the Buyer enforceable in accordance with its terms.
|
5.4
|
Upon the date of this Agreement, the Commission shall deliver to the Buyer a confirmation from the Head of Legal of the National Treasury Management Agency (which is the manager of the National Pensions Reserve Fund pursuant to the National Pensions Reserve Fund Act 2000 (as amended) (the “Act”)) confirming that:
|
|
5.4.1
|
the Commission is a body corporate established pursuant to the Act and validly existing under the laws of Ireland;
|
|
5.4.2
|
the Commission has the legal right and full power and authority to execute and deliver, and to perform its obligations under this Agreement;
|
|
5.4.3
|
all necessary actions, conditions and things have been taken, fulfilled and done in order to enable the Commission to enter into, perform and comply with its obligations hereunder, and the persons who have executed this Agreement on behalf of the Commission have the necessary authority to do so on behalf of the Commission and to bind the Commission accordingly; and
|
|
5.4.4
|
this Agreement constitutes valid and binding obligations of the Commission enforceable in accordance with its terms.
|
6.
|
Public Interest Matters
|
6.1
|
The Buyer undertakes and covenants that for a period commencing on First Completion and ending on 1 March 2016, it shall neither initiate nor support a refusal by BoI to agree a rollover of the NAMA Bonds or a demand for payment thereof, or make any attempt to induce BoI to make such a refusal or demand, in respect of either the NAMA Bonds now held by BoI or NAMA Bonds of similar or lesser aggregate nominal value issued annually in succession thereto.
|
6.2
|
The Buyer acknowledges that the Minister is relying on the undertaking and covenant set out in Clause 6.1 in entering into this Agreement.
|
7.
|
Warranties
|
7.1
|
The Commission hereby warrants to the Buyer that:
|
|
7.1.1
|
at Completion, the Commission will have full legal right, power and authority to transfer or procure the transfer of, in accordance with the terms and conditions of this Agreement, the Sale Stock, all of which will be fully paid up or credited as fully paid up and free of any Encumbrance (including for the avoidance of doubt any Encumbrance affecting any of the voting rights, dividend rights or other rights attaching to any Sale Stock) (other than this Agreement), and will be absolutely entitled to all rights thereon and in respect thereof and attaching thereto, and there
|
|
7.1.2
|
so far as the Commission is aware, none of the Sale Stock is subject to any current or pending claim or litigation as to its title or ownership.
|
7.2
|
The Commission acknowledges that the Buyer is entering into this Agreement in reliance upon each of the warranties contained in Clause 7.1.
|
7.3
|
The aggregate liability of the Commission in respect of all or any claims under the warranties in this Clause 7 shall be subject to an overall maximum equal to the consideration payable pursuant to Clause 4 less any deductions or set-offs made pursuant to this Agreement.
|
7.4
|
Nothing herein shall or shall be deemed to relieve the Buyer of any common law duty to mitigate any loss or damage incurred by it.
|
8.
|
Lock-Up
|
8.1
|
The Buyer hereby undertakes to the Minister and the Commission on its own behalf and on behalf of all Associated Entities to which it may transfer Sale Stock pursuant to Clause 8.2.6, that for a period commencing on Completion and ending on (a) such date as is the 90th day thereafter and (b) the Whitewash Date, whichever is the first to occur, neither it nor any such Associated Entities shall sell, transfer, grant any option over or otherwise dispose of its legal, beneficial or any other interest held by it in any of the Sale Stock or any other rights arising from any of the Sale Stock. For the avoidance of doubt, this Clause 8.1 shall not prohibit the sale, transfer, grant of options over or other disposal by the Buyer or its Associated Entities of BoI Ordinary Stock other than Sale Stock.
|
8.2
|
The restrictions set out in Clause 8.1 shall not apply to:
|
|
8.2.1
|
any disposal pursuant to acceptance of (or giving an irrevocable undertaking to accept) any offer or agreement by the Buyer to vote in favour of or to participate in a scheme of arrangement to acquire the whole or any part of the issued capital stock of BoI (other than any stock already held by the offeror or persons acting in concert with the offeror) to which the provisions of the Irish Takeover Rules apply;
|
|
8.2.2
|
any compromise or arrangement providing for the acquisition by any person (or group of persons acting in concert) of 50 per cent or more of the issued capital stock of BoI;
|
|
8.2.3
|
any disposal or agreement to dispose of BoI Ordinary Stock pursuant to an offer by BoI to purchase its own issued capital stock which is made on identical terms to all holders of BoI Ordinary Stock and otherwise complies with applicable legal requirements and otherwise complies with the Listing Rules;
|
|
8.2.4
|
any disposal made pursuant to a Court order or otherwise required by law;
|
|
8.2.5
|
any disposal made in accordance with Clause 10 (Assignment); or
|
|
8.2.6
|
any disposal by a Relevant Person to any Associated Entity of that Relevant Person and/or any subsequent disposals by any such Associated Entity of that Relevant Person to another Associated Entity of that Relevant Person.
|
9.
|
Consent to Registration Rights
|
9.1
|
Subject to the provisions of Clause 9.2, the Minister and the Commission hereby agree that the entry into and, performance of the registration rights agreement to be entered into on or around the date of this Agreement between BoI and the Buyers (as defined in the Conditional Stock Purchase Agreement) (the “Buyers’ RRA”) shall not be deemed to
|
|
constitute a breach of the registration rights agreement entered into by BoI, the Minister and the Commission dated 18 June 2011 (the “RRA”).
|
9.2
|
Without limitation to Clause 9.1:
|
|
9.2.1
|
Article 2.13 of the RRA shall not apply to the Buyers’ RRA, provided that in the event of any conflict between the registration rights granted pursuant to the RRA and any registration rights granted pursuant to the Buyers’ RRA, the respective registration rights shall rank pari passu;
|
|
9.2.2
|
Article 2.2(c) of the Buyers’ RRA shall apply in the event of a conflict between Articles 2.2(b), (c) or (d) of the RRA and Articles 2.2(b), (c) or (d) of the Buyers’ RRA, provided that the Minister and the Commission shall have equivalent rights (including equivalent information and consultation rights) to those afforded to the Buyers pursuant thereto; and
|
|
9.2.3
|
Article 2.3(b) of the Buyers’ RRA shall apply in the event of a conflict between Article 2.3(b) of the RRA and Article 2.3(b) of the Buyers’ RRA, provided that the Minister and the Commission shall have equivalent rights (including equivalent information and consultation rights) to those afforded to the Buyers pursuant thereto.
|
9.3
|
A copy of this Clause 9, certified by Arthur Cox (solicitors for the Minister and the Commission) as a true copy of the original, may be sent to BoI as conclusive evidence of the agreements set out in this Clause 9.
|
10.
|
Assignment
|
10.1
|
The Minister and the Commission may assign or transfer any of their respective rights and benefits under this Agreement to any entity wholly owned by the Irish State, but they may not transfer their obligations hereunder without the Buyer's prior written consent.
|
10.2
|
The Buyer may assign the benefit of this Agreement to any Relevant Person.
|
10.3
|
Any Relevant Person may assign the benefit of this Agreement to any person to whom any Sale Stock is transferred in accordance with the provisions of Clause 8.2.6.
|
11.
|
Further Assurance and Role of Minister
|
12.
|
Waiver
|
13.
|
Entire Agreement
|
14.
|
Counterparts
|
15.
|
Buyer’s Fee
|
16.
|
Notices
|
17.
|
Governing Law and Jurisdiction
|
18.
|
Process Agent
|
/s/ John A. Moran | |
A person authorised by Section 15(4) of the Ministers and Secretaries Act 1924
|
/s/ Paul Carty | |
Chairman
|
|
/s/ John C. Corrigan | |
Commissioner
|
SIGNED and DELIVERED AS A DEED
on behalf of
FAIRFAX FINANCIAL HOLDINGS LIMITED
by its authorised signatory
in the presence of:
|
/s/ Paul Rivett
|
|
Authorised Signatory (Signature)
|
||
Paul Rivett
|
||
/s/ James Newman
|
Print name
|
|
Witness (Signature)
|
||
James Newman
|
||
Print name
|
||
Fitzwilton House, Wilton Place, Dublin 2
|
||
Print address
|
THE MINISTER FOR FINANCE OF IRELAND
|
|
of Upper Merrion Street, Dublin 2
|
|
(hereinafter called the "Minister")
|
|
THE NATIONAL PENSIONS RESERVE FUND
|
|
COMMISSION
|
|
acting in its capacity as controller and manager of
|
|
the assets of the National Pensions Reserve Fund
|
|
of Treasury Building, Grand Canal Street, Dublin 2
|
|
(hereinafter called the "Commission")
|
|
- and -
|
|
FAIRFAX FINANCIAL HOLDINGS LIMITED
|
|
having its registered office at
|
|
95 Wellington Street West, Suite 800,
|
|
Toronto, Ontario, Canada M5J 2N7
|
|
(hereinafter called the "Buyer")
|
|
2.1
|
The Sale Stock as agreed to be purchased and sold and as defined in the SPA shall mean 2,381,532,330 units of BoI Ordinary Stock. Recital B of the SPA is amended accordingly.
|
|
2.2
|
The definition of “Agreement” shall be deemed amended to include reference to this Supplemental Agreement. Clause 1.1 of the SPA is amended accordingly.
|
|
2.3
|
The consideration for the sale and purchase of the Sale Stock shall be €238,153,233. Clause 4 of the SPA is amended accordingly.
|
|
2.4
|
The Transaction Fee shall be €4,763,065. Clause 15 of the SPA is amended accordingly.
|
|
2.5
|
Clause 13 of the SPA shall be deemed amended to refer to this Supplemental Agreement as forming part of the entire agreement between the Parties relating to the transactions provided for in the SPA.
|
3.
|
In all other respects, the SPA is hereby confirmed.
|
4.
|
Clauses 12, 14, 16, 17 and 18 of the SPA shall be deemed incorporated herein.
|
/s/ John A. Moran
|
|
A person authorised by Section 15(4) of the Ministers and Secretaries Act 1924
|
/s/ Paul Carty
|
|
Chairman
|
|
/s/
|
|
Commissioner
|
SIGNED and DELIVERED AS A DEED
on behalf of
FAIRFAX FINANCIAL HOLDINGS LIMITED
by its authorised signatory
in the presence of:
|
/s/ Paul Rivett
|
|
Authorised Signatory (Signature)
|
||
Paul Rivett | ||
/s/ Beth O'Hanlon
|
Print name
|
|
Witness (Signature)
|
||
Beth O'Hanlon | ||
Print name
|
||
95 Wellington St. W., Toronto, Ontario M5J 2N7
|
||
Print address
|
To:
|
Minister for Finance of Ireland (the “Minister”)
|
Pensions Reserve Fund Commission (the “Commission”)
|
|
Fairfax Financial Holdings Limited (“Fairfax”)
|
1.
|
The Covenantor confirms that it has been supplied with a copy of the Stock Purchase Agreement and has been designated by Fairfax as a Relevant Person in respect of 308,916,700 units of Sale Stock pursuant to Clause 5.2 thereof. The Covenantor undertakes in favour of the Minister, the Commission and Fairfax that it will severally observe, perform and be bound by such of the terms of the Stock Purchase Agreement which are (a) capable of applying to the Covenantor and (b) apply to the Sale Stock in respect of which it has been designated a Relevant Person and (c) have not been performed as of the later of (i) the execution and delivery of this Deed and (ii) the time at which Covenantor’s designation aforesaid is effective by virtue of the Minister’s written approval thereof pursuant to Clause 5.2 of the Stock Purchase (the “Effective Time”), to the intent and effect that the Covenantor shall be deemed with effect from the Effective Time to be a party to the Stock Purchase Agreement as if named therein as a party and on the basis that references therein to a “party” and the “parties” include a reference to the Covenantor.
|
|
2.
|
All of the obligations of the Covenantor under the Stock Purchase Agreement shall be its several obligations, and shall not be joint obligations with any other party thereto.
|
|
3.
|
The Covenantor’s notice details for the purposes of the Stock Purchase Agreement are as follows:
|
|
Address
|
Attention
|
|
c/o WL Ross & Co. LLC
|
James B. Lockhart III
|
|
1166 Avenue of the Americas
|
||
25th Floor
|
||
New York 10036
|
||
USA
|
||
with a copy to Benjamin Gruder (BenGruder@invesco.com).
|
||
4.
|
This Deed shall be governed by and construed in accordance with the laws of Ireland.
|
|
5.
|
The courts of Ireland are to have exclusive jurisdiction to settle any dispute arising out of or in connection with this Deed and, for such purposes, each party hereto irrevocably submits to the exclusive jurisdiction of such courts. Any proceeding, suit or action arising out of or in connection with this Deed (the “Proceedings”) shall therefore be brought in the courts of Ireland.
|
|
in the presence of:
|
/s/ Wilbur L. Ross, Jr. | |
Manager (Signature)
|
||
Wilbur L. Ross, Jr.
|
||
/s/ Stephen J. Naughton | ||
Witness (Signature)
|
||
Stephen J. Naughton
|
||
1166 Avenue of the Americas, 25th Floor
|
||
New York, New York 10036
|
To:
|
Minister for Finance of Ireland (the “Minister”)
|
National Pensions Reserve Fund Commission (the “Commission”)
|
|
Fairfax Financial Holdings Limited (“Fairfax”)
|
1.
|
The Covenantor confirms that it has been supplied with a copy of the Stock Purchase Agreement and has been designated by Fairfax as a Relevant Person in respect of 71,318,091 units of Sale Stock pursuant to Clause 5.2 thereof. The Covenantor undertakes in favour of the Minister, the Commission and Fairfax that it will severally observe, perform and be bound by such of the terms of the Stock Purchase Agreement which are (a) capable of applying to the Covenantor and (b) apply to the Sale Stock in respect of which it has been designated a Relevant Person and (c) have not been performed as of the later of (i) the execution and delivery of this Deed and (ii) the time at which Covenantor’s designation aforesaid is effective by virtue of the Minister’s written approval thereof pursuant to Clause 5.2 of the Stock Purchase (the “Effective Time”), to the intent and effect that the Covenantor shall be deemed with effect from the Effective Time to be a party to the Stock Purchase Agreement as if named therein as a party and on the basis that references therein to a “party” and the “parties” include a reference to the Covenantor.
|
|
2.
|
All of the obligations of the Covenantor under the Stock Purchase Agreement shall be its several obligations, and shall not be joint obligations with any other party thereto.
|
|
3.
|
The Covenantor’s notice details for the purposes of the Stock Purchase Agreement are as follows:
|
|
Address
|
Attention
|
|
c/o WL Ross & Co. LLC
|
James B. Lockhart III
|
|
1166 Avenue of the Americas
|
||
25th Floor
|
||
New York 10036
|
||
USA
|
||
with a copy to Benjamin Gruder (BenGruder@invesco.com).
|
||
4.
|
This Deed shall be governed by and construed in accordance with the laws of Ireland.
|
|
5.
|
The courts of Ireland are to have exclusive jurisdiction to settle any dispute arising out of or in connection with this Deed and, for such purposes, each party hereto irrevocably submits to the exclusive jurisdiction of such courts. Any proceeding, suit or action arising out of or in connection with this Deed (the “Proceedings”) shall therefore be brought in the courts of Ireland.
|
in the presence of:
|
/s/ Wilbur L. Ross, Jr.
|
|
Manager (Signature)
|
||
Wilbur L. Ross, Jr.
|
||
/s/ Stephen J. Naughton
|
||
Witness (Signature)
|
||
Stephen J. Naughton
|
||
1166 Avenue of the Americas, 25th Floor
|
||
New York, New York 10036
|
To:
|
Minister for Finance of Ireland (the “Minister”)
|
National Pensions Reserve Fund Commission (the “Commission”)
|
|
Fairfax Financial Holdings Limited (“Fairfax”)
|
1.
|
The Covenantor confirms that it has been supplied with a copy of the Stock Purchase Agreement and has been designated by Fairfax as a Relevant Person in respect of 27,479,039 units of Sale Stock pursuant to Clause 5.2 thereof. The Covenantor undertakes in favour of the Minister, the Commission and Fairfax that it will severally observe, perform and be bound by such of the terms of the Stock Purchase Agreement which are (a) capable of applying to the Covenantor and (b) apply to the Sale Stock in respect of which it has been designated a Relevant Person and (c) have not been performed as of the later of (i) the execution and delivery of this Deed and (ii) the time at which Covenantor’s designation aforesaid is effective by virtue of the Minister’s written approval thereof pursuant to Clause 5.2 of the Stock Purchase (the “Effective Time”), to the intent and effect that the Covenantor shall be deemed with effect from the Effective Time to be a party to the Stock Purchase Agreement as if named therein as a party and on the basis that references therein to a “party” and the “parties” include a reference to the Covenantor.
|
|
2.
|
All of the obligations of the Covenantor under the Stock Purchase Agreement shall be its several obligations, and shall not be joint obligations with any other party thereto.
|
|
3.
|
The Covenantor’s notice details for the purposes of the Stock Purchase Agreement are as follows:
|
|
Address
|
Attention
|
|
c/o WL Ross & Co. LLC
|
James B. Lockhart III
|
|
1166 Avenue of the Americas
|
||
25th Floor
|
||
New York 10036
|
||
USA
|
||
with a copy to Benjamin Gruder (BenGruder@invesco.com).
|
||
4.
|
This Deed shall be governed by and construed in accordance with the laws of Ireland.
|
|
5.
|
The courts of Ireland are to have exclusive jurisdiction to settle any dispute arising out of or in connection with this Deed and, for such purposes, each party hereto irrevocably submits to the exclusive jurisdiction of such courts. Any proceeding, suit or action arising out of or in connection with this Deed (the “Proceedings”) shall therefore be brought in the courts of Ireland.
|
|
in the presence of:
|
/s/ Wilbur L. Ross, Jr.
|
|
Manager (Signature)
|
||
Wilbur L. Ross, Jr.
|
||
/s/ Stephen J. Naughton
|
||
Witness (Signature)
|
||
Stephen J. Naughton
|
||
1166 Avenue of the Americas, 25th Floor
|
||
New York, New York 10036
|
To:
|
Minister for Finance of Ireland (the “Minister”)
|
National Pensions Reserve Fund Commission (the “Commission”)
|
|
Fairfax Financial Holdings Limited (“Fairfax”)
|
1.
|
The Covenantor confirms that it has been supplied with a copy of the Stock Purchase Agreement and has been designated by Fairfax as a Relevant Person in respect of 1,143,851 units of Sale Stock pursuant to Clause 5.2 thereof. The Covenantor undertakes in favour of the Minister, the Commission and Fairfax that it will severally observe, perform and be bound by such of the terms of the Stock Purchase Agreement which are (a) capable of applying to the Covenantor and (b) apply to the Sale Stock in respect of which it has been designated a Relevant Person and (c) have not been performed as of the later of (i) the execution and delivery of this Deed and (ii) the time at which Covenantor’s designation aforesaid is effective by virtue of the Minister’s written approval thereof pursuant to Clause 5.2 of the Stock Purchase (the “Effective Time”), to the intent and effect that the Covenantor shall be deemed with effect from the Effective Time to be a party to the Stock Purchase Agreement as if named therein as a party and on the basis that references therein to a “party” and the “parties” include a reference to the Covenantor.
|
|
2.
|
All of the obligations of the Covenantor under the Stock Purchase Agreement shall be its several obligations, and shall not be joint obligations with any other party thereto.
|
|
3.
|
The Covenantor’s notice details for the purposes of the Stock Purchase Agreement are as follows:
|
|
Address
|
Attention
|
|
c/o WL Ross & Co. LLC
|
James B. Lockhart III
|
|
1166 Avenue of the Americas
|
||
25th Floor
|
||
New York 10036
|
||
USA
|
||
with a copy to Benjamin Gruder (BenGruder@invesco.com).
|
||
4.
|
This Deed shall be governed by and construed in accordance with the laws of Ireland.
|
|
5.
|
The courts of Ireland are to have exclusive jurisdiction to settle any dispute arising out of or in connection with this Deed and, for such purposes, each party hereto irrevocably submits to the exclusive jurisdiction of such courts. Any proceeding, suit or action arising out of or in connection with this Deed (the “Proceedings”) shall therefore be brought in the courts of Ireland.
|
|
in the presence of:
|
/s/ Wilbur L. Ross, Jr.
|
|
Manager (Signature)
|
||
Wilbur L. Ross, Jr.
|
||
/s/ Stephen J. Naughton
|
||
Witness (Signature)
|
||
Stephen J. Naughton
|
||
1166 Avenue of the Americas, 25th Floor
|
||
New York, New York 10036
|
FAIRFAX FINANCIAL HOLDINGS LIMITED
|
|
of 95 Wellington Street West,
|
|
Suite 800, Toronto, Ontario,
|
|
Canada, M5J 2N7
|
|
(hereinafter called "Fairfax")
|
|
- and -
|
|
WLR RECOVERY FUND IV, L.P.
|
|
c/o WL Ross & Co. LLC
|
|
1166 Avenue of the Americas
|
|
25th Floor
|
|
New York 10036
|
|
USA
|
|
(hereinafter called the "Assignee")
|
A.
|
Fairfax is party as the Buyer to a Stock Purchase Agreement made on 25 July 2011 between the Minister for Finance of Ireland, the National Pensions Reserve Fund Commission and Fairfax, as amended by a Supplemental Agreement dated 29 July 2011 between the same parties (together, the “SPA”).
|
B.
|
Fairfax has the power pursuant to Clause 5.2 of the SPA to designate certain other persons (one of whom is the Assignee) to purchase Sale Stock pursuant to the SPA and has designated the Assignee in respect of the Designated Sale Stock, which designation is subject to the approval in writing of the Minister in accordance with Clause 5.2 of the SPA. Fairfax has further agreed, with effect from the later of (i) the execution and delivery of a Deed of Adherence whereby the Assignee will become party to the SPA and (ii) the time at which the Assignee’s designation aforesaid is effective by virtue of the Minister’s written approval thereof pursuant to Clause 5.2 of the SPA (the “Effective Time”), to assign to the Assignee the benefit of the SPA in respect of the Designated Sale Stock.
|
|
THIS DEED WITNESSES AS FOLLOW:
|
1.
|
Words and expressions defined in the SPA shall have the same meanings herein. The expression “Designated Sale Stock” shall mean the 308,916,700 units of Sale Stock in respect of which the Assignee has been designated pursuant to the SPA by Fairfax.
|
2.
|
With effect from the Effective Time, Fairfax hereby assigns and transfers to the Assignee absolutely (and not by way of security) the benefit of the SPA in respect of every unit of the Designated Sale Stock (including, without limitation, the benefit of the Warranties and the Transaction Fee under Clauses 7 and 15, respectively, of the SPA, in respect of the Designated Sale Stock) and the Assignee hereby undertakes, as several obligations, the obligations of Fairfax pursuant to the SPA in respect of the Designated Sale Stock which fall to be performed from the Effective Time.
|
3.
|
The provisions of Clauses 12, 14, 16 and 17 of the SPA shall have effect as if incorporated herein.
|
4.
|
Fairfax hereby agrees and undertakes to the Assignee, as soon as reasonably practicable after execution and delivery of this Deed, to provide written notice of the assignments contained herein to all parties to the SPA on the date of this Deed and to use all reasonable endeavours to obtain written acknowledgements of such notices from all such parties.
|
SIGNED AND DELIVERED AS A DEED
on behalf of
FAIRFAX FINANCIAL HOLDINGS LIMITED
by its authorised signatory
in the presence of:
|
/s/ Paul Rivett | |
Authorised Signatory (Signature)
|
||
Paul Rivett | ||
/s/ Beth O'Hanlon |
Print name
|
|
Witness (Signature)
|
||
Beth O'Hanlon | ||
Print name
|
||
95 Wellington St. W., Toronto, Ontario M5J 2N7 | ||
Print address
|
in the presence of:
|
/s/ Wilbur L. Ross, Jr.
|
|
Manager (Signature)
|
||
Wilbur L. Ross, Jr.
|
||
/s/ Stephen J. Naughton
|
||
Witness (Signature)
|
||
Stephen J. Naughton
|
||
1166 Avenue of the Americas, 25th Floor
|
||
New York, New York 10036
|
FAIRFAX FINANCIAL HOLDINGS LIMITED
|
|
of 95 Wellington Street West,
|
|
Suite 800, Toronto, Ontario,
|
|
Canada, M5J 2N7
|
|
(hereinafter called "Fairfax")
|
|
- and -
|
|
WLR RECOVERY FUND V, L.P.
|
|
c/o WL Ross & Co. LLC
|
|
1166 Avenue of the Americas
|
|
25th Floor
|
|
New York 10036
|
|
USA
|
|
(hereinafter called the "Assignee")
|
A.
|
Fairfax is party as the Buyer to a Stock Purchase Agreement made on 25 July 2011 between the Minister for Finance of Ireland, the National Pensions Reserve Fund Commission and Fairfax, as amended by a Supplemental Agreement dated 29 July 2011 between the same parties (together, the “SPA”).
|
B.
|
Fairfax has the power pursuant to Clause 5.2 of the SPA to designate certain other persons (one of whom is the Assignee) to purchase Sale Stock pursuant to the SPA and has designated the Assignee in respect of the Designated Sale Stock, which designation is subject to the approval in writing of the Minister in accordance with Clause 5.2 of the SPA. Fairfax has further agreed, with effect from the later of (i) the execution and delivery of a Deed of Adherence whereby the Assignee will become party to the SPA and (ii) the time at which the Assignee’s designation aforesaid is effective by virtue of the Minister’s written approval thereof pursuant to Clause 5.2 of the SPA (the “Effective Time”), to assign to the Assignee the benefit of the SPA in respect of the Designated Sale Stock.
|
|
THIS DEED WITNESSES AS FOLLOW:
|
1.
|
Words and expressions defined in the SPA shall have the same meanings herein. The expression “Designated Sale Stock” shall mean the 71,318,091 units of Sale Stock in respect of which the Assignee has been designated pursuant to the SPA by Fairfax.
|
2.
|
With effect from the Effective Time, Fairfax hereby assigns and transfers to the Assignee absolutely (and not by way of security) the benefit of the SPA in respect of every unit of the Designated Sale Stock (including, without limitation, the benefit of the Warranties and the Transaction Fee under Clauses 7 and 15, respectively, of the SPA, in respect of the Designated Sale Stock) and the Assignee hereby undertakes, as several obligations, the obligations of Fairfax pursuant to the SPA in respect of the Designated Sale Stock which fall to be performed from the Effective Time.
|
3.
|
The provisions of Clauses 12, 14, 16 and 17 of the SPA shall have effect as if incorporated herein.
|
4.
|
Fairfax hereby agrees and undertakes to the Assignee, as soon as reasonably practicable after execution and delivery of this Deed, to provide written notice of the assignments contained herein to all parties to the SPA on the date of this Deed and to use all reasonable endeavours to obtain written acknowledgements of such notices from all such parties.
|
SIGNED AND DELIVERED AS A DEED
on behalf of
FAIRFAX FINANCIAL HOLDINGS LIMITED
by its authorised signatory
in the presence of:
|
/s/ Paul Rivett | |
Authorised Signatory (Signature)
|
||
/s/ Beth O'Hanlon | Paul Rivett | |
Print name
|
||
Witness (Signature)
|
||
/s/ Beth O'Hanlon | ||
Print name
|
||
95 Wellington St. W., Toronto, Ontario M5J 2N7 | ||
Print address
|
in the presence of:
|
/s/ Wilbur L. Ross, Jr.
|
|
Manager (Signature)
|
||
Wilbur L. Ross, Jr.
|
||
/s/ Stephen J. Naughton
|
||
Witness (Signature)
|
||
Stephen J. Naughton
|
||
1166 Avenue of the Americas, 25th Floor
|
||
New York, New York 10036
|
FAIRFAX FINANCIAL HOLDINGS LIMITED
|
|
of 95 Wellington Street West,
|
|
Suite 800, Toronto, Ontario,
|
|
Canada, M5J 2N7
|
|
(hereinafter called "Fairfax")
|
|
- and -
|
|
WLR/GS MASTER CO-INVESTMENT L.P.
|
|
c/o WL Ross & Co. LLC
|
|
1166 Avenue of the Americas
|
|
25th Floor
|
|
New York 10036
|
|
USA
|
|
(hereinafter called the "Assignee")
|
A.
|
Fairfax is party as the Buyer to a Stock Purchase Agreement made on 25 July 2011 between the Minister for Finance of Ireland, the National Pensions Reserve Fund Commission and Fairfax, as amended by a Supplemental Agreement dated 29 July 2011 between the same parties (together, the “SPA”).
|
B.
|
Fairfax has the power pursuant to Clause 5.2 of the SPA to designate certain other persons (one of whom is the Assignee) to purchase Sale Stock pursuant to the SPA and has designated the Assignee in respect of the Designated Sale Stock, which designation is subject to the approval in writing of the Minister in accordance with Clause 5.2 of the SPA. Fairfax has further agreed, with effect from the later of (i) the execution and delivery of a Deed of Adherence whereby the Assignee will become party to the SPA and (ii) the time at which the Assignee’s designation aforesaid is effective by virtue of the Minister’s written approval thereof pursuant to Clause 5.2 of the SPA (the “Effective Time”), to assign to the Assignee the benefit of the SPA in respect of the Designated Sale Stock.
|
|
THIS DEED WITNESSES AS FOLLOW:
|
1.
|
Words and expressions defined in the SPA shall have the same meanings herein. The expression “Designated Sale Stock” shall mean the 27,479,039 units of Sale Stock in respect of which the Assignee has been designated pursuant to the SPA by Fairfax.
|
2.
|
With effect from the Effective Time, Fairfax hereby assigns and transfers to the Assignee absolutely (and not by way of security) the benefit of the SPA in respect of every unit of the Designated Sale Stock (including, without limitation, the benefit of the Warranties and the Transaction Fee under Clauses 7 and 15, respectively, of the SPA, in respect of the Designated Sale Stock) and the Assignee hereby undertakes, as several obligations, the obligations of Fairfax pursuant to the SPA in respect of the Designated Sale Stock which fall to be performed from the Effective Time.
|
3.
|
The provisions of Clauses 12, 14, 16 and 17 of the SPA shall have effect as if incorporated herein.
|
4.
|
Fairfax hereby agrees and undertakes to the Assignee, as soon as reasonably practicable after execution and delivery of this Deed, to provide written notice of the assignments contained herein to all parties to the SPA on the date of this Deed and to use all reasonable endeavours to obtain written acknowledgements of such notices from all such parties.
|
SIGNED AND DELIVERED AS A DEED
on behalf of
FAIRFAX FINANCIAL HOLDINGS LIMITED
by its authorised signatory
in the presence of:
|
/s/ Paul Rivett | |
Authorised Signatory (Signature)
|
||
Paul Rivett | ||
/s/ Beth O'Hanlon |
Print name
|
|
Witness (Signature)
|
||
Beth O'Hanlon | ||
Print name
|
||
95 Wellington St. W., Toronto, Ontario M5J 2N7 | ||
Print address
|
in the presence of:
|
/s/ Wilbur L. Ross, Jr. | |
Manager (Signature)
|
||
Wilbur L. Ross, Jr.
|
||
/s/ Stephen J. Naughton | ||
Witness (Signature)
|
||
Stephen J. Naughton
|
||
1166 Avenue of the Americas, 25th Floor
|
||
New York, New York 10036
|
FAIRFAX FINANCIAL HOLDINGS LIMITED
|
|
of 95 Wellington Street West,
|
|
Suite 800, Toronto, Ontario,
|
|
Canada, M5J 2N7
|
|
(hereinafter called "Fairfax")
|
|
- and -
|
|
WLR IV PARALLEL ESC, L.P.
|
|
c/o WL Ross & Co. LLC
|
|
1166 Avenue of the Americas
|
|
25th Floor
|
|
New York 10036
|
|
USA
|
|
(hereinafter called the "Assignee")
|
A.
|
Fairfax is party as the Buyer to a Stock Purchase Agreement made on 25 July 2011 between the Minister for Finance of Ireland, the National Pensions Reserve Fund Commission and Fairfax, as amended by a Supplemental Agreement dated 29 July 2011 between the same parties (together, the “SPA”).
|
B.
|
Fairfax has the power pursuant to Clause 5.2 of the SPA to designate certain other persons (one of whom is the Assignee) to purchase Sale Stock pursuant to the SPA and has designated the Assignee in respect of the Designated Sale Stock, which designation is subject to the approval in writing of the Minister in accordance with Clause 5.2 of the SPA. Fairfax has further agreed, with effect from the later of (i) the execution and delivery of a Deed of Adherence whereby the Assignee will become party to the SPA and (ii) the time at which the Assignee’s designation aforesaid is effective by virtue of the Minister’s written approval thereof pursuant to Clause 5.2 of the SPA (the “Effective Time”), to assign to the Assignee the benefit of the SPA in respect of the Designated Sale Stock.
|
|
THIS DEED WITNESSES AS FOLLOW:
|
1.
|
Words and expressions defined in the SPA shall have the same meanings herein. The expression “Designated Sale Stock” shall mean the 1,143,851 units of Sale Stock in respect of which the Assignee has been designated pursuant to the SPA by Fairfax.
|
2.
|
With effect from the Effective Time, Fairfax hereby assigns and transfers to the Assignee absolutely (and not by way of security) the benefit of the SPA in respect of every unit of the Designated Sale Stock (including, without limitation, the benefit of the Warranties and the Transaction Fee under Clauses 7 and 15, respectively, of the SPA, in respect of the Designated Sale Stock) and the Assignee hereby undertakes, as several obligations, the obligations of Fairfax pursuant to the SPA in respect of the Designated Sale Stock which fall to be performed from the Effective Time.
|
3.
|
The provisions of Clauses 12, 14, 16 and 17 of the SPA shall have effect as if incorporated herein.
|
4.
|
Fairfax hereby agrees and undertakes to the Assignee, as soon as reasonably practicable after execution and delivery of this Deed, to provide written notice of the assignments contained herein to all parties to the SPA on the date of this Deed and to use all reasonable endeavours to obtain written acknowledgements of such notices from all such parties.
|
SIGNED AND DELIVERED AS A DEED
on behalf of
FAIRFAX FINANCIAL HOLDINGS LIMITED
by its authorised signatory
in the presence of:
|
/s/ Paul Rivett | |
Authorised Signatory (Signature)
|
||
Paul Rivett | ||
/s/ Beth O'Hanlon |
Print name
|
|
Witness (Signature)
|
||
Beth O'Hanlon | ||
Print name
|
||
95 Wellington St. W., Toronto, Ontario M5J 2N7 | ||
Print address
|
in the presence of:
|
/s/ Wilbur L. Ross, Jr. | |
Manager (Signature)
|
||
Wilbur L. Ross, Jr.
|
||
/s/ Stephen J. Naughton
|
||
Witness (Signature)
|
||
Stephen J. Naughton
|
||
1166 Avenue of the Americas, 25th Floor
|
||
New York, New York 10036
|
THE MINISTER FOR FINANCE OF IRELAND
of Upper Merrion Street, Dublin 2
(hereinafter called the "Minister")
|
|
THE NATIONAL PENSIONS RESERVE FUND
COMMISSION
acting in its capacity as controller and manager of
the assets of the National Pensions Reserve Fund
of Treasury Building, Grand Canal Street,
Dublin 2, Ireland
(hereinafter called the "Commission")
|
|
THE NATIONAL TREASURY MANAGEMENT
AGENCY
of Treasury Building, Grand Canal Street,
Dublin 2, Ireland
(hereinafter called the “NTMA”)
|
|
- and -
|
|
THE PERSONS WHOSE NAMES ARE SET OUT
IN SCHEDULE 1
(hereinafter called the "Buyers")
|
A.
|
BoI is carrying out the Debt for Equity Offers, the Rights Issue, the Renominalisation and the Contingent Capital Notes Issue (as all described in the Offer Documents), in order to meet its current and expected long term capital requirements.
|
B.
|
Following the Rights Issue, the issued Ordinary Stock of BoI will comprise 24,377,302,652 (twenty four billion three hundred and seventy seven million three hundred and two thousand six hundred and fifty two) units of €0.05 each, all of which will be fully paid and the Commission will, subject to it obtaining sufficient BoI Ordinary Stock in its capacity as Underwriter to the Rights Issue, be the owner of sufficient BoI Ordinary Stock to comply with the terms of this Agreement.
|
C.
|
The Commission has agreed to sell, and Fairfax agreed to purchase, 2,413,352,900 (two billion four hundred and thirteen million three hundred and fifty two thousand nine hundred) units of BoI Ordinary Stock (comprising part of the Commission Stock, and hereinafter referred to as the “Purchased Sale Stock”) on the terms and subject to the conditions of the Stock Purchase Agreement.
|
D.
|
The Commission proposes to retain 15% of the issued Ordinary Stock of BoI and, subject to that, has, in addition to the Purchased Sale Stock, agreed to sell and the Buyers have agreed to purchase further BoI Ordinary Stock and the Minister, the Commission and the NTMA have agreed to assign to the Buyers the benefit of the Commission Warranties and the Indemnity in respect thereof.
|
E.
|
The Commission and each of the Buyers have accordingly entered into this Agreement in order to provide for the said sale and purchase of the Sale Stock and the assignment of the Commission Warranties and the Indemnity in respect thereof to the Buyers.
|
F.
|
The Minister is Party to this Agreement for the purpose appearing in Clause 11 and for the purpose of assigning the Commission Warranties and the Indemnity in respect of the Sale Stock to the Buyers.
|
G.
|
The NTMA is Party to this Agreement for the purposes expressly provided for in this Agreement.
|
1.
|
Interpretation
|
1.1
|
Definitions
|
Save as otherwise defined in this Agreement, terms and expressions defined in the Underwriting Agreement shall have the same meanings where such terms and/or expressions are used in this Agreement. In this Agreement the following expressions shall, unless the context otherwise requires, have the following meanings:
|
|
"Agreement", this Agreement and the Schedule;
|
|
"Arrangements", all of the transactions and arrangements provided for, contemplated by or referred to in this Agreement;
|
|
“Associated Entity”, in respect of a Relevant Person, any company or other entity controlled by that Relevant Person or which controls that Relevant Person or which is under common control with that Relevant Person and any fund or partnership managed by any such company or entity;
|
|
“BoI”, The Governor and Company of the Bank of Ireland, a corporation established in Ireland by Royal Charter in 1783 and having limited liability, with registered number C-1 and having its registered office at 40 Mespil Road, Dublin 4;
|
|
“BoI Capital”, the number of units of stock comprised in the entire issued equity share capital of BoI as at any date upon which the same is required to be determined;
|
|
"BoI Ordinary Stock", units of ordinary stock of €0.05 (five cent) each in the issued capital of BoI;
|
|
"Buyer Commitment", the several obligation of each Buyer hereunder to purchase up to the total number of units of Ordinary Stock set out opposite its name in Schedule 1 (which number shall include any units of Purchased Sale Stock acquired by such Buyer on or immediately following completion of the Stock Purchase Agreement);
|
|
“Buyer Stock”, the First Sale Stock, the Second Sale Stock and the Third Sale Stock;
|
|
“Buyer Transactions”, the purchase by each of the Buyers of the Buyer Stock under the terms of this Agreement, the purchase by Fairfax of the Purchased Sale Stock pursuant to the Stock Purchase Agreement and the acquisition by any Buyer from another Buyer of any Purchased Sale Stock;
|
|
“CCN Agreement”, the agreement to be entered into on the date hereof between the Minister and the Buyers, providing for certain matters relating to the Contingent Capital Notes;
|
|
“Commission Stock”, all of the BoI Ordinary Stock owned by the Commission immediately after the Rights Issue;
|
|
“Completion”, completion of the purchase and sale of the First Sale Stock, the Second Sale Stock and the Third Sale Stock or of any of such purchases and sales and “First
|
Completion”, “Second Completion” and “Third Completion” shall be construed accordingly;
|
|
“Completion Dates”, the First Completion Date, the Second Completion Date and the Third Completion Date or any of them;
|
|
“Conditions”, the First Conditions, the Second Conditions and the Third Conditions;
|
|
“Deed of Undertaking”, the deed of undertaking entered into on the date hereof between BoI and each of the Buyers, providing (subject to certain conditions) for certain matters in connection with the transactions contemplated by this Agreement and the Stock Purchase Agreement;
|
|
“Direction”, a direction issued by the Minister to the Commission pursuant to Section 19(B), as appropriate, of the National Pensions Reserve Fund Act 2000, as amended;
|
|
“Directors”, the directors from time to time of BoI;
|
|
"Encumbrance", any type of interest or equity of any person including any right to acquire, option, right of pre-emption or right of first refusal, restriction on transfer or use or conversion, or any mortgage, charge, assignment, hypothecation, pledge, lien or security interest, encumbrance, claim, third party rights or other agreement or arrangement of any nature whatsoever having a similar effect;
|
|
"Fairfax", Fairfax Financial Holdings Limited, having its registered office at 95 Wellington Street, Suite 800, Toronto, Ontario, M5J 2N7, Canada, one of the Buyers;
|
|
“First Completion Date”, the date upon which each of the Buyers shall purchase its Specified Proportion of the First Sale Stock, being 29 July 2011 or, if later, the second Business Day after satisfaction (or waiver) of the last to be satisfied (or waived) of the First Conditions;
|
|
"First Conditions", the conditions listed in Clause 2.1;
|
|
“First Longstop Date”, 150 days after the date hereof, or in respect of any Buyer, such later date or dates as that Buyer may agree with the Commission;
|
|
“First Sale Stock”, subject to Clause 3.4, such number of units of BoI Ordinary Stock held by the Commission which may on the First Completion Date represent up to 29.5% of the voting rights comprised in the BoI Capital, less the Purchased Sale Stock, purchased pursuant to Clause 3.1;
|
|
“Government Parties”, the Minister, the Commission and the NTMA;
|
|
“Indemnity”, the indemnity provided to the Government Parties pursuant to Clause 17.1(b) of the Underwriting Agreement in respect of the Commission Warranties;
|
|
“Issuer Agreement”, the agreement to be entered into on the date hereof between the Buyers and BoI, providing for certain matters relating to the Contingent Capital Notes;
|
|
“Listing Rules”, the Listing Rules of The Irish Stock Exchange Limited, as amended from time to time:
|
|
"Losses", any and all losses, damages, costs, liabilities, demands, charges, duties or expenses (including legal fees) and Taxation, in each case whether joint or several, which any person may suffer or incur (including, but not limited to all losses suffered or incurred in investigating, preparing for or disputing or defending or providing evidence) in connection with, or settling any Claim and/or in establishing its right to be indemnified pursuant to the Indemnity and/or in seeking advice regarding any Claim and "Loss" will be construed accordingly;
|
“NAMA Bonds”, senior unsecured floating rate notes issued by National Asset Management Limited (“NAML”) ranking pari passu with NAML’s other unsecured and unsubordinated indebtedness;
|
|
“New Registration Rights Agreement”, means the registration rights agreement, in the agreed form, between BoI and the Buyers to be entered into on the date of this Agreement;
|
|
“Other Transaction Documents”, the Stock Purchase Agreement, the Deed of Undertaking, the CCN Agreement, the New Registration Rights Agreement, the Issuer Agreement and the Top-Up Letters;
|
|
"Party", a Party to this Agreement, and "Parties" shall be construed accordingly;
|
|
“Purchased Sale Stock”, the meaning given to that term in Recital C;
|
|
“Regulatory Approvals”, all consents, determinations, authorisations, permits, waivers, approvals and licences reasonably determined by any of the Buyers to be necessary for the acquisition by it of the Sale Stock, of all Government, EU, United States of America and other regulatory and self-regulatory bodies having jurisdiction over that Buyer or BoI, including without limitation, the Central Bank of Ireland, the Financial Services Authority of the United Kingdom, the Irish Takeover Panel, the Irish Competition Authority, the EU Commission, the Board of Governors of the Federal Reserve System, and any consent, determination, waiver or approval needed pursuant to any competition or anti-trust restrictions and for the avoidance of doubt, including such derogations, determinations, waivers and resolutions as each Buyer shall reasonably determine to be necessary to ensure that they shall not be required by virtue of any or all of the Buyer Transactions to make a mandatory bid for BoI pursuant to Rule 9 of the Takeover Rules;
|
|
“Relevant Person”, the meaning given to that term in Clause 5.2 of the Stock Purchase Agreement;
|
|
"Rights Issue", the offer by BoI to the holders of BoI Ordinary Stock (by way of 18-for-5 rights issue) of the Rights Issue Stock, pursuant to a prospectus issued by BoI on 18 June 2011 as supplemented by a supplementary prospectus issued by BoI on 8 July 2011;
|
|
"Rights Issue Stock" the 19,077,889,032 units of new Ordinary Stock to be allotted and issued by BoI pursuant to the Rights Issue;
|
|
“Sale Stock”, the First Sale Stock, the Second Sale Stock and the Third Sale Stock;
|
|
“Second Completion Date”, the date upon which each of the Buyers shall purchase its Specified Proportion of the Second Sale Stock, being 17 August 2011 or, if later, the second Business Day after satisfaction (or waiver) of the last to be satisfied (or waived) of the Second Conditions;
|
|
“Second Conditions”, the conditions referred to and set out in Clause 2.6;
|
|
“Second Longstop Date”, 150 days after the date hereof, or in respect of any Buyer, such later date or dates as that Buyer may agree with the Commission;
|
|
“Second Sale Stock”, subject to Clause 3.4, such number of units of BoI Ordinary Stock held by the Commission which may on the Second Completion Date represent up to 29.5 per cent of the voting rights comprised in the BoI Capital after the issue of the Debt for Equity Stock, less the aggregate of the Purchased Sale Stock and the First Sale Stock, purchased by each of the Buyers pursuant to Clause 3.2;
|
|
"Specified Proportion”, in respect of each Buyer, a proportion equal to the proportion which its Buyer Commitment bears to the aggregate of all of the Buyer Commitments as set out in Column 4 of Schedule 1;
|
"State Title Warranties”, the warranties contained in Clause 6.1, each a "State Title Warranty” and given by the Commission to the Buyers;
|
||
“Stock Purchase Agreement”, the agreement entered into contemporaneously with this Agreement between the Minister, the Commission and Fairfax for the purchase and sale of the Purchased Sale Stock;
|
||
"Takeover Act and Rules", the Irish Takeover Panel Act 1997 (as amended) and all regulations made thereunder and the European Communities (Takeover Bids (Directive 2004/25/EC)) Regulations 2006 (SI No 255 of 2006), the Irish Takeover Panel Act 1997 Takeover Rules 2007 (as amended) and the “Takeover Rules” shall mean the said Rules and “Takeover Panel” or “Panel” shall have the meaning given to the term the “Panel” in the Takeover Rules; ;
|
||
“Third Completion Date”, the date upon which each of the Buyers shall purchase its Specified Proportion of the Third Sale Stock held by the Commission, being 31 August 2011 or, if later, the second Business Day after the satisfaction (or waiver) of the last to be satisfied (or waived) of the Third Conditions;
|
||
“Third Conditions”, the conditions referred to and set out in Clauses 2.9 and 2.11;
|
||
“Third Longstop Date”, 150 days after the date hereof, or, in respect of any Buyer, such later date or dates as that Buyer may agree with the Commission;
|
||
“Third Sale Stock”, subject to Clause 3.4, such number of units of BoI Ordinary Stock as shall be determined in accordance with the following formula:
|
||
T =
|
C – (P+F+S)
|
|
Where:
|
||
T =
|
the number of units of BoI Ordinary Stock as shall comprise the Third Sale Stock,
|
|
C =
|
the aggregate of all of the Buyer Commitments expressed in numbers of units of BoI Ordinary Stock;
|
|
P =
|
the Purchased Sale Stock;
|
|
F =
|
the First Sale Stock; and
|
|
S =
|
the Second Sale Stock;
|
|
“Top-Up Letters”, letters written on or about the date hereof by BoI to the Buyers and the Commission respectively offering them certain rights in respect of the subscription for new BoI Ordinary Stock
|
||
“Transaction Fee”, the meaning ascribed thereto in Clause 15;
|
||
“Whitewash Date”, 5pm on the date on which a meeting of the independent shareholders of BoI is held to consider a “whitewash” resolution to approve the waiver of Rule 9 of the Irish Takeover Rules and such resolution is voted on; and
|
||
“Underwriting Agreement”, the Transaction and Underwriting Agreement dated 18 June 2011 between the Minister, the Commission, the NTMA, BoI and the Sponsors and Joint Bookrunners (as defined therein).
|
1.2
|
In this Agreement, unless the context otherwise requires:
|
||
1.2.1
|
a reference to:
|
||
(a)
|
any Party includes its successors in title and permitted assigns;
|
||
(b)
|
a "person" includes any individual, firm, body corporate, association or partnership, government or state or agency of a state, local authority or government body or any joint venture association or partnership (whether or not having a separate legal personality) and that person's personal representatives, successors or permitted assigns;
|
||
(c)
|
a "company" will be construed so as to include any company, corporation or body corporate, wherever and however incorporated or established;
|
||
(d)
|
a recital, clause, paragraph, or schedule, unless otherwise specified, is a reference to a recital, clause, paragraph of or schedule to this Agreement;
|
||
(e)
|
writing or similar expressions includes, unless otherwise specified, transmission by facsimile but excludes e-mail;
|
||
(f)
|
the singular includes the plural and vice versa and references to one gender includes all genders;
|
||
(g)
|
"day" or a "Business Day" will mean a period of 24 (twenty-four) hours running from midnight to midnight;
|
||
(h)
|
a "month" will mean a calendar month;
|
||
(i)
|
time is to time in Ireland;
|
||
(j)
|
a "subsidiary undertaking" or "parent undertaking" is to be construed in accordance with the European Communities (Companies: Group Accounts) Regulations 1992 of Ireland and a "subsidiary" or "holding company" is to be construed in accordance with Section 155 of the Companies Act 1963 of Ireland; and
|
||
(k)
|
any other document referred to in this Agreement is a reference to that document as amended, varied, novated or supplemented at any time;
|
||
1.2.2
|
a reference to a statute or statutory provision will be construed as a reference to the laws of Ireland unless otherwise specified and includes:
|
||
(a)
|
any subordinate legislation made under it including all regulations, by-laws, orders and codes made thereunder;
|
||
(b)
|
any repealed statute or statutory provision which it re-enacts (with or without modification); and
|
||
(c)
|
any statute or statutory provision which modifies, consolidates, re- enacts or supersedes it, and
|
||
in each case, prior to the date of this Agreement;
|
|||
1.2.3
|
any phrase introduced by the terms "including", "include" and "in particular" or any similar expression will be construed as illustrative and will not limit the sense of the words preceding those terms; and
|
1.2.4
|
expressions defined or used in the CREST Regulations shall have the same meanings in this Agreement (except where the context otherwise requires).
|
|
1.3
|
The table of contents and headings in this Agreement are inserted for convenience only, and they are to be ignored in the interpretation of this Agreement.
|
|
1.4
|
For the avoidance of doubt any reference in this Agreement to the agreement or consent of, or any notice or waiver by, the Minister, the Commission or the NTMA will be construed as the agreement or consent of, or any notice or waiver by (as the case may be), each of them, except where expressly provided to the contrary.
|
|
1.5
|
Notwithstanding any other provisions of this Agreement, all obligations of each of the Buyers are several and not joint.
|
|
2.
|
Conditions Precedent
|
|
2.1
|
Notwithstanding any other provision of this Agreement, Completion by each Buyer on a several basis of the purchase and sale of the First Sale Stock shall not occur until and unless the following conditions set forth in this Clause 2.1 (the “First Conditions”) shall have been satisfied (and/or waived by that Buyer in accordance with Clause 2.3) on or prior to the First Completion Date:
|
|
2.1.1
|
the Other Transaction Documents shall have been executed by all of the parties thereto;
|
|
2.1.2
|
the Rights Issue shall have completed and all of the Rights Issue Stock shall have been allotted fully paid pursuant thereto and to the Underwriting Agreement;
|
|
2.1.3
|
each of the State Title Warranties shall continue to be true and accurate in all respects and not misleading;
|
|
2.1.4
|
all Regulatory Approvals shall have been obtained in terms to the reasonable satisfaction of each of the Buyers, all waiting and objection periods applicable thereto shall have expired and each of them shall be in full force and effect;
|
|
2.1.5
|
the Stock Purchase Agreement shall have been completed in accordance with its terms; and
|
|
2.1.6
|
the Panel shall have confirmed that in its view none of the Buyers is acting in concert with any other Buyer or Buyers.
|
|
2.2
|
The Commission and each of the Buyers will use all reasonable endeavours to procure the fulfilment of the First Conditions on 29 July 2011 (or such later date as may be necessitated by the issue of a supplementary prospectus in respect of the Rights Issue), and, in any event, by not later than 5.30 pm on the First Longstop Date; provided that each Buyer and its Associated Entities may in its absolute discretion decline to provide some or all documentation requested.
|
|
2.3
|
Each of the Buyers may agree for itself, to the extent permitted by law and upon such terms as it considers fit, to waive fulfilment of all or any of the conditions set out in Clause 2.1 or to extend the time provided for fulfilment of any of the conditions set out in Clause 2.1 in respect of all or any part of the performance thereof (provided that no such extension of time shall be capable of continuing beyond the First Longstop Date without the consent of the Commission).
|
|
2.4
|
If any condition or conditions set out in Clause 2.1 is not fulfilled in relation to any Buyer or Buyers or, if capable of waiver, not waived in accordance with Clause 2.3 in each case by the First Longstop Date or if it becomes clear prior to the First Longstop Date that any of the conditions(s) are incapable of fulfilment and will not be waived, then this Agreement will automatically cease and terminate with immediate effect in respect of such Buyer(s) (the
|
“Terminated Buyer”) and no Party to this Agreement will have any claim against any other Party to this Agreement for costs, damages, compensation or otherwise in respect of the Terminated Buyer except as provided in Clause 2.5.1.
|
||
2.5
|
Where this Agreement has terminated pursuant to Clause 2.4:
|
|
2.5.1
|
such termination will be without prejudice to any accrued rights or obligations under this Agreement;
|
|
2.5.2
|
the provisions of this Clause 2.5 and Clauses 1, 13, 14, 16, 17 and 18 will remain in full force and effect.
|
|
2.6
|
Completion of the purchase and sale of the Second Sale Stock shall not occur until and unless:
|
|
2.6.1
|
the Debt for Equity Stock shall have been allotted credited as fully paid;
|
|
2.6.2
|
First Completion shall have occurred;
|
|
2.6.3
|
the First Conditions in Clauses 2.1.3 and 2.1.4 shall remain fulfilled as at the Second Completion Date; and
|
|
2.6.4
|
the Panel shall have confirmed that in its view none of the Buyers is acting in concert with any other Buyer or Buyers.
|
|
The Commission and each of the Buyers will use all reasonable endeavours to procure the fulfilment of the Second Condition as soon as is reasonably practicable after the date hereof and, in any event, by not later than 5.30 pm on the Second Longstop Date. In particular and without prejudice to the generality of the foregoing, it is acknowledged by each of the Parties that additional Regulatory Approvals may be required prior to Second Completion and/or that the Regulatory Approvals obtained for First Completion may have to be renewed, extended or amended, and accordingly, the purchase and sale of the Second Sale Stock shall be conditional upon the Regulatory Approvals referred to in Clause 2.1.4 being or remaining valid in respect of the Second Sale Stock and upon the additional Regulatory Approvals and/or such renewals, extensions or amendments aforesaid, having been obtained in terms to the reasonable satisfaction of any of the Buyers proceeding to Completion, all waiting and objection periods applicable thereto shall have expired and each of them shall be in full force and effect; provided that each Buyer and its Associated Entities may in its absolute discretion decline to provide some or all documentation requested for the purpose of Clause 2.1.4 and Clause 2.6.
|
||
2.7
|
Each of the Buyers may agree, for itself, to the extent permitted by law and upon such terms as it considers fit, to waive fulfilment of all or any of the conditions set out in Clause 2.6 or to extend the time provided for fulfilment of any of the conditions set out in Clause 2.6 in respect of all or any part of the performance thereof (provided that no such extension of time shall be capable of continuing beyond the Second Longstop Date without the consent of the Commission).
|
|
2.8
|
If any condition or conditions set out in Clause 2.6 is not fulfilled in relation to any Buyer or Buyers or, if capable of waiver, not waived in accordance with Clause 2.7 by the Second Longstop Date or if it becomes clear prior to the Second Longstop Date that any of the condition(s) are incapable of fulfilment or will not be waived, the obligations of any such Buyer(s) and the Government Parties in respect of the purchase and sale of the Second Sale Stock shall lapse (without prejudice to any accrued rights of the Parties in respect thereof), but this Agreement shall continue in force in all other respects.
|
|
2.9
|
Completion of the purchase and sale of the Third Sale Stock shall not occur until and unless:
|
|
2.9.1
|
First Completion and Second Completion shall have occurred;
|
2.9.2
|
the First Conditions in Clauses 2.1.3 and 2.1.4 shall remain fulfilled as at the Third Completion Date;
|
|
2.9.3
|
the requirements of Clause 2.12 shall have been met; and
|
|
2.9.4
|
the Panel shall have confirmed that in its view none of the Buyers is acting in concert with any other Buyer or Buyers.
|
|
The Commission and each of the Buyers will use all reasonable endeavours to procure fulfilment of the Third Conditions as soon as is reasonably practicable after the date hereof and, in any event, by not later than 5.30 pm on the Third Longstop Date. In particular and without prejudice to the generality of the foregoing, it is acknowledged by the Parties that additional Regulatory Approvals may be required prior to Third Completion and/or that the Regulatory Approvals obtained for First Completion and/or Second Completion may have to be renewed, extended or amended, and accordingly, the purchase and sale of the Third Sale Stock shall be conditional upon the Regulatory Approvals referred to in Clause 2.1.4 and Clause 2.6 being or remaining valid in respect of the Third Sale Stock and upon the additional Regulatory Approvals and or such renewals, extensions or amendments aforesaid provided that each Buyer and its Associated Entities may in its absolute discretion decline to provide some or all documentation requested for the purpose of Clause 2.1.4, Clause 2.6 and Clause 2.9.
|
||
2.10
|
Each of the Buyers may agree, for itself, to the extent permitted by law and upon such terms as it considers fit, to waive fulfilment of all or any of the conditions set out in Clause 2.9 or to extend the time provided for fulfilment of any of the conditions set out in Clause 2.9 in respect of all or any part of the performance thereof (provided that no such extension of time shall be capable of continuing beyond the Third Longstop Date unless without the consent of the Commission).
|
|
2.11
|
If any condition or conditions set out in Clause 2.9 is not fulfilled in relation to any Buyer or Buyers or, if capable of waiver, not waived in accordance with Clause 2.10 by the Third Longstop Date or if it becomes clear prior to the Third Longstop Date that any of the condition(s) are incapable of fulfilment or will not be waived, the obligations of any such Buyer(s) and the Government Parties in respect of the purchase and sale of the Third Sale Stock shall lapse (without prejudice to any accrued rights of the Parties in respect thereof), but this Agreement shall continue in force in all other respects.
|
|
2.12
|
The provisions of this Agreement concerning the purchase and sale of the Third Sale Stock shall not be effective nor shall Third Completion occur in respect of any Buyer unless each of the Buyers who is proceeding to Third Completion is satisfied (acting reasonably) (and so declare by notice in writing to the Commission):
|
|
2.12.1
|
that the Irish Takeover Panel has granted to them all such waivers, derogations, consents, clarifications and confirmations that they deem necessary or desirable pursuant to the Takeover Act and Rules, including pursuant to Rules 5 and 9;
|
|
2.12.2
|
that all conditions thereto (including, if required, the approval of a “whitewash” resolution of the independent shareholders of BoI) have been fulfilled;
|
|
2.12.3
|
that such consents, waivers, derogations, clarifications and confirmations are in full force and effect and that none of the Buyers will consequently be obliged to extend a mandatory offer to the shareholders of BoI pursuant to the said Rule 9; and
|
|
2.12.4
|
that they are not deemed by the Takeover Panel to be acting in concert with the Government Parties for the purposes of the Takeover Rules.
|
|
Copies of all waivers, derogations, consents, clarifications and confirmations received hereunder will be provided to the Government Parties.
|
2.13
|
Each of the Buyers hereby confirms to the other Buyers that it has concluded that the Buyer Transactions do not require to be notified under the EU Merger Regulation.
|
|
2.14
|
For the purposes of Clause 2.1.4, 2.2, 2.6 and 2.9, if one or more, but not all, of the Buyers declines to provide documentation to the detriment of the process for the fulfilment of the Conditions, the remaining Buyers will nevertheless continue to use all reasonable endeavours to procure fulfilment of the Conditions so as to permit Completion pursuant to Clause 5.3.
|
|
3.
|
Sales and Purchases
|
|
3.1
|
Subject to:
|
|
3.1.1
|
the satisfaction in respect of each of the Buyers proceeding to Completion (and/or waiver by each such Buyer in accordance with Clause 2.3) of the First Conditions; and
|
|
3.1.2
|
the provisions of Clause 3.4;
|
|
the Commission agrees to sell or procure the sale of the First Sale Stock and each such Buyer agrees on a several basis to purchase such number of units of Ordinary Stock as is equal to its Specified Proportion of the First Sale Stock with effect from the First Completion Date free from all Encumbrances and with the benefit of all rights and advantages attaching to the First Sale Stock or accruing at the First Completion for the consideration specified in Clause 4.1.
|
||
3.2
|
Subject to:
|
|
3.2.1
|
the satisfaction in respect of each of the Buyers proceeding to Completion (and/or waiver by each such Buyer in accordance with Clause 2.7) of the Second Conditions; and
|
|
3.2.2
|
the provisions of Clause 3.4;
|
|
the Commission agrees to sell or procure the sale of the Second Sale Stock and each such Buyer agrees on a several basis to purchase such number of units of Ordinary Stock as is equal to its Specified Proportion of the Second Sale Stock with effect from the Second Completion Date free from all Encumbrances and with the benefit of all rights and advantages attaching to the Second Sale Stock or accruing at the Second Completion Date for the Consideration specified in Clause 4.1.
|
||
3.3
|
Subject to:
|
|
3.3.1
|
the satisfaction in respect of each of the Buyers proceeding to Completion (and/or waiver by each such Buyer pursuant to Clause 2.10) of the Third Conditions; and
|
|
3.3.2
|
the provisions of Clause 3.4;
|
|
the Commission agrees to sell or procure the sale of the Third Sale Stock and each such Buyer agrees on a several basis to purchase such number of units of Ordinary Stock as is equal to its Specified Proportion of the Third Sale Stock with effect from the Third Completion Date free from all Encumbrances and with the benefit of all rights and advantages attaching to the Third Sale Stock or accruing at the Third Completion Date for the consideration calculated in accordance with Clause 4.1.
|
||
3.4
|
The Commission shall not be obliged to sell or to procure the sale of any units of Ordinary Stock pursuant to Clauses 3.1, 3.2 or 3.3 to the extent that such sale would reduce the Commission’s holding of BoI Ordinary Stock to less than 4,558,025,000 (four billion, five hundred and fifty-eight million and twenty-five thousand) units of BoI Ordinary Stock, (provided that there shall be deemed to be added back to the Commission’s holding of BoI
|
Ordinary Stock for the purpose of such calculation, all units of Ordinary Stock sold or transferred by it after the date hereof and prior to the relevant Completion Date, other than units of BoI Ordinary Stock previously sold by it hereunder or under the Stock Purchase Agreement). To the extent that any such sale would cause a shortfall in the Commission’s holding of BoI Ordinary Stock to less than 4,558,025,000 units of BoI Ordinary Stock, the First Sale Stock, the Second Sale Stock and/or the Third Sale Stock (as applicable) shall be reduced to the number at which the aggregate holding of the Commission shall be maintained at 4,558,025,000 units of BoI Ordinary Shares notwithstanding that in the case of the First Sale Stock and/or the Second Sale Stock this provision may result in the aggregate holding of BoI Stock acquired by the Buyers after the First Completion Date and/or the Second Completion Date (as the case may be) representing less than 29.5% of the voting rights comprised in the BoI Capital upon such date.
|
||
3.5
|
No Buyer, together with its Associated Entities, shall be obliged to purchase:
|
|
3.5.1
|
more Sale Stock than is comprised in its Buyer Commitment; or
|
|
3.5.2
|
Sale Stock such that its aggregate holding of BoI Ordinary Stock acquired hereunder, under the Stock Purchase Agreement and/or as Purchased Sale Stock acquired by that Buyer on or immediately following completion of the Stock Purchase Agreement, would exceed 9.9% of the entire issued share capital of BoI.
|
|
4.
|
Consideration
|
|
4.1
|
The consideration for every sale and purchase of the Sale Stock hereunder shall be €0.10 per unit of Sale Stock, payable in cash in accordance with Clause 5.4.
|
|
5.
|
Completion and Settlement
|
|
5.1
|
Subject to the satisfaction in respect of each of the Buyers (and/or waiver by each of the Buyers in accordance with Clause 2.3) of the First Conditions on or prior to the First Longstop Date, Completion of the purchase and sale of the First Sale Stock shall occur on the First Completion Date.
|
|
5.2
|
Subject to the satisfaction in respect of each of the Buyers (and/or waiver by each of the Buyers in accordance with Clause 2.7) of the Second Conditions on or prior to the Second Longstop Date, Completion of the purchase and sale of the Second Sale Stock shall occur on the Second Completion Date.
|
|
5.3
|
Subject to the satisfaction in respect of each of the Buyers (and/or waiver by each of the Buyers in accordance with Clause 2.10) of the Third Conditions on or prior to the Third Longstop Date, Completion of the purchase and sale of the Third Sale Stock shall occur on the Third Completion Date. For the avoidance of doubt, if the Conditions have been satisfied or waived on any Completion Date by one or more, but not all, of the Buyers, the Buyers that have satisfied the Conditions or in respect of whom waivers have been given (“Compliant Buyers”) may proceed to Completion. Each Compliant Buyer will in good faith enter into discussions with the Government Parties with a view to determining whether and on what terms Completion of the Buyer Transactions may be achieved, subject to such amendments as each of the Compliant Buyers and the Commission may agree.
|
|
5.4
|
Upon each Completion, each Buyer shall, simultaneously with the Sale Stock transfer pursuant to Clause 5.5, transfer through the facilities of CREST, to an account designated prior to the relevant Completion Date by the Commission, in cleared funds, the amount of the consideration due for the Sale Stock being purchased by it, less the appropriate proportion of the Transaction Fee due to such Buyer on such Completion pursuant to Clause 15.
|
|
5.5
|
Upon each Completion Date, simultaneously with the funds transfers provided for in Clause 5.4, the Commission shall cause such of the Sale Stock to be transferred to each of the Buyers as is equal to its Specified Proportion of the Sale Stock to be sold on that Completion Date by credit through the facilities of CREST of the Sale Stock to an account or
|
accounts nominated by each Buyer, against payment by or on behalf of such Buyer of the consideration referred to in Clause 4.1 in same day funds (subject to deduction pursuant to Clause 15);
|
||
5.6
|
Upon the date hereof, each Buyer shall deliver to the Commission a confirmation from its general counsel or chief legal officer or secretary, substantially confirming that:
|
|
5.6.1
|
it is a company duly incorporated and validly existing under the laws of its jurisdiction of incorporation;
|
|
5.6.2
|
it has the legal right and full power and authority to execute and deliver, and to perform its obligations under this Agreement;
|
|
5.6.3
|
all necessary corporate actions, conditions and things have been taken, fulfilled and done in order to enable such Buyer to enter into, perform and comply with its obligations hereunder, and the person who has executed this Agreement on behalf of such Buyer has the necessary authority to do so on behalf of that Buyer and to bind such Buyer accordingly; and
|
|
5.6.4
|
this Agreement constitutes valid and binding agreement of the relevant Buyer enforceable in accordance with its terms.
|
|
5.7
|
Upon the date of this Agreement, the Commission shall deliver to each of the Buyers a confirmation from the Head of Legal of the NTMA (which is the manager of the National Pensions Reserve Fund pursuant to the National Pensions Reserve Fund Act 2000 (as amended) (the “Act”)) confirming that:
|
|
5.7.1
|
the Commission is a body corporate established pursuant to the Act and validly existing under the laws of Ireland;
|
|
5.7.2
|
the Commission has the legal right and full power and authority to execute and deliver, and to perform its obligations under this Agreement;
|
|
5.7.3
|
all necessary actions, conditions and things have been taken, fulfilled and done in order to enable the Commission to enter into, perform and comply with its obligations hereunder, and the persons who have executed this Agreement on behalf of the Commission have the necessary authority to do so on behalf of the Commission and to bind the Commission accordingly; and
|
|
5.7.4
|
this Agreement constitutes valid and binding obligations of the Commission enforceable in accordance with its terms.
|
|
6.
|
Warranties
|
|
6.1
|
The Commission hereby warrants to the each of the Buyers that upon each Completion Date:
|
|
6.1.1
|
the Commission will at such Completion Date have full legal right, power and authority to transfer or procure the transfer of, in accordance with the terms and conditions of this Agreement, the Sale Stock being sold on that date, all of which will at such Completion Date be fully paid up or credited as fully paid up and free of any Encumbrance (including for the avoidance of doubt any Encumbrance affecting any of the voting rights, dividend rights or other rights attaching to any Sale Stock), and will at such Completion Date be absolutely entitled to all rights thereon and in respect thereof and attaching thereto, and (save as provided in this Agreement) there will at such Completion Date be no agreement, arrangement or obligation to create any Encumbrance affecting any of the Sale Stock and no claim will have been made by any person to be entitled to any such Encumbrance;
|
6.1.2
|
so far as the Commission is aware none of the Sale Stock will at such Completion Date be subject to any current or pending claim or litigation as to its title or ownership.
|
|
6.2
|
The Commission, the Minister and the NTMA hereby assign and transfer to each of the Buyers the benefit of the Commission Warranties in respect of every unit of the Sale Stock and acknowledge that they shall have no Claim pursuant to the Commission Warranties for any Losses suffered by any of them for any breach of the Commission Warranties in respect of any units of Sale Stock, to the intent that all Claims available and arising pursuant to every breach of the Commission Warranties in respect of every unit of the Sale Stock shall be the property and entitlement of the Buyer having purchased such unit and may be pursued, settled or waived by such Buyer at its absolute discretion and without competition from any of the Minister, the Commission or NTMA.
|
|
6.3
|
The Minister, the Commission and the NTMA hereby assign to each of the Buyers the benefit of the Indemnity in respect of every unit of the Sale Stock.
|
|
6.4
|
In the event that there is a legal impediment to the enforcement by any of the Buyers of any Claim pursuant to the Commission Warranties by virtue only of the fact that the Commission Warranties were assigned to each of the Buyers rather than being given directly to each of the Buyers by BoI, the Minister, the Commission (upon receipt of a Direction from the Minister) and the NTMA undertake to provide reasonable co-operation, information and assistance to each of the Buyers and to execute and deliver any necessary documents and consents in relation to such legal impediment, provided that:
|
|
6.4.1
|
any such assistance and co-operation shall not give rise to any obligation on the Minister, the Commission or the NTMA to make any payment;
|
|
6.4.2
|
any action taken by the Minister, the Commission and the NTMA at the request of the Buyers shall be at the cost of the Buyer making the request;
|
|
6.4.3
|
the Minister, the Commission and the NTMA will be under no obligation to do anything which would create a legal obligation for, give rise to a claim from any third party against or result in any liability for the Minister, the Commission or the NTMA;
|
|
6.4.4
|
the Minister, the Commission or the NTMA shall not be required to take any action which would be against public policy or detrimental to the financial stability of BoI or the stability of the financial system of the Irish State as a whole.
|
|
6.5
|
The Minister, the Commission and the NTMA accept no liability to the Buyers in respect of the Commission Warranties or the Indemnity. For the avoidance of doubt nothing in this Agreement or any of the Other Transaction Documents shall affect in any way the rights and Claims of the Commission, the Minister and the NTMA under the Commission Warranties or the Indemnity as they relate to Ordinary Stock other than the Sale Stock.
|
|
6.6
|
The Commission acknowledges that each of the Buyers are entering into this Agreement in reliance upon each of the warranties contained in Clause 6.1 and on the assignment and undertakings provided for in Clause 6.2.
|
|
6.7
|
Each of:
|
|
6.7.1
|
the State Title Warranties will be construed separately and will not be limited by reference (express or implied) to the terms of any other representation, warranty or undertaking or any other term of this Agreement;
|
|
6.7.2
|
the warranties given and the warranties, undertakings, representations and Indemnity assigned under this Agreement will remain in full force and effect notwithstanding Completion and all other matters and arrangements referred to in or contemplated by this Agreement.
|
6.8
|
The aggregate liability of the Commission under the State Title Warranties in respect of all claims shall be subject to an overall maximum equal to the aggregate of the consideration for Sale Stock payable hereunder, less any deductions or set-offs made pursuant to this Agreement.
|
|
6.9
|
Nothing herein shall or shall be deemed to relieve any of the Buyers of any common law duty to mitigate any loss or damage incurred by it.
|
|
7.
|
Public Interest Undertaking
|
|
7.1
|
Each Buyer undertakes and covenants that for a period commencing on First Completion and ending on 1 March 2016, it shall neither initiate nor support a refusal by BoI to agree a rollover of the NAMA Bonds or a demand for payment thereof, or any attempt to induce BoI to make such a refusal or demand, in respect of either the NAMA Bonds now held by BoI or NAMA Bonds of similar or lesser aggregate nominal value issued annually in succession thereto.
|
|
7.2
|
Each Buyer acknowledges that the State Entities are relying on the undertaking and covenant set out in Clause 7.1 in entering into this Agreement.
|
|
8.
|
Lock Up
|
|
8.1
|
Subject to Clause 8.3, each of the Buyers hereby severally undertakes to the Minister and the Commission on its own behalf and on behalf of all Associated Entities to which it may transfer Sale Stock pursuant to Clause 8.2.6 that for a period commencing on the First Completion Date and ending on the 90th day thereafter or the Whitewash Date, whichever is the first to occur, neither such Buyer nor its Associated Entities as aforesaid will sell, transfer, grant any option over or otherwise dispose of its legal, beneficial or any other interest held by it in any of the Sale Stock acquired by it upon such Completion Date. For the avoidance of doubt, this Clause shall not prohibit the sale, transfer, grant of option over or other disposal by any Buyer or its Associated Entities of BoI Ordinary Stock other than Sale Stock.
|
|
8.2
|
The restrictions set out in Clause 8.1 shall not apply to:
|
|
8.2.1
|
any disposal pursuant to acceptance of (or giving an irrevocable undertaking to accept) any offer or agreement by the Buyer to vote in favour of or participate in a scheme of arrangement to acquire the whole or any part of the issued stock capital of BoI (other than any stock already held by the offeror or persons acting in concert with the offeror) to which the provisions of the Takeover Act and Rules apply; or
|
|
8.2.2
|
any compromise or arrangement providing for the acquisition by any person (or group of persons acting in concert) of 50 per cent of more of the issued capital stock of BoI;
|
|
8.2.3
|
any disposal or agreement to dispose of BoI Ordinary Stock pursuant to an offer by BoI to purchase its own issued capital stock which is made on identical terms to all holders of BoI Ordinary Stock and otherwise complies with applicable legal requirements and otherwise complies with the Listing Rules;
|
|
8.2.4
|
any disposal made pursuant to a Court order or otherwise required by law;
|
|
8.2.5
|
any disposal made in accordance with Clause 9 (Assignment); or
|
|
8.2.6
|
any disposal by a Relevant Person to an Associated Entity of that Relevant Person and/or any subsequent disposals by any such Associated Entity of that Relevant Person to another Associated Entity of that Relevant Person.
|
|
8.3
|
The restrictions in Clause 8.1 shall expire on the Whitewash Date.
|
9.
|
Assignment
|
|
9.1
|
The Minister, the NTMA and the Commission may assign or transfer any of their respective rights or benefits under this Agreement to any entity wholly-owned by the Irish State, but they may not transfer their obligations hereunder without each of the Buyers’ prior written consent.
|
|
9.2
|
Any Relevant Person may assign the benefit of this Agreement to any person to whom any Sale Stock is transferred in accordance with the provisions of Clause 8.2.6.
|
|
10.
|
Covenant
|
|
The Commission covenants with each Buyer that the Commission shall take up in full all of its rights under the Rights Issue.
|
||
11.
|
Further Assurance and Role of Minister
|
|
The Commission shall, upon receipt of a Direction from the Minister, execute all documents and do all acts and things as may reasonably be required after Completion by any Buyer or its successor(s) for assuring to or vesting in such Buyer (or its designees) the legal and beneficial ownership of the Sale Stock acquired by it hereunder and generally to give effect to this Agreement. The Minister agrees to give a Direction to the Commission as necessary to enable the Commission to comply with this Clause 11.
|
||
12.
|
Waiver
|
|
A waiver by any Party or Parties of any breach of any of the terms, provisions or covenants of this Agreement or the acquiescence of any Party or Parties in any act (whether of commission or omission) which, but for such acquiescence, would be a breach as aforesaid shall not constitute a general waiver of such term, provision or covenant or of any subsequent act contrary thereto. Any liability to any Party under the provisions of this Agreement may be released, compounded or compromised by such Party in its absolute discretion as regards any Party or Parties under such liability without in any way prejudicing its rights against any other Party or Parties under the same or a like liability, whether joint and several or otherwise.
|
||
13.
|
References to the Buyers
|
|
13.1
|
The prior consent of each Buyer will be required prior to the release or publication of any document or announcement to be executed, published or filed in connection with the Buyer Transactions that refers to that Buyer, or refers to any actions that are contemplated or have been or will be taken by that Buyer ("Relevant Documents").
|
|
13.2
|
Prior to seeking the consent of each Buyer pursuant to Clause 13.1, each of the Government Parties agrees and undertakes that it will, subject to applicable law and regulation:
|
|
13.2.1
|
afford the Buyers such time as they may reasonably require to consider the Relevant Documents to give such consent; and
|
|
13.2.2
|
submit drafts and revised drafts of the Relevant Documents for review and comment by each Buyer, and having afforded each Buyer appropriate time pursuant to Clause 13.2.1 to consider such drafts, discuss such comments with the Buyers for the purposes of preparing revised drafts.
|
|
14.
|
Entire Agreement
|
|
This Agreement (together with the Stock Purchase Agreement and the CCN Agreement to the extent that the Parties hereto are party thereto) contains the entire agreement between the Parties relating to the transactions provided for in this Agreement and supersedes all previous representations, arrangements, undertakings and agreements (if any) between the
|
Parties in respect of such matters. Each of the Parties acknowledges that in agreeing to enter into this Agreement it has not relied on any representation, warranty, undertaking, covenant, pre-contractual statement or understanding other than those contained in this Agreement and/or the Stock Purchase Agreement and/or the CCN Agreement.
|
||
15.
|
Transaction Fee
|
|
In consideration of the Buyers dealing in the Sale Stock or effectively underwriting the issue of the Sale Stock (or as an agency service relating to them), the Commission shall pay to the Buyers a transaction fee in the Specified Proportions an amount equal to 2% of the first €181,374,852 of the consideration payable by it hereunder and 4% of all remaining consideration payable by it hereunder for the Sale Stock purchased by it (the “Transaction Fee”). The Parties consider that any service supplied to the Commission under this Agreement falls within one of (A) paragraph 6(1)(a) (as a dealing in stocks or shares), (B) paragraph 6(1)(b) (as an underwriting of an issue of stocks or shares), (C) as an agency service relating to an exempt service supply within paragraph 7 of the First Schedule to the Value Added Tax Consolidation Act 2010 and each of the Parties also agrees not to assert that any such service is other than an exempt service supply within the First Schedule to the Value Added Tax Consolidation Act 2010.
|
||
The Commission’s liability to pay the Transaction Fee shall arise immediately upon each Completion Date, whereupon a part of the Transaction Fee determined according to the aggregate amount of the consideration payable by the Buyers upon such Completion Date shall be due. The relevant part of the Transaction Fee shall be payable in every case by deduction by the Buyer entitled thereto of the amount thereof from the consideration payable by it upon such Completion..
|
||
16.
|
General
|
|
16.1
|
Any liability to any Party under this Agreement may in whole or in part be released, compounded or compromised and time or indulgence may be given by any Party in its absolute discretion as regards any other person under such liability without in any way prejudicing or affecting the first Party's rights against such other person under the same or a similar liability, whether joint and several or otherwise.
|
|
16.2
|
The rights, powers and remedies provided in this Agreement are cumulative and not exclusive of and rights, powers and remedies provided by law.
|
|
16.3
|
Except to the extent already performed, all the provisions of this Agreement will, so far as they are capable of being performed or observed, continue in full force and effect notwithstanding the conclusion of any or all of the constituent parts of this Agreement.
|
|
16.4
|
This Agreement may be entered into in any number of counterparts and by any one or more of the parties to it on separate counterparts but will not be effective until each Party has executed at least one counterpart. Each counterpart when executed and delivered will be an original, but all the counterparts will together constitute one and the same instrument. Delivery of a counterpart of this Agreement by email attachment or telecopy shall be an effective mode of delivery.
|
|
16.5
|
No variation of this Agreement will be effective unless in writing (not including e-mail) and signed by or on behalf of each of the parties.
|
|
16.6
|
If at any time any provision of this Agreement is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, that will not affect or impair:
|
|
16.6.1
|
the legality, validity or enforceability in that jurisdiction of any other provision of this Agreement; or
|
|
16.6.2
|
the legality, validity or enforceability under the law of any other jurisdiction of that or any other provision of this Agreement.
|
If any invalid, unenforceable or illegal provision of this Agreement would be valid, enforceable and legal if some part of it were deleted, the parties will negotiate in good faith to amend such provision such that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the parties original commercial intention.
|
|||
17.
|
Notices
|
||
17.1
|
Subject to Clause 17.2, any notice or other communication under this Agreement will only be effective if it is in writing.
|
||
17.2
|
Communication by e-mail will not be effective under this Agreement.
|
||
17.3
|
Any notice or other communication given or made under this Agreement will be addressed as provided in Clause 17.5 and, if so addressed, will, in the absence of earlier receipt, be deemed to have been duly given or made as follows:
|
||
17.3.1
|
if sent by personal delivery, on delivery at the address of the relevant Party;
|
||
17.3.2
|
if sent by pre-paid post, two (2) clear Business Days after the date of posting.
|
||
17.4
|
Any notice or other communication given or made, or deemed to have been given or made, outside Working Hours will be deemed not to have been given or made until the start of the next period of Working Hours.
|
||
17.5
|
The relevant notice details for the parties hereto are:
|
||
17.5.1
|
if to the Minister:
|
||
Address:
|
Upper Merrion Street
|
||
Dublin 2
|
|||
Fax no.:
|
+353 1 678 9936
|
||
Attention:
|
The Secretary General, Department of Finance
|
||
17.5.2
|
if to the Commission:
|
||
Address:
|
Treasury Building
|
||
Grand Canal Street
|
|||
Dublin 2
|
|||
Fax no.:
|
+353 1 676 6639
|
||
Attention:
|
Chief Executive, National Treasury Management Agency
|
||
With copy to:
|
Head of Control, National Treasury Management Agency
|
||
Treasury Building
|
|||
Grand Canal Street
|
|||
Dublin 2
|
|||
Fax no.:
|
+353 1 676 6639
|
||
17.5.3
|
if to the NTMA:
|
Address:
|
Treasury Building
|
||
Grand Canal Street
|
|||
Dublin 2
|
|||
Fax no.:
|
+353 1 676 6639
|
||
Attention:
|
Head of Banking, National Treasury Management Agency
|
||
17.5.4
|
if to any of the Buyers, to the address and fax number (if any) set out in respect of that Buyer in the second column of Schedule 1, with copy to the person(s) (if any) specified in the second column of Schedule 1.
|
||
17.6
|
A Party may notify the other parties of a change to its notice details. That notification will only be effective on:
|
||
17.6.1
|
any effective date specified in the notification; or
|
||
17.6.2
|
if no effective date is specified or the effective date specified is less than five (5) clear Business Days after the date when notice is received, the date falling five (5) clear Business Days after the notification has been received.
|
||
18.
|
Governing Law and Submission to Jurisdiction
|
||
This Agreement shall be governed by and construed in accordance with Irish law and each of the Parties submits to the exclusive jurisdiction of the Irish Courts for all purposes in connection herewith.
|
|||
19.
|
Process Agent
|
||
Each Buyer agrees to appoint an agent for service of process in Ireland within fourteen (14) days of the Buyer receiving written notice of legal suit, action or proceedings and the request to appoint such agent for service from another Party to this agreement. In the event that a Buyer does not appoint such an agent within fourteen (14) days of the notice requesting it to so, such other Party to this agreement may appoint a commercial agent for service for the relevant Buyer on the relevant Buyer's behalf and at relevant Buyer's expense and each Buyer agrees that subject to being notified of such appointment in writing, service upon such commercial agent will constitute service upon that Buyer.
|
Name
|
Address and Contact
|
Buyer Commitment
|
Specified Proportion
|
Fairfax Financial Holdings Limited
|
95 Wellington Street West
Suite 800
Toronto
Ontario
Canada M5J 2N7
For the attention of:
Paul Rivett
Vice President and Chief Legal Officer
With copy to:
William Fry
Fitzwilton House
Wilton Place
Dublin 2
For the attention of:
Owen O’Connell
|
3,000,000,000 units of Sale Stock at an aggregate Sale Price not exceeding €300,000,000
|
26.70987%
|
Fidelity Contrafund: Fidelity Advisor New Insights Fund
|
82 Devonshire Street, VI3H, Boston
MA 02109
USA
For the attention of:
Andrew Boyd
|
360,189,300 units of Sale Stock at an aggregate Sale Price not exceeding €36,018,930
|
3.20687%
|
Fidelity Contrafund: Fidelity Contrafund
|
82 Devonshire Street, VI3H, Boston
MA 02109
USA
For the attention of:
Andrew Boyd
|
1,502,949,000 units of Sale Stock at an aggregate Sale Price not exceeding €150,294,900
|
13.38119%
|
Variable Insurance Products Fund III: Balanced Portfolio
|
82 Devonshire Street, VI3H, Boston
MA 02109
USA
For the attention of:
Andrew Boyd
|
26,320,100 units of Sale Stock at an aggregate Sale Price not exceeding €2,632,010
|
0.2343%
|
Fidelity Advisor Series I: Fidelity Advisor Dividend Growth Fund
|
82 Devonshire Street, VI3H, Boston
MA 02109
USA
For the attention of:
Andrew Boyd
|
19,207,600 units of Sale Stock at an aggregate Sale Price not exceeding €1,920,760
|
0.17101%
|
Fidelity Securities Fund: Fidelity Dividend Growth Fund
|
82 Devonshire Street, VI3H, Boston
MA 02109
USA
For the attention of:
Andrew Boyd
|
202,472,200 units of Sale Stock at an aggregate Sale Price not exceeding €20,247,220
|
1.80267%
|
Name
|
Address and Contact
|
Buyer Commitment
|
Specified Proportion
|
Fidelity Capital Trust: Fidelity Value Fund
|
82 Devonshire Street, VI3H, Boston
MA 02109
USA
For the attention of:
Andrew Boyd
|
155,671,500 units of Sale Stock at an aggregate Sale Price not exceeding €15,567,150
|
1.38599%
|
Fidelity Advisor Series I: Fidelity Advisor Value Fund
|
82 Devonshire Street, VI3H, Boston
MA 02109
USA
For the attention of:
Andrew Boyd
|
1,409,100 units of Sale Stock at an aggregate Sale Price not exceeding €140,910
|
0.01255%
|
Fidelity Puritan Trust: Fidelity Low-Priced Stock Fund
|
82 Devonshire Street, VI3H, Boston
MA 02109
USA
For the attention of:
Andrew Boyd
|
713,584,900 units of Sale Stock at an aggregate Sale Price not exceeding €71,358,490
|
6.35325%
|
Kennedy-Wilson Investments, LLC
|
Kennedy-Wilson Investments LLC
c/o Matt Windisch
9701 Wilshire Boulevard, Suite 700
Beverly Hills
CA 90212
USA
With a copy to:
William McMorrow
(wmcmorrow@kennedywilson.com) or
Mary Ricks
(mricks@kennedywilson.com)
|
250,000,000 units of Sale Stock at an aggregate Sale Price not exceeding €25,000,000
|
2.22582%
|
WLR/GS Master Co-Investment L.P.
WLR Recovery Fund IV, L.P.
WLR Recovery Fund V, L.P.
WLR IV Parallel Esc, L.P
|
c/o WL Ross & Co. LLC
1166 Avenue of the Americas
25th Floor
New York 10036
USA
For the attention of:
James B. Lockhart III
With a copy to:
Benjamin Gruder (BenGruder@invesco.com)
|
3,000,000,000 units of Sale Stock at an aggregate Sale Price not exceeding €300,000,000
|
26.70987%
|
Capital Research and Management Company
|
333 South Hope St
Los Angeles
CA 90071
SA
For the attention of:
Michael Downer
|
2,000,000,000 units of Sale Stock at an aggregate Sale Price not exceeding €200,000,000
|
17.80658%
|
Name
|
Address and Contact
|
Buyer Commitment
|
Specified Proportion
|
TOTAL
|
11,231,803,700 units of Sale Stock at an aggregate Sale Price not exceeding €1,123,180,370
|
100.00000%
|
|
SIGNED for and on behalf
of the MINISTER FOR FINANCE
|
|||
by
|
John A. Moran
|
||
/s/ John A. Moran
|
|||
A person authorised by Section 15(4) of the Ministers and Secretaries Act 1924
|
/s/ Paul Carty
|
|
Chairman
|
|
/s/ John C. Corrigan
|
|
Commissioner
|
/s/ John C. Corrigan
|
|
Chief Executive
|
SIGNED and DELIVERED AS A DEED
on behalf of
FAIRFAX FINANCIAL HOLDINGS LIMITED
by its authorised signatory
in the presence of:
|
/s/ Paul Rivett
|
|
Authorised Signatory (Signature)
|
||
Paul Rivett
|
||
/s/ James Newman
|
Print name
|
|
Witness (Signature)
|
||
James Newman
|
||
Print name
|
||
Fitzwilton House, Wilton Place, Dublin 2
|
||
Print address
|
SIGNED and DELIVERED AS A DEED
on behalf of
FIDELITY CONTRAFUND: FIDELITY ADVISOR NEW INSIGHTS FUND
by its authorised signatory
in the presence of:
|
/s/ Jeffrey Christian
|
|
Authorised Signatory (Signature)
|
||
Jeffrey Christian, Deputy Treasurer
|
||
/s/ Suzanne Joyce
|
Print name
|
|
Witness (Signature)
|
||
Suzanne Joyce
|
||
Print name
|
||
83 Devonshire St., V13F, Boston, MA 02109
|
||
Print address
|
SIGNED and DELIVERED AS A DEED
on behalf of
FIDELITY CONTRAFUND: FIDELITY CONTRAFUND
by its authorised signatory
in the presence of:
|
/s/ Jeffrey Christian
|
|
Authorised Signatory (Signature)
|
||
Jeffrey Christian, Deputy Treasurer
|
||
/s/ Suzanne Joyce
|
Print name
|
|
Witness (Signature)
|
||
Suzanne Joyce
|
||
Print name
|
||
83 Devonshire St., V13F, Boston, MA 02109
|
||
Print address
|
SIGNED and DELIVERED AS A DEED
on behalf of
VARIABLE INSURANCE PRODUCTS FUND III: BALANCED PORTFOLIO
by its authorised signatory
in the presence of:
|
/s/ Jeffrey Christian
|
|
Authorised Signatory (Signature)
|
||
Jeffrey Christian, Deputy Treasurer
|
||
/s/ Suzanne Joyce
|
Print name
|
|
Witness (Signature)
|
||
Suzanne Joyce
|
||
Print name
|
||
83 Devonshire St., V13F, Boston, MA 02109
|
||
Print address
|
SIGNED and DELIVERED AS A DEED
on behalf of
FIDELITY ADVISOR SERIES I: FIDELITY ADVISOR DIVIDEND GROWTH FUND
by its authorised signatory
in the presence of:
|
/s/ Jeffrey Christian
|
|
Authorised Signatory (Signature)
|
||
Jeffrey Christian, Deputy Treasurer
|
||
/s/ Suzanne Joyce
|
Print name
|
|
Witness (Signature)
|
||
Suzanne Joyce
|
||
Print name
|
||
83 Devonshire St., V13F, Boston, MA 02109
|
||
Print address
|
SIGNED and DELIVERED AS A DEED
on behalf of
FIDELITY SECURITIES FUND: FIDELITY DIVIDEND GROWTH FUND
by its authorised signatory
in the presence of:
|
/s/ Jeffrey Christian
|
|
Authorised Signatory (Signature)
|
||
Jeffrey Christian, Deputy Treasurer
|
||
/s/ Suzanne Joyce
|
Print name
|
|
Witness (Signature)
|
||
Suzanne Joyce
|
||
Print name
|
||
83 Devonshire St., V13F, Boston, MA 02109
|
||
Print address
|
SIGNED and DELIVERED AS A DEED
on behalf of
FIDELITY CAPITAL TRUST: FIDELITY VALUE FUND
by its authorised signatory
in the presence of:
|
/s/ Jeffrey Christian
|
|
Authorised Signatory (Signature)
|
||
Jeffrey Christian, Deputy Treasurer
|
||
/s/ Suzanne Joyce
|
Print name
|
|
Witness (Signature)
|
||
Suzanne Joyce
|
||
Print name
|
||
83 Devonshire St., V13F, Boston, MA 02109
|
||
Print address
|
SIGNED and DELIVERED AS A DEED
on behalf of
FIDELITY ADVISER SERIES I: FIDELITY ADVISOR VALUE FUND
by its authorised signatory
in the presence of:
|
/s/ Jeffrey Christian
|
|
Authorised Signatory (Signature)
|
||
Jeffrey Christian, Deputy Treasurer
|
||
/s/ Suzanne Joyce
|
Print name
|
|
Witness (Signature)
|
||
Suzanne Joyce
|
||
Print name
|
||
83 Devonshire St., V13F, Boston, MA 02109
|
||
Print address
|
SIGNED and DELIVERED AS A DEED
on behalf of
FIDELITY PURITAN TRUST: FIDELITY LOW-PRICED STOCK FUND
by its authorised signatory
in the presence of:
|
/s/ Jeffrey Christian
|
|
Authorised Signatory (Signature)
|
||
Jeffrey Christian, Deputy Treasurer
|
||
/s/ Suzanne Joyce
|
Print name
|
|
Witness (Signature)
|
||
Suzanne Joyce
|
||
Print name
|
||
83 Devonshire St., V13F, Boston, MA 02109
|
||
Print address
|
SIGNED and DELIVERED AS A DEED
on behalf of
KENNEDY-WILSON INVESTMENTS, LLC
by its authorised signatory
in the presence of:
|
/s/ Matthew Windisch
|
|
Authorised Signatory (Signature)
|
||
Matthew Windisch
|
||
/s/ Mark Martin
|
Print name
|
|
Witness (Signature)
|
||
Mark Martin
|
||
Print name
|
||
9701 Wilshire Blvd., Beverly Hills, CA 90212
|
||
Print address
|
SIGNED and DELIVERED AS A DEED
on behalf of
WLR Recovery Fund IV, L.P.
by WLR Recovery Associates IV LLC
its General Partner
by WL Ross Group, L.P.
its Managing Member
by El Vedado LLC
its General Partner
by its authorized signatory
|
||
in the presence of:
|
/s/ Wilbur L. Ross, Jr.
|
|
Manager (Signature)
Wilbur L. Ross, Jr.
|
||
/s/ Stephen J. Naughton
|
||
Witness (Signature)
Stephen J. Naughton
1166 Avenue of the Americas, 25th Floor
New York, New York 10036
|
SIGNED and DELIVERED AS A DEED
on behalf of
WLR Recovery Fund V, L.P.
by WLR Recovery Associates V LLC
its General Partner
by WL Ross Group, L.P.
its Managing Member
by El Vedado LLC
its General Partner
by its authorized signatory
|
||
in the presence of:
|
/s/ Wilbur L. Ross, Jr.
|
|
Manager (Signature)
Wilbur L. Ross, Jr.
|
||
/s/ Stephen J. Naughton
|
||
Witness (Signature)
Stephen J. Naughton
1166 Avenue of the Americas, 25th Floor
New York, New York 10036
|
SIGNED and DELIVERED AS A DEED
on behalf of
WLR/GS Master Co-Investment, L.P.
by WLR Master Co-Investment GP, L.P.
its General Partner
by WL Ross Group, L.P.
its Managing Member
by El Vedado LLC
its General Partner
by its authorized signatory
|
||
in the presence of:
|
/s/ Wilbur L. Ross, Jr.
|
|
Manager (Signature)
Wilbur L. Ross, Jr.
|
||
/s/ Stephen J. Naughton
|
||
Witness (Signature)
Stephen J. Naughton
1166 Avenue of the Americas, 25th Floor
New York, New York 10036
|
SIGNED and DELIVERED AS A DEED
on behalf of
WLR IV Parallel ESC, L.P.
by WLR Recovery Associates IV LLC
its attorney-in-fact
by WL Ross Group, L.P.
its Managing Member
by El Vedado LLC
its General Partner
by its authorized signatory
|
||
in the presence of:
|
/s/ Wilbur L. Ross, Jr.
|
|
Manager (Signature)
Wilbur L. Ross, Jr.
|
||
/s/ Stephen J. Naughton
|
||
Witness (Signature)
Stephen J. Naughton
1166 Avenue of the Americas, 25th Floor
New York, New York 10036
|
SIGNED and DELIVERED AS A DEED
on behalf of
CAPITAL RESEARCH AND MANAGEMENT COMPANY
by its authorised signatory
in the presence of:
|
/s/ Michael J. Downer
|
|
Authorised Signatory (Signature)
|
||
Michael J. Downer, SVP and Secretary
|
||
/s/ Walt R. Burkley
|
Print name
|
|
Witness (Signature)
|
||
Walt R. Burkley
|
||
Print name
|
||
c/o 333 S. Hope Street, Los Angeles, CA 90071
|
||
Print address
|
THE MINISTER FOR FINANCE OF IRELAND
of Upper Merrion Street, Dublin 2
(hereinafter called the "Minister")
|
|
THE NATIONAL PENSIONS RESERVE FUND
COMMISSION
acting in its capacity as controller and manager of
the assets of the National Pensions Reserve Fund
of Treasury Building, Grand Canal Street, Dublin 2
(hereinafter called the "Commission")
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THE NATIONAL TREASURY MANAGEMENT
AGENCY
of Treasury Building, Grand Canal Street, Dublin 2
(hereinafter called the "NTMA")
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- and -
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THE PERSONS WHOSE NAMES ARE SET OUT IN SCHEDULE 1 TO THE CONDITIONAL STOCK PURCHASE AGREEMENT REFERRED TO HEREIN (hereinafter called the "Buyers")
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1.
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This Agreement is supplemental to a Conditional Stock Purchase Agreement made between the parties hereto on 25 July 2011 (the “CSPA”). Words and expressions defined in the CSPA shall have the same meanings herein unless it is otherwise expressly provided herein. The expression “SPA” shall mean a Stock Purchase Agreement made on 25 July 2011 between the Minister, the Commission and Fairfax Financial Holdings Limited, as amended by a Supplemental Agreement made on 29 July 2011 between the same parties.
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2.
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The CSPA is hereby amended as follows:
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2.1
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The Purchased Sale Stock shall mean the BoI Ordinary Stock sold and purchased pursuant to the SPA and Recital C and Clause 1.1 of the CSPA are amended accordingly, such that Recital C shall be deemed to read as follows:
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“C. The Commission has agreed to sell, and Fairfax agreed to purchase, certain units of BoI Ordinary Stock (comprising part of the Commission Stock and such BoI Ordinary Stock as is sold and purchased pursuant to the Stock Purchase Agreement is hereinafter referred to as the “Purchased Sale Stock”) on the terms and subject to the conditions of the Stock Purchase Agreement.”
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2.2
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The definition of “Agreement” shall be deemed amended to include this Supplemental Agreement. Clause 1.1 of the CSPA is amended accordingly.
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2.3
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There shall be inserted a new definition at the appropriate (alphabetically determined) location in Clause 1.1 of the CSPA , as follows:
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““Aggregate Sale Stock”, in respect of any Completion, the total number of units of BoI Ordinary Stock comprised in that Completion, in all preceding Completions which have occurred hereunder and any Completion as defined in the Stock Purchase Agreement;”.
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2.4
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Clauses 3.1, 3.2 and 3.3 of the CSPA shall be deemed amended to read as follows:
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“3.1
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Subject to:
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3.1.1
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the satisfaction in respect of each of the Buyers proceeding to Completion (and/or waiver by each such Buyer in accordance with Clause 2.3) of the First Conditions; and
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3.1.2
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the provisions of Clause 3.4;
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the Commission agrees to sell or procure the sale of the First Sale Stock and each such Buyer agrees on a several basis to purchase such number of units of BoI Ordinary Stock as will cause the aggregate number of units of BoI Ordinary Stock purchased by such Buyer pursuant to the Stock Purchase Agreement and upon First Completion to be equal to its Specified Proportion of the Aggregate Sale Stock, with effect from the First Completion Date free from all Encumbrances and with the benefit of all rights and advantages attaching to the First Sale Stock or accruing at the First Completion for the consideration specified in Clause 4.1.
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3.2
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Subject to:
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3.2.1
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the satisfaction in respect of each of the Buyers proceeding to Completion (and/or waiver by each such Buyer in accordance with Clause 2.7) of the Second Conditions; and
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3.2.2
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the provisions of Clause 3.4;
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the Commission agrees to sell or procure the sale of the Second Sale Stock and each such Buyer agrees on a several basis to purchase such number of units of BoI Ordinary Stock as will cause the aggregate number of units of BoI Ordinary Stock purchased by such Buyer pursuant to the Stock Purchase Agreement and upon First Completion and Second Completion to be equal to its Specified
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Proportion of the Aggregate Sale Stock, with effect from the Second Completion Date free from all Encumbrances and with the benefit of all rights and advantages attaching to the Second Sale Stock or accruing at the Second Completion Date for the Consideration specified in Clause 4.1.
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3.3
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Subject to:
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3.3.1
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the satisfaction in respect of each of the Buyers proceeding to Completion (and/or waiver by each such Buyer pursuant to Clause 2.10) of the Third Conditions; and
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3.3.2
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the provisions of Clause 3.4;
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the Commission agrees to sell or procure the sale of the Third Sale Stock and each such Buyer agrees on a several basis to purchase such number of units of BoI Ordinary Stock as will cause the aggregate number of units of BoI Ordinary Stock purchased by such Buyer pursuant to the Stock Purchase Agreement and upon First Completion, Second Completion and Third Completion to be equal to its Specified Proportion of the Aggregate Sale Stock, with effect from the Third Completion Date free from all Encumbrances and with the benefit of all rights and advantages attaching to the Third Sale Stock or accruing at the Third Completion Date for the consideration calculated in accordance with Clause 4.1.”.
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2.5
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Clause 14 of the CSPA shall be deemed amended to refer to this Supplemental Agreement as forming part of the entire agreement between the Parties relating to the transactions provided for in the CSPA.
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3.
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In all other respects, the CSPA is hereby confirmed.
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4.
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Clauses 12, 16, 17, 18 and 19 of the CSPA shall be deemed incorporated herein.
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SIGNED for and on behalf
of the MINISTER FOR FINANCE
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by
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John A. Moran
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/s/ John A. Moran
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A person authorised by Section 15(4) of the Ministers and Secretaries Act 1924
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/s/ Paul Carty
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Chairman
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/s/
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Commissioner
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Director
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/s/ Eugene O'Gallagher
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Director
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SIGNED and DELIVERED AS A DEED
on behalf of
FAIRFAX FINANCIAL HOLDINGS LIMITED
by its authorised signatory
in the presence of:
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/s/ Paul Rivett
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Authorised Signatory (Signature)
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Paul Rivett
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/s/ Beth O'Hanlon
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Print name
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Witness (Signature)
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Beth O'Hanlon
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Print name
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95 Wellington St. W., Toronto, Ontario M5J 2N7
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Print address
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SIGNED and DELIVERED AS A DEED
on behalf of
FIDELITY CONTRAFUND: FIDELITY ADVISOR NEW INSIGHTS FUND
by its authorised signatory
in the presence of:
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/s/ Gary Ryan
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Authorised Signatory (Signature)
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Gary Ryan, Assistant Treasurer
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/s/ Daniel Chisholm
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Print name
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Witness (Signature)
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Daniel Chisholm
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Print name
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82 Devonshire St., Boston, MA
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Print address
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SIGNED and DELIVERED AS A DEED
on behalf of
FIDELITY CONTRAFUND: FIDELITY CONTRAFUND
by its authorised signatory
in the presence of:
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/s/ Gary Ryan
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Authorised Signatory (Signature)
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Gary Ryan, Assistant Treasurer
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/s/ Daniel Chisholm
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Print name
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Witness (Signature)
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Daniel Chisholm
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Print name
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82 Devonshire St., Boston, MA
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Print address
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SIGNED and DELIVERED AS A DEED
on behalf of
VARIABLE INSURANCE PRODUCTS FUND III: BALANCED PORTFOLIO
by its authorised signatory
in the presence of:
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/s/ Gary Ryan
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Authorised Signatory (Signature)
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Gary Ryan, Assistant Treasurer
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/s/ Daniel Chisholm
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Print name
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Witness (Signature)
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Daniel Chisholm
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Print name
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82 Devonshire St., Boston, MA
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Print address
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SIGNED and DELIVERED AS A DEED
on behalf of
FIDELITY ADVISOR SERIES I: FIDELITY ADVISOR DIVIDEND GROWTH FUND
by its authorised signatory
in the presence of:
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/s/ Gary Ryan
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Authorised Signatory (Signature)
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Gary Ryan, Assistant Treasurer
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/s/ Daniel Chisholm
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Print name
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Witness (Signature)
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Daniel Chisholm
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Print name
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82 Devonshire St., Boston, MA
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Print address
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SIGNED and DELIVERED AS A DEED
on behalf of
FIDELITY SECURITIES FUND: FIDELITY DIVIDEND GROWTH FUND
by its authorised signatory
in the presence of:
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/s/ Gary Ryan
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Authorised Signatory (Signature)
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Gary Ryan, Assistant Treasurer
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/s/ Daniel Chisholm
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Print name
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Witness (Signature)
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||
Daniel Chisholm
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Print name
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82 Devonshire St., Boston, MA
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Print address
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SIGNED and DELIVERED AS A DEED
on behalf of
FIDELITY CAPITAL TRUST: FIDELITY VALUE FUND
by its authorised signatory
in the presence of:
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/s/ Gary Ryan
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Authorised Signatory (Signature)
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Gary Ryan, Assistant Treasurer
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/s/ Daniel Chisholm
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Print name
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Witness (Signature)
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Daniel Chisholm
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Print name
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82 Devonshire St., Boston, MA
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Print address
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SIGNED and DELIVERED AS A DEED
on behalf of
FIDELITY ADVISER SERIES I: FIDELITY ADVISOR VALUE FUND
by its authorised signatory
in the presence of:
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/s/ Gary Ryan
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Authorised Signatory (Signature)
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||
Gary Ryan, Assistant Treasurer
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/s/ Daniel Chisholm
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Print name
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Witness (Signature)
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||
Daniel Chisholm
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Print name
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82 Devonshire St., Boston, MA
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Print address
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SIGNED and DELIVERED AS A DEED
on behalf of
FIDELITY PURITAN TRUST: FIDELITY LOW-PRICED STOCK FUND
by its authorised signatory
in the presence of:
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/s/ Gary Ryan
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Authorised Signatory (Signature)
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||
Gary Ryan, Assistant Treasurer
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/s/ Daniel Chisholm
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Print name
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Witness (Signature)
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||
Daniel Chisholm
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||
Print name
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82 Devonshire St., Boston, MA
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Print address
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SIGNED and DELIVERED AS A DEED
on behalf of
KENNEDY-WILSON INVESTMENTS, LLC
by its authorised signatory
in the presence of:
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/s/ Matthew Windisch
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Authorised Signatory (Signature)
|
||
Matthew Windisch
|
||
/s/ Brigitte Boudress
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Print name
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Witness (Signature)
|
||
Brigitte Boudress
|
||
Print name
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9701 Wilshire Blvd., Beverly Hills, CA
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Print address
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SIGNED and DELIVERED AS A DEED
on behalf of
WLR Recovery Fund IV, L.P.
by WLR Recovery Associates IV LLC
its General Partner
by WL Ross Group, L.P.
its Managing Member
by El Vedado LLC
its General Partner
by its authorized signatory
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in the presence of:
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/s/ Wilbur L. Ross, Jr.
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Manager (Signature)
Wilbur L. Ross, Jr.
|
||
/s/ Stephen J. Naughton
|
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Witness (Signature)
Stephen J. Naughton
1166 Avenue of the Americas, 25th Floor
New York, New York 10036
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SIGNED and DELIVERED AS A DEED
on behalf of
WLR Recovery Fund V, L.P.
by WLR Recovery Associates V LLC
its General Partner
by WL Ross Group, L.P.
its Managing Member
by El Vedado LLC
its General Partner
by its authorized signatory
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||
in the presence of:
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/s/ Wilbur L. Ross, Jr.
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Manager (Signature)
Wilbur L. Ross, Jr.
|
||
/s/ Stephen J. Naughton
|
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Witness (Signature)
Stephen J. Naughton
1166 Avenue of the Americas, 25th Floor
New York, New York 10036
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SIGNED and DELIVERED AS A DEED
on behalf of
WLR/GS Master Co-Investment, L.P.
by WLR Master Co-Investment GP, L.P.
its General Partner
by WL Ross Group, L.P.
its Managing Member
by El Vedado LLC
its General Partner
by its authorized signatory
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||
in the presence of:
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/s/ Wilbur L. Ross, Jr.
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Manager (Signature)
Wilbur L. Ross, Jr.
|
||
/s/ Stephen J. Naughton
|
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Witness (Signature)
Stephen J. Naughton
1166 Avenue of the Americas, 25th Floor
New York, New York 10036
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SIGNED and DELIVERED AS A DEED
on behalf of
WLR IV Parallel ESC, L.P.
by WLR Recovery Associates IV LLC
its attorney-in-fact
by WL Ross Group, L.P.
its Managing Member
by El Vedado LLC
its General Partner
by its authorized signatory
|
||
in the presence of:
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/s/ Wilbur L. Ross, Jr.
|
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Manager (Signature)
Wilbur L. Ross, Jr.
|
||
/s/ Stephen J. Naughton
|
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Witness (Signature)
Stephen J. Naughton
1166 Avenue of the Americas, 25th Floor
New York, New York 10036
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SIGNED and DELIVERED AS A DEED
on behalf of
CAPITAL RESEARCH AND MANAGEMENT COMPANY
by its authorised signatory
in the presence of:
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/s/ Mark G. Denning
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Authorised Signatory (Signature)
|
||
Mark G. Denning
|
||
/s/ James Browning
|
Print name
|
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Witness (Signature)
|
||
James Browning
|
||
Print name
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||
c/o Capital International Limited
|
||
40 Grosvenor Place
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||
London
|
||
SW1X 7GG
|
||
Print address
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1.
|
INTERPRETATION
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3
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2.
|
COMMENCEMENT
|
7
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3.
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UNDERTAKINGS RE CONDITIONS
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7
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4.
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CONDUCT DURING RELEVANT PERIOD
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8
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5.
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BUYER PURCHASES
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8
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6.
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BOI CONFIRMATIONS
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9
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7.
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FEES
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10
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8.
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REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
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10
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9.
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THE BUYER TRANSACTIONS
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10
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10.
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NOTIFICATION OF CERTAIN EVENTS
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12
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11.
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PRE-EMPTION
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12
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12.
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EXPIRY
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13
|
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13.
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GENERAL
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13
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14.
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ASSIGNMENT, NOVATION
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14
|
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15.
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NOTICES
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15
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16.
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GOVERNING LAW AND SUBMISSION TO JURISDICTION
|
16
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SCHEDULE 1
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17
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THE GOVERNOR AND COMPANY OF THE
|
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BANK OF IRELAND
|
|
a chartered corporation registered in Ireland
|
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with registered no C-1
|
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whose registered office is at
|
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40 Mespil Road, Dublin 4, Ireland
|
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(hereinafter called "BoI")
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- and -
|
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THE PERSONS WHOSE NAMES ARE SET OUT
|
|
IN SCHEDULE 1
|
|
(hereinafter called the “Buyers” and each a “Buyer”)
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1.
|
Interpretation
|
1.1
|
Definitions
|
1.2
|
In this Deed, unless the context otherwise requires:
|
|
1.2.1
|
any reference to a document being "in the agreed form" or "agreed form" means in the form of the draft or proof thereof signed or initialled for the purpose of identification by, the solicitors for the parties thereto, or as otherwise evidenced as being in the agreed form by communications between the parties to this Deed or their legal advisers. No such initialling shall imply approval for all or any part of its contents by or on behalf of the person initialling it or any of the parties to this Deed;
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1.2.2
|
a reference to:
|
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(a)
|
any party includes its successors in title and permitted assigns;
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(b)
|
a "person" includes any individual, firm, body corporate, association or partnership, government or state or agency of a state, local authority or government body or any joint venture association or partnership (whether or not having a separate legal personality) and that person's personal representatives, successors or permitted assigns;
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(c)
|
a "company" will be construed so as to include any company, corporation or body corporate, wherever and however incorporated or established;
|
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(d)
|
a recital, Clause, paragraph, or Schedule, unless otherwise specified, is a reference to a recital, Clause, paragraph of or Schedule to this Deed;
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(e)
|
writing or similar expressions includes, unless otherwise specified, transmission by facsimile but excludes e-mail;
|
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(f)
|
the singular includes the plural and vice versa and references to one gender includes all genders;
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(g)
|
"day" or a "Business Day" will mean a period of 24 (twenty-four) hours running from midnight to midnight;
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(h)
|
a "month" will mean a calendar month;
|
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(i)
|
times are to time in Ireland;
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(j)
|
a reference to a "subsidiary undertaking" or "parent undertaking" is to be construed in accordance with the European Communities (Companies: Group Accounts) Regulations 1992 of Ireland and a "subsidiary" or "holding company" is to be construed in accordance with Section 155 of the Companies Act 1963 of Ireland; and
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(k)
|
any other document referred to in this Deed is a reference to that document as amended, varied, novated or supplemented at any time.
|
|
1.2.3
|
a reference to a statute or statutory provision will be construed as a reference to the laws of Ireland unless otherwise specified and includes:
|
|
(a)
|
any subordinate legislation made under it including all regulations, by-laws, orders and codes made thereunder;
|
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(b)
|
any repealed statute or statutory provision which it re-enacts (with or without modification); and
|
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(c)
|
any statute or statutory provision which modifies, consolidates, re-enacts or supersedes it,
|
|
1.2.4
|
any phrase introduced by the terms "including", "include" and "in particular" or any similar expression will be construed as illustrative and will not limit the sense of the words preceding those terms.
|
1.3
|
The table of contents and headings in this Deed are inserted for convenience only, and they are to be ignored in the interpretation of this Deed.
|
2.
|
Commencement
|
3.
|
Undertakings re Conditions
|
3.1
|
BoI hereby undertakes as a separate covenant with each of the Buyers to :
|
|
3.1.1
|
request and, to the extent reasonably within its power to do so, obtain such approvals, authorisations, permits, consents and waivers as may be required in relation to the Buyer Transactions from the BoI Stockholders and/or from any government, state or other regulatory body;
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|
3.1.2
|
without prejudice to the provisions of Clause 3.1.1, assist in the application for and the obtaining of the grant of such waivers, consents, confirmations, clarifications and derogations under the Takeover Act and Rules as each of the Buyers deem necessary or desirable, including any derogation from and/or waiver of Rules 5 and 9 of the said Rules, to convene any requisite general meeting(s) of its shareholders or independent shareholders in relation thereto and generally to do all acts and things requisite therefor, and for any supporting independent shareholders’ whitewash approval;
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|
3.1.3
|
to the extent reasonably within its power to do so, execute or cause to be executed all such documents and provide or cause to be provided all such information, and do or cause to be done all such things as may be required by or necessary to comply with the requirements of the Central Bank, the UK Listing Authority, the Irish Stock Exchange, the London Stock Exchange, the New York Stock Exchange, Euroclear and all other applicable legislation and regulation, in each case in connection with the applications referred to in Clause 3.1.1 and 3.1.2, the Buyer Transactions and the Transaction Agreements;
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|
3.1.4
|
to carry out an analysis of the law and regulation in those jurisdictions where it conducts banking, insurance and/or other regulated operations to determine if there are or might be any restrictions (including the requirement to seek regulatory approvals or consents) or prohibitions on the acquisition or potential acquisition of the Sale Stock by the Buyers (the "Regulatory Analysis") and to inform the Buyers of the results of that analysis provided that such analysis is provided to the Buyers for information purposes only and on a non-recourse basis and compliance with any applicable law or regulation by the Buyers shall be solely the responsibility of the Buyers. To the extent that the Regulatory Analysis identifies any jurisdiction where regulatory approvals or consents may be required in connection with the acquisition or potential acquisition of the Sale Stock by the Buyers, BoI undertakes
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|
3.1.5
|
enter into the New Registration Rights Agreement with each of the Buyers;
|
|
3.1.6
|
enter into the Issuer Agreement; and
|
|
3.1.7
|
prepare and post a circular to BoI’s stockholders to convene the extraordinary general court of BoI (“EGC”) at which a resolution will be proposed for independent stockholders for the purposes of obtaining the Takeover Panel’s waiver of the application of Rule 9 of the Irish Takeover Rules to the purchase by the Buyers of the Third Sale Stock (pursuant to and as that term is defined in the Conditional Purchase Agreement), such EGC to be convened for as soon as reasonably possible and in any event not later that seven weeks after the date of this Agreement.
|
3.2
|
Provided that each Buyer and its Associated Entities may in its absolute discretion decline to provide some or all documentation requested for the purpose of obtaining the approvals, authorisations, permits, consents and waivers referred to in Clause 3.1.1, each of the Buyers undertakes on a several basis with BoI to assist it in its application for, and obtaining of, the approvals, authorisations, permits, consents and waivers referred to in Clause 3.1.1.
|
4.
|
Conduct during Relevant Period
|
5.
|
Buyer Purchases
|
5.1
|
As soon as practicable after 11.00 am on the Acceptance Date and, in any event, by not later than 5.00 pm on the Acceptance Date, BoI will (or will procure that the Receiving Agent will) notify the Buyers in writing of the number of units of Rights Issue Stock which have not been taken up. Whether or not any units of Rights Issue Stock have been taken up shall be determined in accordance with the provisions of Schedule 7 of the Underwriting Agreement.
|
5.2
|
BoI shall by not later than 7.00 p.m. on the first Dealing Day after the Acceptance Date inform the Buyers of the number of units of Residual Stock.
|
5.3
|
On each Completion Date, BoI shall register the transfers provided for in the Stock Purchase Agreements and enter each of the Buyers in its register of members as a stockholder of BoI in respect of the BoI Ordinary Stock transferred to such Buyer and (if required) issue an appropriate share certificate to each Buyer.
|
5.4
|
On each Completion Date, BoI shall certify to each Buyer:
|
|
5.4.1
|
the percentage which the Sale Stock being transferred represents:
|
|
(a)
|
of BoI’s Fully Diluted Ordinary Stock Capital;
|
|
(b)
|
of BoI Ordinary Stock then in issue; and
|
|
5.4.2
|
the BoI Ordinary Stock then held by the Government Parties.
|
6.
|
BoI Confirmations
|
6.1
|
Subject to Clause 6.2, BoI hereby confirms to each of the Buyers that:
|
|
6.1.1
|
execution or performance of the Buyer Transaction and the Transaction Agreements (each as disclosed to BoI) and/or the publication, execution or performance of any documents relating thereto (each as disclosed to BoI) does not:
|
|
(a)
|
conflict with or result in the material breach of or constitute a material default under any of the terms, conditions or other provisions of any material contract, permit, authorisation, consent, requirement, instrument or arrangement to which any member of the BoI Group is a party or by which any member of the BoI Group is bound and which is necessary for any member or members of the BoI Group for the purposes of carrying on its/their business in the ordinary course as heretofore or the loss of which would have a material adverse effect on the BoI Group or any member of the BoI Group; or
|
|
(b)
|
relieve any person from any material obligation to any member of the BoI Group or enable any person to determine or avoid any such obligation or any material right or benefit enjoyed by any member of the BoI Group or enable any person to exercise any right under any of the terms, conditions or other provisions of any material contract, permit, authorisation, consent, requirement, instrument or arrangement to which any member of the BoI Group is a party or which any member of the BoI Group is bound by; or
|
|
(c)
|
vary or accelerate the rights of any person, or enable any person to exercise any right, under any Incentive Scheme; or
|
|
(d)
|
constitute a change of control or any other event provided for in any correspondence, contract, permit, authorisation, consent, requirement, instrument or arrangement to which any member of the BoI Group is a party or by which any member of the BoI Group is bound so as to enable or entitle any Director, Senior Executive or employee of any member of the BoI Group to receive any form of financial compensation, cash payment or severance arrangement.
|
|
6.1.2
|
execution or performance of its obligations in respect of the Transaction Agreements and/or the publication, execution or performance of any documents relating thereto complies or will comply (as applicable) in all respects with all agreements to which any member of the BoI Group is a party or by which any such member of the BoI Group is bound, the charter and bye-laws and other constitutional documentation of BoI or any member of the BoI Group, and all applicable laws and regulations in Ireland and elsewhere; and
|
|
6.1.3
|
all units of the Sale Stock to be purchased by the Buyers pursuant to the Stock Purchase Agreements have been properly and validly issued and are fully paid.
|
6.2
|
Without limitation to BoI’s obligations under Clause 3.1, BoI makes no confirmation, representation, warranty or confirmation pursuant to Clauses 6.1.1 or 6.1.2 as to whether any of the Buyer Transactions or the Transaction Agreements require any consent, authorisation, circular or stockholder approval pursuant to the Listing Rules or the Takeover Act and Rules and BoI shall not be liable for any loss, expenses or damages arising from or in connection with the purported execution, completion or implementation of any of the Buyer Transactions or Transaction Agreements prior to the obtaining or issuing of any such required authorisation, consent circular or stockholder approval.
|
7.
|
Fees
|
8.
|
Representations, Warranties and Undertakings
|
8.1
|
Pursuant to the Conditional Stock Purchase Agreement, the Minister, the Commission and the NTMA have agreed with the Buyers to assign and transfer to the Buyers the benefit of the Commission Warranties and the Commission Indemnity in respect of every unit of Sale Stock acquired by the Buyers. BoI hereby consents and agrees to such assignment and transfer, acknowledges that the Buyers shall be entitled to rely upon the Commission Warranties and the Commission Indemnity in respect of every unit of Sale Stock acquired by them and confirms that, upon their assignment to the Buyers, the Commission Warranties and the Commission Indemnity shall be enforceable by the Buyers against BoI as if the Commission Warranties had been made and the Commission Indemnity had been given directly by BoI to the Buyers in respect of any Losses incurred by the Buyers in connection with any unit of Sale Stock acquired by them. BoI acknowledges that each of the Buyers is entering into the Transaction Agreements in reliance on the Commission Warranties and each such Commission Warranty will be construed separately and will not be limited by reference (express or implied) to the terms of any other representation, warranty or undertaking or any other term of the Transaction Agreements (or any of them), subject in each case to the terms of the Underwriting Agreement. The Buyers acknowledge that the assignment of the Commission Warranties is subject to the matters fairly disclosed in the Disclosure Letter.
|
8.2
|
Each of the provisions of Clause 16 of the Underwriting Agreement and any other provisions of the Underwriting Agreement dealing with the Commission Warranties shall apply mutatis mutandis to the parties to, and as if re-stated in, this Deed as if each reference therein to any Government Party was to the Buyers.
|
9.
|
The Buyer Transactions
|
9.1
|
References to Buyers
|
|
9.1.1
|
Subject to BoI’s obligations to comply with applicable law and regulation, the prior consent of each of the Buyers should be obtained prior to the release or publication of any document or announcement to be executed, published or filed in connection with the Buyer Transactions or the Transaction Agreements that refers to any Buyer, or refers to any actions that are contemplated or have been or will be taken by any of the Buyers ("Relevant Documents"). (For the avoidance of doubt, the parties agree that the consent of the Buyers will not be required in respect of the release or publication of documents or announcements relating to the Rights Issue, unless such documents or announcements refer to any Buyer or any actions taken or contemplated to be taken by any of the Buyers.)
|
|
9.1.2
|
Prior to seeking the consent of the Buyers pursuant to Clause 9.1.1, BoI agrees and undertakes that it will subject to BoI’s obligations to comply with applicable law and regulation:
|
|
(a)
|
afford the Buyers such time as they may reasonably require to consider the Relevant Documents to give such consent; and
|
|
(b)
|
submit drafts and revised drafts of the Relevant Documents for review and comment by the Buyers, having afforded the Buyers appropriate time pursuant to Clause 9.1.2(a) to consider such drafts and discuss such comments with the Buyers for the purposes of preparing revised drafts.
|
9.2
|
Co-operation, Consultation and Consent
|
9.3
|
Clearances and Consents
|
|
9.3.1
|
promptly update the Buyers on its discussions and negotiations with any Consent Parties, and to immediately supply any documents or information that the Buyers reasonably require to assist in their consideration of the implications of such discussions and negotiations; and
|
|
9.3.2
|
if requested by the Buyers and where it is possible to so do, to arrange for persons nominated by the Buyers to observe or participate in BoI's discussions with Consent Parties.
|
9.4
|
Information
|
|
9.4.1
|
any publications, reports and other information with respect to any member of the BoI Group and/or their businesses; and
|
|
9.4.2
|
access to the books and records and management and other employees of any member of the BoI Group and/or their businesses
|
9.5
|
Expiry
|
10.
|
Notification of Certain Events
|
10.1
|
If following the date of this Deed but any time on or before the end the Relevant Period:
|
|
10.1.1
|
any of the Commission Warranties has become or been discovered to be untrue, inaccurate or misleading in any material respect;
|
|
10.1.2
|
matters have arisen or have been discovered which would, if any of the Offer Documents (or any amendment or supplement thereto) were to be issued at that time, constitute a material omission therefrom or which would render any such Offer Documents (or any amendment or supplement thereto) to be misleading in any material respect;
|
|
10.1.3
|
trading in any securities of BoI has been suspended or materially limited by the Irish Stock Exchange, the London Stock Exchange or the New York Stock Exchange on any exchange or over-the-counter market, or if trading generally on the New York Stock Exchange, the NASDAQ Stock Market, the Irish Stock Exchange or the London Stock Exchange has been suspended or materially limited, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices of securities have been required, by any of the said exchanges or by such system or by order of any governmental authority, or a material disruption has occurred in commercial banking or securities settlement or clearance services in Ireland, in the United States, or in the United Kingdom or in a member or associated member of the European Union; or
|
|
10.1.4
|
one or more downgradings has occurred, resulting in an aggregate reduction of three or more notches in the senior long-term rating accorded to debt securities of BoI by Standard and Poor's Rating Services or by Fitch Ratings Limited (or, in each case, its successor rating business) compared to the rating accorded by the relevant rating organisation as at the date of this Deed;
|
11.
|
Pre-emption
|
11.1
|
Subject to Clauses 11.2 and 11.3, BoI undertakes to each of the Buyers that it will issue Equity Securities prior to 29 July 2016 only on a Pre-emptive Basis unless such Buyer shall, in its absolute discretion, otherwise agree. This covenant shall confer rights upon each of the Buyers in respect of the issue of Equity Securities to that Buyer on a Pre-emptive Basis and may be enforced or waived by each Buyer without prejudice to the rights of the other Buyers.
|
11.2
|
Permitted Exceptions
|
|
11.2.1
|
to the extent it is required to do so to comply with applicable law or pursuant to a court order to do so in any applicable jurisdiction;
|
|
11.2.2
|
to the extent it is required to do so to comply with the obligations of the BoI Group with respect to the Contingent Capital Instrument, the 2009 Preference Stock and the ACSM Hybrids;
|
|
11.2.3
|
pursuant to the Rights Issue and the Debt for Equity Offers;
|
|
11.2.4
|
pursuant to the offer it may make to holders of the PIBs provided that not more than 300,000,000 units of BoI Ordinary Stock shall be issued pursuant to any offer to holders of the PIBs; and
|
|
11.2.5
|
pursuant to any existing or future authority granted by BoI's Stockholders to permit BoI to issue Equity Securities on a non-Pre-emptive Basis for cash provided that BoI shall not pursuant to any such authority in any calendar year (i) issue more than 5% of its Fully Diluted Ordinary Stock Capital as at 1 January of that year and/or (ii) issue any BoI Ordinary Stock at a discount of greater than 5% to the average closing price of BoI Ordinary Stock for the five immediately preceding dealing days on the Irish Stock Exchange.
|
11.3
|
Minimum Shareholding
|
|
11.3.1
|
In the case of Kennedy-Wilson Investments, LLC such Buyer (and/or members of the Buyer’s Group) holds more than 0.5% of the Fully Diluted Ordinary Stock Capital; and
|
|
11.3.2
|
In the case of each of the other Buyers (and/or Members of its Buyer’s Group) holds more than 1% of the Fully Diluted Ordinary Stock Capital.
|
12.
|
Expiry
|
13.
|
General
|
13.1
|
All of the undertakings and commitments given to the Buyers by BoI under this Deed shall confer rights upon each of the Buyers and any of such rights or commitments of a Buyer may be enforced or waived by such Buyer without prejudice to the rights of the other Buyers.
|
13.2
|
Any liability to any party under this Deed may in whole or in part be released, compounded or compromised and time or indulgence may be given by any party in its absolute discretion as regards any other person under such liability without in any way prejudicing or affecting the first party's rights against such other person under the same or a similar liability.
|
13.3
|
No failure of any party to exercise, and no delay by it in exercising, any right, power or remedy in connection with this Deed will operate as a waiver thereof, nor will any single or partial exercise of any such right preclude any other or further exercise of such right or the exercise of any other right. Any express waiver of any breach of this Deed will not be deemed a waiver of any subsequent breach.
|
13.4
|
The rights, powers and remedies provided in this Deed are cumulative and not exclusive of and rights, powers and remedies provided by law; in particular, Bol agrees that damages would not be an adequate remedy for any breach by it of this Deed and that accordingly the Buyers will be entitled, without proof of special damages, to the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach of this Deed.
|
13.5
|
Subject to Clause 12 (Expiry) and, except to the extent already performed, all the provisions of this Deed will, so far as they are capable of being performed or observed, continue in full force and effect notwithstanding the conclusion of any or all of the constituent parts of the Buyer Transactions.
|
13.6
|
With regard to the obligations of BoI, time will be of the essence in this Deed, both as regards any dates, times or periods mentioned and as regards any dates, times or periods which may be substituted for them in accordance with this Deed or by agreement in writing
|
13.7
|
This Deed may be entered into in any number of counterparts and by any one or more of the parties to it on separate counterparts but will not be effective until each party has executed at least one counterpart. Each counterpart when executed and delivered will be an original, but all the counterparts will together constitute one and the same instrument. Delivery of a counterpart of this Deed by email attachment or telecopy shall be an effective mode of delivery.
|
13.8
|
The Transaction Agreements and any other documents referred to therein constitute the whole agreement and understanding between the parties in relation to the Buyer Transactions. All previous agreements, understandings, undertakings, representations, warranties and arrangements of any nature whatsoever between the parties or any of them with any bearing on the Buyer Transactions are superseded and extinguished (and all rights and liabilities arising by reason of them, whether accrued or not at the date of this Deed, are cancelled) to the extent they have such a bearing.
|
13.9
|
No variation of this Deed will be effective unless in writing (not including e-mail) and signed by or on behalf of each of the parties.
|
13.10
|
All parties will, from time to time on request and at their own expense, do and execute or procure to be done and executed (including by any member of the BoI Group) all necessary acts, deeds, documents and things (as are reasonably within its power) in a form satisfactory to the other parties that the other parties reasonably consider necessary to:
|
|
13.10.1
|
give full effect to this Deed;
|
|
13.10.2
|
secure to all parties the full benefit of the rights, powers and remedies conferred upon the parties in or by this Deed; and
|
|
13.10.3
|
remedy any breach of this Deed which is related to any absence of authority or the existence of any impediment in regard to the performance of the obligations of BoI pursuant to this Deed and pursuant to the terms of the Bye-Laws.
|
13.11
|
If at any time any provision of this Deed is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, that will not affect or impair:
|
|
13.11.1
|
the legality, validity or enforceability in that jurisdiction of any other provision of this Deed; or
|
|
13.11.2
|
the legality, validity or enforceability under the law of any other jurisdiction of that or any other provision of this Deed.
|
14.
|
Assignment, Novation
|
14.1
|
No Buyer will be permitted to assign, novate, transfer or otherwise alienate in any way whatsoever, wholly or partially, all or any of its rights, interests and/or obligations under this Deed without the prior written consent of BoI PROVIDED ALWAYS that each Buyer may transfer, wholly or partially, its rights and/or obligations under this Deed, including by way of assignment and/or novation and/or contribution, to any entity within that Buyer’s Group and the other parties hereby:
|
|
14.1.1
|
consent to any such assignment and/or novation and/or contribution;
|
|
14.1.2
|
agree to do and execute or procure to be done and executed all necessary acts, deeds, documents and things in a form satisfactory to the Buyers which the Buyers may reasonably consider necessary for giving full effect to this Deed and securing to the Buyers or any person to whom the Buyers have transferred or proposes to transfer its rights and obligations under this Deed in accordance with this Clause 14.1 the full benefit of the rights, powers and remedies conferred upon that Buyer in or by this Deed.
|
14.2
|
BoI will not be permitted to assign, novate, transfer or otherwise alienate in any way whatsoever, wholly or partially, all or any of its rights, interests and/or obligations under this Deed without the prior written consent of the other parties.
|
15.
|
Notices
|
15.1
|
Subject to Clause 15.2, any notice or other communication under this Deed will only be effective if it is in writing.
|
15.2
|
Communication by e-mail will not be effective under this Deed.
|
15.3
|
Any notice or other communication given or made under this Deed will be addressed as provided in Clause 15.5 and, if so addressed, will, in the absence of earlier receipt, be deemed to have been duly given or made as follows:
|
|
15.3.1
|
if sent by personal delivery, on delivery at the address of the relevant party;
|
|
15.3.2
|
if sent by pre-paid post, two (2) clear Business Days after the date of posting; or
|
|
15.3.3
|
if sent by facsimile, when transmitted.
|
15.4
|
Any notice or other communication given or made, or deemed to have been given or made, outside Working Hours will be deemed not to have been given or made until the start of the next period of Working Hours.
|
15.5
|
The relevant notice details for the parties hereto are:
|
|
15.5.1
|
if to BoI:
|
|
Address:
|
Head Office
40 Mespil Road
Dublin 4
|
|
Fax no.
|
+353 1 661 5671
|
|
Attention:
|
The Group Secretary
|
|
15.5.2
|
if to any of the Buyers, to the address and fax number (if any) set out opposite that Buyer’s name in Schedule 1, with copy to the person(s) if any specified in Schedule 1.
|
15.6
|
A party may notify the other parties of a change to its notice details. That notification will only be effective on:
|
|
15.6.1
|
any effective date specified in the notification; or
|
|
15.6.2
|
if no effective date is specified or the effective date specified is less than five (5) clear Business Days after the date when notice is received, the date falling five (5) clear Business Days after the notification has been received.
|
16.
|
Governing Law and Submission to Jurisdiction
|
16.1
|
This Deed and any dispute arising out of or in connection with it or its subject matter or formation (including non-contractual obligations, disputes or claims) will be governed by and construed in accordance with the laws of Ireland.
|
16.2
|
Subject to Clause 16.4, each of the parties to this Deed irrevocably agrees that the courts of Ireland are to have exclusive jurisdiction to settle any dispute arising out of or in connection with this Deed and, for such purposes, irrevocably submits to the exclusive jurisdiction of such courts. Subject to Clause 16.4 any proceeding, suit or action arising out of or in connection with this Deed (the "Proceedings") will therefore be brought in the courts of Ireland.
|
16.3
|
Notwithstanding the provisions of Clause 16.2, in the event that any Indemnified Person becomes subject to proceedings brought by a third party (the "Foreign Proceedings") in the courts of any country other than Ireland (including, without prejudice to the generality of the foregoing, in any court of competent jurisdiction in the United States) (the "Foreign Jurisdiction"), such Indemnified Person will be entitled, without objection by BoI, to take such steps as are available in the Foreign Jurisdiction, in the circumstances of the Foreign Proceedings, including (if reasonably necessary) the issuing of separate proceedings, to ensure that, any issues between any such Indemnified Person and Bol are determined in the Foreign Jurisdiction as part of, or as closely connected (as the procedure of the Foreign Jurisdiction will permit) with, the Foreign Proceedings and BoI hereby submits to the Jurisdiction of the Foreign Jurisdiction for this purpose.
|
16.4
|
Each of the parties to this Deed irrevocably waives any objection to Proceedings or Foreign Proceedings in the courts referred to in Clause 16.2 or 16.3 on the grounds of venue or on the grounds of forum non conveniens.
|
16.5
|
BoI agrees to appoint an agent for service of process in any Foreign Jurisdiction other than Ireland in which any other party is subject to legal suit, action or proceedings based on or arising under this Deed within fourteen (14) days of receiving written notice of such legal suit, action or proceedings and the request to appoint such agent for service. In the event that BoI does not appoint such an agent within fourteen (14) days of the notice requesting it to so, such other party may appoint a commercial agent for service for BoI on BoI's behalf and at Bol's expense and BoI agrees that subject to being notified of such appointment in writing, service upon such commercial agent will constitute service upon Bol.
|
16.6
|
Each of the Buyers agrees to appoint an agent for service of process in Ireland within fourteen (14) days of receiving written notice of any legal suit, action or proceedings based on or arising under this Deed and the request to appoint such agent for service. In the event that any Buyer does not appoint such an agent within fourteen (14) days of the notice requesting it to so, BoI may appoint a commercial agent for service for that Buyer on its behalf and at its expense and each Buyer agrees that, subject to being notified of such appointment in writing, service upon such commercial agent will constitute service upon that Buyer.
|
Party
|
Address
|
Fax No.
|
||
Fairfax Financial Holdings Limited
|
95 Wellington Street West
Suite 800
Toronto
Ontario
Canada M5J 2N7
For the attention of:
Paul Rivett
Vice President and Chief Legal Officer
|
+1 416 367 4946
|
||
With a copy to:
|
William Fry
Fitzwilton House.
Wilton Place
Dublin 2
For the attention of:
Owen O’Connell
|
+353 1 639 5333
|
||
Fidelity Contrafund: Fidelity Advisor New Insights Fund
|
82 Devonshire Street, VI3H, Boston
MA 02109
USA
For the attention of:
Andrew Boyd
|
+001 617 392 1605
|
||
Fidelity Contrafund: Fidelity Contrafund
|
82 Devonshire Street, VI3H, Boston
MA 02109
USA
For the attention of:
Andrew Boyd
|
+ 001 617 392 1605
|
||
Variable Insurance Products Fund III: Balanced Portfolio
|
82 Devonshire Street, VI3H, Boston
MA 02109
USA
For the attention of:
Andrew Boyd
|
+ 001 617 392 1605
|
||
Fidelity Advisor Series I: Fidelity Advisor Dividend Growth Fund
|
82 Devonshire Street, VI3H, Boston
MA 02109
USA
For the attention of:
Andrew Boyd
|
+001 617 392 1605
|
||
Fidelity Securities Fund: Fidelity Dividend Growth Fund
|
82 Devonshire Street, VI3H, Boston
MA 02109
USA
For the attention of:
Andrew Boyd
|
+ 001 617 392 1605
|
||
Fidelity Capital Trust: Fidelity Value Fund
|
82 Devonshire Street, VI3H, Boston
MA 02109
USA
For the attention of:
Andrew Boyd
|
+ 001 617 392 1605
|
Party
|
Address
|
Fax No.
|
||
Fidelity Advisor Series I: Fidelity Advisor Value Fund
|
82 Devonshire Street, VI3H, Boston
MA 02109
USA
For the attention of:
Andrew Boyd
|
+ 001 617 392 1605
|
||
Fidelity Puritan Trust: Fidelity Low-Priced Stock Fund
|
82 Devonshire Street, VI3H, Boston
MA 02109
USA
For the attention of:
Andrew Boyd
|
+ 001 617 392 1605
|
||
Kennedy-Wilson Investments, LLC
|
Kennedy-Wilson Investments LLC
c/o Matt Windisch
9701 Wilshire Boulevard, Suite 700
Beverly Hills
CA 90212
USA
|
+ 001 310 887 6459
|
||
With a copy to:
|
William McMorrow
(wmcmorrow@kennedywilson.com) or Mary Ricks
(mricks@kennedywilson.com)
|
|||
WLR/GS Master Co-Investment L.P.
|
WLR Master Co-Investment GP, LLC
c/o WL Ross & Co. LLC
1166 Avenue of the Americas
25th Floor
New York 10036
USA
For the attention of:
James B. Lockhart III
|
+ 001 212 278 9769
+ 001 212 278 9821
|
||
With a copy to:
|
Benjamin Gruder (BenGruder@invesco.com)
|
|||
WLR Recovery Fund IV, L.P.
|
WLR Recovery Associates IV LLC
c c/o WL Ross & Co. LLC
1166 Avenue of the Americas
25th Floor
New York 10036
USA
For the attention of:
James B. Lockhart III
|
+ 001 212 278 9769
+ 001 212 278 9821
|
||
With a copy to:
|
Benjamin Gruder (BenGruder@invesco.com)
|
|||
WLR Recovery Fund V, L.P.
|
WLR Recovery Associates V LLC
c/o WL Ross & Co. LLC
1166 Avenue of the Americas
25th Floor
New York 10036
USA
For the attention of:
James B. Lockhart III
|
+001 212 278 9769
+ 001 212 278 9821
|
Party
|
Address
|
Fax No.
|
||
With a copy to:
|
Benjamin Gruder (BenGruder@invesco.com)
|
|||
WLR IV Parallel Esc, L.P
|
WLR Recovery Associates IV LLC
c/o WL Ross & Co. LLC
1166 Avenue of the Americas
25th Floor
New York 10036
USA
For the attention of:
James B. Lockhart III
|
+ 001 212 278 9769
+ 001 212 278 9821
|
||
With a copy to:
|
Benjamin Gruder (BenGruder@invesco.com)
|
|||
Capital Research and Management Company
|
333 South Hope St
Los Angeles
CA 90071
SA
For the attention of:
Michael Downer
|
+ 001 213 486 9041
|
/s/ John O'Donovan | |
Director/Secretary/Authorised Signatory
|
|
/s/ Richie Boucher | |
Director/Secretary/Authorised Signatory
|
SIGNED and DELIVERED AS A DEED
on behalf of
FAIRFAX FINANCIAL HOLDINGS LIMITED
by its authorised signatory
in the presence of:
|
/s/ Paul Rivett
|
|
Authorised Signatory (Signature)
|
||
Paul Rivett
|
||
/s/ James Newman
|
Print name
|
|
Witness (Signature)
|
||
James Newman
|
||
Print name
|
||
Fitzwilton House, Wilton Place, Dublin 2
|
||
Print address
|
SIGNED and DELIVERED AS A DEED
on behalf of
FIDELITY CONTRAFUND: FIDELITY ADVISOR NEW INSIGHTS FUND
by its authorised signatory
in the presence of:
|
/s/ Jeffrey Christian
|
|
Authorised Signatory (Signature)
|
||
Jeffrey Christian, Deputy Treasurer
|
||
/s/ Suzanne Joyce
|
Print name
|
|
Witness (Signature)
|
||
Suzanne Joyce
|
||
Print name
|
||
82 Devonshire St., V13F, Boston, MA 02109
|
||
Print address
|
SIGNED and DELIVERED AS A DEED
on behalf of
FIDELITY CONTRAFUND: FIDELITY CONTRAFUND
by its authorised signatory
in the presence of:
|
/s/ Jeffrey Christian
|
|
Authorised Signatory (Signature)
|
||
Jeffrey Christian, Deputy Treasurer
|
||
/s/ Suzanne Joyce
|
Print name
|
|
Witness (Signature)
|
||
Suzanne Joyce
|
||
Print name
|
||
82 Devonshire St., V13F, Boston, MA 02109
|
||
Print address
|
SIGNED and DELIVERED AS A DEED
on behalf of
VARIABLE INSURANCE PRODUCTS FUND III: BALANCED PORTFOLIO
by its authorised signatory
in the presence of:
|
/s/ Jeffrey Christian
|
|
Authorised Signatory (Signature)
|
||
Jeffrey Christian, Deputy Treasurer
|
||
/s/ Suzanne Joyce
|
Print name
|
|
Witness (Signature)
|
||
Suzanne Joyce
|
||
Print name
|
||
82 Devonshire St., V13F, Boston, MA 02109
|
||
Print address
|
SIGNED and DELIVERED AS A DEED
on behalf of
FIDELITY ADVISOR SERIES I: FIDELITY ADVISOR DIVIDEND GROWTH FUND
by its authorised signatory
in the presence of:
|
/s/ Jeffrey Christian
|
|
Authorised Signatory (Signature)
|
||
Jeffrey Christian, Deputy Treasurer
|
||
/s/ Suzanne Joyce
|
Print name
|
|
Witness (Signature)
|
||
Suzanne Joyce
|
||
Print name
|
||
82 Devonshire St., V13F, Boston, MA 02109
|
||
Print address
|
SIGNED and DELIVERED AS A DEED
on behalf of
FIDELITY SECURITIES FUND: FIDELITY DIVIDEND GROWTH FUND
by its authorised signatory
in the presence of:
|
/s/ Jeffrey Christian
|
|
Authorised Signatory (Signature)
|
||
Jeffrey Christian, Deputy Treasurer
|
||
/s/ Suzanne Joyce
|
Print name
|
|
Witness (Signature)
|
||
Suzanne Joyce
|
||
Print name
|
||
82 Devonshire St., V13F, Boston, MA 02109
|
||
Print address
|
SIGNED and DELIVERED AS A DEED
on behalf of
FIDELITY CAPITAL TRUST: FIDELITY VALUE FUND
by its authorised signatory
in the presence of:
|
/s/ Jeffrey Christian
|
|
Authorised Signatory (Signature)
|
||
Jeffrey Christian, Deputy Treasurer
|
||
/s/ Suzanne Joyce
|
Print name
|
|
Witness (Signature)
|
||
Suzanne Joyce
|
||
Print name
|
||
82 Devonshire St., V13F, Boston, MA 02109
|
||
Print address
|
SIGNED and DELIVERED AS A DEED
on behalf of
FIDELITY ADVISOR SERIES I: FIDELITY ADVISOR VALUE FUND
by its authorised signatory
in the presence of:
|
/s/ Jeffrey Christian
|
|
Authorised Signatory (Signature)
|
||
Jeffrey Christian, Deputy Treasurer
|
||
/s/ Suzanne Joyce
|
Print name
|
|
Witness (Signature)
|
||
Suzanne Joyce
|
||
Print name
|
||
82 Devonshire St., V13F, Boston, MA 02109
|
||
Print address
|
SIGNED and DELIVERED AS A DEED
on behalf of
FIDELITY PURITAN TRUST: FIDELITY LOW-PRICED STOCK FUND
by its authorised signatory
in the presence of:
|
/s/ Jeffrey Christian
|
|
Authorised Signatory (Signature)
|
||
Jeffrey Christian, Deputy Treasurer
|
||
/s/ Suzanne Joyce
|
Print name
|
|
Witness (Signature)
|
||
Suzanne Joyce
|
||
Print name
|
||
82 Devonshire St., V13F, Boston, MA 02109
|
||
Print address
|
SIGNED and DELIVERED AS A DEED
on behalf of
KENNEDY-WILSON INVESTMENTS, LLC
by its authorised signatory
in the presence of:
|
/s/ Matthew Windisch
|
|
Authorised Signatory (Signature)
|
||
Matthew Windisch
|
||
/s/ Mark Martin
|
Print name
|
|
Witness (Signature)
|
||
Mark Martin
|
||
Print name
|
||
9701 Wilshire Blvd., Beverly Hills, CA 90212
|
||
Print address
|
SIGNED and DELIVERED AS A DEED
on behalf of
WLR Recovery Fund IV, L.P.
by WLR Recovery Associates IV LLC
its General Partner
by WL Ross Group, L.P.
its Managing Member
by El Vedado LLC
its General Partner
by its authorized signatory
|
||
in the presence of:
|
/s/ Wilbur L. Ross, Jr.
|
|
Manager (Signature)
Wilbur L. Ross, Jr.
|
||
/s/ Stephen J. Naughton
|
||
Witness (Signature)
Stephen J. Naughton
1166 Avenue of the Americas, 25th Floor
New York, New York 10036
|
SIGNED and DELIVERED AS A DEED
on behalf of
WLR Recovery Fund V, L.P.
by WLR Recovery Associates V LLC
its General Partner
by WL Ross Group, L.P.
its Managing Member
by El Vedado LLC
its General Partner
by its authorized signatory
|
||
in the presence of:
|
/s/ Wilbur L. Ross, Jr.
|
|
Manager (Signature)
Wilbur L. Ross, Jr.
|
||
/s/ Stephen J. Naughton
|
||
Witness (Signature)
Stephen J. Naughton
1166 Avenue of the Americas, 25th Floor
New York, New York 10036
|
SIGNED and DELIVERED AS A DEED
on behalf of
WLR/GS Master Co-Investment, L.P.
by WLR Master Co-Investment GP, L.P.
its General Partner
by WL Ross Group, L.P.
its Managing Member
by El Vedado LLC
its General Partner
by its authorized signatory
|
||
in the presence of:
|
/s/ Wilbur L. Ross, Jr.
|
|
Manager (Signature)
Wilbur L. Ross, Jr.
|
||
/s/ Stephen J. Naughton
|
||
Witness (Signature)
Stephen J. Naughton
1166 Avenue of the Americas, 25th Floor
New York, New York 10036
|
SIGNED and DELIVERED AS A DEED
on behalf of
WLR IV Parallel ESC, L.P.
by WLR Recovery Associates IV LLC
its attorney-in-fact
by WL Ross Group, L.P.
its Managing Member
by El Vedado LLC
its General Partner
by its authorized signatory
|
||
in the presence of:
|
/s/ Wilbur L. Ross, Jr.
|
|
Manager (Signature)
Wilbur L. Ross, Jr.
|
||
/s/ Stephen J. Naughton
|
||
Witness (Signature)
Stephen J. Naughton
1166 Avenue of the Americas, 25th Floor
New York, New York 10036
|
SIGNED and DELIVERED AS A DEED
on behalf of
CAPITAL RESEARCH AND MANAGEMENT COMPANY
by its authorised signatory
in the presence of:
|
/s/ Michael J. Downer
|
|
Authorised Signatory (Signature)
|
||
Michael J. Downer, SVP and Secretary
|
||
/s/ Walt R. Burkley
|
Print name
|
|
Witness (Signature)
|
||
Walt R. Burkley
|
||
Print name
|
||
c/o 333 S. Hope Street, Los Angeles, CA 90071
|
||
Print address
|
when any registration statement filed at the request of a Holder or in respect of which a Holder has exercised piggyback rights pursuant to Article II or any amendment thereto has been filed with the SEC (except any amendment effected by the filing of a document with the SEC pursuant to the Exchange Act) and when such registration statement or any post-effective amendment thereto has become effective;
|
|
(ii)
|
of any request by the SEC for amendments or supplements to any registration statement filed at the request of a Holder or in respect of which a Holder has exercised piggyback rights pursuant to Article II or the prospectus included therein or for additional information;
|
(iii)
|
of the issuance by the SEC of any stop order suspending the effectiveness of any registration statement filed at the request of a Holder or in respect of which a Holder has exercised piggyback rights pursuant to Article II or the initiation of any proceedings for that purpose;
|
(iv)
|
of the receipt by the Company or its legal counsel of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and
|
(v)
|
of the happening of any event or the existence of any facts or circumstances that requires the Company to make changes in any effective registration statement filed at the request of a Holder or in respect of which a Holder has exercised piggyback rights pursuant to Article II, or to the prospectus or prospectus supplement related to such registration statement, in order to correct any untrue statement of a material fact or any omission to state a material fact required to be stated therein or necessary to make the statements therein in light of the circumstances then existing not misleading (which notice shall be accompanied by an instruction to suspend the use of the prospectus until the requisite changes have been made).
|
|
(i)
|
give notice as promptly as reasonably practicable to the Company of any action commenced against it after receipt of a written notice of any claim or the commencement of any action, claim, suit, investigation or
|
|
proceeding in respect of which a claim for indemnification may be sought under this Section 2.9; and
|
|
(ii)
|
as promptly as reasonably practicable notify the Company after any such action is formally commenced (by way of service with a summons or other legal process giving information as to the nature and basis of the claim),
|
The Governor and Company of the Bank of Ireland
|
|
Head Office
|
|
40 Mespil Road,
|
|
Dublin 4, Ireland.
|
|
Attention: The Group Secretary
|
|
Fax: +353 (1) 661 56 71
|
|
with copies to:
|
|
Sullivan & Cromwell LLP
|
|
1 New Fetter Lane
|
|
London
|
|
EC4A 1AN
|
|
England
|
|
Attention: John O’Connor, Esq,
|
|
Fax: +44-20-7959-8950
|
Party
|
Address
|
Fax No.
|
||
Fairfax Financial Holdings Limited
|
95 Wellington Street West
Suite 800
Toronto
Ontario
Canada M5J 2N7
For the attention of:
Paul Rivett
Vice President and Chief Legal Officer
|
+1 416 367 4946
|
||
With a copy to:
|
William Fry
Fitzwilton House.
Wilton Place
Dublin 2
For the attention of:
Owen O’Connell
|
+353 1 639 5333
|
||
Fidelity Contrafund: Fidelity Advisor New Insights Fund
|
82 Devonshire Street, VI3H, Boston
MA 02109
USA
For the attention of:
Andrew Boyd
|
+001 617 392 1605
|
||
Fidelity Contrafund: Fidelity Contrafund
|
82 Devonshire Street, VI3H, Boston
MA 02109
USA
For the attention of:
Andrew Boyd
|
+ 001 617 392 1605
|
||
Variable Insurance Products Fund III: Balanced Portfolio
|
82 Devonshire Street, VI3H, Boston
MA 02109
USA
For the attention of:
Andrew Boyd
|
+ 001 617 392 1605
|
Party
|
Address
|
Fax No.
|
||
Fidelity Advisor Series I: Fidelity Advisor Dividend Growth Fund
|
82 Devonshire Street, VI3H, Boston
MA 02109
USA
For the attention of:
Andrew Boyd
|
+001 617 392 1605
|
||
Fidelity Securities Fund: Dividend Growth Fund
|
82 Devonshire Street, VI3H, Boston
MA 02109
USA
For the attention of:
Andrew Boyd
|
+ 001 617 392 1605
|
||
Fidelity Capital Trust: Fidelity Value Fund
|
82 Devonshire Street, VI3H, Boston
MA 02109
USA
For the attention of:
Andrew Boyd
|
+ 001 617 392 1605
|
||
Fidelity Advisor Series I: Fidelity Advisor Value Fund
|
82 Devonshire Street, VI3H, Boston
MA 02109
USA
For the attention of:
Andrew Boyd
|
+ 001 617 392 1605
|
||
Fidelity Puritan Trust: Fidelity Low-Priced Stock Fund
|
82 Devonshire Street, VI3H, Boston
MA 02109
USA
For the attention of:
Andrew Boyd
|
+ 001 617 392 1605
|
||
Kennedy-Wilson Investments, LLC
|
Kennedy-Wilson Investments LLC
c/o Matt Windisch
9701 Wilshire Boulevard, Suite 700
Beverly Hills
CA 90212
USA
|
+ 001 310 887 6459
|
||
With a copy to:
|
William McMorrow
(wmcmorrow@kennedywilson.com) or Mary Ricks
(mricks@kennedywilson.com)
|
Party
|
Address
|
Fax No.
|
||
WLR/GS Master Co-Investment L.P.
|
WLR Master Co-Investment GP, LLC
c/o WL Ross & Co. LLC
1166 Avenue of the Americas
25th Floor
New York 10036
USA
For the attention of:
James B. Lockhart III
|
+ 001 212 278 9769
|
||
With a copy to:
|
Benjamin Gruder (BenGruder@invesco.com)
|
+ 001 212 278 9821
|
||
WLR Recovery Fund IV, L.P.
|
WLR Recovery Associates IV LLC
c c/o WL Ross & Co. LLC
1166 Avenue of the Americas
25th Floor
New York 10036
USA
For the attention of:
James B. Lockhart III
|
+ 001 212 278 9769
|
||
With a copy to:
|
Benjamin Gruder (BenGruder@invesco.com)
|
+ 001 212 278 9821
|
||
WLR Recovery Fund V, L.P.
|
WLR Recovery Associates V LLC
c/o WL Ross & Co. LLC
1166 Avenue of the Americas
25th Floor
New York 10036
USA
For the attention of:
James B. Lockhart III
|
+001 212 278 9769
|
||
With a copy to:
|
Benjamin Gruder (BenGruder@invesco.com)
|
+ 001 212 278 9821
|
||
WLR IV Parallel Esc, L.P
|
WLR IV Parallel Esc, L.P.
c/o WL Ross & Co. LLC
1166 Avenue of the Americas
25th Floor
New York 10036
USA
For the attention of:
James B. Lockhart III
|
+ 001 212 278 9769
|
Party
|
Address
|
Fax No.
|
||
With a copy to:
|
Benjamin Gruder (BenGruder@invesco.com)
|
+ 001 212 278 9821
|
||
Capital Research and Management Company
|
333 South Hope St
Los Angeles
CA 90071
SA
For the attention of:
Michael Downer
|
+ 001 213 486 9041
|
/s/ John O'Donovan | |
Director/Secretary/Authorised Signatory
|
|
|
/s/ Richie Boucher |
Director/Secretary/Authorised Signatory
|
SIGNED and DELIVERED AS A DEED
on behalf of
FAIRFAX FINANCIAL HOLDINGS LIMITED
by its authorised signatory
in the presence of:
|
/s/ Paul Rivett
|
|
Authorised Signatory (Signature)
|
||
Paul Rivett
|
||
/s/ James Newman
|
Print name
|
|
Witness (Signature)
|
||
James Newman
|
||
Print name
|
||
Fitzwilton House, Wilton Place, Dublin 2
|
||
Print address
|
SIGNED and DELIVERED AS A DEED
on behalf of
FIDELITY CONTRAFUND: FIDELITY ADVISOR NEW INSIGHTS FUND
by its authorised signatory
in the presence of:
|
/s/ Jeffrey Christian
|
|
Authorised Signatory (Signature)
|
||
Jeffrey Christian, Deputy Treasurer
|
||
/s/ Suzanne Joyce
|
Print name
|
|
Witness (Signature)
|
||
Suzanne Joyce
|
||
Print name
|
||
82 Devonshire St., V13F, Boston, MA 02109
|
||
Print address
|
SIGNED and DELIVERED AS A DEED
on behalf of
FIDELITY CONTRAFUND: FIDELITY CONTRAFUND
by its authorised signatory
in the presence of:
|
/s/ Jeffrey Christian
|
|
Authorised Signatory (Signature)
|
||
Jeffrey Christian, Deputy Treasurer
|
||
/s/ Suzanne Joyce
|
Print name
|
|
Witness (Signature)
|
||
Suzanne Joyce
|
||
Print name
|
||
82 Devonshire St., V13F, Boston, MA 02109
|
||
Print address
|
SIGNED and DELIVERED AS A DEED
on behalf of
VARIABLE INSURANCE PRODUCTS FUND III: BALANCED PORTFOLIO
by its authorised signatory
in the presence of:
|
/s/ Jeffrey Christian
|
|
Authorised Signatory (Signature)
|
||
Jeffrey Christian, Deputy Treasurer
|
||
/s/ Suzanne Joyce
|
Print name
|
|
Witness (Signature)
|
||
Suzanne Joyce
|
||
Print name
|
||
82 Devonshire St., V13F, Boston, MA 02109
|
||
Print address
|
SIGNED and DELIVERED AS A DEED
on behalf of
FIDELITY ADVISOR SERIES I: FIDELITY ADVISOR DIVIDEND GROWTH FUND
by its authorised signatory
in the presence of:
|
/s/ Jeffrey Christian
|
|
Authorised Signatory (Signature)
|
||
Jeffrey Christian, Deputy Treasurer
|
||
/s/ Suzanne Joyce
|
Print name
|
|
Witness (Signature)
|
||
Suzanne Joyce
|
||
Print name
|
||
82 Devonshire St., V13F, Boston, MA 02109
|
||
Print address
|
SIGNED and DELIVERED AS A DEED
on behalf of
FIDELITY SECURITIES FUND: FIDELITY DIVIDEND GROWTH FUND
by its authorised signatory
in the presence of:
|
/s/ Jeffrey Christian
|
|
Authorised Signatory (Signature)
|
||
Jeffrey Christian, Deputy Treasurer
|
||
/s/ Suzanne Joyce
|
Print name
|
|
Witness (Signature)
|
||
Suzanne Joyce
|
||
Print name
|
||
82 Devonshire St., V13F, Boston, MA 02109
|
||
Print address
|
SIGNED and DELIVERED AS A DEED
on behalf of
FIDELITY CAPITAL TRUST: FIDELITY VALUE FUND
by its authorised signatory
in the presence of:
|
/s/ Jeffrey Christian
|
|
Authorised Signatory (Signature)
|
||
Jeffrey Christian, Deputy Treasurer
|
||
/s/ Suzanne Joyce
|
Print name
|
|
Witness (Signature)
|
||
Suzanne Joyce
|
||
Print name
|
||
82 Devonshire St., V13F, Boston, MA 02109
|
||
Print address
|
SIGNED and DELIVERED AS A DEED
on behalf of
FIDELITY ADVISOR SERIES I: FIDELITY ADVISOR VALUE FUND
by its authorised signatory
in the presence of:
|
/s/ Jeffrey Christian
|
|
Authorised Signatory (Signature)
|
||
Jeffrey Christian, Deputy Treasurer
|
||
/s/ Suzanne Joyce
|
Print name
|
|
Witness (Signature)
|
||
Suzanne Joyce
|
||
Print name
|
||
82 Devonshire St., V13F, Boston, MA 02109
|
||
Print address
|
SIGNED and DELIVERED AS A DEED
on behalf of
FIDELITY PURITAN TRUST: FIDELITY LOW-PRICED STOCK FUND
by its authorised signatory
in the presence of:
|
/s/ Jeffrey Christian
|
|
Authorised Signatory (Signature)
|
||
Jeffrey Christian, Deputy Treasurer
|
||
/s/ Suzanne Joyce
|
Print name
|
|
Witness (Signature)
|
||
Suzanne Joyce
|
||
Print name
|
||
82 Devonshire St., V13F, Boston, MA 02109
|
||
Print address
|
SIGNED and DELIVERED AS A DEED
on behalf of
KENNEDY-WILSON INVESTMENTS, LLC
by its authorised signatory
in the presence of:
|
/s/ Matthew Windisch
|
|
Authorised Signatory (Signature)
|
||
Matthew Windisch
|
||
/s/ Mark Martin
|
Print name
|
|
Witness (Signature)
|
||
Mark Martin
|
||
Print name
|
||
9701 Wilshire Blvd., Beverly Hills, CA 90212
|
||
Print address
|
SIGNED and DELIVERED AS A DEED
on behalf of
WLR Recovery Fund IV, L.P.
by WLR Recovery Associates IV LLC
its General Partner
by WL Ross Group, L.P.
its Managing Member
by El Vedado LLC
its General Partner
by its authorized signatory
in the presence of:
|
/s/ Wilbur L. Ross, Jr.
|
|
Manager (Signature)
Wilbur L. Ross, Jr.
|
||
/s/ Stephen J. Naughton
|
||
Witness (Signature)
Stephen J. Naughton
1166 Avenue of the Americas, 25th Floor
New York, New York 10036
|
SIGNED and DELIVERED AS A DEED
on behalf of
WLR Recovery Fund V, L.P.
by WLR Recovery Associates V LLC
its General Partner
by WL Ross Group, L.P.
its Managing Member
by El Vedado LLC
its General Partner
by its authorized signatory
in the presence of:
|
/s/ Wilbur L. Ross, Jr.
|
|
Manager (Signature)
Wilbur L. Ross, Jr.
|
||
/s/ Stephen J. Naughton
|
||
Witness (Signature)
Stephen J. Naughton
1166 Avenue of the Americas, 25th Floor
New York, New York 10036
|
SIGNED and DELIVERED AS A DEED
on behalf of
WLR/GS Master Co-Investment, L.P.
by WLR Master Co-Investment GP, L.P.
its General Partner
by WL Ross Group, L.P.
its Managing Member
by El Vedado LLC
its General Partner
by its authorized signatory
in the presence of:
|
/s/ Wilbur L. Ross, Jr.
|
|
Manager (Signature)
Wilbur L. Ross, Jr.
|
||
/s/ Stephen J. Naughton
|
||
Witness (Signature)
Stephen J. Naughton
1166 Avenue of the Americas, 25th Floor
New York, New York 10036
|
SIGNED and DELIVERED AS A DEED
on behalf of
WLR IV Parallel ESC, L.P.
by WLR Recovery Associates IV LLC
its attorney-in-fact
by WL Ross Group, L.P.
its Managing Member
by El Vedado LLC
its General Partner
by its authorized signatory
in the presence of:
|
/s/ Wilbur L. Ross, Jr.
|
|
Manager (Signature)
Wilbur L. Ross, Jr.
|
||
/s/ Stephen J. Naughton
|
||
Witness (Signature)
Stephen J. Naughton
1166 Avenue of the Americas, 25th Floor
New York, New York 10036
|
SIGNED and DELIVERED AS A DEED
on behalf of
CAPITAL RESEARCH AND MANAGEMENT COMPANY
by its authorised signatory
in the presence of:
|
/s/ Michael J. Downer
|
|
Authorised Signatory (Signature)
|
||
Michael J. Downer, SVP and Secretary
|
||
/s/ Walt R. Burkley
|
Print name
|
|
Witness (Signature)
|
||
Walt R. Burkley
|
||
Print name
|
||
c/o 333 S. Hope Street, Los Angeles, CA 90071
|
||
Print address
|
1.
|
INTERPRETATION
|
4
|
|
2.
|
OFFER PROVISIONS
|
7
|
|
3.
|
INVESTORS’ REPRESENTATIONS AND WARRANTIES
|
10
|
|
4.
|
UNDERTAKINGS BY THE MINISTER
|
10
|
|
5.
|
SURVIVAL OF REPRESENTATIONS AND OBLIGATIONS
|
10
|
|
6.
|
NOTICES
|
10
|
|
7.
|
ASSIGNMENT
|
11
|
|
8.
|
WAIVER
|
11
|
|
9.
|
ENTIRE AGREEMENT
|
12
|
|
10.
|
COUNTERPARTS
|
12
|
|
11.
|
GOVERNING LAW AND JURISDICTION
|
12
|
|
SCHEDULE 1
|
13
|
||
SCHEDULE 2
|
17
|
||
SCHEDULE 3
|
53
|
||
PART 1
|
53
|
||
SCHEDULE 3
|
54
|
||
PART 2
|
54
|
||
SCHEDULE 4
|
55
|
||
PART 1
|
55
|
||
SCHEDULE 4
|
56
|
||
PART 2
|
56
|
||
SCHEDULE 5
|
57
|
||
PART 1
|
57
|
||
SCHEDULE 5
|
58
|
||
PART 2
|
58
|
THE MINISTER FOR FINANCE OF IRELAND
of Upper Merrion Street, Dublin 2, Ireland
(hereinafter called the "Minister")
|
|
- and -
|
|
THE PERSONS WHOSE NAMES ARE SET OUT
IN SCHEDULE 1
(hereinafter called the “Investors”)
|
A.
|
Under the note purchase agreement dated 8 July 2011 (the “Note Purchase Agreement”), the Issuer and the Minister have recorded certain arrangements agreed between them in relation to the issue of €1,000,000,000 (one billion euro) 10.00 per cent. Contingent Capital Tier 2 Notes due 2016 by the Issuer (the “CCNs”).
|
B.
|
The CCNs shall be issued in registered form by a definitive certificate or certificates pursuant to the Agency Deed.
|
C.
|
Each of the Investors has agreed to acquire units of Ordinary Stock in the capital of the Issuer under the terms of the Stock Purchase Agreement and the Conditional Stock Purchase Agreement, as applicable.
|
D.
|
The Minister and each of the Investors have agreed that if:
|
|
(a)
|
it is proposed that any of the CCNs will be transferred by the Minister or any other State Entity to a Third Party, then each of the Investors shall have a right to purchase its Pro Rata Share of the CCNs subject to the conditions herein; or
|
|
(b)
|
a Conversion Event occurs, then each of the Investors shall have an option to acquire its Pro Rata Share of Ordinary Stock that is issued following the Conversion Event pursuant to the Conditions (the “Converted Ordinary Stock”);
|
|
(c)
|
if any State Entity becomes entitled to 2009 Bonus Stock then each of the Investors shall have an option to acquire its Pro Rata Share of the 2009 Bonus Stock subject to the conditions herein.
|
E.
|
Condition 3(g)(iii) of the Conditions provides (among other things) that in certain circumstances the Issuer can solicit third party investors in respect of the CCNs. The Issuer has agreed with each of the Investors that prior to soliciting any such third party investors, it will notify each of the Investors of its intention to do so. Under the terms of the Issuer Agreement, the Issuer has agreed (among other things) to notify each of the Investors prior to soliciting any such third party investors to purchase the CCNs from the Minister and to include each of the Investors in the negotiations to agree the price at which the CCNs might be sold by the Minister in accordance with Condition 3(g).
|
F.
|
The Minister and each of the Investors have entered into this Agreement to set out the arrangements between them in relation to the CCNs.
|
1.
|
Interpretation
|
1.1
|
In this Agreement, unless the context otherwise requires all terms defined in the Conditions shall have the same meanings when used herein. In this Agreement, the following words and expressions shall have the following meanings:
|
|
(a)
|
the principle that equitable remedies are remedies which may be granted or refused at the discretion of the court, the limitation of enforcement by laws relating to bankruptcy, insolvency, court protection, liquidation, reorganisation, court scheme, moratoria, administration and other laws generally affecting the rights of creditors, the time barring of claims, the possibility that an undertaking to assume liability or to indemnify a person against non-payment of stamp duty may be void, defences of set-off or counterclaim and similar principles, rights and defences under the laws of any jurisdiction in which relevant obligations may have to be performed; and
|
|
(b)
|
any principles of the law limiting the obligations of any Investor;
|
1.2
|
In this Agreement, unless the context otherwise requires:
|
|
1.2.1
|
a reference to:
|
|
(a)
|
any party includes its successors in title and permitted assigns;
|
|
(b)
|
a "person" includes any individual, firm, body corporate, association or partnership, government or state or agency of a state, local authority or government body or any joint venture association or partnership (whether or not having a separate legal personality) and that person's personal representatives, successors or permitted assigns;
|
|
(c)
|
a "company" will be construed so as to include any company, corporation or body corporate, wherever and however incorporated or established;
|
|
(d)
|
a Clause, paragraph, or Schedule, unless otherwise specified, is a reference to a Clause, paragraph of or Schedule to this Agreement;
|
|
(e)
|
writing or similar expressions includes, unless otherwise specified, transmission by facsimile but excludes email;
|
|
(f)
|
the singular includes the plural and vice versa and references to one gender includes all genders;
|
|
(g)
|
"day" or a "Business Day" will mean a period of 24 (twenty-four) hours running from midnight to midnight;
|
|
(h)
|
a "month" will mean a calendar month;
|
|
(i)
|
times are to time in Ireland;
|
|
(j)
|
a reference to a "subsidiary undertaking" is to be construed in accordance with the European Communities (Companies: Group Accounts) Regulations 1992 of Ireland and a "subsidiary" or "holding company" is to be construed in accordance with Section 155 of the Companies Act 1963 of Ireland; and
|
|
(k)
|
any other document referred to in this Agreement is a reference to that document as amended, varied, novated or supplemented at any time.
|
|
1.2.2
|
a reference to a statute or statutory provision will be construed as a reference to the laws of Ireland unless otherwise specified and includes:
|
|
(a)
|
any subordinate legislation made under it including all regulations, by-laws, orders and codes made thereunder;
|
|
(b)
|
any repealed statute or statutory provision which it re-enacts (with or without modification); and
|
|
(c)
|
any statute or statutory provision which modifies, consolidates, re-enacts or supersedes it;
|
|
1.2.3
|
any phrase introduced by the terms "including", "include" and "in particular" or any similar expression will be construed as illustrative and will not limit the sense of the words preceding those terms.
|
1.3
|
The table of contents and headings in this Agreement are inserted for convenience only, and they are to be ignored in the interpretation of this Agreement.
|
1.4
|
References in this Agreement to CCNs being or to be "listed on the Stock Exchange" shall be to CCNs being or to be listed on the official list (the "Official List") of the Stock Exchange, having obtained approval from the Central Bank in its capacity as competent authority for admission of the CCNs to trading on the Stock Exchange's regulated market for listed securities.
|
1.5
|
References in this Agreement to the "Prospectus Directive" are to Directive 2003/7l/EC of the European Parliament and of the Council and shall include the Prospectus (Directive 2003/7l/EC) Regulations 2005 and any other relevant implementing measures of Ireland as well as Commission Regulation (EC) No. 809/2004.
|
2.
|
Offer Provisions
|
2.1
|
On each occasion that the Minister proposes to sell or transfer any of the CCNs to a Third Party, the Minister shall forthwith by notice in writing to each Investor in the form set out in Part 1 of Schedule 3 (a “CCN Sale Notice”) offer to sell to each Investor that Investor’s Pro Rata Share of the CCNs at the CCN Sale Price. Following receipt of the CCN Sale Notice, each Investor may apply in writing to the Minister by sending to the Minister a notice in the form set out in Part 2 of Schedule 3 (the “CCN Sale Acceptance Notice”) within 5 or, as the case may be, 2 Business Day(s) after the date of receipt of the CCN Sale Notice by the relevant Investor to acquire its Pro Rata Share of the CCNs provided that if the Minister proposes to sell or transfer any of the CCNs at the end of the solicitation period under Condition 3(g)(iii), the number of Business Days shall be reduced to 2. Such CCN Sale Acceptance Notice shall include confirmation of such Investor’s Pro Rata Share and the Minister may rely on this confirmation for all purposes under this Agreement.
|
2.2
|
Following receipt of the CCN Sale Acceptance Notice by the Minister within the said period of 5 or, as the case may be, 2 Business Day(s), the relevant Investor shall purchase and the
|
2.3
|
The Minister shall be bound to transfer to the relevant Investor (or its nominee) and the relevant Investor shall be bound to purchase the CCNs comprised in a CCN Acceptance Notice on the date specified in the CCN Sale Notice against payment by such Investor to the Minister of the applicable CCN Sale Price for each relevant CCN.
|
2.4
|
If a Conversion Event occurs and the CCNs have been converted into Ordinary Stock (the “Converted Ordinary Stock”) the Minister shall forthwith by notice in writing to each Investor in the form set out in Part 1 of Schedule 4 (a “Stock Sale Notice”) offer to sell to each Investor that Investor’s Pro Rata Share of the Converted Ordinary Stock at the Stock Sale Price. Following receipt of a Stock Sale Notice, each Investor may apply in writing to the Minister by sending to the Minister a notice in the form set out in Part 2 of Schedule 4 (the “Stock Sale Acceptance Notice”) within 5 Business Days after the date of receipt of the Stock Sale Notice by the relevant Investor to acquire the Investor’s Pro Rata Share of the Converted Ordinary Stock or Approved Entity Shares, as the case may be. Such Stock Sale Acceptance Notice shall include written confirmation of the Investor’s Pro Rata Share and the Minister may rely on such confirmation for all purposes under this Agreement.
|
2.5
|
Following receipt of the Stock Sale Acceptance Notice by the Minister within the said period of 5 Business Days, the relevant Investor shall purchase and the Minister shall allocate to that Investor, its Pro Rata Share of the Converted Ordinary Stock (or Approved Entity Shares, as the case may be) on the date (which shall not be less than 10 Business Days after the date of the Stock Sale Notice) and at the price specified in the Stock Sale Notice.
|
2.6
|
The Minister shall be bound to transfer to the relevant Investor (or its nominee) and the relevant Investor shall be bound to purchase the Converted Ordinary Stock (or Approved Entity Shares, if applicable) comprised in a Stock Sale Acceptance Notice on the date specified in the Stock Sale Notice against payment by such Investor to the Minister of the Stock Sale Price in respect of each such unit of Converted Ordinary Stock or Approved Entity Shares, as the case may be.
|
2.7
|
If any State Entity becomes entitled to any units of 2009 Bonus Stock, the Minister shall forthwith by notice in writing to each Investor in the form set out in Part 1 of Schedule 5 (a “Bonus Stock Sale Notice”) offer to sell to each Investor that Investor’s Pro Rata Share of the 2009 Bonus Stock at the 2009 Bonus Stock Sale Price. Following receipt of a Bonus Stock Sale Notice, each Investor may apply in writing to the Minister by sending to the Minister a notice in the form set out in Part 2 of Schedule 5 (the “Bonus Stock Sale Acceptance Notice”) within 5 Business Days after the date of receipt of the Bonus Stock Sale Notice by the relevant Investor to acquire the Investor’s Pro Rata Share of the 2009 Bonus Stock. Such Bonus Stock Sale Acceptance shall include a written confirmation of the Investor’s Pro Rata Share and the Minister may rely on such confirmation for all purposes under this Agreement.
|
2.8
|
Following receipt of the Bonus Stock Sale Acceptance Notice by the Minister within the said period of 5 Business Days, the relevant Investor shall purchase and the Minister shall allocate to that Investor, its Pro Rata Share of the 2009 Bonus Stock on the date (which shall not be less than 10 Business Days after the date of the Bonus Stock Sale Notice) and at the price specified in the Bonus Stock Sale Notice.
|
2.9
|
The Minister shall be bound to transfer to the relevant Investor (or its nominee) and the relevant Investor shall be bound to purchase the 2009 Bonus Stock comprised in a Bonus Stock Sale Acceptance Notice on the date specified in the Bonus Stock Sale Notice against
|
2.10
|
The Minister represents and warrants that each CCN, unit of 2009 Bonus Stock and/or unit of Ordinary Stock (or Approved Entity Shares, if applicable) which is sold to an Investor in accordance with the terms of this Agreement shall be sold by the Holder thereof as legal and beneficial owner free from Encumbrances.
|
2.11
|
In relation to any Conversion in respect of which the Conversion Date falls on or after a Takeover Date, where the Takeover Event is a Qualifying Takeover Event, references in this Agreement to Ordinary Stock shall be deemed to be references to Approved Entity Shares.
|
2.12
|
Notwithstanding the date specified in a Stock Sale Notice or Bonus Stock Sale Notice, no purchase of Converted Ordinary Stock (or Approved Entity Shares, if applicable) or 2009 Bonus Stock shall occur unless and until each of the Investors is satisfied (and so declares by notice in writing to the Minister) that the Irish Takeover Panel has granted to them all such consents, waivers, derogations, clarifications and confirmations as are necessary pursuant to the Takeover Act and Rules (including pursuant to Rules 5 and 9), that all conditions thereto (including, if required, the approval by a “whitewash” resolution of the independent shareholders of the Issuer) have been fulfilled, that such consents, waivers or derogations are in full force and effect and that consequently none of the Investors will be restricted or prohibited from purchasing the Converted Ordinary Stock (or Approved Entity Shares, if applicable) or 2009 Bonus Stock (as the case may be) and that they (or any of them) will not be obliged to extend a mandatory offer to the shareholders of Issuer pursuant to the Irish Takeover Rules provided that, unless otherwise agreed by the Parties in writing, the number of applicable days shall not be more than 150 days from the date of relevant sale notice.
|
2.13
|
Notwithstanding the number of Business Days specified in any of the provisions of this Clause 2, if a notification must be made to, or an authorisation obtained from, any Authority in respect of, or as a consequence of, any of the transactions contemplated by this Agreement the applicable number of Business Days shall be extended to permit the making of such notification to, or to obtain the required consent from, any relevant Authority provided that, unless otherwise agreed by the Parties in writing, the number of applicable days shall not be more than 150 days from the date of relevant sale notice.
|
2.14
|
If the Minister is not the Holder of any CCNs, Converted Ordinary Stock (or Approved Entity Shares, if applicable) or 2009 Bonus Stock which are to be sold from time to time in accordance with the terms and conditions set out in this Clause 2 and the relevant CCNs, units of Converted Ordinary Stock (or Approved Entity Shares, if applicable) or 2009 Bonus Stock are held by another State Entity, the Minister shall exercise all powers and rights available to him and take such further actions (including procuring the taking of actions by any relevant State Entity) as may be required to transfer the full legal and beneficial title free from Encumbrances in any such CCNs, Converted Ordinary Stock (or Approved Entity Shares, if applicable) or 2009 Bonus Stock to the relevant Investor.
|
2.15
|
The rights and obligations of the Parties under this Agreement are conditional upon the Completion (as defined therein) of the transactions under the Stock Purchase Agreement.
|
2.16
|
Clause 2 shall only operate for the benefit of an Investor and be capable of enforcement by that Investor in each case in circumstances where such Investor (and/or members of the Investor’s Group) holds more than 0.5% of the Fully Diluted Ordinary Stock Capital.
|
3.
|
Investors’ Representations and Warranties
|
3.1
|
Investors’ Representations and Warranties:
|
4.
|
Undertakings by the Minister
|
|
4.1
|
Contracts
|
|
4.2
|
Remarketing Option
|
|
4.3
|
Deed of Adherence
|
5.
|
Survival of Representations and Obligations
|
6.
|
Notices
|
6.1
|
Subject to Clause 6.2, any notice or other communication under this Agreement will only be effective if it is in writing.
|
6.2
|
Communication by email will not be effective under this Agreement.
|
6.3
|
Any notice or other communication given or made under this Agreement will be addressed as provided in Clause 6.5 and, if so addressed, will, in the absence of earlier receipt, be deemed to have been duly given or made as follows:
|
|
6.3.1
|
if sent by personal delivery, on delivery at the address of the relevant party;
|
|
6.3.2
|
if sent by pre-paid post, two (2) clear Business Days after the date of posting; or
|
|
6.3.3
|
if sent by facsimile, when transmitted.
|
6.4
|
Any notice or other communication given or made, or deemed to have been given or made, outside Working Hours will be deemed not to have been given or made until the start of the next period of Working Hours.
|
6.5
|
The relevant notice details for the parties hereto are:
|
|
6.5.1
|
if to the Minister:
|
|
Address:
|
Upper Merrion Street
Dublin 2
|
|
Fax no.:
|
+353 1 678 9936
|
|
Attention:
|
The Secretary General
Department of Finance
|
|
6.5.2
|
if to any of the Investors, to the address and fax number (if any) set out opposite that Investor’s name in Schedule 1, with copy to the person(s) if any specified in Schedule 1.
|
6.6
|
A party may notify the other parties of a change to its notice details. That notification will only be effective on:
|
|
6.6.1
|
any effective date specified in the notification; or
|
|
6.6.2
|
if no effective date is specified or the effective date specified is less than five (5) clear Business Days after the date when notice is received, the date falling five (5) clear Business Days after the notification has been received.
|
7.
|
Assignment
|
7.1
|
The Minister may not assign or transfer any of his rights, benefits or obligations under this Agreement without each of the Investor’s prior written consent provided that the Minister may assign and/or transfer any of his rights or benefits under this Agreement to any State Entity without consent.
|
7.2
|
Each Investor may assign the benefit of this Agreement to any Associated Entity and any Associated Entity may assign the benefit of this Agreement to any other Associated Entity but no Investor or Associated Entity may otherwise assign or transfer any of its rights or benefits under this Agreement.
|
8.
|
Waiver
|
9.
|
Entire Agreement
|
10.
|
Counterparts
|
11.
|
Governing Law and Jurisdiction
|
11.1
|
This Agreement, and all non-contractual obligations arising in connection therewith, shall be governed by and construed in accordance with Irish law.
|
11.2
|
The courts of Ireland are to have jurisdiction to settle any disputes which may arise out of or in connection with this Agreement and accordingly any legal action or proceedings arising out of or in connection with this Agreement ("Proceedings") may be brought in such courts. The Issuer irrevocably submits to the jurisdiction of such courts and waives any objection to Proceedings in such courts whether on the ground of venue or on the ground that the Proceedings have been brought in an inconvenient forum. These submissions are made for the benefit of the Minister and shall not limit the right of any of them to take Proceedings in any other court of competent jurisdiction nor shall the taking of Proceedings in one or more jurisdictions preclude the taking of Proceedings in any other jurisdiction (whether concurrently or not).
|
Party
|
Address
|
Fax No.
|
||
Fairfax Financial Holdings Limited
|
95 Wellington Street West
Suite 800
Toronto
Ontario
Canada M5J 2N7
For the attention of:
Paul Rivett
Vice President and Chief Legal Officer
|
+1 416 367 4946
|
||
With a copy to:
|
William Fry
Fitzwilton House.
Wilton Place
Dublin 2
For the attention of:
Owen O’Connell
|
+353 1 639 5333
|
||
Fidelity Contrafund: Fidelity Advisor New Insights Fund
|
82 Devonshire Street, VI3H, Boston
MA 02109
USA
For the attention of:
Andrew Boyd
|
+001 617 392 1605
|
||
Fidelity Contrafund: Fidelity Contrafund
|
82 Devonshire Street, VI3H, Boston
MA 02109
USA
For the attention of:
Andrew Boyd
|
+ 001 617 392 1605
|
||
Variable Insurance Products Fund III: Balanced Portfolio
|
82 Devonshire Street, VI3H, Boston
MA 02109
USA
For the attention of:
Andrew Boyd
|
+ 001 617 392 1605
|
Party
|
Address
|
Fax No.
|
||
Fidelity Advisor Series I: Fidelity Advisor Dividend Growth Fund
|
82 Devonshire Street, VI3H, Boston
MA 02109
USA
For the attention of:
Andrew Boyd
|
+001 617 392 1605
|
||
Fidelity Securities Fund: Fidelity Dividend Growth Fund
|
82 Devonshire Street, VI3H, Boston
MA 02109
USA
For the attention of:
Andrew Boyd
|
+ 001 617 392 1605
|
||
Fidelity Capital Trust: Fidelity Value Fund
|
82 Devonshire Street, VI3H, Boston
MA 02109
USA
For the attention of:
Andrew Boyd
|
+ 001 617 392 1605
|
||
Fidelity Advisor Series I: Fidelity Advisor Value Fund
|
82 Devonshire Street, VI3H, Boston
MA 02109
USA
For the attention of:
Andrew Boyd
|
+ 001 617 392 1605
|
||
Fidelity Puritan Trust: Fidelity Low-Priced Stock Fund
|
82 Devonshire Street, VI3H, Boston
MA 02109
USA
For the attention of:
Andrew Boyd
|
+ 001 617 392 1605
|
||
Kennedy-Wilson Investments, LLC
|
Kennedy-Wilson Investments LLC
c/o Matt Windisch
9701 Wilshire Boulevard, Suite 700
Beverly Hills
CA 90212
USA
|
+ 001 310 887 6459
|
Party
|
Address
|
Fax No.
|
||
With a copy to:
|
William McMorrow
(wmcmorrow@kennedywilson.com) or Mary Ricks
(mricks@kennedywilson.com)
|
|||
WLR/GS Master Co-Investment L.P.
|
WLR Master Co-Investment GP, LLC
c/o WL Ross & Co. LLC
1166 Avenue of the Americas
25th Floor
New York 10036
USA
For the attention of:
James B. Lockhart III
|
+ 001 212 278 9769
+ 001 212 278 9821
|
||
With a copy to:
|
Benjamin Gruder (BenGruder@invesco.com)
|
|||
WLR Recovery Fund IV, L.P.
|
WLR Recovery Associates IV LLC
c c/o WL Ross & Co. LLC
1166 Avenue of the Americas
25th Floor
New York 10036
USA
For the attention of:
James B. Lockhart III
|
+ 001 212 278 9769
+ 001 212 278 9821
|
||
With a copy to:
|
Benjamin Gruder (BenGruder@invesco.com)
|
|||
WLR Recovery Fund V, L.P.
|
WLR Recovery Associates V LLC
c/o WL Ross & Co. LLC
1166 Avenue of the Americas
25th Floor
New York 10036
USA
For the attention of:
James B. Lockhart III
|
+001 212 278 9769
+ 001 212 278 9821
|
Party
|
Address
|
Fax No.
|
||
With a copy to:
|
Benjamin Gruder (BenGruder@invesco.com)
|
|||
WLR IV Parallel Esc, L.P.
|
WLR Recovery Associates IV LLC
c/o WL Ross & Co. LLC
1166 Avenue of the Americas
25th Floor
New York 10036
USA
For the attention of:
James B. Lockhart III
|
+ 001 212 278 9769
+ 001 212 278 9821
|
||
With a copy to:
|
Benjamin Gruder (BenGruder@invesco.com)
|
|||
Capital Research and Management Company
|
333 South Hope St
Los Angeles
CA 90071
SA
For the attention of:
Michael Downer
|
+ 001 213 486 9041
|
1.
|
Form, Denomination and Title
|
2.
|
Status and Subordination of the CCNs
|
|
(a)
|
Status
|
|
(b)
|
Subordination
|
3.
|
Interest
|
|
(a)
|
Interest Payment Dates
|
|
(b)
|
Interest Accrual
|
|
(i)
|
the date upon which all amounts due in respect of such CCN has been paid;
|
|
(ii)
|
five days after the date on which the full amount of the moneys in respect of such CCN has been received by the Fiscal Agent and notice to that effect has been given to the Holders; and
|
|
(iii)
|
in the case of a Conversion (as defined below), the Conversion Date.
|
|
(c)
|
Fixed Rate of Interest
|
|
(d)
|
Calculations
|
|
(e)
|
Notifications to be Final
|
|
(f)
|
No Deferral
|
|
(g)
|
Remarketing Option
|
|
(i)
|
For as long as the Initial Holder is Holder of 100 per cent. of the CCNs, the Initial Holder may, at any time, increase the Rate of Interest on the CCNs (such increased rate, the “New Interest Rate”) as determined by an independent investment bank appointed by the Initial Holder (the “Remarketing Agent”) but with effect only from the date that the CCNs are sold by the Initial Holder to any other person other than any State Entity (a “Third Party Sale”).
|
|
(ii)
|
For the purposes of this Condition 3(g), the New Interest Rate will not exceed 18.00 per cent. per annum.
|
|
(iii)
|
The Initial Holder will provide at least 15 Business Days notice in writing to the Issuer of any proposed Third Party Sale or such longer period as may be approved in writing by the Initial Holder. During such period, the Issuer may solicit other third party investors, at a potentially lower interest rate than the rate described in Condition 3(g)(ii), to whom the entire principal amount of the CCNs may be sold at an equivalent or higher price than the Initial Holder would receive for any proposed Third Party Sale.
|
|
(iv)
|
Notwithstanding any other provision of these Conditions or the Agency Deed to the contrary, the Initial Holder shall have absolute discretion as to whether to sell the CCNs, to whom it may sell the CCNs and the terms of any such sale.
|
|
(v)
|
The Issuer shall, if required by the Initial Holder: (a) disclose to the Initial Holder the identity of any third party investors solicited or to be solicited by the Issuer pursuant to Condition 3(g)(iii) and (b) provide and/or disclose all such information necessary, as determined by the Initial Holder in its absolute discretion, to facilitate the effecting of a Third Party Sale.
|
|
(h)
|
Maintenance of Agents
|
4.
|
Conversion
|
|
(a)
|
Conversion upon a Conversion Event
|
|
(i)
|
If a Conversion Event shall occur at any time while the CCNs are outstanding, each CCN shall, subject to and as provided in this Condition 4, be immediately and mandatorily redeemed as of the Conversion Date and settled (such redemption and settlement being the “Conversion” and the term “converted” shall be construed accordingly) by the allotment, issue and delivery by the Issuer of fully paid Ordinary Stock to the Holders on the date specified in the Conversion Notice (as defined below), which date shall be no later than 20 Business Days following the Conversion Date (the “Conversion Settlement Date”). Subject to Condition 4(c), receipt by the Holders of the Ordinary Stock and Accrued Conversion Interest (if any) shall be a good and complete discharge of the Issuer’s obligations in respect of the CCNs.
|
|
(ii)
|
As soon as reasonably practicable following the occurrence of the Conversion Event, the Issuer shall give notice thereof to Holders (the “Conversion Notice”) in accordance with Condition 13. The Conversion Notice shall specify the circumstances giving rise to the Conversion Event, the Conversion Price and the Conversion Settlement Date.
|
|
(iii)
|
If a Conversion Event occurs, the CCNs will be converted in whole and not in part as provided in accordance with this Condition 4(a). CCNs so converted shall be automatically cancelled by the Issuer and may not be held, reissued or resold.
|
|
(iv)
|
Except on the occurrence of a Conversion Event, the CCNs are not convertible into Ordinary Stock at the option of Holders at any time and are not redeemable in cash as a result of a Conversion Event.
|
|
(v)
|
No Conversion Notice shall be given and no Conversion shall occur following a Capital Deficiency Event if, notwithstanding the Capital Ratio being below the Trigger Ratio, the Competent Authority, at the request of the Issuer, has agreed, in its absolute discretion, that a Conversion shall not occur because it is satisfied that actions, circumstances or events have had, or imminently will have during the next 90 days following such Capital Deficiency Event, the effect of restoring the Capital Ratio to a level above the Trigger Ratio that the Competent Authority deems to be adequate at such time.
|
|
(vi)
|
Notwithstanding Condition 4(a)(v), a Conversion Event will immediately occur if the Competent Authority determines, in its absolute discretion, that at any time after agreeing under Condition 4(a)(v) that no Conversion Event shall occur, the Issuer will not be able to restore the Capital Ratio to a level above the Trigger Ratio that the Competent Authority deems to be adequate at such time.
|
|
(b)
|
Accrued Conversion Interest
|
|
(i)
|
Upon Conversion, Accrued Conversion Interest shall become due and payable on the Conversion Date and the Issuer shall pay to the Holders the Accrued Conversion Interest (if any) in respect of the CCNs on the Conversion Settlement Date.
|
|
(ii)
|
Payment of any Accrued Conversion Interest will be made in cash by transfer to an account with a bank in a city in which banks have access to the TARGET System, as specified by the relevant Holder.
|
|
(c)
|
Conversion Price
|
|
(i)
|
Upon Conversion, each Holder shall be deemed to have accepted the conversion of its holding of CCNs into Ordinary Stock at the Conversion Price and that the Issuer shall effect such conversion on behalf of such Holder. Such Ordinary Stock will be deemed to be credited as fully paid up and allotted, issued and delivered as of the Conversion Date, whereupon each Holder shall cease as a matter of Irish law to be treated for all purposes under Irish law as a Holder and shall instead as of such date be treated for all purposes under Irish law as a Stockholder.
|
|
(ii)
|
The Issuer shall, not later than the Conversion Settlement Date, allot and issue or deliver such number of units of Ordinary Stock to the Holders in respect of each CCN as is determined by dividing the principal amount of such CCN by the Conversion Price in effect on the Conversion Date.
|
|
(iii)
|
The Conversion Price shall be subject to adjustment in the circumstances provided in Condition 4(e) for the adjustment of the Floor Price (with such modifications and amendments as an Independent Financial Adviser acting in good faith shall determine to be appropriate) and the Issuer shall give notice to Holders of the New Floor Price and of any such modifications and amendments thereafter.
|
|
(d)
|
Conversion on a Takeover Event
|
|
(i)
|
If a Qualifying Takeover Event shall occur then the CCNs shall, where the Conversion Date falls on or after the Takeover Event Date, be convertible into Approved Entity Shares upon the occurrence of a Conversion Event, mutatis mutandis as provided in accordance with this Condition 4, at a Conversion Price that shall be the New Conversion Price.
|
|
(ii)
|
The New Conversion Price shall be subject to adjustment in the circumstances provided in Condition 4(e) for the adjustment of the Floor Price (if necessary with such modifications and amendments as an Independent Financial Adviser acting in good faith shall determine to be appropriate) and the Issuer shall give notice to Holders of the New Conversion Price and of any such modifications and amendments thereafter.
|
|
(iii)
|
If a Non-Qualifying Takeover Event shall occur then, with effect from the occurrence of such Takeover Event and unless a Conversion Event shall have occurred prior to such date, any outstanding CCNs shall remain the obligation of the Issuer and shall, upon the occurrence of a Conversion Event, be convertible into Ordinary Stock in accordance with this Condition 4 but shall
|
|
(iv)
|
In the case of a Qualifying Takeover Event:
|
|
(1)
|
the Issuer shall, on or prior to the Takeover Event Date, enter into such agreements and arrangements, (which may include deeds supplemental to these Conditions and amendments and modifications to these Conditions) as may be required to ensure that, with effect from the Takeover Event Date, the CCNs will be convertible into Approved Entity Shares of the Approved Entity, mutatis mutandis in accordance with, and subject to, this Condition 4 (as may be so supplemented, amended or modified) at a price equal to the New Conversion Price and that subject to such Conversion the CCNs shall remain the obligations of the Issuer; and
|
|
(2)
|
the Issuer shall, where the Conversion Date falls on or after the Takeover Event Date, procure the allotment and issue and/or delivery of the relevant number of Approved Entity Shares in the manner provided in this Condition 4, as may be amended or modified as provided above.
|
|
(v)
|
Within 10 Business Days following the occurrence of a Takeover Event, the Issuer shall give notice thereof in accordance with Condition 13 to the Holders (a “Takeover Event Notice”), which shall specify.
|
|
(2)
|
whether the Takeover Event is a Qualifying Takeover Event or a Non-Qualifying Takeover Event;
|
|
(3)
|
in the case of a Qualifying Takeover Event, if determined at such time, the New Conversion Price; and
|
|
(4)
|
in the case of a Qualifying Takeover Event, the Takeover Event Date.
|
|
(e)
|
Adjustments to the Floor Price
|
|
(i)
|
Increase of share capital by means of capitalisation of reserves, profits or premia by distribution of Ordinary Stock, or division or consolidation of Ordinary Stock
|
|
Nold
|
is the number of units of Ordinary Stock existing before the change in share capital; and
|
|
Nnew
|
is the number of units of Ordinary Stock existing after the change in share capital;
|
|
(ii)
|
Issues of Ordinary Stock or Other Securities to Stockholders by way of conferring subscription or purchase rights
|
|
Pcum
|
is the VWAP of one unit of Ordinary Stock on whichever is the later of (x) the last dealing day immediately preceding the first date on which the Ordinary Stock is first traded ex-the relevant Purchase Rights on the Primary Stock Exchange or (y) the dealing day when the price for the relevant Purchase Rights is announced, or if the day the subscription or purchase price is announced is not a dealing day, the next following dealing day; and
|
|
R
|
is the value of the relevant Purchase Rights relating to one unit of Ordinary Stock or Other Security, such value to be calculated as follows:
|
|
Nold
|
is the number of units of Ordinary Stock existing before the change in share capital; and
|
|
Nnew
|
is the number of units of Ordinary Stock being newly issued; and
|
|
Prights
|
is the price at which one new unit of Ordinary Stock can be subscribed, exercised or purchased for; and
|
|
Div
|
is the amount (in euro) by which the dividend entitlement per unit of Ordinary Stock exceeds the dividend entitlement per new unit of Ordinary Stock, (x) if dividends have already been proposed to the general meeting of shareholders but not yet paid, based on the proposed dividend amount, or (y) if dividends have not yet been proposed based on the last paid dividend;
|
|
(2)
|
if the Purchase Rights relate to Other Securities or to securities convertible or exchangeable into Ordinary Stock or Other Securities and where such Purchase Rights, or Other Securities are traded on a regulated stock exchange in the European Union, the United States of America, Canada or Japan:
|
|
Nrights
|
is the number of Purchase Rights granted per unit of Ordinary Stock; and
|
|
Prights
|
is the average of the last paid prices on the Primary Stock Exchange (in euro) (or, if no dealing is recorded, the arithmetic mean of the bid and offered prices) on a spot basis of one Purchase Right on each dealing day during the period the Purchase Rights are traded or, if such period is longer than ten dealing days, the arithmetic average of the last paid prices (or, if no dealing is recorded, the arithmetic mean of the bid and offered prices) on a spot basis on the first ten such dealing days; or
|
|
(3)
|
in all other cases where neither of the previous paragraphs (1) or (2) is applicable:
|
|
(i)
|
where the provisions of Condition 4(e)(ii)(1) apply, on the date on which the Ordinary Stock are traded ex-Purchase Rights on the Primary Stock Exchange or, if the subscription or exercise price is announced only at a later time, one dealing day after the announcement of the price of the Purchase Right;
|
|
(ii)
|
where the provisions of Condition 4(e)(ii)(2) apply, five dealing days after (x) the end of the subscription or purchase period or (y) the tenth day of the subscription or purchase period, whichever is the sooner; and
|
|
(iii)
|
where the provisions of Condition 4(e)(ii)(3) apply, on the date determined by an Independent Financial Adviser.
|
|
(iii)
|
Capital Distributions
|
|
Pcum
|
is the VWAP of one unit of Ordinary Stock on whichever is the later of (x) the last dealing day immediately preceding the Effective Date or (y) the dealing day when the relevant Dividend is announced (or, if the day on which the amount of the relevant Dividend is announced is not a dealing day, the next following dealing day); and
|
|
D
|
is the portion of the Fair Market Value of the aggregate Capital Distribution attributable to one unit of Ordinary Stock, with such portion being determined by dividing the Fair Market Value of the aggregate Capital Distribution on the Effective Date by the number of units of Ordinary Stock entitled to receive the relevant Dividend (or, in the case of a purchase, redemption or buy back of Ordinary Stock (or any depositary or other receipts or certificates representing Ordinary Stock) by or on behalf of the Issuer or any Subsidiary of the Issuer, by the number of units of Ordinary Stock in issue immediately following such purchase, redemption or buy back, and treating as not being in issue any Ordinary Stock (or any Ordinary Stock represented by depositary or other receipts or certificates) so purchased, redeemed or bought back).
|
|
(iv)
|
Non-Cash Dividends
|
|
(1)
|
where the Non-Cash Dividend in question (x) consists of securities that are traded on a regulated stock exchange in the European Union, the United States of America, Canada or Japan or (y) has otherwise a value which is determinable by reference to a stock exchange quotation or otherwise, by multiplying the Floor Price in force immediately prior to such Non-Cash Dividend by the result of the following formula:
|
|
Pcum
|
is the VWAP of one unit of Ordinary Stock on whichever is the later of (x) the last dealing day preceding the date on which the Ordinary Stock is first traded ex-the relevant Non-Cash Dividend on the Primary Stock Exchange or (y) the dealing day when the amount of the relevant Non-Cash Dividend is announced (or, if the day on which the amount of the relevant Non-Cash Dividend is announced is not a dealing day, the next following dealing day); and
|
|
D
|
is the portion of the Fair Market Value of the relevant Non-Cash Dividend (in euro) on the dealing day immediately following the date in respect of which Pcum (as defined above) has been determined; and
|
|
(2)
|
in all other cases, by multiplying the Floor Price in force immediately prior to such issue or distribution by the result of the following formula:
|
|
Pafter
|
is the arithmetic average of the VWAP of a unit of Ordinary Stock on the first five consecutive dealing days starting on the dealing day immediately following the first dealing day on which the Ordinary Stock are traded ex-the relevant Non-Cash Dividend (the “Distribution Date”); and
|
|
Pbefore
|
is arithmetic average of the VWAP of a unit of Ordinary Stock on the five consecutive dealing days ending on the dealing day immediately preceding the Distribution Date,
|
|
(i)
|
where the provisions of Condition 4(e)(iv)(1) apply, on the date on which the relevant Non-Cash Dividend is made; and
|
|
(ii)
|
where the provisions of Condition 4(e)(iv)(2) apply, five dealing days after the Distribution Date.
|
|
(v)
|
Other Events
|
|
(1)
|
where the events or circumstances giving rise to any adjustment pursuant to this Condition 4(e) have already resulted or will result in an adjustment to the Floor Price or where the events or circumstances giving rise to any adjustment arise by virtue of any other events or circumstances which have already given or will give rise to an adjustment to the Floor Price or where more than one event which gives rise to an adjustment to the Floor Price occurs within such a short period of time that, in the opinion of the Issuer, a modification to the operation of the adjustment provisions is required to give the intended result, such modification shall be made to the operation of the adjustment provisions as may be determined in good faith by an Independent Financial Adviser to be in its opinion appropriate to give the intended result;
|
|
(2)
|
such modification shall be made to the operation of the CCNs as may be determined in good faith by an Independent Financial Adviser to be in its opinion appropriate (i) to ensure that an adjustment to the Floor Price or the economic effect thereof shall not be taken into account more than once and (ii) to ensure that the economic effect of a Dividend is not taken into account more than once;
|
|
(3)
|
for the avoidance of doubt, the issue of Ordinary Stock upon a Conversion or upon any conversion or exchange in respect of any Other Securities or the exercise of any other options, warrants or other rights shall not result in an adjustment to the Floor Price; and
|
|
(4)
|
at any time when the Ordinary Stock are not admitted to trading on a Recognised Stock Exchange, the Floor Price shall be adjusted as provided above save that for the purposes thereof the Current Market Price, the VWAP of a unit of Ordinary Stock and the date upon which any adjustment becomes effective shall be determined in good faith by an Independent Financial Adviser in such manner as it considers appropriate to ensure that an adjustment to the Floor Price is made which gives the intended same result as if the Ordinary Stock we so admitted to trading.
|
|
(f)
|
Events not Giving Rise to Adjustments
|
|
(i)
|
as a result of any issue or distribution of new Ordinary Stock or Other Securities if the pre-emptive right in respect thereof has been validly excluded by a non-routine resolution of the general meeting of Stockholders unless a pre-emptive right in respect thereof is granted indirectly to the Stockholders by a third party with the agreement of the Issuer. For the purpose of these Conditions, the annual disapplication of pre-emption rights conferred by way of special resolution proposed at each annual general meeting of the Issuer shall not constitute a non-routine resolution; or
|
|
(ii)
|
as a result of any public issue of bonds convertible into Ordinary Stock or bonds with options to subscribe for Ordinary Stock, such issue being in connection with a conditional increase of the share capital of the Issuer, irrespective of whether in respect of such issue the advance subscription rights to acquire such bonds have been excluded or not, unless advance subscription rights have been granted and are traded on the Primary Stock Exchange; or
|
|
(iii)
|
if, as a result of any Non-Cash Dividend by the Issuer, the Issuer sells any share, right, warrant or other security representing the same (an “Interest”) in any of its subsidiaries to holders of the Ordinary Stock at fair value, and for this purpose:
|
|
(1)
|
where such Interest is listed on, traded on, or dealt in any stock exchange, the fair value of such Interest shall be at least 95 per cent. of the average of the last paid prices therefor on such stock exchange (or, if more than one, the principal such stock exchange) on each of the ten dealing days commencing on the twentieth dealing day before the day on which the Issuer officially announces the terms and conditions for such sale, as determined by an Independent Financial Adviser; and
|
|
(2)
|
where such Interest is not so listed, traded or dealt in, the fair value of such Interest shall be at least 95 per cent. of the Fair Market Value thereof; or
|
|
(iv)
|
if an increase in the Floor Price would result from such adjustment, except in case of an exchange of the Ordinary Stock for Other Securities or a consolidation of Ordinary Stock.
|
|
(g)
|
Decision of an Independent Financial Adviser
|
|
(i)
|
If any doubt shall arise as to whether an adjustment falls to be made to the Floor Price or the Conversion Price or as to the appropriate adjustment to the Floor Price, and following consultation between the Issuer and an Independent Financial Adviser, a written opinion of such Independent Financial Adviser in respect thereof shall be conclusive and binding on the Issuer and the Holders, save in the case of manifest error.
|
|
(ii)
|
If the Independent Financial Adviser does not at any time for any reason make any determination or calculate any adjustment in the circumstances provided for in this Condition 4 then the Holders shall, at the expense of the Issuer, be entitled to appoint an agent to do so, and such determination or calculation shall be deemed to have been made by the Independent Financial Adviser. In doing so, the Holders’ agent shall apply the foregoing provisions of Condition 4, with any necessary consequential amendments, to the extent that, in its opinion, it can do so, and in all other respects it shall do so in such manner as it shall deem fair and reasonable in all the circumstances.
|
|
(h)
|
Share Option Schemes
|
|
(i)
|
Rounding Down
|
|
(j)
|
No other Conversion Events
|
|
(k)
|
Procedure for Settlement and Delivery of Ordinary Stock on Conversion
|
|
(l)
|
Fractions
|
|
(m)
|
Delivery of Ordinary Stock
|
|
(i)
|
The Issuer shall, on or prior to the Conversion Settlement Date, allot and issue or deliver to the Holders such number of units of Ordinary Stock as is required to satisfy in full the Issuer’s obligation to deliver Ordinary Stock in respect of the Conversion of the aggregate amount of CCNs as at the Conversion Date. Receipt by the Holders of such Ordinary Stock and Accrued Conversion Interest (if any) shall be a good and complete discharge of the Issuer’s obligations in respect of the CCNs.
|
|
(ii)
|
In order to obtain delivery of the relevant Ordinary Stock upon a Conversion, the relevant Holder must deliver the relevant Certificates representing the CCNs held by it to the specified office of the Registrar prior to the Conversion Settlement Date.
|
|
(iii)
|
The Issuer shall procure that Ordinary Stock to be created, issued and delivered following a Conversion Event will be delivered to the Holders in uncertificated form through CREST, unless at the relevant time the Ordinary Stock are not a participating security in CREST or the relevant holder elects to receive the Ordinary Stock in certificated registered form. Where the Ordinary Stock are to be delivered through CREST, they will be delivered to an account specified by the relevant Holder prior to the Conversion Settlement Date. Where the Ordinary Stock are to be delivered in certificated form, a certificate in respect thereof will be dispatched by mail free of charge (but uninsured and at the risk of the recipient) to the relevant Holder or prior to the Conversion Settlement Date.
|
|
(n)
|
Taxes and Duties
|
|
(i)
|
A Holder must pay any taxes and capital, stamp, issue and registration and transfer taxes or duties arising on Conversion (other than any taxes and capital, stamp, issue and registration and transfer taxes or other duties payable in Ireland in respect of the issue and delivery of the Ordinary Stock delivered pursuant to these Conditions which shall be paid by the Issuer) and such Holder must pay all, if any, taxes arising by reference to any disposal or deemed disposal of a CCN or interest therein.
|
|
(ii)
|
If the Issuer shall fail to pay any taxes or capital, stamp, issue, registration and transfer taxes or other duties payable in Ireland for which it is responsible as provided in Condition 4(n)(i) above, any Holder shall be entitled (but shall not be obliged) to tender and pay the same and the Issuer, as a separate and independent stipulation, covenants to reimburse and indemnify on an after tax basis such Holder in respect of any payment thereof and any penalties payable in respect thereof.
|
|
(o)
|
Ordinary Stock
|
5.
|
Covenants
|
|
(a)
|
not make any issue, grant, reorganisation, capitalisation or distribution or take or omit to take any other action if the effect thereof would be (or is reasonably foreseeable to be) that a unit of Ordinary Stock cannot be legally issued as fully paid and free from any Encumbrance on the Conversion of each CCN;
|
|
(b)
|
(other than in connection with a Reorganisation or a Liability Management Exercise) not issue or pay up any Ordinary Stock or Other Securities, in either case by way of capitalisation of profits or reserves, other than:
|
|
(i)
|
by the issue of fully paid Ordinary Stock or Other Securities to Stockholders and other holders of shares in the capital of the Issuer which, by their terms, entitle the holders thereof to receive Ordinary Stock or Other Securities on a capitalisation of profits or reserves; or
|
|
(ii)
|
by the issue of Ordinary Stock paid up in full (in accordance with applicable law) and issued wholly, ignoring fractional entitlements, in lieu of the whole or part of a Dividend in cash (excluding, for the avoidance of doubt, the issue of Ordinary Stock in respect of hybrid capital instruments where there is an alternative coupon settlement mechanism); or
|
|
(iii)
|
by the issue of fully paid Other Securities to the holders of Ordinary Stock or Other Securities which, by their terms, entitle the holders thereof to receive Other Securities (excluding, for the avoidance of doubt, the issue of Ordinary Stock in respect of hybrid capital instruments where there is an alternative coupon settlement mechanism); or
|
|
(iv)
|
by the issue of Ordinary Stock or Other Securities to, or for the benefit of, any employee or former employee, director or executive holding or formerly holding executive office of Issuer or any of its Subsidiaries or any associated company or to trustees or nominees to be held for the benefit of any such person, in any such case pursuant to an employee, director or executive share or option scheme whether for all employees, directors, or executives or any one or more of them,
|
|
(c)
|
not modify the rights attaching to the Ordinary Stock with respect to voting, dividends or liquidation but so that nothing in this Condition 5(b) shall prevent:
|
|
(i)
|
any consolidation, reclassification or subdivision of the Ordinary Stock; or
|
|
(ii)
|
any modification of such rights which is not materially prejudicial to the interests of the Holders as determined in good faith by an Independent Financial Adviser;
|
|
(d)
|
procure that no Ordinary Stock or Other Securities issued without rights to convert into, or exchange or subscribe for, Ordinary Stock shall subsequently be granted such rights and that at no time shall there be in issue Ordinary Stock of differing nominal values unless the same gives rise (or would, but for the provisions of Condition 4(i) relating to roundings and minimum adjustments or the carry forward of adjustments, give rise) to an adjustment to the Floor Price and that at no time shall there be in issue Ordinary Stock or Other Securities of differing nominal values, save where such Ordinary Stock or Other Securities have the same economic rights;
|
|
(e)
|
not reduce its issued ordinary share capital, share premium account, capital redemption reserve, or any uncalled liability in respect thereof, or any non-distributable reserves, except where the reduction is permitted by applicable law and results in (or would, but for the provisions of Condition 4(i) relating to roundings or the carry forward of adjustments, result in) an adjustment to the Floor Price or is otherwise taken into account for the purposes of determining whether or not such an adjustment should be made, provided that, for the avoidance of doubt, this Condition 5(e) shall not operate to restrict the Issuer from reducing its preference share capital and share premium amounts in respect of its preference share capital;
|
|
(f)
|
issue, allot and/or deliver Ordinary Stock upon Conversion subject to and as provided in Condition 4;
|
|
(g)
|
use all reasonable endeavours to ensure that any Ordinary Stock issued upon a Conversion Event will, as soon as is practicable, be admitted to the Official List of the Irish Stock Exchange and trading on its regulated market or will be listed, quoted or dealt in, as soon as is practicable, on any other stock exchange or securities market on which the Ordinary Stock are then listed or quoted or dealt in;
|
|
(h)
|
use all reasonable endeavours to ensure that its issued and outstanding Ordinary Stock continue to be admitted to the Official List of the Irish Stock Exchange and trading on its regulated market, or listed, admitted to trading, quoted or dealt in on such other principal stock exchange or securities market on which the Ordinary Stock are currently listed, admitted to trading or quoted or dealt in;
|
|
(i)
|
in the event of a Reorganisation, take (or shall procure that there is taken) all necessary action to ensure that, immediately after completion of the relevant proceedings, such amendments are made to these Conditions as are necessary to ensure that the CCNs may be converted into or exchanged for ordinary shares or stock or units or the equivalent in Newco mutatis mutandis in accordance with and subject to these Conditions and the ordinary shares or stock or units or the equivalent of Newco are listed and admitted to trading on a Recognised Stock Exchange;
|
|
(j)
|
if an offer is made to all (or a majority) of the holders of the Ordinary Stock other than the offeror and/or any associates of the offeror to acquire all or a majority of the issued ordinary share capital of the Issuer, or if a scheme (other than a Reorganisation) or merger is proposed with regard to such acquisition or merger with the undertaking of the Issuer, give notice in writing of such offer or scheme or merger to the Holders, in their capacity as the Holders, as soon as practicable upon becoming aware of such offer;
|
|
(k)
|
give notice in writing to the Holders, in their capacity as the Holders, if an offer is made to all (or a majority) of the holders of the Ordinary Stock other than the offeror and/or any associate of the offeror to acquire all or a majority of the issued ordinary share capital of the Issuer or if any person proposes a scheme or merger with regard to such acquisition or merger with the undertaking of the Issuer and such offer or scheme or merger having become or been declared unconditional in all respects, the right to cast more than 50 per cent. of the votes which may ordinarily be cast on a poll at a general meeting of the Issuer has or will become unconditionally vested in the offeror and/or an associate. Such notice shall specify all information relevant to Holders concerning such offer or scheme or merger;
|
|
(l)
|
notwithstanding that no voting rights shall attach to the CCNs in respect of the Ordinary Stock, provide to the Holders, in their capacity as Holders, notice of every general meeting of the Stockholders of the Issuer and a copy of every circular or like document sent out by the Issuer to the Stockholders;
|
|
(m)
|
for so long as the CCNs are listed and freely transferable, from time to time on request and at its own expense, do and execute or procure to be done and executed all necessary acts, deeds, documents and things in a form satisfactory to a Holder that such Holder reasonably considers necessary to effect and/or facilitate the transfer of any of the CCNs and their registration in the name of the transferee in the Register;
|
|
(n)
|
where the provisions of Condition 4 require or provide for a determination by an Independent Financial Adviser, use all reasonable endeavours promptly to appoint such person for such purpose;
|
|
(o)
|
at all times keep available for issue, free from pre-emptive or other preferential rights, a sufficient number of units of Ordinary Stock to enable the conversion of the CCNs, and any other rights of subscription and exchange for Ordinary Stock arising pursuant to the CCNs, to be satisfied in full;
|
|
(p)
|
not take any action, and procure that no action is taken, that would result in an adjustment to the Floor Price to below the prevailing nominal value of the Ordinary Stock at the effective date of such adjustment;
|
|
(q)
|
provide to the Competent Authority the Core Tier 1 Ratio and CET1 Ratio, as applicable, on an ad hoc or ongoing basis as requested by the Competent Authority and the Issuer will publish the Core Tier 1 Ratio and CET1 Ratio, as applicable, in respect of any Semi-Annual Reporting Period or as otherwise required to be publically disclosed by the Issuer;
|
|
(r)
|
obtain prior written approval from the Competent Authority for any distributions proposed by the Issuer in respect of any profit generated or other fair value movements as a consequence of the accounting treatment of the CCNs in the Issuer’s shareholder funds;
|
|
(s)
|
maintain a listing of the CCNs on the Irish Stock Exchange, or failing that, any other Recognised Stock Exchange; and
|
|
(t)
|
immediately give notice in writing to the Holders of the occurrence of any Conversion Event or Takeover Event or any Event of Default or any matter it concludes is likely to give rise to a Conversion Event or Takeover Event or Event of Default immediately upon becoming aware thereof and without waiting for the Holders to take any further action.
|
6.
|
Redemption and Cancellation
|
|
(a)
|
Redemption at Maturity
|
|
(b)
|
No other redemption, purchase, or buy back
|
|
(c)
|
Cancellation
|
7.
|
Payments
|
|
(a)
|
Payments in respect of CCNs
|
|
(i)
|
Payments of principal to be made to Holders in respect of CCNs and payments of accrued interest payable on a redemption of CCNs (other than on an Interest Payment Date) and payment of any Accrued Conversion Interest that is to be paid in accordance with this Condition 7 shall, in each case, be made against presentation and surrender of the relevant Certificates at the specified office of any of the CCN Agents or of the Registrar.
|
|
(ii)
|
Payments of interest to be made to Holders in respect of CCNs due on an Interest Payment Date shall be paid to the person shown on the Register at the close of business on the fifteenth day before the Relevant Date for payment thereof (the “Record Date”).
|
|
(iii)
|
Payments of any other amounts in respect of CCNs other than as referred to in (i) and (ii) will be made as provided in these Conditions.
|
|
(b)
|
Payments subject to Fiscal Laws
|
|
(c)
|
Method of Payment
|
|
(d)
|
Non-Business Days
|
8.
|
Taxation
|
|
(a)
|
to, or to a third party on behalf of, a Holder if such withholding or deduction may be avoided by complying with any statutory requirement or by making a declaration of non-residence or other similar claim for exemption to any authority of or in Ireland, unless such Holder proves that he is not entitled so to comply or to make such declaration or claim; or
|
|
(b)
|
to, or to a third party on behalf of, a Holder that is a partnership, or a holder that is not the sole beneficial owner of the CCN, or which holds the CCN in a fiduciary capacity, to the extent that any of the members of the partnership, the beneficial owner or the settlor or beneficiary with respect to the fiduciary would not have been entitled to the payment of an additional amount had each of the members of the partnership, the beneficial owner, settlor or beneficiary (as the case may be) received directly his beneficial or distributive share of the payment; or
|
|
(c)
|
(where presentation and surrender is required pursuant to these Conditions) presented for payment more than 30 days after the Relevant Date except to the extent that the Holder thereof would have been entitled to such Additional Amounts on presenting the same for payment at the expiry of such period of 30 days; or
|
|
(d)
|
where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to European Council Directive 2003/48/EC on the taxation of savings income or any law implementing or complying with, or introduced in order to conform to, such Directive; or
|
|
(e)
|
(where presentation and surrender is required pursuant to these Conditions) in respect of any CCN presented for payment by or on behalf of a Holder who would have been able to avoid such withholding or deduction by presenting the relevant CCN to another Fiscal Agent in a member state of the European Union; or
|
|
(f)
|
where such withholding or deduction arises by reason of the Holder having some connection with Ireland other than the mere holding or ownership of the CCNs.
|
9.
|
Variation following Tax Event
|
|
(a)
|
Tax Event
|
|
(b)
|
Conditions to Variation
|
10.
|
Replacement of Certificates
|
11.
|
Further Issues
|
12.
|
Event of Default
|
13.
|
Notices
|
14.
|
Meetings of Holders, Modification and Consent
|
|
(a)
|
Meetings of Holders
|
|
(b)
|
Modification
|
|
(c)
|
Consent
|
15.
|
Transfers of CCNs
|
|
(a)
|
Transfer of CCNs
|
|
(b)
|
Delivery of New Certificates
|
|
(c)
|
Transfers Free of Charge
|
16.
|
Definitions and Interpretation
|
|
16.1
|
The following capitalised terms shall have the following meanings:
|
|
(i)
|
any Dividend which is expressed by the Issuer or declared by the board of directors of the Issuer to be a capital distribution, extraordinary dividend, extraordinary distribution, special dividend or return of value to Stockholders or any analogous or similar term, in which case the Capital Distribution for the purpose of these Conditions shall be the Fair Market Value of such Dividend; or
|
|
(ii)
|
any Cash Dividend (the “Relevant Dividend”) paid or made in respect of a fiscal year of the Issuer (the “Relevant Fiscal Year”) if the sum of:
|
|
(a)
|
the Fair Market Value of the Relevant Dividend per unit of Ordinary Stock; and
|
|
(b)
|
the aggregate of the Fair Market Value per unit of Ordinary Stock of any other Cash Dividend or Cash Dividends per unit of Ordinary Stock paid or made in respect of the Relevant Fiscal Year (disregarding for such purposes any amount previously determined to be a Capital Distribution in respect of the Relevant Fiscal Year),
|
|
(a)
|
the VWAP of a unit of Ordinary Stock of the Issuer over the 30 Business Days prior to the date of the relevant Conversion Event, and
|
|
(b)
|
the Floor Price of unit of Ordinary Stock on the date of the relevant Conversion Event (being, at the Issue Date, €[ l ]),
|
|
(i)
|
where a Dividend in cash is announced which is to be, or may at the election of a Stockholder or Stockholders be, satisfied by the issue or delivery of Ordinary Stock or other property or assets, then the Dividend in question shall be treated as a Cash Dividend of an amount equal to the greater of (i) the Fair Market Value of such cash amount and (ii) the Current Market Price of such Ordinary Stock as at the first date on which the Ordinary Stock are traded ex-the relevant Dividend on the Primary Stock Exchange or, as the case may be, the Fair Market Value of such other property or assets as at the date of the first public announcement of such Dividend on the Primary Stock Exchange or, if later, the date on which the number of units of Ordinary Stock (or amount of such other property or assets, as the case may be) which may be issued or delivered is determined;
|
|
(ii)
|
any issue of Ordinary Stock falling within Condition 4(e)(i) or Condition 4(e)(ii) shall be disregarded;
|
|
(iii)
|
a purchase or redemption or buy back of share capital of the Issuer by or on behalf of the Issuer or any of its Subsidiaries shall not constitute a Dividend unless, in the case of a purchase or redemption or buy back of Ordinary Stock by or on behalf of the Issuer or any of its Subsidiaries, the VWAP per unit of Ordinary Stock (before expenses) on any one day (a “Specified Share Day”) in respect of such purchases or redemptions or buy backs exceeds by more than 5 per cent. the average of the daily VWAP of a unit of Ordinary Stock on the five dealing days immediately preceding the Specified Share Day or, where an announcement (excluding, for the avoidance of doubt for these
|
|
(iv)
|
if the Issuer or any of its Subsidiaries shall purchase, redeem or buy back any depositary or other receipts or certificates representing Ordinary Stock, the provisions of paragraph (iii) above shall be applied in respect thereof in such manner and with such modifications (if any) as shall be determined in good faith by an Independent Financial Adviser; and
|
|
(v)
|
where a dividend or distribution is paid or made to Stockholders pursuant to any plan implemented by the Issuer for the purpose of enabling Stockholders to elect, or which may require Stockholders, to receive dividends or distributions in respect of the Ordinary Stock held by them from a person other than, or in addition to, the Issuer, such dividend or distribution shall for the purposes of Condition 4 be treated as a dividend or distribution made or paid to Stockholders by the Issuer, and the foregoing provisions of this definition and the provisions of Condition 4, including references to the Issuer paying or making a dividend, shall be construed accordingly, and any such determination shall be made on a gross basis and disregarding any withholding or deduction required to be made on account of tax, and disregarding any associated tax credit;
|
|
(i)
|
the Fair Market Value of any cash amount shall be the amount of such cash;
|
|
(ii)
|
where Ordinary Stock or Other Securities are publicly traded on a stock exchange or securities market of adequate liquidity (as determined in good faith by an Independent Financial Adviser), the Fair Market Value of such Ordinary Stock or Other Securities shall equal the arithmetic mean of the daily VWAP of such Ordinary Stock or Other Securities (or the arithmetic mean of the daily closing prices should daily VWAP not be available), during the period of five dealing days on the relevant stock exchange or securities market commencing on such date (or, if later, the first such dealing day such Ordinary Stock or Other Securities) or such shorter period as such Ordinary Stock or Other Securities are publicly traded;
|
|
(iii)
|
where Ordinary Stock or Other Securities are not publicly traded on a stock exchange or securities market of adequate liquidity (as aforesaid), the Fair Market Value of such Ordinary Stock or Other Securities shall be determined in good faith by an Independent Financial Adviser, on the basis of a commonly accepted market valuation method and taking account of such factors as it considers appropriate, including the market price per unit of Ordinary Stock, the dividend yield of a unit of Ordinary Stock, the volatility of such market price, prevailing interest rates and the terms of such Ordinary Stock or Other Securities, including as to the expiry date and exercise price (if any) thereof; and
|
|
(iv)
|
the Fair Market Value shall be determined on a gross basis and disregarding any withholding or deduction required to be made on account of tax, and disregarding any associated tax credit;
|
|
(i)
|
the Reference Market Price of the Approved Entity Shares on the Business Day prior to the date of the Conversion Notice (and where references in the definition of “Reference Market Price” and “VWAP” to “Ordinary Stock” shall be construed as a reference to the Approved Entity Shares and in the definition of “dealing day”, reference to the “Primary Stock Exchange” shall be to the relevant Recognised Stock Exchange); and
|
|
(ii)
|
the New Floor Price on the Business Day prior to such Conversion Event.
|
|
(i)
|
the Competent Authority, in its absolute discretion, determining that Conversion of the CCNs, together with the conversion or write off of holders’ claims in respect of any Tier 1 Instruments or Tier 2 Instruments that, pursuant to their terms or by operation of law, are capable of being converted into equity or written off at that time, is, because customary measures to improve the Group’s capital adequacy are at the time inadequate or unfeasible, an essential requirement to prevent the Issuer from becoming insolvent, bankrupt or unable to pay its debts as they fall due, or from ceasing to carry on its business, or from failing to meet its minimum capital adequacy requirements, as determined by the Competent Authority; or
|
|
(ii)
|
by virtue of customary measures to improve the Group’s capital adequacy being at the time inadequate or unfeasible, the Issuer receiving an irrevocable commitment of extraordinary support from any State Entity (beyond customary transactions and arrangements in the ordinary course) that has, or imminently will have, the effect of improving the Group’s capital adequacy and without which, in the determination of the Competent Authority, the Issuer would become insolvent, bankrupt, unable to pay its debts as they fall due, or cease carrying on its business or fail to meet its minimum capital adequacy requirements, as determined by the Competent Authority;
|
|
(i)
|
provided that:
|
|
(A)
|
if at any time during the Reference Period the VWAP shall have been based on a price ex-Dividend (or ex-any other entitlement) and during some other part of that Reference Period the VWAP shall have been based on a price cum-Dividend (or cum- any other entitlement), then:
|
|
(I)
|
if the Ordinary Stock to be issued or delivered (if applicable) do not rank for the Dividend (or entitlement) in question, the VWAP on the date(s) on which the Ordinary Stock shall have been based on a price cum-Dividend (or cum- any other entitlement) shall, for the purposes of this definition, be deemed to be the amount thereof reduced by an amount equal to the fair market value (as determined by an Independent Financial Adviser) of any such Dividend or entitlement per unit of Ordinary Stock as at the date of first public announcement relating to such Dividend or entitlement; or
|
|
(II)
|
if the Ordinary Stock to be issued or delivered (if applicable) do rank for the Dividend (or entitlement) in question, the VWAP on the date(s) on which the Ordinary Stock shall have been based on a price ex-Dividend (or ex-any other entitlement) shall, for the purposes of this definition, be deemed to be the amount thereof increased by an amount equal to the fair market value (as determined by an Independent Financial Adviser) of any such Dividend or entitlement per unit of Ordinary Stock as at the date of first public announcement relating to such Dividend or entitlement,
|
|
(B)
|
if on any of the dealing days in the Reference Period the VWAP shall have been based on a price cum-Dividend (or cum- any other entitlement) in respect of a Dividend (or other entitlement) which has been declared or announced but the Ordinary Stock to be issued or delivered do not rank for that Dividend (or other entitlement), the VWAP on each of such dates shall, for the purposes of this definition, be deemed to be the amount thereof reduced by an amount equal to the fair market value (as determined by an Independent Financial Adviser) of any such Dividend or entitlement per unit of Ordinary Stock as at the date of first public announcement relating to such Dividend or entitlement, and
|
|
(C)
|
if the VWAP of a unit of Ordinary Stock is not available on one or more of the dealing days in the Reference Period (disregarding for this purpose the proviso to the definition of VWAP), then the average of such VWAPs which are available in the Reference Period shall be used (subject to there being a daily VWAP available for a minimum
|
|
(i)
|
only ordinary shares or stock or units or equivalent of Newco (or depositary or other receipts or certificates representing ordinary shares or stock or units or equivalent of Newco) are issued to Existing Stockholders;
|
|
(ii)
|
immediately after completion of such proceedings the only holders of ordinary shares or stock or units or equivalent of Newco (or, as the case may be, the only holders of depositary or other receipts or certificates representing ordinary shares or stock or units or equivalent of Newco) are Existing Stockholders holding in the same proportions as immediately prior to completion of such proceedings;
|
|
(iii)
|
immediately after completion of such proceedings, Newco is (or one or more wholly-owned Subsidiaries of Newco are) the only Stockholder;
|
|
(iv)
|
all Subsidiaries immediately prior to such proceedings (other than Newco, if Newco is then a Subsidiary of the Issuer) are Subsidiaries of the Issuer (or of Newco) immediately after completion of such proceedings; and
|
|
(v)
|
immediately after completion of such proceedings, the Issuer (or Newco) holds, directly or indirectly, the same percentage of the ordinary share capital and equity share capital of those Subsidiaries as was held by the Issuer immediately prior to such proceedings;
|
|
16.2
|
References to any act or statute or any provision of any act or statute shall be deemed also to refer to any statutory modification or re-enactment thereof or any statutory instrument, order or regulation made thereunder or under such statutory modification or re-enactment.
|
|
16.3
|
Unless the context otherwise requires, references to (i) “principal” shall be deemed to include any premium payable in respect of the CCNs and all other amounts in the nature of principal payable pursuant to these Conditions or any amendment or supplement to it, (ii) “interest” shall be deemed to include any Accrued Conversion Interest and in any such case shall be deemed to include any Additional Amounts that may be payable under Condition 8 or any undertaking given in addition to or in substitution for it under the Agency Deed in respect of any such amount.
|
|
16.4
|
References to any issue or offer or grant to Stockholders or Existing Stockholders “as a class” or “by way of rights” shall be taken to be references to an issue or offer or grant to all or substantially all Stockholders or Existing Stockholders, as the case may be, other than Stockholders or Existing Stockholders, as the case may be, to whom, by reason of the laws of any territory or requirements of any recognised regulatory body or any other stock exchange or securities market in any territory or in connection with fractional entitlements, it is determined not to make such issue or offer or grant.
|
|
16.5
|
In making any calculation or determination of Current Market Price or VWAP, such adjustments (if any) shall be made as an Independent Financial Adviser determines in good faith to be appropriate to reflect any consolidation or sub-division of the Ordinary Stock or any issue of Ordinary Stock by way of capitalisation of profits or reserves, or any like or similar event.
|
|
16.6
|
For the purposes of Condition 4, (i) references to the “issue” of Ordinary Stock or Ordinary Stock being “issued” shall, unless otherwise expressly specified to be the case in respect of any of the provisions of Condition 4, include the delivery of Ordinary Stock, whether newly issued and allotted or previously existing or held by or
|
|
16.7
|
References in these Conditions to “listing” or “listed” on the Irish Stock Exchange (or like or similar references) shall be construed as admission to the Official List of the Irish Stock Exchange and trading on its regulated market.
|
17.
|
Governing Law and Jurisdiction
|
|
(a)
|
Governing Law
|
|
(b)
|
Jurisdiction
|
2
|
To be adapted for Approved Entity Shares, if applicable.
|
/s/ John A. Moran
|
|
A person authorised by Section 15(4) of the Ministers and Secretaries Act 1924
|
SIGNED and DELIVERED AS A DEED
on behalf of
FAIRFAX FINANCIAL HOLDINGS LIMITED
by its authorised signatory
in the presence of:
|
/s/ Paul Rivett
|
|
Authorised Signatory (Signature)
|
||
Paul Rivett
|
||
/s/ James Newman
|
Print name
|
|
Witness (Signature)
|
||
James Newman
|
||
Print name
|
||
Fitzwilton House, Wilton Place, Dublin 2
|
||
Print address
|
SIGNED and DELIVERED AS A DEED
on behalf of
FIDELITY CONTRAFUND: FIDELITY ADVISOR NEW INSIGHTS FUND
by its authorised signatory
in the presence of:
|
/s/ Jeffrey Christian
|
|
Authorised Signatory (Signature)
|
||
Jeffrey Christian, Deputy Treasurer
|
||
/s/ Suzanne Joyce
|
Print name
|
|
Witness (Signature)
|
||
Suzanne Joyce
|
||
Print name
|
||
82 Devonshire St., V13F, Boston, MA 02109
|
||
Print address
|
SIGNED and DELIVERED AS A DEED
on behalf of
FIDELITY CONTRAFUND: FIDELITY CONTRAFUND
by its authorised signatory
in the presence of:
|
/s/ Jeffrey Christian
|
|
Authorised Signatory (Signature)
|
||
Jeffrey Christian, Deputy Treasurer
|
||
/s/ Suzanne Joyce
|
Print name
|
|
Witness (Signature)
|
||
Suzanne Joyce
|
||
Print name
|
||
82 Devonshire St., V13F, Boston, MA 02109
|
||
Print address
|
SIGNED and DELIVERED AS A DEED
on behalf of
VARIABLE INSURANCE PRODUCTS FUND III: BALANCED PORTFOLIO
by its authorised signatory
in the presence of:
|
/s/ Jeffrey Christian
|
|
Authorised Signatory (Signature)
|
||
Jeffrey Christian, Deputy Treasurer
|
||
/s/ Suzanne Joyce
|
Print name
|
|
Witness (Signature)
|
||
Suzanne Joyce
|
||
Print name
|
||
82 Devonshire St., V13F, Boston, MA 02109
|
||
Print address
|
SIGNED and DELIVERED AS A DEED
on behalf of
FIDELITY ADVISOR SERIES I: FIDELITY ADVISOR DIVIDEND GROWTH FUND
by its authorised signatory
in the presence of:
|
/s/ Jeffrey Christian
|
|
Authorised Signatory (Signature)
|
||
Jeffrey Christian, Deputy Treasurer
|
||
/s/ Suzanne Joyce
|
Print name
|
|
Witness (Signature)
|
||
Suzanne Joyce
|
||
Print name
|
||
82 Devonshire St., V13F, Boston, MA 02109
|
||
Print address
|
SIGNED and DELIVERED AS A DEED
on behalf of
FIDELITY SECURITIES FUND: FIDELITY DIVIDEND GROWTH FUND
by its authorised signatory
in the presence of:
|
/s/ Jeffrey Christian
|
|
Authorised Signatory (Signature)
|
||
Jeffrey Christian, Deputy Treasurer
|
||
/s/ Suzanne Joyce
|
Print name
|
|
Witness (Signature)
|
||
Suzanne Joyce
|
||
Print name
|
||
82 Devonshire St., V13F, Boston, MA 02109
|
||
Print address
|
SIGNED and DELIVERED AS A DEED
on behalf of
FIDELITY CAPITAL TRUST: FIDELITY VALUE FUND
by its authorised signatory
in the presence of:
|
/s/ Jeffrey Christian
|
|
Authorised Signatory (Signature)
|
||
Jeffrey Christian, Deputy Treasurer
|
||
/s/ Suzanne Joyce
|
Print name
|
|
Witness (Signature)
|
||
Suzanne Joyce
|
||
Print name
|
||
82 Devonshire St., V13F, Boston, MA 02109
|
||
Print address
|
SIGNED and DELIVERED AS A DEED
on behalf of
FIDELITY ADVISOR SERIES I: FIDELITY ADVISOR VALUE FUND
by its authorised signatory
in the presence of:
|
/s/ Jeffrey Christian
|
|
Authorised Signatory (Signature)
|
||
Jeffrey Christian, Deputy Treasurer
|
||
/s/ Suzanne Joyce
|
Print name
|
|
Witness (Signature)
|
||
Suzanne Joyce
|
||
Print name
|
||
82 Devonshire St., V13F, Boston, MA 02109
|
||
Print address
|
SIGNED and DELIVERED AS A DEED
on behalf of
FIDELITY PURITAN TRUST: FIDELITY LOW-PRICED STOCK FUND
by its authorised signatory
in the presence of:
|
/s/ Jeffrey Christian
|
|
Authorised Signatory (Signature)
|
||
Jeffrey Christian, Deputy Treasurer
|
||
/s/ Suzanne Joyce
|
Print name
|
|
Witness (Signature)
|
||
Suzanne Joyce
|
||
Print name
|
||
82 Devonshire St., V13F, Boston, MA 02109
|
||
Print address
|
SIGNED and DELIVERED AS A DEED
on behalf of
KENNEDY-WILSON INVESTMENTS, LLC
by its authorised signatory
in the presence of:
|
/s/ Matthew Windisch
|
|
Authorised Signatory (Signature)
|
||
Matthew Windisch
|
||
/s/ Mark Martin
|
Print name
|
|
Witness (Signature)
|
||
Mark Martin
|
||
Print name
|
||
9701 Wilshire Blvd., Beverly Hills, CA 90212
|
||
Print address
|
in the presence of:
|
/s/ Wilbur L. Ross, Jr.
|
Manager (Signature)
|
|
Wilbur L. Ross, Jr.
|
|
/s/ Stephen J. Naughton
|
|
Witness (Signature)
|
|
Stephen J. Naughton
|
|
1166 Avenue of the Americas, 25th Floor
|
|
New York, New York 10036
|
in the presence of:
|
/s/ Wilbur L. Ross, Jr.
|
Manager (Signature)
|
|
Wilbur L. Ross, Jr.
|
|
/s/ Stephen J. Naughton
|
|
Witness (Signature)
|
|
Stephen J. Naughton
|
|
1166 Avenue of the Americas, 25th Floor
|
|
New York, New York 10036
|
in the presence of:
|
/s/ Wilbur L. Ross, Jr.
|
Manager (Signature)
|
|
Wilbur L. Ross, Jr.
|
|
/s/ Stephen J. Naughton
|
|
Witness (Signature)
|
|
Stephen J. Naughton
|
|
1166 Avenue of the Americas, 25th Floor
|
|
New York, New York 10036
|
in the presence of:
|
/s/ Wilbur L. Ross, Jr.
|
Manager (Signature)
|
|
Wilbur L. Ross, Jr.
|
|
/s/ Stephen J. Naughton
|
|
Witness (Signature)
|
|
Stephen J. Naughton
|
|
1166 Avenue of the Americas, 25th Floor
|
|
New York, New York 10036
|
SIGNED and DELIVERED AS A DEED
on behalf of
CAPITAL RESEARCH AND MANAGEMENT COMPANY
by its authorised signatory
in the presence of:
|
/s/ Michael J. Downer
|
|
Authorised Signatory (Signature)
|
||
Michael J. Downer, SVP and Secretary
|
||
/s/ Walt R. Burkley
|
Print name
|
|
Witness (Signature)
|
||
Walt R. Burkley
|
||
Print name
|
||
c/o 333 S. Hope Street, Los Angeles, CA 90071
|
||
Print address
|
1.
|
INTERPRETATION
|
3
|
2.
|
UNDERTAKINGS
|
6
|
3.
|
ACKNOWLEDGEMENTS
|
7
|
4.
|
REPRESENTATIONS AND WARRANTIES
|
7
|
5.
|
NOTICES
|
9
|
6.
|
ASSIGNMENT
|
10
|
7.
|
WAIVER
|
10
|
8.
|
ENTIRE AGREEMENT
|
10
|
9.
|
COUNTERPARTS
|
10
|
10.
|
GOVERNING LAW AND JURISDICTION
|
11
|
SCHEDULE 1
|
12 | |
SCHEDULE 2
|
16 |
THE GOVERNOR AND COMPANY OF THE
|
|
BANK OF IRELAND
|
|
a chartered corporation registered in Ireland
|
|
with registered no C-1
|
|
whose registered office is at
|
|
40 Mespil Road, Dublin 4, Ireland
|
|
(hereinafter called the "Issuer")
|
|
- and -
|
|
THE PERSONS WHOSE NAMES ARE
|
|
SET OUT IN SCHEDULE 1
|
|
(hereinafter called the “Investors”)
|
A.
|
Under the note purchase agreement dated 8 July 2011 (the “Note Purchase Agreement”), the Issuer and the Minister have recorded certain arrangements agreed between them in relation to the issue of €1,000,000,000 (one billion euro) 10.00 per cent. Contingent Capital Tier 2 Notes due 2016 by the Issuer (the “CCNs”).
|
B.
|
The CCNs shall be issued in registered form by a definitive certificate or certificates pursuant to the Agency Deed.
|
C.
|
Each of the Investors has agreed to acquire units of Ordinary Stock in the capital of the Issuer under the terms of the Stock Purchase Agreement and Conditional Stock Purchase Agreement, as applicable.
|
D.
|
Condition 3(g)(iii) of the Conditions provides (among other things) that in certain circumstances the Issuer can solicit third party investors in respect of the CCNs. The Issuer has agreed with the Investors that prior to soliciting any such third party investors, it will notify each of the Investors of its intention to do so and shall include each of the Investors in the negotiations to agree a potentially lower interest rate than the New Interest Rate and to find a purchaser of the CCNs.
|
E.
|
The Issuer and each of the Investors have entered into this Agreement to set out the arrangements between them in relation to the CCNs.
|
1.
|
Interpretation
|
1.1
|
In this Agreement, unless the context otherwise requires all terms defined in the Conditions shall have the same meanings when used herein. In this Agreement, the following words and expressions shall have the following meanings:
|
|
(a)
|
the principle that equitable remedies are remedies which may be granted or refused at the discretion of the court, the limitation of enforcement by laws relating to bankruptcy, insolvency, court protection, liquidation, reorganisation, court scheme, moratoria, administration and other laws generally affecting the rights of creditors, the time barring of claims, the possibility that an undertaking to assume liability or to indemnify a person against non-payment of stamp duty may be void, defences of set-off or counterclaim and similar principles, rights and defences under the laws of any jurisdiction in which relevant obligations may have to be performed; and
|
|
(b)
|
any principles of the law limiting the obligations of any Investor;
|
1.2
|
In this Agreement, unless the context otherwise requires:
|
|
1.2.1
|
a reference to:
|
|
(a)
|
any party includes its successors in title and permitted assigns;
|
|
(b)
|
a "person" includes any individual, firm, body corporate, association or partnership, government or state or agency of a state, local authority or government body or any joint venture association or partnership (whether or not having a separate legal personality) and that person's personal representatives, successors or permitted assigns;
|
|
(c)
|
a "company" will be construed so as to include any company, corporation or body corporate, wherever and however incorporated or established;
|
|
(d)
|
a Clause, paragraph, or Schedule, unless otherwise specified, is a reference to a Clause, paragraph of or Schedule to this Agreement;
|
|
(e)
|
writing or similar expressions includes, unless otherwise specified, transmission by facsimile but excludes email;
|
|
(f)
|
the singular includes the plural and vice versa and references to one gender includes all genders;
|
|
(g)
|
"day" or a "Business Day" will mean a period of 24 (twenty-four) hours running from midnight to midnight;
|
|
(h)
|
a "month" will mean a calendar month;
|
|
(i)
|
times are to time in Ireland;
|
|
(j)
|
a reference to a "subsidiary undertaking" is to be construed in accordance with the European Communities (Companies: Group Accounts) Regulations 1992 of Ireland and a "subsidiary" or "holding company" is to be construed in accordance with Section 155 of the Companies Act 1963 of Ireland; and
|
|
(k)
|
any other document referred to in this Agreement is a reference to that document as amended, varied, novated or supplemented at any time.
|
|
1.2.2
|
a reference to a statute or statutory provision will be construed as a reference to the laws of Ireland unless otherwise specified and includes:
|
|
(a)
|
any subordinate legislation made under it including all regulations, by-laws, orders and codes made thereunder;
|
|
(b)
|
any repealed statute or statutory provision which it re-enacts (with or without modification); and
|
|
(c)
|
any statute or statutory provision which modifies, consolidates, re-enacts or supersedes it;
|
|
1.2.3
|
any phrase introduced by the terms "including", "include" and "in particular" or any similar expression will be construed as illustrative and will not limit the sense of the words preceding those terms.
|
1.3
|
The table of contents and headings in this Agreement are inserted for convenience only, and they are to be ignored in the interpretation of this Agreement.
|
1.4
|
References in this Agreement to CCNs being or to be "listed on the Stock Exchange" shall be to CCNs being or to be listed on the official list (the "Official List") of the Stock Exchange, having obtained approval from the Central Bank in its capacity as competent authority for admission of the CCNs to trading on the Stock Exchange's regulated market for listed securities.
|
1.5
|
References in this Agreement to the "Prospectus Directive" are to Directive 2003/7l/EC of the European Parliament and of the Council and shall include the Prospectus (Directive 2003/7l/EC) Regulations 2005 and any other relevant implementing measures of Ireland as well as Commission Regulation (EC) No. 809/2004.
|
2.
|
Undertakings
|
2.1
|
That it will not agree to materially amend or modify: (i) the Note Purchase Agreement at any time prior to the Issue Date; and (ii) the Agency Deed (but for the avoidance of doubt excluding the Conditions) at any time during the Specified Period, without obtaining the prior written consent of each of the Investors and such consent not to be unreasonably withheld. For the avoidance of doubt, this Clause 2.1 shall not restrict the Issuers ability to exercise its other rights under the Contracts including, but not limited to, the termination of the appointment of an Agent in accordance with the terms of the Agency Deed.
|
2.2
|
That immediately, upon receipt of any notice from any Initial Holder under Condition 3(g)(iii) of any proposed Third Party Sale, it will send a copy of such notice to each of the Investors.
|
2.3
|
That it will include each of the Investors in the negotiation process in relation to the price at which the CCNs might be sold, if the Issuer solicits third party investors in accordance with Condition 3(g).
|
2.4
|
That it will immediately upon receipt of a written request to do so confirm to each Investor that Investor’s Pro Rata Share in accordance with Clause 5 of this Agreement.
|
2.5
|
That it will furnish a certified copy of the Agency Deed to each of the Investors on the Issue Date.
|
3.
|
Acknowledgements
|
3.1
|
Each Investor hereby acknowledges that, notwithstanding the Issuer’s rights under Condition 3(g)(iii):
|
|
3.1.1
|
pursuant to Condition 3(g)(iv), the Initial Holder has absolute discretion as to whether to sell the CCNs, to whom it may sell the CCNs and the terms of any such sale; and
|
|
3.1.2
|
pursuant to Condition 3(g)(v), the Issuer is obliged to (i) disclose to the Initial Holder the identity of the Investors (if any) solicited or to be solicited by the Issuer pursuant to Condition 3(g)(iii) and (ii) provide and/or disclose all such information necessary, as determined by the Initial Holder in its absolute discretion, to facilitate the effecting of a Third Party Sale.
|
3.2
|
The Issuer acknowledges that pursuant to the Offer Agreement each of the Investors has a right of first refusal in respect of its Pro Rata Share in the event of any solicitation for sale by the Minister or the Issuer of the CCNs.
|
4.
|
Representations and Warranties
|
4.1
|
Issuer Representations and Warranties
|
|
4.1.1
|
Incorporation: it is duly incorporated under the laws of Ireland, with full power and authority to conduct its business, and is lawfully qualified to do business in those jurisdictions in which business is conducted by it;
|
|
4.1.2
|
Validity of Agreement and Contracts: this Agreement has been duly authorised, executed and delivered by it and constitutes, and the other Contracts, to which it is a party, have been duly authorised by it and on the Issue Date will constitute, valid, legally binding and enforceable obligations of the Issuer;
|
|
4.1.3
|
Validity of CCNs: the issue of the CCNs has been duly authorised by the Issuer and, when the Certificate is duly executed, authenticated and issued in accordance with the Agency Deed;
|
|
4.1.4
|
Compliance: the execution and delivery of this Agreement and the Contracts, the issue of the CCNs and any issue of Ordinary Stock as a result of the conversion of the CCNs (as contemplated by the Conditions), the carrying out by the Issuer of the other transactions contemplated by the Contracts and compliance by the Issuer with their terms do not, or as the case may be, will not (a) conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, the constitutional documents of the Issuer, or (b) conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, trust deed, mortgage or other agreement or instrument to which the Issuer, or any member of the Group is a party or by which any of them is bound which conflict,
|
|
breach or default could reasonably be expected to be material in the context of the issue of the CCNs, or (c) infringe any existing applicable law or regulation of any government, governmental body or court, or (d) to the best knowledge and belief of the Issuer, infringe on or breach any judgment, order or decree of any government, governmental body or court;
|
|
4.1.5
|
Consents: no action or thing is required to be taken, fulfilled or done (including without limitation the obtaining of any consent or licence or the making of any filing or registration) for the issue of the CCNs and (other than as contemplated by and in accordance with the Conditions) any issue of Ordinary Stock as a result of the conversion of the CCNs, the carrying out of any other transactions contemplated by the Contracts or the compliance by the Issuer with the terms of the CCNs, as the case may be;
|
|
4.1.6
|
Prospectus: as at the date of publication of the Prospectus:
|
|
(a)
|
the Prospectus will contain all information which is material in the context of the listing of the CCNs (including all information required by applicable laws and the information which is necessary to enable investors to make an informed assessment of the assets and liabilities, financial position, profits and losses of the Issuer and of the rights attaching to the CCNs),
|
|
(b)
|
any statements relating to the Issuer contained in Prospectus are, in every material particular true and accurate and not misleading,
|
|
(c)
|
any opinions and intentions with regard to the Issuer expressed in the Prospectus are, honestly held, have been reached after considering all relevant circumstances and are based on reasonable assumptions,
|
|
(d)
|
there are no other facts in relation to the Issuer or the CCNs the omission of which shall, in the context of the listing of the CCNs, make any statement in the Prospectus misleading in any material respect,
|
|
(e)
|
all reasonable enquiries have been made by the Issuer to ascertain such facts and to verify the accuracy of all such information and statements; and
|
|
(f)
|
the Prospectus has been made available to the public in accordance with the Prospectus Directive;
|
|
4.1.7
|
Financial Statements:
|
|
(a)
|
the audited consolidated financial statements of the Group to be incorporated by reference in the Prospectus were prepared pursuant to the relevant laws of Ireland and in accordance with accounting principles required for the purposes of the Prospectus Directive consistently applied and give a true and fair view, in accordance with International Financial Reporting Standards, of the state of the Group's consolidated financial affairs as at the date they are made up to and of its consolidated profit for the financial year then ended, and
|
|
(b)
|
since the date of the last audited consolidated financial statements of the Group there has been no material adverse change to the financial condition or results of operations of the Group;
|
|
4.1.8
|
Litigation: there are no, nor have there been, any litigation, governmental or arbitration proceedings, including any which are pending or threatened of which the Issuer is aware, which may have, or have had during the 12 months prior to the date of this Agreement (or any date on which this warranty is deemed to be repeated), a significant effect on the Issuer's or the Group's consolidated financial
|
|
position or profitability or which are otherwise material in the context of the issue of the CCNs or any issue of Ordinary Stock as a result of the conversion of the CCNs (as contemplated by the Conditions);
|
|
4.1.9
|
Stamp Taxes: under the laws of Ireland in force at the date hereof, it is not necessary that this Agreement or any of the Contracts be filed, recorded or enrolled with any court or other authority in such jurisdiction or that any stamp duty, registration or similar tax be payable in relation to the issue of the CCNs or any of the Contracts;
|
|
4.1.10
|
Certified Copy Contracts: the certified copy of the Note Purchase Agreement which has been furnished to each of the Investors on or before the date of this Agreement is a true copy of the original and no amendments or modifications have been made to the terms of the Note Purchase Agreement.
|
4.2
|
Investors’ Representations and Warranties:
|
4.3
|
Repetition
|
|
4.3.1
|
The representations and warranties in Clause 4.1 and 4.2 (other than those set out in Clause 4.1.6) above are given as at the date of this Agreement and shall be deemed to be repeated (a) on the Issue Date by reference to the facts and circumstances then existing, (b) as at the date of publication of the Prospectus and any supplement or amendment to the Prospectus, by reference to the facts and circumstances then existing and qualified, where relevant, by the contents of the Prospectus or any such supplement or amendment; and
|
|
4.3.2
|
The representations and warranties in Clause 4.1.6 shall be given as at the date of publication of the Prospectus and shall be deemed repeated (a) if later than the date of publication of the Prospectus, on the Issue Date by reference to the facts and circumstances then existing (b) as at the date of publication of any supplement or amendment to the Prospectus, by reference to the facts and circumstances then existing and qualified, where relevant, by the contents of any such supplement or amendment.
|
5.
|
Notices
|
5.1
|
Subject to Clause 5.2, any notice or other communication under this Agreement will only be effective if it is in writing.
|
5.2
|
Communication by email will not be effective under this Agreement.
|
5.3
|
Any notice or other communication given or made under this Agreement will be addressed as provided in Clause 5.5 and, if so addressed, will, in the absence of earlier receipt, be deemed to have been duly given or made as follows:
|
|
5.3.1
|
if sent by personal delivery, on delivery at the address of the relevant party;
|
|
5.3.2
|
if sent by pre-paid post, two (2) clear Business Days after the date of posting; or
|
|
5.3.3
|
if sent by facsimile, when transmitted.
|
5.4
|
Any notice or other communication given or made, or deemed to have been given or made, outside Working Hours will be deemed not to have been given or made until the start of the next period of Working Hours.
|
5.5
|
The relevant notice details for the parties hereto are:
|
|
5.5.1
|
if to the Issuer:
|
|
Address:
|
Head Office
40 Mespil Road
Dublin 4
|
|
Fax no.
|
+353 1 661 5671
|
|
Attention:
|
The Group Secretary
|
|
5.5.2
|
if to any of the Investors, to the address and fax number (if any) set out opposite that Investor’s name in Schedule 1, with copy to the person(s) if any specified in Schedule 1.
|
5.6
|
A party may notify the other parties of a change to its notice details. That notification will only be effective on:
|
|
5.6.1
|
any effective date specified in the notification; or
|
|
5.6.2
|
if no effective date is specified or the effective date specified is less than five (5) clear Business Days after the date when notice is received, the date falling five (5) clear Business Days after the notification has been received.
|
6.
|
Assignment
|
7.
|
Waiver
|
8.
|
Entire Agreement
|
9.
|
Counterparts
|
10.
|
Governing Law and Jurisdiction
|
10.1
|
This Agreement, and all non-contractual obligations arising in connection therewith, shall be governed by and construed in accordance with Irish law.
|
10.2
|
The courts of Ireland are to have jurisdiction to settle any disputes which may arise out of or in connection with this Agreement and accordingly any legal action or proceedings arising out of or in connection with this Agreement ("Proceedings") may be brought in such courts. The Issuer irrevocably submits to the jurisdiction of such courts and waives any objection to Proceedings in such courts whether on the ground of venue or on the ground that the Proceedings have been brought in an inconvenient forum. These submissions are made for the benefit of the Minister and shall not limit the right of any of them to take Proceedings in any other court of competent jurisdiction nor shall the taking of Proceedings in one or more jurisdictions preclude the taking of Proceedings in any other jurisdiction (whether concurrently or not).
|
Party
|
Address
|
Fax No.
|
||
Fairfax Financial Holdings Limited
|
95 Wellington Street West
Suite 800
Toronto
Ontario
Canada M5J 2N7
For the attention of:
Paul Rivett
Vice President and Chief Legal Officer
|
+1 416 367 4946
|
||
With a copy to:
|
William Fry
Fitzwilton House.
Wilton Place
Dublin 2
For the attention of:
Owen O’Connell
|
+353 1 639 5333
|
||
Fidelity Contrafund: Fidelity Advisor New Insights Fund
|
82 Devonshire Street, VI3H, Boston
MA 02109
USA
For the attention of:
Andrew Boyd
|
+001 617 392 1605
|
||
Fidelity Contrafund: Fidelity Contrafund
|
82 Devonshire Street, VI3H, Boston
MA 02109
USA
For the attention of:
Andrew Boyd
|
+ 001 617 392 1605
|
||
Variable Insurance Products Fund III: Balanced Portfolio
|
82 Devonshire Street, VI3H, Boston
MA 02109
USA
For the attention of:
Andrew Boyd
|
+ 001 617 392 1605
|
Party
|
Address
|
Fax No.
|
||
Fidelity Advisor Series I: Fidelity Advisor Dividend Growth Fund
|
82 Devonshire Street, VI3H, Boston
MA 02109
USA
For the attention of:
Andrew Boyd
|
+001 617 392 1605
|
||
Fidelity Securities Fund: Fidelity Dividend Growth Fund
|
82 Devonshire Street, VI3H, Boston
MA 02109
USA
For the attention of:
Andrew Boyd
|
+ 001 617 392 1605
|
||
Fidelity Capital Trust: Fidelity Value Fund
|
82 Devonshire Street, VI3H, Boston
MA 02109
USA
For the attention of:
Andrew Boyd
|
+ 001 617 392 1605
|
||
Fidelity Advisor Series I: Fidelity Advisor Value Fund
|
82 Devonshire Street, VI3H, Boston
MA 02109
USA
For the attention of:
Andrew Boyd
|
+ 001 617 392 1605
|
||
Fidelity Puritan Trust: Fidelity Low-Priced Stock Fund
|
82 Devonshire Street, VI3H, Boston
MA 02109
USA
For the attention of:
Andrew Boyd
|
+ 001 617 392 1605
|
||
Kennedy-Wilson Investments, LLC
|
Kennedy-Wilson Investments LLC
c/o Matt Windisch
9701 Wilshire Boulevard, Suite 700
Beverly Hills
CA 90212
USA
|
+ 001 310 887 6459
|
Party
|
Address
|
Fax No.
|
||
With a copy to:
|
William McMorrow
(wmcmorrow@kennedywilson.com) or Mary Ricks
(mricks@kennedywilson.com)
|
|||
WLR/GS Master Co-Investment L.P.
|
WLR Master Co-Investment GP, LLC
c/o WL Ross & Co. LLC
1166 Avenue of the Americas
25th Floor
New York 10036
USA
For the attention of:
James B. Lockhart III
|
+ 001 212 278 9769
+ 001 212 278 9821
|
||
With a copy to:
|
Benjamin Gruder (BenGruder@invesco.com)
|
|||
WLR Recovery Fund IV, L.P.
|
WLR Recovery Associates IV LLC
c c/o WL Ross & Co. LLC
1166 Avenue of the Americas
25th Floor
New York 10036
USA
For the attention of:
James B. Lockhart III
|
+ 001 212 278 9769
+ 001 212 278 9821
|
||
With a copy to:
|
Benjamin Gruder (BenGruder@invesco.com)
|
|||
WLR Recovery Fund V, L.P.
|
WLR Recovery Associates V LLC
c/o WL Ross & Co. LLC
1166 Avenue of the Americas
25th Floor
New York 10036
USA
For the attention of:
James B. Lockhart III
|
+001 212 278 9769
+ 001 212 278 9821
|
Party
|
Address
|
Fax No.
|
||
With a copy to:
|
Benjamin Gruder (BenGruder@invesco.com)
|
|||
WLR IV Parallel Esc, L.P.
|
WLR Recovery Associates IV LLC
c/o WL Ross & Co. LLC
1166 Avenue of the Americas
25th Floor
New York 10036
USA
For the attention of:
James B. Lockhart III
|
+ 001 212 278 9769
+ 001 212 278 9821
|
||
With a copy to:
|
Benjamin Gruder (BenGruder@invesco.com)
|
|||
Capital Research and Management Company
|
333 South Hope St
Los Angeles
CA 90071
SA
For the attention of:
Michael Downer
|
+ 001 213 486 9041
|
1.
|
Form, Denomination and Title
|
2.
|
Status and Subordination of the CCNs
|
|
(a)
|
Status
|
|
(b)
|
Subordination
|
3.
|
Interest
|
|
(a)
|
Interest Payment Dates
|
|
(b)
|
Interest Accrual
|
|
(i)
|
the date upon which all amounts due in respect of such CCN has been paid;
|
|
(ii)
|
five days after the date on which the full amount of the moneys in respect of such CCN has been received by the Fiscal Agent and notice to that effect has been given to the Holders; and
|
|
(iii)
|
in the case of a Conversion (as defined below), the Conversion Date.
|
|
(c)
|
Fixed Rate of Interest
|
|
(d)
|
Calculations
|
|
(e)
|
Notifications to be Final
|
|
(f)
|
No Deferral
|
|
(g)
|
Remarketing Option
|
|
(i)
|
For as long as the Initial Holder is Holder of 100 per cent. of the CCNs, the Initial Holder may, at any time, increase the Rate of Interest on the CCNs (such increased rate, the “New Interest Rate”) as determined by an independent investment bank appointed by the Initial Holder (the “Remarketing Agent”) but with effect only from the date that the CCNs are sold by the Initial Holder to any other person other than any State Entity (a “Third Party Sale”).
|
|
(ii)
|
For the purposes of this Condition 3(g), the New Interest Rate will not exceed 18.00 per cent. per annum.
|
|
(iii)
|
The Initial Holder will provide at least 15 Business Days notice in writing to the Issuer of any proposed Third Party Sale or such longer period as may be approved in writing by the Initial Holder. During such period, the Issuer may solicit other third party investors, at a potentially lower interest rate than the rate described in Condition 3(g)(ii), to whom the entire principal amount of the CCNs may be sold at an equivalent or higher price than the Initial Holder would receive for any proposed Third Party Sale.
|
|
(iv)
|
Notwithstanding any other provision of these Conditions or the Agency Deed to the contrary, the Initial Holder shall have absolute discretion as to whether to sell the CCNs, to whom it may sell the CCNs and the terms of any such sale.
|
|
(v)
|
The Issuer shall, if required by the Initial Holder: (a) disclose to the Initial Holder the identity of any third party investors solicited or to be solicited by the Issuer pursuant to Condition 3(g)(iii) and (b) provide and/or disclose all such information necessary, as determined by the Initial Holder in its absolute discretion, to facilitate the effecting of a Third Party Sale.
|
|
(h)
|
Maintenance of Agents
|
4.
|
Conversion
|
|
(a)
|
Conversion upon a Conversion Event
|
|
(i)
|
If a Conversion Event shall occur at any time while the CCNs are outstanding, each CCN shall, subject to and as provided in this Condition 4, be immediately and mandatorily redeemed as of the Conversion Date and settled (such redemption and settlement being the “Conversion” and the term “converted” shall be construed accordingly) by the allotment, issue and delivery by the Issuer of fully paid Ordinary Stock to the Holders on the date specified in the Conversion Notice (as defined below), which date shall be no later than 20 Business Days following the Conversion Date (the “Conversion Settlement Date”). Subject to Condition 4(c), receipt by the Holders of the Ordinary Stock and Accrued Conversion Interest (if any) shall be a good and complete discharge of the Issuer’s obligations in respect of the CCNs.
|
|
(ii)
|
As soon as reasonably practicable following the occurrence of the Conversion Event, the Issuer shall give notice thereof to Holders (the “Conversion Notice”) in accordance with Condition 13. The Conversion Notice shall specify the circumstances giving rise to the Conversion Event, the Conversion Price and the Conversion Settlement Date.
|
|
(iii)
|
If a Conversion Event occurs, the CCNs will be converted in whole and not in part as provided in accordance with this Condition 4(a). CCNs so converted shall be automatically cancelled by the Issuer and may not be held, reissued or resold.
|
|
(iv)
|
Except on the occurrence of a Conversion Event, the CCNs are not convertible into Ordinary Stock at the option of Holders at any time and are not redeemable in cash as a result of a Conversion Event.
|
|
(v)
|
No Conversion Notice shall be given and no Conversion shall occur following a Capital Deficiency Event if, notwithstanding the Capital Ratio being below the Trigger Ratio, the Competent Authority, at the request of the Issuer, has agreed, in its absolute discretion, that a Conversion shall not occur because it is satisfied that actions, circumstances or events have had, or imminently will have during the next 90 days following such Capital Deficiency Event, the effect of restoring the Capital Ratio to a level above the Trigger Ratio that the Competent Authority deems to be adequate at such time.
|
|
(vi)
|
Notwithstanding Condition 4(a)(v), a Conversion Event will immediately occur if the Competent Authority determines, in its absolute discretion, that at any time after agreeing under Condition 4(a)(v) that no Conversion Event shall occur, the Issuer will not be able to restore the Capital Ratio to a level above the Trigger Ratio that the Competent Authority deems to be adequate at such time.
|
|
(b)
|
Accrued Conversion Interest
|
|
(i)
|
Upon Conversion, Accrued Conversion Interest shall become due and payable on the Conversion Date and the Issuer shall pay to the Holders the Accrued Conversion Interest (if any) in respect of the CCNs on the Conversion Settlement Date.
|
|
(ii)
|
Payment of any Accrued Conversion Interest will be made in cash by transfer to an account with a bank in a city in which banks have access to the TARGET System, as specified by the relevant Holder.
|
|
(c)
|
Conversion Price
|
|
(i)
|
Upon Conversion, each Holder shall be deemed to have accepted the conversion of its holding of CCNs into Ordinary Stock at the Conversion Price and that the Issuer shall effect such conversion on behalf of such Holder. Such Ordinary Stock will be deemed to be credited as fully paid up and allotted, issued and delivered as of the Conversion Date, whereupon each Holder shall cease as a matter of Irish law to be treated for all purposes under Irish law as a Holder and shall instead as of such date be treated for all purposes under Irish law as a Stockholder.
|
|
(ii)
|
The Issuer shall, not later than the Conversion Settlement Date, allot and issue or deliver such number of units of Ordinary Stock to the Holders in respect of each CCN as is determined by dividing the principal amount of such CCN by the Conversion Price in effect on the Conversion Date.
|
|
(iii)
|
The Conversion Price shall be subject to adjustment in the circumstances provided in Condition 4(e) for the adjustment of the Floor Price (with such modifications and amendments as an Independent Financial Adviser acting in good faith shall determine to be appropriate) and the Issuer shall give notice to Holders of the New Floor Price and of any such modifications and amendments thereafter.
|
|
(d)
|
Conversion on a Takeover Event
|
|
(i)
|
If a Qualifying Takeover Event shall occur then the CCNs shall, where the Conversion Date falls on or after the Takeover Event Date, be convertible into Approved Entity Shares upon the occurrence of a Conversion Event, mutatis mutandis as provided in accordance with this Condition 4, at a Conversion Price that shall be the New Conversion Price.
|
|
(ii)
|
The New Conversion Price shall be subject to adjustment in the circumstances provided in Condition 4(e) for the adjustment of the Floor Price (if necessary with such modifications and amendments as an Independent Financial Adviser acting in good faith shall determine to be appropriate) and the Issuer shall give notice to Holders of the New Conversion Price and of any such modifications and amendments thereafter.
|
|
(iii)
|
If a Non-Qualifying Takeover Event shall occur then, with effect from the occurrence of such Takeover Event and unless a Conversion Event shall have occurred prior to such date, any outstanding CCNs shall remain the obligation of the Issuer and shall, upon the occurrence of a Conversion Event, be convertible into Ordinary Stock in accordance with this Condition 4 but shall
|
|
(iv)
|
In the case of a Qualifying Takeover Event:
|
|
(1)
|
the Issuer shall, on or prior to the Takeover Event Date, enter into such agreements and arrangements, (which may include deeds supplemental to these Conditions and amendments and modifications to these Conditions) as may be required to ensure that, with effect from the Takeover Event Date, the CCNs will be convertible into Approved Entity Shares of the Approved Entity, mutatis mutandis in accordance with, and subject to, this Condition 4 (as may be so supplemented, amended or modified) at a price equal to the New Conversion Price and that subject to such Conversion the CCNs shall remain the obligations of the Issuer; and
|
|
(2)
|
the Issuer shall, where the Conversion Date falls on or after the Takeover Event Date, procure the allotment and issue and/or delivery of the relevant number of Approved Entity Shares in the manner provided in this Condition 4, as may be amended or modified as provided above.
|
|
(v)
|
Within 10 Business Days following the occurrence of a Takeover Event, the Issuer shall give notice thereof in accordance with Condition 13 to the Holders (a “Takeover Event Notice”), which shall specify.
|
|
(1)
|
the identity of the Acquirer;
|
|
(2)
|
whether the Takeover Event is a Qualifying Takeover Event or a Non-Qualifying Takeover Event;
|
|
(3)
|
in the case of a Qualifying Takeover Event, if determined at such time, the New Conversion Price; and
|
|
(4)
|
in the case of a Qualifying Takeover Event, the Takeover Event Date.
|
|
(e)
|
Adjustments to the Floor Price
|
|
(i)
|
Increase of share capital by means of capitalisation of reserves, profits or premia by distribution of Ordinary Stock, or division or consolidation of Ordinary Stock
|
|
Nold
|
is the number of units of Ordinary Stock existing before the change in share capital; and
|
|
Nnew
|
is the number of units of Ordinary Stock existing after the change in share capital;
|
|
(ii)
|
Issues of Ordinary Stock or Other Securities to Stockholders by way of conferring subscription or purchase rights
|
|
Pcum
|
is the VWAP of one unit of Ordinary Stock on whichever is the later of (x) the last dealing day immediately preceding the first date on which the Ordinary Stock is first traded ex-the relevant Purchase Rights on the Primary Stock Exchange or (y) the dealing day when the price for the relevant Purchase Rights is announced, or if the day the subscription or purchase price is announced is not a dealing day, the next following dealing day; and
|
|
R
|
is the value of the relevant Purchase Rights relating to one unit of Ordinary Stock or Other Security, such value to be calculated as follows:
|
|
Nold
|
is the number of units of Ordinary Stock existing before the change in share capital; and
|
|
Nnew
|
is the number of units of Ordinary Stock being newly issued; and
|
|
Prights
|
is the price at which one new unit of Ordinary Stock can be subscribed, exercised or purchased for; and
|
|
Div
|
is the amount (in euro) by which the dividend entitlement per unit of Ordinary Stock exceeds the dividend entitlement per new unit of Ordinary Stock, (x) if dividends have already been proposed to the general meeting of shareholders but not yet paid, based on the proposed dividend amount, or (y) if dividends have not yet been proposed based on the last paid dividend;
|
|
(2)
|
if the Purchase Rights relate to Other Securities or to securities convertible or exchangeable into Ordinary Stock or Other Securities and where such Purchase Rights, or Other Securities are traded on a regulated stock exchange in the European Union, the United States of America, Canada or Japan:
|
|
Nrights
|
is the number of Purchase Rights granted per unit of Ordinary Stock; and
|
|
Prights
|
is the average of the last paid prices on the Primary Stock Exchange (in euro) (or, if no dealing is recorded, the arithmetic mean of the bid and offered prices) on a spot basis of one Purchase Right on each dealing day during the period the Purchase Rights are traded or, if such period is longer than ten dealing days, the arithmetic average of the last paid prices (or, if no dealing is recorded, the arithmetic mean of the bid and offered prices) on a spot basis on the first ten such dealing days; or
|
|
(3)
|
in all other cases where neither of the previous paragraphs (1) or (2) is applicable:
|
|
(i)
|
where the provisions of Condition 4(e)(ii)(1) apply, on the date on which the Ordinary Stock are traded ex-Purchase Rights on the Primary Stock Exchange or, if the subscription or exercise price is announced only at a later time, one dealing day after the announcement of the price of the Purchase Right;
|
|
(ii)
|
where the provisions of Condition 4(e)(ii)(2) apply, five dealing days after (x) the end of the subscription or purchase period or (y) the tenth day of the subscription or purchase period, whichever is the sooner; and
|
|
(iii)
|
where the provisions of Condition 4(e)(ii)(3) apply, on the date determined by an Independent Financial Adviser.
|
|
(iii)
|
Capital Distributions
|
|
Pcum
|
is the VWAP of one unit of Ordinary Stock on whichever is the later of (x) the last dealing day immediately preceding the Effective Date or (y) the dealing day when the relevant Dividend is announced (or, if the day on which the amount of the relevant Dividend is announced is not a dealing day, the next following dealing day); and
|
|
D
|
is the portion of the Fair Market Value of the aggregate Capital Distribution attributable to one unit of Ordinary Stock, with such portion being determined by dividing the Fair Market Value of the aggregate Capital Distribution on the Effective Date by the number of units of Ordinary Stock entitled to receive the relevant Dividend (or, in the case of a purchase, redemption or buy back of Ordinary Stock (or any depositary or other receipts or certificates representing Ordinary Stock) by or on behalf of the Issuer or any Subsidiary of the Issuer, by the number of units of Ordinary Stock in issue immediately following such purchase, redemption or buy back, and treating as not being in issue any Ordinary Stock (or any Ordinary Stock represented by depositary or other receipts or certificates) so purchased, redeemed or bought back).
|
|
(iv)
|
Non-Cash Dividends
|
|
(1)
|
where the Non-Cash Dividend in question (x) consists of securities that are traded on a regulated stock exchange in the European Union, the United States of America, Canada or Japan or (y) has otherwise a value which is determinable by reference to a stock exchange quotation or otherwise, by multiplying the Floor Price in force immediately prior to such Non-Cash Dividend by the result of the following formula:
|
|
Pcum
|
is the VWAP of one unit of Ordinary Stock on whichever is the later of (x) the last dealing day preceding the date on which the Ordinary Stock is first traded ex-the relevant Non-Cash Dividend on the Primary Stock Exchange or (y) the dealing day when the amount of the relevant Non-Cash Dividend is announced (or, if the day on which the amount of the relevant Non-Cash Dividend is announced is not a dealing day, the next following dealing day); and
|
|
D
|
is the portion of the Fair Market Value of the relevant Non-Cash Dividend (in euro) on the dealing day immediately following the date in respect of which Pcum (as defined above) has been determined; and
|
|
(2)
|
in all other cases, by multiplying the Floor Price in force immediately prior to such issue or distribution by the result of the following formula:
|
|
Pafter
|
is the arithmetic average of the VWAP of a unit of Ordinary Stock on the first five consecutive dealing days starting on the dealing day immediately following the first dealing day on which the Ordinary Stock are traded ex-the relevant Non-Cash Dividend (the “Distribution Date”); and
|
|
Pbefore
|
is arithmetic average of the VWAP of a unit of Ordinary Stock on the five consecutive dealing days ending on the dealing day immediately preceding the Distribution Date,
|
|
(i)
|
where the provisions of Condition 4(e)(iv)(1) apply, on the date on which the relevant Non-Cash Dividend is made; and
|
|
(ii)
|
where the provisions of Condition 4(e)(iv)(2) apply, five dealing days after the Distribution Date.
|
|
(v)
|
Other Events
|
|
(1)
|
where the events or circumstances giving rise to any adjustment pursuant to this Condition 4(e) have already resulted or will result in an adjustment to the Floor Price or where the events or circumstances giving rise to any adjustment arise by virtue of any other events or circumstances which have already given or will give rise to an adjustment to the Floor Price or where more than one event which gives rise to an adjustment to the Floor Price occurs within such a short period of time that, in the opinion of the Issuer, a modification to the operation of the adjustment provisions is required to give the intended result, such modification shall be made to the operation of the adjustment provisions as may be determined in good faith by an Independent Financial Adviser to be in its opinion appropriate to give the intended result;
|
|
(2)
|
such modification shall be made to the operation of the CCNs as may be determined in good faith by an Independent Financial Adviser to be in its opinion appropriate (i) to ensure that an adjustment to the Floor Price or the economic effect thereof shall not be taken into account more than once and (ii) to ensure that the economic effect of a Dividend is not taken into account more than once;
|
|
(3)
|
for the avoidance of doubt, the issue of Ordinary Stock upon a Conversion or upon any conversion or exchange in respect of any Other Securities or the exercise of any other options, warrants or other rights shall not result in an adjustment to the Floor Price; and
|
|
(4)
|
at any time when the Ordinary Stock are not admitted to trading on a Recognised Stock Exchange, the Floor Price shall be adjusted as provided above save that for the purposes thereof the Current Market Price, the VWAP of a unit of Ordinary Stock and the date upon which any adjustment becomes effective shall be determined in good faith by an Independent Financial Adviser in such manner as it considers appropriate to ensure that an adjustment to the Floor Price is made which gives the intended same result as if the Ordinary Stock we so admitted to trading.
|
|
(f)
|
Events not Giving Rise to Adjustments
|
|
(i)
|
as a result of any issue or distribution of new Ordinary Stock or Other Securities if the pre-emptive right in respect thereof has been validly excluded by a non-routine resolution of the general meeting of Stockholders unless a pre-emptive right in respect thereof is granted indirectly to the Stockholders by a third party with the agreement of the Issuer. For the purpose of these Conditions, the annual disapplication of pre-emption rights conferred by way of special resolution proposed at each annual general meeting of the Issuer shall not constitute a non-routine resolution; or
|
|
(ii)
|
as a result of any public issue of bonds convertible into Ordinary Stock or bonds with options to subscribe for Ordinary Stock, such issue being in connection with a conditional increase of the share capital of the Issuer, irrespective of whether in respect of such issue the advance subscription rights to acquire such bonds have been excluded or not, unless advance subscription rights have been granted and are traded on the Primary Stock Exchange; or
|
|
(iii)
|
if, as a result of any Non-Cash Dividend by the Issuer, the Issuer sells any share, right, warrant or other security representing the same (an “Interest”) in any of its subsidiaries to holders of the Ordinary Stock at fair value, and for this purpose:
|
|
(1)
|
where such Interest is listed on, traded on, or dealt in any stock exchange, the fair value of such Interest shall be at least 95 per cent. of the average of the last paid prices therefor on such stock exchange (or, if more than one, the principal such stock exchange) on each of the ten dealing days commencing on the twentieth dealing day before the day on which the Issuer officially announces the terms and conditions for such sale, as determined by an Independent Financial Adviser; and
|
|
(2)
|
where such Interest is not so listed, traded or dealt in, the fair value of such Interest shall be at least 95 per cent. of the Fair Market Value thereof; or
|
|
(iv)
|
if an increase in the Floor Price would result from such adjustment, except in case of an exchange of the Ordinary Stock for Other Securities or a consolidation of Ordinary Stock.
|
|
(g)
|
Decision of an Independent Financial Adviser
|
|
(i)
|
If any doubt shall arise as to whether an adjustment falls to be made to the Floor Price or the Conversion Price or as to the appropriate adjustment to the Floor Price, and following consultation between the Issuer and an Independent Financial Adviser, a written opinion of such Independent Financial Adviser in respect thereof shall be conclusive and binding on the Issuer and the Holders, save in the case of manifest error.
|
|
(ii)
|
If the Independent Financial Adviser does not at any time for any reason make any determination or calculate any adjustment in the circumstances provided for in this Condition 4 then the Holders shall, at the expense of the Issuer, be entitled to appoint an agent to do so, and such determination or calculation shall be deemed to have been made by the Independent Financial Adviser. In doing so, the Holders’ agent shall apply the foregoing provisions of Condition 4, with any necessary consequential amendments, to the extent that, in its opinion, it can do so, and in all other respects it shall do so in such manner as it shall deem fair and reasonable in all the circumstances.
|
|
(h)
|
Share Option Schemes
|
|
(i)
|
Rounding Down
|
|
(j)
|
No other Conversion Events
|
|
(k)
|
Procedure for Settlement and Delivery of Ordinary Stock on Conversion
|
|
(l)
|
Fractions
|
|
(m)
|
Delivery of Ordinary Stock
|
|
(i)
|
The Issuer shall, on or prior to the Conversion Settlement Date, allot and issue or deliver to the Holders such number of units of Ordinary Stock as is required to satisfy in full the Issuer’s obligation to deliver Ordinary Stock in respect of the Conversion of the aggregate amount of CCNs as at the Conversion Date. Receipt by the Holders of such Ordinary Stock and Accrued Conversion Interest (if any) shall be a good and complete discharge of the Issuer’s obligations in respect of the CCNs.
|
|
(ii)
|
In order to obtain delivery of the relevant Ordinary Stock upon a Conversion, the relevant Holder must deliver the relevant Certificates representing the CCNs held by it to the specified office of the Registrar prior to the Conversion Settlement Date.
|
|
(iii)
|
The Issuer shall procure that Ordinary Stock to be created, issued and delivered following a Conversion Event will be delivered to the Holders in uncertificated form through CREST, unless at the relevant time the Ordinary Stock are not a participating security in CREST or the relevant holder elects to receive the Ordinary Stock in certificated registered form. Where the Ordinary Stock are to be delivered through CREST, they will be delivered to an account specified by the relevant Holder prior to the Conversion Settlement Date. Where the Ordinary Stock are to be delivered in certificated form, a certificate in respect thereof will be dispatched by mail free of charge (but uninsured and at the risk of the recipient) to the relevant Holder or prior to the Conversion Settlement Date.
|
|
(n)
|
Taxes and Duties
|
|
(i)
|
A Holder must pay any taxes and capital, stamp, issue and registration and transfer taxes or duties arising on Conversion (other than any taxes and capital, stamp, issue and registration and transfer taxes or other duties payable in Ireland in respect of the issue and delivery of the Ordinary Stock delivered pursuant to these Conditions which shall be paid by the Issuer) and such Holder must pay all, if any, taxes arising by reference to any disposal or deemed disposal of a CCN or interest therein.
|
|
(ii)
|
If the Issuer shall fail to pay any taxes or capital, stamp, issue, registration and transfer taxes or other duties payable in Ireland for which it is responsible as provided in Condition 4(n)(i) above, any Holder shall be entitled (but shall not be obliged) to tender and pay the same and the Issuer, as a separate and independent stipulation, covenants to reimburse and indemnify on an after tax basis such Holder in respect of any payment thereof and any penalties payable in respect thereof.
|
|
(o)
|
Ordinary Stock
|
5.
|
Covenants
|
|
(a)
|
not make any issue, grant, reorganisation, capitalisation or distribution or take or omit to take any other action if the effect thereof would be (or is reasonably foreseeable to be) that a unit of Ordinary Stock cannot be legally issued as fully paid and free from any Encumbrance on the Conversion of each CCN;
|
|
(b)
|
(other than in connection with a Reorganisation or a Liability Management Exercise) not issue or pay up any Ordinary Stock or Other Securities, in either case by way of capitalisation of profits or reserves, other than:
|
|
(i)
|
by the issue of fully paid Ordinary Stock or Other Securities to Stockholders and other holders of shares in the capital of the Issuer which, by their terms, entitle the holders thereof to receive Ordinary Stock or Other Securities on a capitalisation of profits or reserves; or
|
|
(ii)
|
by the issue of Ordinary Stock paid up in full (in accordance with applicable law) and issued wholly, ignoring fractional entitlements, in lieu of the whole or part of a Dividend in cash (excluding, for the avoidance of doubt, the issue of Ordinary Stock in respect of hybrid capital instruments where there is an alternative coupon settlement mechanism); or
|
|
(iii)
|
by the issue of fully paid Other Securities to the holders of Ordinary Stock or Other Securities which, by their terms, entitle the holders thereof to receive Other Securities (excluding, for the avoidance of doubt, the issue of Ordinary Stock in respect of hybrid capital instruments where there is an alternative coupon settlement mechanism); or
|
|
(iv)
|
by the issue of Ordinary Stock or Other Securities to, or for the benefit of, any employee or former employee, director or executive holding or formerly holding executive office of Issuer or any of its Subsidiaries or any associated company or totrustees or nominees to be held for the benefit of any such person, in any such case pursuant to an employee, director or executive share or option scheme whether for all employees, directors, or executives or any one or more of them,
|
|
(c)
|
not modify the rights attaching to the Ordinary Stock with respect to voting, dividends or liquidation but so that nothing in this Condition 5(b) shall prevent:
|
|
(i)
|
any consolidation, reclassification or subdivision of the Ordinary Stock; or
|
|
(ii)
|
any modification of such rights which is not materially prejudicial to the interests of the Holders as determined in good faith by an Independent Financial Adviser;
|
|
(d)
|
procure that no Ordinary Stock or Other Securities issued without rights to convert into, or exchange or subscribe for, Ordinary Stock shall subsequently be granted such rights and that at no time shall there be in issue Ordinary Stock of differing nominal values unless the same gives rise (or would, but for the provisions of Condition 4(i) relating to roundings and minimum adjustments or the carry forward of adjustments, give rise) to an adjustment to the Floor Price and that at no time shall there be in issue Ordinary Stock or Other Securities of differing nominal values, save where such Ordinary Stock or Other Securities have the same economic rights;
|
|
(e)
|
not reduce its issued ordinary share capital, share premium account, capital redemption reserve, or any uncalled liability in respect thereof, or any non-distributable reserves, except where the reduction is permitted by applicable law and results in (or would, but for the provisions of Condition 4(i) relating to roundings or the carry forward of adjustments, result in) an adjustment to the Floor Price or is otherwise taken into account for the purposes of determining whether or not such an adjustment should be made, provided that, for the avoidance of doubt, this Condition 5(e) shall not operate to restrict the Issuer from reducing its preference share capital and share premium amounts in respect of its preference share capital;
|
|
(f)
|
issue, allot and/or deliver Ordinary Stock upon Conversion subject to and as provided in Condition 4;
|
|
(g)
|
use all reasonable endeavours to ensure that any Ordinary Stock issued upon a Conversion Event will, as soon as is practicable, be admitted to the Official List of the Irish Stock Exchange and trading on its regulated market or will be listed, quoted or dealt in, as soon as is practicable, on any other stock exchange or securities market on which the Ordinary Stock are then listed or quoted or dealt in;
|
|
(h)
|
use all reasonable endeavours to ensure that its issued and outstanding Ordinary Stock continue to be admitted to the Official List of the Irish Stock Exchange and trading on its regulated market, or listed, admitted to trading, quoted or dealt in on such other principal stock exchange or securities market on which the Ordinary Stock are currently listed, admitted to trading or quoted or dealt in;
|
|
(i)
|
in the event of a Reorganisation, take (or shall procure that there is taken) all necessary action to ensure that, immediately after completion of the relevant proceedings, such amendments are made to these Conditions as are necessary to ensure that the CCNs may be converted into or exchanged for ordinary shares or stock or units or the equivalent in Newco mutatis mutandis in accordance with and subject to these Conditions and the ordinary shares or stock or units or the equivalent of Newco are listed and admitted to trading on a Recognised Stock Exchange;
|
|
(j)
|
if an offer is made to all (or a majority) of the holders of the Ordinary Stock other than the offeror and/or any associates of the offeror to acquire all or a majority of the issued ordinary share capital of the Issuer, or if a scheme (other than a Reorganisation) or merger is proposed with regard to such acquisition or merger with the undertaking of the Issuer, give notice in writing of such offer or scheme or merger to the Holders, in their capacity as the Holders, as soon as practicable upon becoming aware of such offer;
|
|
(k)
|
give notice in writing to the Holders, in their capacity as the Holders, if an offer is made to all (or a majority) of the holders of the Ordinary Stock other than the offeror and/or any associate of the offeror to acquire all or a majority of the issued ordinary share capital of the Issuer or if any person proposes a scheme or merger with regard to such acquisition or merger with the undertaking of the Issuer and such offer or scheme or merger having become or been declared unconditional in all respects, the right to cast more than 50 per cent. of the votes which may ordinarily be cast on a poll at a general meeting of the Issuer has or will become unconditionally vested in the offeror and/or an associate. Such notice shall specify all information relevant to Holders concerning such offer or scheme or merger;
|
|
(l)
|
notwithstanding that no voting rights shall attach to the CCNs in respect of the Ordinary Stock, provide to the Holders, in their capacity as Holders, notice of every general meeting of the Stockholders of the Issuer and a copy of every circular or like document sent out by the Issuer to the Stockholders;
|
|
(m)
|
for so long as the CCNs are listed and freely transferable, from time to time on request and at its own expense, do and execute or procure to be done and executed all necessary acts, deeds, documents and things in a form satisfactory to a Holder that such Holder reasonably considers necessary to effect and/or facilitate the transfer of any of the CCNs and their registration in the name of the transferee in the Register;
|
|
(n)
|
where the provisions of Condition 4 require or provide for a determination by an Independent Financial Adviser, use all reasonable endeavours promptly to appoint such person for such purpose;
|
|
(o)
|
at all times keep available for issue, free from pre-emptive or other preferential rights, a sufficient number of units of Ordinary Stock to enable the conversion of the CCNs, and any other rights of subscription and exchange for Ordinary Stock arising pursuant to the CCNs, to be satisfied in full;
|
|
(p)
|
not take any action, and procure that no action is taken, that would result in an adjustment to the Floor Price to below the prevailing nominal value of the Ordinary Stock at the effective date of such adjustment;
|
|
(q)
|
provide to the Competent Authority the Core Tier 1 Ratio and CET1 Ratio, as applicable, on an ad hoc or ongoing basis as requested by the Competent Authority and the Issuer will publish the Core Tier 1 Ratio and CET1 Ratio, as applicable, in respect of any Semi-Annual Reporting Period or as otherwise required to be publically disclosed by the Issuer;
|
|
(r)
|
obtain prior written approval from the Competent Authority for any distributions proposed by the Issuer in respect of any profit generated or other fair value movements as a consequence of the accounting treatment of the CCNs in the Issuer’s shareholder funds;
|
|
(s)
|
maintain a listing of the CCNs on the Irish Stock Exchange, or failing that, any other Recognised Stock Exchange; and
|
|
(t)
|
immediately give notice in writing to the Holders of the occurrence of any Conversion Event or Takeover Event or any Event of Default or any matter it concludes is likely to give rise to a Conversion Event or Takeover Event or Event of Default immediately upon becoming aware thereof and without waiting for the Holders to take any further action.
|
6.
|
Redemption and Cancellation
|
|
(a)
|
Redemption at Maturity
|
|
(b)
|
No other redemption, purchase, or buy back
|
|
(c)
|
Cancellation
|
7.
|
Payments
|
|
(a)
|
Payments in respect of CCNs
|
|
(i)
|
Payments of principal to be made to Holders in respect of CCNs and payments of accrued interest payable on a redemption of CCNs (other than on an Interest Payment Date) and payment of any Accrued Conversion Interest that is to be paid in accordance with this Condition 7 shall, in each case, be made against presentation and surrender of the relevant Certificates at the specified office of any of the CCN Agents or of the Registrar.
|
|
(ii)
|
Payments of interest to be made to Holders in respect of CCNs due on an Interest Payment Date shall be paid to the person shown on the Register at the close of business on the fifteenth day before the Relevant Date for payment thereof (the “Record Date”).
|
|
(iii)
|
Payments of any other amounts in respect of CCNs other than as referred to in (i) and (ii) will be made as provided in these Conditions.
|
|
(b)
|
Payments subject to Fiscal Laws
|
|
(c)
|
Method of Payment
|
|
(d)
|
Non-Business Days
|
8.
|
Taxation
|
|
(a)
|
to, or to a third party on behalf of, a Holder if such withholding or deduction may be avoided by complying with any statutory requirement or by making a declaration of non-residence or other similar claim for exemption to any authority of or in Ireland, unless such Holder proves that he is not entitled so to comply or to make such declaration or claim; or
|
|
(b)
|
to, or to a third party on behalf of, a Holder that is a partnership, or a holder that is not the sole beneficial owner of the CCN, or which holds the CCN in a fiduciary capacity, to the extent that any of the members of the partnership, the beneficial owner or the settlor or beneficiary with respect to the fiduciary would not have been entitled to the payment of an additional amount had each of the members of the partnership, the beneficial owner, settlor or beneficiary (as the case may be) received directly his beneficial or distributive share of the payment; or
|
|
(c)
|
(where presentation and surrender is required pursuant to these Conditions) presented for payment more than 30 days after the Relevant Date except to the extent that the Holder thereof would have been entitled to such Additional Amounts on presenting the same for payment at the expiry of such period of 30 days; or
|
|
(d)
|
where such withholding or deduction is imposed on a payment to an individual and is required to be made pursuant to European Council Directive 2003/48/EC on the taxation of savings income or any law implementing or complying with, or introduced in order to conform to, such Directive; or
|
|
(e)
|
(where presentation and surrender is required pursuant to these Conditions) in respect of any CCN presented for payment by or on behalf of a Holder who would have been able to avoid such withholding or deduction by presenting the relevant CCN to another Fiscal Agent in a member state of the European Union; or
|
|
(f)
|
where such withholding or deduction arises by reason of the Holder having some connection with Ireland other than the mere holding or ownership of the CCNs.
|
9.
|
Variation following Tax Event
|
|
(a)
|
Tax Event
|
|
(b)
|
Conditions to Variation
|
10.
|
Replacement of Certificates
|
11.
|
Further Issues
|
12.
|
Event of Default
|
13.
|
Notices
|
14.
|
Meetings of Holders, Modification and Consent
|
|
(a)
|
Meetings of Holders
|
|
(b)
|
Modification
|
|
(c)
|
Consent
|
15.
|
Transfers of CCNs
|
|
(a)
|
Transfer of CCNs
|
|
(b)
|
Delivery of New Certificates
|
|
(c)
|
Transfers Free of Charge
|
16.
|
Definitions and Interpretation
|
|
16.1
|
The following capitalised terms shall have the following meanings:
|
|
(i)
|
any Dividend which is expressed by the Issuer or declared by the board of directors of the Issuer to be a capital distribution, extraordinary dividend, extraordinary distribution, special dividend or return of value to Stockholders or any analogous or similar term, in which case the Capital Distribution for the purpose of these Conditions shall be the Fair Market Value of such Dividend; or
|
|
(ii)
|
any Cash Dividend (the “Relevant Dividend”) paid or made in respect of a fiscal year of the Issuer (the “Relevant Fiscal Year”) if the sum of:
|
|
(a)
|
the Fair Market Value of the Relevant Dividend per unit of Ordinary Stock; and
|
|
(b)
|
the aggregate of the Fair Market Value per unit of Ordinary Stock of any other Cash Dividend or Cash Dividends per unit of Ordinary Stock paid or made in respect of the Relevant Fiscal Year (disregarding for such purposes any amount previously determined to be a Capital Distribution in respect of the Relevant Fiscal Year),
|
|
(a)
|
the VWAP of a unit of Ordinary Stock of the Issuer over the 30 Business Days prior to the date of the relevant Conversion Event, and
|
|
(b)
|
the Floor Price of unit of Ordinary Stock on the date of the relevant Conversion Event (being, at the Issue Date, €[ l ]),
|
|
(i)
|
where a Dividend in cash is announced which is to be, or may at the election of a Stockholder or Stockholders be, satisfied by the issue or delivery of Ordinary Stock or other property or assets, then the Dividend in question shall be treated as a Cash Dividend of an amount equal to the greater of (i) the Fair Market Value of such cash amount and (ii) the Current Market Price of such Ordinary Stock as at the first date on which the Ordinary Stock are traded ex-the relevant Dividend on the Primary Stock Exchange or, as the case may be, the Fair Market Value of such other property or assets as at the date of the first public announcement of such Dividend on the Primary Stock Exchange or, if later, the date on which the number of units of Ordinary Stock (or amount of such other property or assets, as the case may be) which may be issued or delivered is determined;
|
|
(ii)
|
any issue of Ordinary Stock falling within Condition 4(e)(i) or Condition 4(e)(ii) shall be disregarded;
|
|
(iii)
|
a purchase or redemption or buy back of share capital of the Issuer by or on behalf of the Issuer or any of its Subsidiaries shall not constitute a Dividend unless, in the case of a purchase or redemption or buy back of Ordinary Stock by or on behalf of the Issuer or any of its Subsidiaries, the VWAP per unit of Ordinary Stock (before expenses) on any one day (a “Specified Share Day”) in respect of such purchases or redemptions or buy backs exceeds by more than 5 per cent. the average of the daily VWAP of a unit of Ordinary Stock on the five dealing days immediately preceding the Specified Share Day or, where an announcement (excluding, for the avoidance of doubt for these
|
|
(iv)
|
if the Issuer or any of its Subsidiaries shall purchase, redeem or buy back any depositary or other receipts or certificates representing Ordinary Stock, the provisions of paragraph (iii) above shall be applied in respect thereof in such manner and with such modifications (if any) as shall be determined in good faith by an Independent Financial Adviser; and
|
|
(v)
|
where a dividend or distribution is paid or made to Stockholders pursuant to any plan implemented by the Issuer for the purpose of enabling Stockholders to elect, or which may require Stockholders, to receive dividends or distributions in respect of the Ordinary Stock held by them from a person other than, or in addition to, the Issuer, such dividend or distribution shall for the purposes of Condition 4 be treated as a dividend or distribution made or paid to Stockholders by the Issuer, and the foregoing provisions of this definition and the provisions of Condition 4, including references to the Issuer paying or making a dividend, shall be construed accordingly, and any such determination shall be made on a gross basis and disregarding any withholding or deduction required to be made on account of tax, and disregarding any associated tax credit;
|
|
(i)
|
the Fair Market Value of any cash amount shall be the amount of such cash;
|
|
(ii)
|
where Ordinary Stock or Other Securities are publicly traded on a stock exchange or securities market of adequate liquidity (as determined in good faith by an Independent Financial Adviser), the Fair Market Value of such Ordinary Stock or Other Securities shall equal the arithmetic mean of the daily VWAP of such Ordinary Stock or Other Securities (or the arithmetic mean of the daily closing prices should daily VWAP not be available), during the period of five dealing days on the relevant stock exchange or securities market commencing on such date (or, if later, the first such dealing day such Ordinary Stock or Other Securities) or such shorter period as such Ordinary Stock or Other Securities are publicly traded;
|
|
(iii)
|
where Ordinary Stock or Other Securities are not publicly traded on a stock exchange or securities market of adequate liquidity (as aforesaid), the Fair Market Value of such Ordinary Stock or Other Securities shall be determined in good faith by an Independent Financial Adviser, on the basis of a commonly accepted market valuation method and taking account of such factors as it considers appropriate, including the market price per unit of Ordinary Stock, the dividend yield of a unit of Ordinary Stock, the volatility of such market price, prevailing interest rates and the terms of such Ordinary Stock or Other Securities, including as to the expiry date and exercise price (if any) thereof; and
|
|
(iv)
|
the Fair Market Value shall be determined on a gross basis and disregarding any withholding or deduction required to be made on account of tax, and disregarding any associated tax credit;
|
|
(i)
|
any Dividend which is expressed by the Issuer or declared by the board of directors of the Issuer to be a capital distribution, extraordinary dividend, extraordinary distribution, special dividend or return of value to Stockholders or any analogous or similar term, in which case the Capital Distribution for the purpose of these Conditions shall be the Fair Market Value of such Dividend; or
|
|
(ii)
|
any Cash Dividend (the “Relevant Dividend”) paid or made in respect of a fiscal year of the Issuer (the “Relevant Fiscal Year”) if the sum of:
|
|
(i)
|
the Competent Authority, in its absolute discretion, determining that Conversion of the CCNs, together with the conversion or write off of holders’ claims in respect of any Tier 1 Instruments or Tier 2 Instruments that, pursuant to their terms or by operation of law, are capable of being converted into equity or written off at that time, is, because customary measures to improve the Group’s capital adequacy are at the time inadequate or unfeasible, an essential requirement to prevent the Issuer from becoming insolvent, bankrupt or unable to pay its debts as they fall due, or from ceasing to carry on its business, or from failing to meet its minimum capital adequacy requirements, as determined by the Competent Authority; or
|
|
(ii)
|
by virtue of customary measures to improve the Group’s capital adequacy being at the time inadequate or unfeasible, the Issuer receiving an irrevocable commitment of extraordinary support from any State Entity (beyond customary transactions and arrangements in the ordinary course) that has, or imminently will have, the effect of improving the Group’s capital adequacy and without which, in the determination of the Competent Authority, the Issuer would become insolvent, bankrupt, unable to pay its debts as they fall due, or cease carrying on its business or fail to meet its minimum capital adequacy requirements, as determined by the Competent Authority;
|
|
(i)
|
provided that:
|
|
(A)
|
if at any time during the Reference Period the VWAP shall have been based on a price ex-Dividend (or ex-any other entitlement) and during some other part of that Reference Period the VWAP shall have been based on a price cum-Dividend (or cum- any other entitlement), then:
|
|
(I)
|
if the Ordinary Stock to be issued or delivered (if applicable) do not rank for the Dividend (or entitlement) in question, the VWAP on the date(s) on which the Ordinary Stock shall have been based on a price cum-Dividend (or cum- any other entitlement) shall, for the purposes of this definition, be deemed to be the amount thereof reduced by an amount equal to the fair market value (as determined by an Independent Financial Adviser) of any such Dividend or entitlement per unit of Ordinary Stock as at the date of first public announcement relating to such Dividend or entitlement; or
|
|
(II)
|
if the Ordinary Stock to be issued or delivered (if applicable) do rank for the Dividend (or entitlement) in question, the VWAP on the date(s) on which the Ordinary Stock shall have been based on a price ex-Dividend (or ex-any other entitlement) shall, for the purposes of this definition, be deemed to be the amount thereof increased by an amount equal to the fair market value (as determined by an Independent Financial Adviser) of any such Dividend or entitlement per unit of Ordinary Stock as at the date of first public announcement relating to such Dividend or entitlement,
|
|
(B)
|
if on any of the dealing days in the Reference Period the VWAP shall have been based on a price cum-Dividend (or cum- any other entitlement) in respect of a Dividend (or other entitlement) which has been declared or announced but the Ordinary Stock to be issued or delivered do not rank for that Dividend (or other entitlement), the VWAP on each of such dates shall, for the purposes of this definition, be deemed to be the amount thereof reduced by an amount equal to the fair market value (as determined by an Independent Financial Adviser) of any such Dividend or entitlement per unit of Ordinary Stock as at the date of first public announcement relating to such Dividend or entitlement, and
|
|
(C)
|
if the VWAP of a unit of Ordinary Stock is not available on one or more of the dealing days in the Reference Period (disregarding for this purpose the proviso to the definition of VWAP), then the average of such VWAPs which are available in the Reference Period shall be used (subject to there being a daily VWAP available for a minimum
|
|
|
of two such days) and if only one, or no, such VWAP is available in the Reference Period, the Reference Market Price shall be determined in good faith by an Independent Financial Adviser appointed in good faith by the Issuer, and
|
|
(i)
|
only ordinary shares or stock or units or equivalent of Newco (or depositary or other receipts or certificates representing ordinary shares or stock or units or equivalent of Newco) are issued to Existing Stockholders;
|
|
(ii)
|
immediately after completion of such proceedings the only holders of ordinary shares or stock or units or equivalent of Newco (or, as the case may be, the only holders of depositary or other receipts or certificates representing ordinary shares or stock or units or equivalent of Newco) are Existing Stockholders holding in the same proportions as immediately prior to completion of such proceedings;
|
|
(iii)
|
immediately after completion of such proceedings, Newco is (or one or more wholly-owned Subsidiaries of Newco are) the only Stockholder;
|
|
(iv)
|
all Subsidiaries immediately prior to such proceedings (other than Newco, if Newco is then a Subsidiary of the Issuer) are Subsidiaries of the Issuer (or of Newco) immediately after completion of such proceedings; and
|
|
(v)
|
immediately after completion of such proceedings, the Issuer (or Newco) holds, directly or indirectly, the same percentage of the ordinary share capital and equity share capital of those Subsidiaries as was held by the Issuer immediately prior to such proceedings;
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|
16.2
|
References to any act or statute or any provision of any act or statute shall be deemed also to refer to any statutory modification or re-enactment thereof or any statutory instrument, order or regulation made thereunder or under such statutory modification or re-enactment.
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|
16.3
|
Unless the context otherwise requires, references to (i) “principal” shall be deemed to include any premium payable in respect of the CCNs and all other amounts in the nature of principal payable pursuant to these Conditions or any amendment or supplement to it, (ii) “interest” shall be deemed to include any Accrued Conversion Interest and in any such case shall be deemed to include any Additional Amounts that may be payable under Condition 8 or any undertaking given in addition to or in substitution for it under the Agency Deed in respect of any such amount.
|
|
16.4
|
References to any issue or offer or grant to Stockholders or Existing Stockholders “as a class” or “by way of rights” shall be taken to be references to an issue or offer or grant to all or substantially all Stockholders or Existing Stockholders, as the case may be, other than Stockholders or Existing Stockholders, as the case may be, to whom, by reason of the laws of any territory or requirements of any recognised regulatory body or any other stock exchange or securities market in any territory or in connection with fractional entitlements, it is determined not to make such issue or offer or grant.
|
|
16.5
|
In making any calculation or determination of Current Market Price or VWAP, such adjustments (if any) shall be made as an Independent Financial Adviser determines in good faith to be appropriate to reflect any consolidation or sub-division of the Ordinary Stock or any issue of Ordinary Stock by way of capitalisation of profits or reserves, or any like or similar event.
|
|
16.6
|
For the purposes of Condition 4, (i) references to the “issue” of Ordinary Stock or Ordinary Stock being “issued” shall, unless otherwise expressly specified to be the case in respect of any of the provisions of Condition 4, include the delivery of Ordinary Stock, whether newly issued and allotted or previously existing or held by or
|
|
|
For the purposes of Condition 4, (i) references to the “issue” of Ordinary Stock or Ordinary Stock being “issued” shall, unless otherwise expressly specified to be the case in respect of any of the provisions of Condition 4, include the delivery of Ordinary Stock, whether newly issued and allotted or previously existing or held by or on behalf of the Issuer or any of its Subsidiaries, and (ii) Ordinary Stock held by or on behalf of the Issuer or any of its respective Subsidiaries shall not be considered as or treated as “in issue” or “issued” or entitled to receive the relevant Dividend, right or other entitlement.
|
|
16.7
|
References in these Conditions to “listing” or “listed” on the Irish Stock Exchange (or like or similar references) shall be construed as admission to the Official List of the Irish Stock Exchange and trading on its regulated market.
|
17.
|
Governing Law and Jurisdiction
|
|
(a)
|
Governing Law
|
|
(b)
|
Jurisdiction
|
/s/ John O'Donovan | |
Director/Secretary/Authorised Signatory
|
|
/s/ Richie Boucher | |
Director/Secretary/Authorised Signatory
|
SIGNED and DELIVERED AS A DEED
on behalf of
FAIRFAX FINANCIAL HOLDINGS LIMITED
by its authorised signatory
in the presence of:
|
/s/ Paul Rivett
|
|
Authorised Signatory (Signature)
|
||
Paul Rivett
|
||
/s/ James Newman
|
Print name
|
|
Witness (Signature)
|
||
James Newman
|
||
Print name
|
||
Fitzwilton House, Wilton Place, Dublin 2
|
||
Print address
|
SIGNED and DELIVERED AS A DEED
on behalf of
FIDELITY CONTRAFUND: FIDELITY ADVISOR NEW INSIGHTS FUND
by its authorised signatory
in the presence of:
|
/s/ Jeffrey Christian
|
|
Authorised Signatory (Signature)
|
||
Jeffrey Christian, Deputy Treasurer
|
||
/s/ Suzanne Joyce
|
Print name
|
|
Witness (Signature)
|
||
Suzanne Joyce
|
||
Print name
|
||
82 Devonshire St., V13F, Boston, MA 02109
|
||
Print address
|
SIGNED and DELIVERED AS A DEED
on behalf of
FIDELITY CONTRAFUND: FIDELITY CONTRAFUND
by its authorised signatory
in the presence of:
|
/s/ Jeffrey Christian
|
|
Authorised Signatory (Signature)
|
||
Jeffrey Christian, Deputy Treasurer
|
||
/s/ Suzanne Joyce
|
Print name
|
|
Witness (Signature)
|
||
Suzanne Joyce
|
||
Print name
|
||
82 Devonshire St., V13F, Boston, MA 02109
|
||
Print address
|
SIGNED and DELIVERED AS A DEED
on behalf of
VARIABLE INSURANCE PRODUCTS FUND III: BALANCED PORTFOLIO
by its authorised signatory
in the presence of:
|
/s/ Jeffrey Christian
|
|
Authorised Signatory (Signature)
|
||
Jeffrey Christian, Deputy Treasurer
|
||
/s/ Suzanne Joyce
|
Print name
|
|
Witness (Signature)
|
||
Suzanne Joyce
|
||
Print name
|
||
82 Devonshire St., V13F, Boston, MA 02109
|
||
Print address
|
SIGNED and DELIVERED AS A DEED
on behalf of
FIDELITY ADVISOR SERIES I: FIDELITY ADVISOR DIVIDEND GROWTH FUND
by its authorised signatory
in the presence of:
|
/s/ Jeffrey Christian
|
|
Authorised Signatory (Signature)
|
||
Jeffrey Christian, Deputy Treasurer
|
||
/s/ Suzanne Joyce
|
Print name
|
|
Witness (Signature)
|
||
Suzanne Joyce
|
||
Print name
|
||
82 Devonshire St., V13F, Boston, MA 02109
|
||
Print address
|
SIGNED and DELIVERED AS A DEED
on behalf of
FIDELITY SECURITIES FUND: FIDELITY DIVIDEND GROWTH FUND
by its authorised signatory
in the presence of:
|
/s/ Jeffrey Christian
|
|
Authorised Signatory (Signature)
|
||
Jeffrey Christian, Deputy Treasurer
|
||
/s/ Suzanne Joyce
|
Print name
|
|
Witness (Signature)
|
||
Suzanne Joyce
|
||
Print name
|
||
82 Devonshire St., V13F, Boston, MA 02109
|
||
Print address
|
SIGNED and DELIVERED AS A DEED
on behalf of
FIDELITY CAPITAL TRUST: FIDELITY VALUE FUND
by its authorised signatory
in the presence of:
|
/s/ Jeffrey Christian
|
|
Authorised Signatory (Signature)
|
||
Jeffrey Christian, Deputy Treasurer
|
||
/s/ Suzanne Joyce
|
Print name
|
|
Witness (Signature)
|
||
Suzanne Joyce
|
||
Print name
|
||
82 Devonshire St., V13F, Boston, MA 02109
|
||
Print address
|
SIGNED and DELIVERED AS A DEED
on behalf of
FIDELITY ADVISOR SERIES I: FIDELITY ADVISOR VALUE FUND
by its authorised signatory
in the presence of:
|
/s/ Jeffrey Christian
|
|
Authorised Signatory (Signature)
|
||
Jeffrey Christian, Deputy Treasurer
|
||
/s/ Suzanne Joyce
|
Print name
|
|
Witness (Signature)
|
||
Suzanne Joyce
|
||
Print name
|
||
82 Devonshire St., V13F, Boston, MA 02109
|
||
Print address
|
SIGNED and DELIVERED AS A DEED
on behalf of
FIDELITY PURITAN TRUST: FIDELITY LOW-PRICED STOCK FUND
by its authorised signatory
in the presence of:
|
/s/ Jeffrey Christian
|
|
Authorised Signatory (Signature)
|
||
Jeffrey Christian, Deputy Treasurer
|
||
/s/ Suzanne Joyce
|
Print name
|
|
Witness (Signature)
|
||
Suzanne Joyce
|
||
Print name
|
||
82 Devonshire St., V13F, Boston, MA 02109
|
||
Print address
|
SIGNED and DELIVERED AS A DEED
on behalf of
KENNEDY-WILSON INVESTMENTS, LLC
by its authorised signatory
in the presence of:
|
/s/ Matthew Windisch
|
|
Authorised Signatory (Signature)
|
||
Matthew Windisch
|
||
/s/ Mark Martin
|
Print name
|
|
Witness (Signature)
|
||
Mark Martin
|
||
Print name
|
||
9701 Wilshire Blvd., Beverly Hills, CA 90212
|
||
Print address
|
in the presence of:
|
/s/ Wilbur L. Ross, Jr.
|
|
Manager (Signature)
|
||
Wilbur L. Ross, Jr.
|
||
/s/ Stephen J. Naughton
|
||
Witness (Signature)
|
||
Stephen J. Naughton
|
||
1166 Avenue of the Americas, 25th Floor
|
||
New York, New York 10036
|
in the presence of:
|
/s/ Wilbur L. Ross, Jr.
|
|
Manager (Signature)
|
||
Wilbur L. Ross, Jr.
|
||
/s/ Stephen J. Naughton
|
||
Witness (Signature)
|
||
Stephen J. Naughton
|
||
1166 Avenue of the Americas, 25th Floor
|
||
New York, New York 10036
|
in the presence of:
|
/s/ Wilbur L. Ross, Jr.
|
|
Manager (Signature)
|
||
Wilbur L. Ross, Jr.
|
||
/s/ Stephen J. Naughton
|
||
Witness (Signature)
|
||
Stephen J. Naughton
|
||
1166 Avenue of the Americas, 25th Floor
|
||
New York, New York 10036
|
in the presence of:
|
/s/ Wilbur L. Ross, Jr.
|
|
Manager (Signature)
|
||
Wilbur L. Ross, Jr.
|
||
/s/ Stephen J. Naughton
|
||
Witness (Signature)
|
||
Stephen J. Naughton
|
||
1166 Avenue of the Americas, 25th Floor
|
||
New York, New York 10036
|
SIGNED and DELIVERED AS A DEED
on behalf of
CAPITAL RESEARCH AND MANAGEMENT COMPANY
by its authorised signatory
in the presence of:
|
/s/ Michael J. Downer
|
|
Authorised Signatory (Signature)
|
||
Michael J. Downer, SVP and Secretary
|
||
/s/ Walt R. Burkley
|
Print name
|
|
Witness (Signature)
|
||
Walt R. Burkley
|
||
Print name
|
||
c/o 333 S. Hope Street, Los Angeles, CA 90071
|
||
Print address
|
WLR RECOVERY ASSOCIATES IV LLC, on its behalf an on behalf of WLR Recovery Fund IV, L.P.
|
|||
By:
|
WL Ross Group, L.P., its managing member
|
||
By:
|
El Vedado LLC, its general partner
|
||
By:
|
/s/ Michael J. Gibbons
|
||
Name: Michael J. Gibbons
|
|||
Title: Manager
|
|||
INVESCO WLR IV ASSOCIATES LLC, on its behalf and on behalf of WLR IV Parallel ESC, L.P.
|
|||
By:
|
INVESCO Private Capital Inc., its managing member
|
||
By:
|
/s/ Benjamin Gruder | ||
Name:
|
Benjamin Gruder | ||
Title:
|
Assistant Secretary |